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EXHIBIT 4.1
[EXECUTION COPY]
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CREDIT AGREEMENT
Dated as of September 29, 2000
among
DUCOMMUN INCORPORATED,
a Delaware corporation,
as Borrower,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK,
as Syndication Agent
and
BANK OF AMERICA, N.A.
as Administrative Agent.
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS ......................................... 1
1.1 Defined Terms ............................................................ 1
1.2 Use of Defined Terms ..................................................... 20
1.3 Accounting Terms ......................................................... 20
1.4 Exhibits and Schedules ................................................... 20
1.5 "References to "Borrower and/or its Subsidiaries" ........................ 21
ARTICLE 2. LOANS AND LETTERS OF CREDIT .............................................. 22
2.1 Loans-General ............................................................ 22
2.2 Base Rate Loans .......................................................... 23
2.3 LIBOR Loans .............................................................. 23
2.4 Letters of Credit ........................................................ 24
2.5 Swing Line ............................................................... 27
2.6 Voluntary Reduction of Commitments ....................................... 28
2.7 Mandatory Reductions of the Aggregate Commitments ........................ 28
2.8 Administrative Agent's Right to Assume Funds Available for Advances ...... 29
2.9 Senior Indebtedness ...................................................... 29
ARTICLE 3. PAYMENTS AND FEES ........................................................ 30
3.1 Principal and Interest ................................................... 30
3.2 Lead Arranger's Fees ..................................................... 31
3.3 Upfront Fees ............................................................. 31
3.4 Non-Use Fee .............................................................. 31
3.5 Letter of Credit Fees .................................................... 31
3.6 Administrative Fees ..................................................... 32
3.7 Increased Commitment Costs ............................................... 32
3.8 LIBOR Costs and Related Matters .......................................... 32
3.9 Default Rate ............................................................. 35
3.10 Computation of Interest and Fees ......................................... 36
3.11 Non-Business Days ........................................................ 36
3.12 Manner and Treatment of Payments ......................................... 36
3.13 Funding Sources .......................................................... 37
3.14 Failure to Charge Not Subsequent Waiver .................................. 37
3.15 Administrative Agent's Right to Assume Payments Will be Made by Borrower . 38
3.16 Fee Determination Detail ................................................. 38
3.17 Survivability ............................................................ 38
ARTICLE 4. REPRESENTATIONS AND WARRANTIES ........................................... 39
4.1 Existence and Qualification; Power; Compliance With Laws ................. 39
4.2 Authority; Compliance With Other Agreements and Instruments and Government
Regulations .............................................................. 39
4.3 No Governmental Approvals Required ....................................... 40
4.4 Subsidiaries ............................................................. 40
4.5 Financial Statements ..................................................... 41
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4.6 No Other Liabilities; No Material Adverse Effect ......................... 41
4.7 Title to and Location of Property ........................................ 41
4.8 Intangible Assets ........................................................ 41
4.9 Public Utility Holding Company Act ....................................... 41
4.10 Litigation ............................................................... 41
4.11 Binding Obligations ...................................................... 42
4.12 No Default ............................................................... 42
4.13 ERISA Plans .............................................................. 42
4.14 Regulations T, U and X; Investment Company Act ........................... 42
4.15 Disclosure ............................................................... 42
4.16 Tax Liability ............................................................ 43
4.17 Employee Matters ......................................................... 43
4.18 Environmental Matters .................................................... 43
4.19 Projections .............................................................. 44
ARTICLE 5. AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS) .................................................. 45
5.1 Payment of Taxes and Other Potential Liens ............................... 45
5.2 Preservation of Existence ................................................ 45
5.3 Maintenance of Properties ................................................ 45
5.4 Maintenance of Insurance ................................................. 45
5.5 Compliance With Laws ..................................................... 45
5.6 [RESERVED] ............................................................... 46
5.7 Keeping of Records and Books of Account .................................. 46
5.8 Compliance With Agreements, Duties and Obligations ....................... 46
5.9 Use of Proceeds .......................................................... 46
5.10 Subsidiary Guaranty ...................................................... 46
5.11 [RESERVED] ............................................................... 46
5.12 Inspection Rights ........................................................ 46
5.13 Interest Rate Protection Agreement ....................................... 46
ARTICLE 6. NEGATIVE COVENANTS ....................................................... 48
6.1 Disposition of Property .................................................. 48
6.2 Mergers .................................................................. 48
6.3 Distributions ............................................................ 48
6.4 Hostile Tender Offers .................................................... 48
6.5 ERISA .................................................................... 48
6.6 Change in Nature of Business ............................................. 49
6.7 Liens, Negative Pledges and Rights of Others ............................. 49
6.8 Indebtedness and Contingent Obligations .................................. 49
6.9 Transactions with Affiliates ............................................. 50
6.10 Change in Fiscal Year .................................................... 50
6.11 Payment or Prepayment of Subordinated Obligations ........................ 50
6.12 Leverage Ratio ........................................................... 50
6.13 Minimum EBITDA ........................................................... 50
6.14 Interest Coverage Ratio .................................................. 51
6.15 Net Worth ................................................................ 51
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6.16 Capital Expenditures ..................................................... 51
6.17 Acquisitions and Investments ............................................. 51
ARTICLE 7. INFORMATION AND REPORTING REQUIREMENTS ................................... 53
7.1 Financial and Business Information ....................................... 53
7.2 Compliance Certificates .................................................. 55
ARTICLE 8. CONDITIONS ............................................................... 56
8.1 Closing Conditions ....................................................... 56
8.2 Any Increasing Loan, Etc. ................................................ 57
ARTICLE 9. EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT ..................... 58
9.1 Events of Default ........................................................ 58
9.2 Remedies Upon Event of Default ........................................... 60
ARTICLE 10. THE ADMINISTRATIVE AGENT ................................................. 63
10.1 Appointment and Authorization ............................................ 63
10.2 Administrative Agent and Affiliates ...................................... 63
10.3 Proportionate Interest in any Collateral ................................. 63
10.4 Creditors' Credit Decisions .............................................. 63
10.5 Action by Administrative Agent ........................................... 64
10.6 Liability of Administrative Agent ........................................ 64
10.7 Indemnification .......................................................... 65
10.8 Successor Administrative Agent ........................................... 66
10.9 No Obligations of Borrower ............................................... 66
ARTICLE 11. MISCELLANEOUS ............................................................ 68
11.1 Cumulative Remedies; No Waiver ........................................... 68
11.2 Amendments; Consents ..................................................... 68
11.3 Costs, Expenses and Taxes ................................................ 68
11.4 Nature of Lenders' Obligations ........................................... 69
11.5 Survival of Representations and Warranties ............................... 69
11.6 Notices .................................................................. 70
11.7 Execution of Credit Documents ............................................ 70
11.8 Binding Effect; Assignment ............................................... 70
11.9 Right of Setoff .......................................................... 73
11.10 Sharing of Setoffs ...................................................... 73
11.11 Indemnity by Borrower ................................................... 73
11.12 Nonliability of the Lenders ............................................. 74
11.13 Nonliability of Responsible Official .................................... 75
11.15 Confidentiality ......................................................... 75
11.16 Further Assurances ...................................................... 76
11.17 Governing Law ........................................................... 76
11.18 Severability of Provisions .............................................. 76
11.19 Headings ................................................................ 76
11.20 Time of the Essence ..................................................... 76
11.21 Foreign Lenders and Participants ........................................ 76
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11.22 Integration ............................................................. 77
11.23 Hazardous Material Indemnity ............................................ 77
11.24 Waiver of Right to Trial by Jury ........................................ 78
11.25 Purported Oral Amendments ............................................... 78
11.26 Removal of a Lender ..................................................... 78
Exhibits
A - Assignment Agreement
B - Compliance Certificate
C - Form of Note
D - Request for Loan
E - Request for Redesignation of Loan
F - Request for Letter of Credit
Schedules
4.4 Subsidiaries
4.7 Real Property Interests
4.10 Litigation
4.18 Environmental Matters
6.7 Liens and Rights of Others
6.8 Existing Indebtedness
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CREDIT AGREEMENT
Dated as of _______ , 2000
This CREDIT AGREEMENT ("Agreement") is entered into by and among
Xxxxxxxx Incorporated, a Delaware corporation, as Borrower, the lenders named on
the signature pages hereof and each lender which hereafter may become a party to
this Agreement pursuant to Section 11.8 (each a "Lender" and collectively,
"Lenders"), First Union National Bank, as Syndication Agent, and Bank of
America, N. A., as a Lender, as Issuing Lender, and as Administrative Agent.
While not a party hereto, Banc of America Securities LLC (the "Lead Arranger")
has acted as lead arranger and sole book manager of the credit facilities
provided herein. From time to time following the execution hereof, additional
Lenders may become parties hereto in the manner contemplated by Section 11.8.
WHEREFORE, 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 meanings set forth respectively after each:
"Acquired EBITDA" means, for any fiscal period and for any
Person or assets acquired by Borrower and its Subsidiaries following the
Closing Date, the sum of (a) net income of that Person (or attributable
to those assets) for that period, plus (b) any extraordinary loss
reflected in such net income, minus (c) any extraordinary gain reflected
in such net income, plus (d) interest expense of that Person (or
attributable to those assets) for that period, plus (e) the aggregate
amount of federal and state taxes on or measured by income of that
Person (or related to such assets) for that period (whether or not
payable during that period), plus (f) related depreciation, amortization
and all other non-cash expenses for that period, plus (g) nonrecurring
compensation paid to the owners of that Person or assets, in each case
determined in accordance with GAAP, consistently applied
"Acquisition" means any transaction, or any series of related
transactions, by which Borrower and/or any of its Subsidiaries directly
or indirectly (i) acquires any going business or all or substantially
all of the assets of any firm, partnership, joint venture, limited
liability company, corporation or division thereof, whether through
purchase of assets, merger or otherwise, or (ii) acquires (in one
transaction or as the most recent transaction in a series of
transactions) control of at least a majority in ordinary voting power of
the securities of a corporation which have ordinary voting power for the
election of directors, or (iii) acquires control of greater than 50%
ownership interest in any partnership, limited liability company or
joint venture.
"Acquisition Documents" means the acquisition agreement, merger
agreement, purchase agreement or other material contracts and agreements
governing each Permitted Acquisition.
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"Adjusted EBITDA" means, for any period, EBITDA for that period
after adjustment to (a) include, on a pro forma basis (but without
duplication) the Acquired EBITDA associated with each Person or assets
which are the subject of a Permitted Acquisition during the relevant
period or after that period through the date of determination, but only
to the extent that audited financial statements, or other financial
statements reasonably acceptable to the Administrative Agent, are
available for that Person or the relevant assets and for the relevant
period, and (b) to exclude on a pro forma basis (but without
duplication) that portion of EBITDA for such period which is
attributable to any Disposition by Borrower or its Subsidiaries during
the relevant period or after that period through the date of
determination.
"Administrative Agent" means Bank of America, when acting in its
capacity as the Administrative Agent under any of the Credit 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 Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender to
Borrower as provided in Article 2, and includes each Base Rate Advance
and each LIBOR 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
its correlative meanings, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any Person that
owns, directly or indirectly, 50% or more of the securities having
ordinary voting power for the election of directors or other governing
body of a corporation (other than securities having such power only by
reason of the happening of a contingency), or 50% or more of the
partnership or other ownership interests of any other Person (other than
as a limited partner of such other Person), will be deemed to control
such corporation or other Person.
"Aggregate Commitments" means $100,000,000 or such lesser amount
to which the Commitments of the Lenders hereunder may be reduced in
accordance with Sections 2.6 or 2.7.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit, the sum of (a)
the aggregate effective face amounts of all outstanding Letters of
Credit plus (b) the aggregate amounts paid by the Issuing Lender under
Letters of Credit not then reimbursed to the Issuing Lender by Borrower
pursuant to Section 2.4(d) and not then the subject of Advances made
pursuant to Section 2.4(e).
"Agreement" means this Credit Agreement, either as originally
executed or as it may from time to time be further supplemented,
modified, amended, restated or extended.
"Assignment Agreement" means an Assignment Agreement
substantially in the form of Exhibit A.
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"Bank of America" means Bank of America, N.A., its successors
and assigns.
"Base Rate" means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time
to time by Bank of America as its "prime rate." Such rate is a rate set
by Bank of America based upon various factors including Bank of
America's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of
such change.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"Base Rate Spread" means, during each Pricing Period, the rate
set forth below opposite the Leverage Ratio in effect as of the last day
of the Fiscal Quarter ending approximately two months prior to the first
day of that Pricing Period (or, in the case of any Pricing Period
commencing on the date of any Material Permitted Acquisition, the Pro
Forma Leverage Ratio in effect on the date thereof):
Leverage Ratio Base Rate Spread
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Less than or equal to 1.50:1.00 0.0 bps
Greater than 1.50:1.00 but less 25.0 bps
than or equal to 2.00:1.00
Greater than 2.00:1.00 but less 50.0 bps
than or equal to 2.50:1.00
Greater than 2.50:1.00 75.0 bps
"Borrower" means Ducommun Incorporated, a Delaware corporation.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday on which the Administrative Agent is open for business at its
address for notice designated as provided herein.
"Capital Expenditure" means any expenditure (including any
capitalized lease expenditure) that is considered a capital expenditure
under GAAP, consistently applied, including, without limitation, any
amount that is required to be treated as a capitalized asset pursuant to
Financial Accounting Standards Board Statement No. 13.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with GAAP, should be classified as a capital lease.
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"Cash" means, when used in connection with any Person, all
monetary and non-monetary items belonging to such Person that are
treated as cash in accordance with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any
Person, such Person's Investments in:
(a) Government Securities due within one year after the date of
the making of the Investment;
(b) certificates of deposit issued by, Lender deposits in,
bankers' acceptances of, and repurchase agreements covering Government
Securities executed by, any Lender or other Lender doing business in and
incorporated under the Laws of the United States of America or any state
thereof and having on the date of such Investment combined capital,
surplus and undivided profits of at least $500,000,000, in each case due
within one year after the date of the Investment; and/or
(c) readily marketable commercial paper of corporations doing
business in and incorporated under the Laws of the United States of
America or any state thereof given on the date of such Investment the
highest credit rating by NCO/Moody's Commercial Paper Division of
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Group, in
each case due within six months after the date of the making of the
Investment.
"Certificate of a Responsible Official" means a certificate
signed by a Responsible Official of the Person providing the
certificate.
"Closing Date" means the time and date upon which each of the
conditions precedent specified in Section 8.1 are fulfilled.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to each Lender, the amount set forth in
such Lender's Note, as such amount may be reduced from time to time
pursuant to Sections 2.6 or 2.7.
"Compliance Certificate" means a certificate in the form of
Exhibit B, properly completed and signed by the Chief Financial Officer
of Borrower.
"Contingent Obligation" means, as to any Person, any (a) direct
or indirect guarantee of Indebtedness of, or other obligation
performable by, any other Person, including any endorsement (other than
for collection or deposit in the ordinary course of business), co-making
or sale with recourse of the obligations of any other Person or (b)
assurance given to an obligee with respect to the performance of an
obligation by, or the financial condition of, any other Person, whether
direct, indirect or contingent, including any purchase or repurchase
agreement covering such obligation or any collateral security therefor,
any agreement to provide funds (by means of loans, capital contributions
or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item to such other Person, or any
"keep-well", "take-or-pay", "through put" or other arrangement of
whatever nature having the
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effect of assuring or holding harmless any obligee against loss with
respect to any obligation of such other Person. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation (unless
the Contingent Obligation is limited by its terms to a lesser amount, in
which case to the extent of such amount) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Person in good faith.
"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.
"Credit Documents" means, collectively, this Agreement, the
Notes, the Guaranty, the Letters of Credit, each Swap Agreement entered
into with any Lender hereunder with respect to Indebtedness in an amount
which does not exceed the amount of the Obligations, and any other
certificates, documents or agreements of any type or nature heretofore
or hereafter executed or delivered by Borrower and/or any one or more of
its Subsidiaries or Affiliates to the Administrative Agent and/or 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 or extended.
"Creditors" means, collectively, the Administrative Agent, the
Issuing Lender, the Swing Line Lender, the Lenders and the Lead
Arranger.
"Default" means any Event of Default and/or any event that, with
the giving of notice or passage of time or both, would be an Event of
Default.
"Default Rate" means the interest rate prescribed in Section
3.9.
"Designated Deposit Account" means a deposit account to be
maintained by Borrower at the Administrative Agent's Office, as from
time to time designated by Borrower by written notification to
Administrative Agent.
"Designated Eurodollar Market" means, with respect to any LIBOR
Loan, (a) the London Eurodollar Market, (b) if prime banks in the London
Eurodollar Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good faith that the
London Eurodollar Market does not represent at the relevant time the
effective pricing to the Lenders for deposits of Dollars in the London
Eurodollar Market, the Cayman Islands Eurodollar Market or (c) if prime
banks in the Cayman Islands Eurodollar Market are at the relevant time
not accepting deposits of Dollars or if the Administrative Agent
determines in good faith that the Cayman Islands Eurodollar Market does
not represent at the relevant time the effective pricing to the Lenders
for deposits of Dollars in the Cayman Islands Eurodollar Market, such
other Eurodollar Market as may from time to time be selected by the
Administrative Agent with the approval of Borrower and the Required
Lenders.
"Disposition" means the sale, transfer or other disposition in
any single transaction or series of related transactions of (i) any
Subsidiary of Borrower, (ii) all or substantially all of the assets of
any Subsidiary of Borrower, (iii) all or substantially all of the assets
of a division or
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comparable business segment of Borrower, or (iv) any other asset, or
group of related assets, of Borrower or any of its Subsidiaries that has
or have at the date of the Disposition a book value or fair market value
of $1,000,000 or more, other than inventory sold, returned to vendors or
otherwise disposed of in the ordinary course of business, and other than
any such sale, transfer or other disposition for which the proceeds
thereof are reinvested in Borrower or any Subsidiary or the replacement
of assets of Borrower or any Subsidiary.
"Distribution" means, with respect to shares of capital stock or
any warrant or option to purchase an equity security or other equity
security issued by a Person, (i) the retirement, redemption, purchase,
or other acquisition for Cash or for Property by such Person of any such
security, (ii) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Property (excluding dividends
payable solely in shares of capital stock of Borrower) on or with
respect to any such security, (iii) any Investment by such Person in the
holder of 5% or more of any such security if a purpose of such
Investment is to avoid characterization of the transaction as a
Distribution, and (iv) any other payment in Cash or Property by such
Person constituting a distribution under applicable Laws with respect to
such security.
"Dollars" or "$" means United States dollars.
"EBITDA" means, for any fiscal period, the sum of (a) Net Income
for that period, plus (b) any extraordinary loss reflected in such Net
Income, minus (c) any extraordinary gain reflected in such Net Income,
plus (d) Interest Expense for that period, plus (e) the aggregate amount
of federal and state taxes on or measured by income of Borrower and its
Subsidiaries for that period (whether or not payable during that
period), plus (f) depreciation, amortization and all other non-cash
expenses for that period, in each case 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 a combined capital and surplus of $500,000,000 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 a net worth of $500,000,000 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 $250,000,000 or more
which meets the requirements set forth in subclauses (B) and (C) of
clause (d) above; provided that each Eligible Assignee must either (a)
be organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (b) 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 11.20.
"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.
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"ERISA Affiliate" means, with respect to any Person, any other
Person (or any trade or business, whether or not incorporated) that is
under common control with that Person within the meaning of Section 414
of the Code.
"Eurodollar Rate" means for any Interest Period with respect to
any LIBOR Loan:
(a) the rate per annum equal to the rate determined by
the Administrative Agent to be the offered rate that appears on
the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays
an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by
the Administrative Agent as the rate of interest (rounded upward
to the next 1/100th of 1%) at which deposits in Dollars for
delivery on the first day of such Interest Period in same day
funds in the approximate amount of the LIBOR Loan being made,
continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore Dollar
market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period.
"Event of Default" shall have the meaning provided in Section
9.1.
"Existing Credit Agreement" means the Fifth Amended and Restated
Loan Agreement dated as of June 23, 1997 between Borrower and Bank of
America, as amended.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
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"Fiscal Quarter" means the fiscal quarter of Borrower consisting
of an approximately 13 week period ending on or about each March 31,
June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower consisting of a
twelve-month period ending on each December 31.
"GAAP" means accounting principles, as in effect on the Closing
Date, as (a) set forth as generally accepted in the currently effective
Opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (b) set forth as generally accepted in the
currently effective Statements of the Financial Accounting Standards
Board or (c) that are 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 direct
obligations of the United States of America or obligations fully
guarantied by 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, administrative tribunal or public utility.
"Guaranty" means the Continuing Guaranty dated as of the Closing
Date executed and delivered by the Subsidiaries of Borrower to the
Administrative Agent for the benefit of the Creditors, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"Hazardous Materials" means substances regulated as hazardous
substances pursuant to (a) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as hazardous or toxic wastes or pollutants 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 (b) any other Law regulating hazardous substances or hazardous or
toxic wastes or pollutants or regulating the generation, use, storage,
treatment, handling or transportation of any such substances, in each
case as such Laws are amended from time to time.
"Hazardous Materials Laws" means all federal, state or local
laws, ordinances, rules or regulations governing the disposal, transfer,
generation, storage or treatment of Hazardous Materials applicable to
any real Property now or hereafter owned, leased or operated by Borrower
or any of its Subsidiaries.
"Indebtedness" means, as to any Person, (a) all indebtedness of
such Person for borrowed money, (b) all Capital Lease Obligations of
that Person, (c) any obligation of such Person that is evidenced by a
promissory note or other instrument representing an extension of credit
to such Person, whether or not for borrowed money, (d) any obligation of
such Person for the deferred purchase price of Property or services
(other than trade or other accounts payable
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in the ordinary course of business in accordance with customary industry
terms), (e) any obligation of such Person that is secured by a Lien on
assets of such Person, whether or not such obligation is non-recourse to
the credit of such Person, but only to the extent of the fair market
value of the assets so subject to the Lien, (f) obligations of such
Person arising under acceptance facilities or under facilities for the
discount of accounts receivable of such Person, (g) any direct or
contingent obligations of such Person under Letters of Credit issued for
the account of such Person and (h) the net amount of any obligations of
such Person under a swap agreement or similar interest rate protection
arrangement.
"Intangible Assets" means assets that are considered intangible
assets under GAAP, consistently applied, including, without limitation,
goodwill, organization expense, patents, trademarks, trade names,
copyrights and other intangible Property.
"Interest Coverage Ratio" means, as of each date of
determination, the ratio of (a) EBITDA for the four Fiscal Quarters
ending on that date, to (b) Interest Expense for the same period.
"Interest Differential" means, with respect to any prepayment of
a LIBOR Loan on a day other than the last day of the applicable Interest
Period and with respect to any failure to borrow a LIBOR Loan on the
date or in the amount specified in any Request for Loan, (a) the per
annum interest rate payable (or, with respect to a failure to borrow,
the interest rate which would have been payable) pursuant to Section
3.1(c) with respect to the LIBOR Loan minus (b) the LIBOR on, or as near
as practicable to, the date of the prepayment or failure to borrow for a
LIBOR Loan with an Interest Period commencing on such date and ending on
the last day of the Interest Period of the LIBOR Loan so prepaid or
which would have been borrowed on such date.
"Interest Expense" means, for any fiscal period and for any
Person, the consolidated interest expense of that Person and its
Subsidiaries for that period (including all payments with respect to
Capital Leases Obligations which, in accordance with GAAP should be
treated as or is imputed to be interest) minus the consolidated interest
income of that Person and its Subsidiaries for that period.
"Interest Period" means, as to each LIBOR Loan, the period
commencing on the date specified by Borrower pursuant to Section 2.1(b)
and ending 7 days or one, two, three or six months thereafter, as
specified by Borrower in the applicable Request for Loan; provided that:
(a) The first day of any Interest Period shall be a LIBOR
Business Day;
(b) Any Interest Period that would otherwise end on a day that
is not a LIBOR Business Day shall be extended to the next
succeeding LIBOR Business Day unless such LIBOR Business Day
falls in another calendar month, in which case such Interest
Period shall end on the next preceding LIBOR Business Day;
(c) Borrower may not specify an Interest Period that extends
beyond any Reduction Date unless the sum of (i) the aggregate
principal amount of the LIBOR Loans having a Interest Period
ending after such Reduction Date plus (ii) the aggregate
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maximum amount available for drawing under Letters of Credit for
which the expiry date is after such Reduction Date, does not
exceed the Aggregate Commitments (after giving effect to any
reduction thereto scheduled to be made on such Reduction Date
pursuant to Section 2.7); and
(d) No Interest Period shall extend beyond the Maturity Date.
"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 or by means of loan, advance,
capital contribution, guaranty or other debt or equity participation or
interest in any other Person, or otherwise, and includes, without
limitation, any partnership and joint venture interests of such Person.
"Issuing Lender" means Bank of America.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents.
"Lead Arranger" means Banc of America Securities LLC.
"Letter of Credit" means commercial or standby letter of credit
issued by Issuing Lender pursuant to Section 2.4, in the standard form
of Issuing Lender for such letter of credit, either as originally issued
or as the same may from time to time be supplemented, modified, amended,
renewed or extended.
"Leverage Ratio" means, as of each date of determination, the
ratio of (a) Total Funded Debt as of such date, to (b) Adjusted EBITDA
for the twelve month period ending on that date.
"LIBOR" means, with respect to any LIBOR Loan, an interest rate
per annum (rounded upward, if necessary, to the nearest 1/100 of one
percent) determined pursuant to the following formula:
LIBOR = Eurodollar Rate
--------------------------
1.00 - Reserve Percentage
"LIBOR Advance" means an Advance made hereunder and specified to
be a LIBOR Advance in accordance with Article 2.
"LIBOR Business Day" means any Business Day on which dealings in
Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"LIBOR Loan" means a Loan made hereunder and specified to be a
LIBOR Loan in accordance with Article 2.
"LIBOR Office" means, as to each Lender, its office or branch so
designated by written notice the Administrative Agent as its LIBOR
Office. If no LIBOR Office is designated by a Lender, its LIBOR Office
shall be its office at its address for purposes of notices hereunder.
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"LIBOR Spread" means, during each Pricing Period, the rate set
forth below opposite the Leverage Ratio in effect as of the last day of
the Fiscal Quarter ending approximately two months prior to the first
day of that Pricing Period (or, in the case of any Pricing Period
commencing on the date of any Material Permitted Acquisition, the Pro
Forma Leverage Ratio in effect on the date thereof):
Leverage Ratio LIBOR Spread
-------------- ------------
Less than or equal to 1.50:1.00 125.0 bps
Greater than 1.50:1.00 but less 150.0 bps
than or equal to 2.00:1.00
Greater than 2.00:1.00 but less 175.0 bps
than or equal to 2.50:1.00
Greater than 2.50:1.00 200.0 bps
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, lien or charge of any kind, whether
voluntarily incurred or arising by operation of Law or otherwise,
affecting any Property, including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and/or the filing of or agreement to give
any financing statement under the Uniform Commercial Code or comparable
Law of any jurisdiction.
"Loans" means the aggregate of the Advances made at any one time
by the Lenders pursuant to Article 2.
"Material Adverse Effect" means any set of circumstances or
events which (a) has or may reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of any
Credit Document, (b) is or may reasonably be expected to be material and
adverse to the condition (financial or otherwise), business operations
or prospects of Borrower and its Subsidiaries, taken as a whole, or (c)
materially impairs or may reasonably be expected to materially impair
the ability of Borrower and its Subsidiaries, taken as a whole, to
perform the Obligations.
"Material Permitted Acquisition" means each Permitted
Acquisition involving a consideration to be paid by Borrower and/or its
Subsidiaries which is in excess of $5,000,000 (including any
consideration paid through the issuance of equity securities in
Borrower, earn-outs, assumed Indebtedness and other contractual
arrangements which constitute consideration).
"Maturity Date" means September 30, 2005.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contribute or are obligated to contribute.
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"Negative Pledge" means a Contractual Obligation that contains a
covenant binding on Borrower or any of its Subsidiaries that prohibits
Liens on any of its or their Property, other than any such covenant
contained in a Contractual Obligation granting a Lien permitted
hereunder which affects only the Property that is the subject of such
permitted Lien.
"Net Cash Proceeds" means:
(a) with respect to any Disposition consisting of the sale of
assets of Borrower or any of its Subsidiaries (including by way of the
sale of the equity securities of any such Subsidiaries), the aggregate
cash proceeds (including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment payments or
otherwise, but only as and when received) received by Borrower and its
Subsidiaries pursuant to such Disposition, net of (i) the direct costs
relating to such Disposition (including sales commission and any legal,
accounting and investment banking fees), (ii) taxes paid or reasonably
estimated by Borrower to be payable as a result thereof (after taking
into account any available tax credits or deductions and any tax sharing
arrangements) and (iii) any amounts required to be applied to the
repayment of any Indebtedness secured by a Lien on the assets subject to
such Disposition (other than the Obligations); and
(b) with respect to any Disposition consisting of the issuance
by Borrower or its Subsidiaries of Indebtedness, the aggregate cash
proceeds received pursuant to such issuance net of the direct costs
relating thereto (net of up-front fees and placement fees and any legal,
accounting and investment banking fees).
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for that
period, determined in accordance with GAAP, consistently applied.
"Net Worth" means, as of each date of determination the
consolidated net worth of Borrower and its Subsidiaries for that period,
determined in accordance with GAAP, consistently applied.
"Non-Use Fee Rate" means, during each Pricing Period, the rate
set forth below opposite the Leverage Ratio in effect as of the last day
of the Fiscal Quarter ending approximately two months prior to the first
day of that Pricing Period (or, in the case of any Pricing Period
commencing on the date of any Material Permitted Acquisition, the Pro
Forma Leverage Ratio in effect on the date thereof):
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Leverage Ratio Non-Use Rate
-------------- ------------
Less than or equal to 1.50:1.00 25.0 bps
Greater than 1.50:1.00 but less 30.0 bps
than or equal to 2.00:1.00
Greater than 2.00:1.00 but less 35.0 bps
than or equal to 2.50:1.00
Greater than 2.50:1.00 40.0 bps
"Note" means any of the promissory notes made by Borrower to a
Lender evidencing such Lender's 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/or future obligations of
every kind or nature of Borrower or any Party at any time and/or from
time to time owed to the Administrative Agent or any Lender under any
one or more of the Credit 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 Bankruptcy or insolvency proceeding by or against
Borrower or any Subsidiary or Affiliate of Borrower.
"Obligor" means, collectively, Borrower and each Guarantor.
"Outstanding Obligations" means, as of each date of
determination, and giving effect to the making of any such credit
accommodations requested on that date, the sum of (i) the aggregate
principal amount of the outstanding Loans, plus (ii) the Swing Line
Outstandings, plus (iii) the Aggregate Effective Amount of all Letters
of Credit.
"Party" means any Person (including Borrower and/or any
Subsidiaries or Affiliates of Borrower), other than the Administrative
Agent and any Lender, which now or hereafter is a party to any of the
Credit Documents.
"Permitted Acquisition" means each Acquisition as to which each
of the following conditions precedent have been met:
(a) the Person or assets acquired shall be in the same
or a similar line of business as Borrower and its Subsidiaries;
(b) The Acquisition does not violate Section 6.4;
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(c) Borrower shall have delivered to the Administrative
Agent and the Lenders, not later than 30 days prior to the
consummation of the Acquisition, written notice of such
Acquisition;
(d) Giving effect to the making of the Acquisition, the
Pro Forma Leverage Ratio shall not exceed the ratio permitted by
Section 6.12 as of the next succeeding Fiscal Quarter minus
0.25:1.00 (demonstrated in a certificate of Borrower delivered
to the Administrative Agent in form and substance acceptable
thereto);
(e) As to each Acquisition, the Borrower shall have
delivered a Certificate to the effect that, giving effect
thereto, no Default or Event of Default exists;
(f) As to each Acquisition, giving effect to the payment
of the consideration therefor, the amount of the Loans available
to Borrower hereunder shall be not less than the greater of (x)
6% of the combined pro forma revenues of Borrower and the
acquired Person or assets for the then most recent 12 month
period, or (y) $10,000,000;
(g) For each Material Permitted Acquisition, not less
than 15 days prior to the consummation of such Acquisition,
Borrower shall have delivered to the Administrative Agent and
the Lenders pro forma balance sheets and projections for the
forthcoming fiscal year end and a pro forma Compliance
Certificate demonstrating that, to the reasonable satisfaction
of the Administrative Agent, giving effect to such Acquisition,
Borrower shall remain in pro forma compliance with the covenants
set forth in Section 6.12, 6.13, 6.14 and 6.15 as of the last
day of each of the four immediately succeeding Fiscal Quarters;
(h) As to each Material Permitted Acquisition, Target
EBITDA of the Person or assets to be acquired for the then most
recent twelve month period shall be positive in amount
(demonstrated in a certificate of Borrower delivered to the
Administrative Agent in form and substance acceptable thereto);
and
(i) As to each Acquisition for a consideration in excess
of $30,000,000 (other than consideration in the form of equity
securities of Borrower, earn-outs, assumed Indebtedness and
other contractual arrangements which constitute consideration),
the Required Lenders have approved such Acquisition in their
reasonable business discretion as lenders in credit facilities
of the type evidenced by this Agreement (which approval or
nonapproval shall be given within fifteen (15) days after
Borrower has submitted to the Administrative Agent the
information set forth above).
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction or
maintenance of real property, or Liens incident to construction
or maintenance of real property, now or hereafter filed of
record for which adequate accounting reserves have been set
aside and which are being contested in good faith by appropriate
proceedings and have not
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proceeded to judgment (or, if a judgment has been rendered are
the subject of an appropriate bond), provided that, by reason of
nonpayment of the obligations secured by such Liens, no such
real property is subject to a material risk of loss or
forfeiture;
(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, (or, if a judgment has been
rendered are the subject of an appropriate bond) provided that,
by reason of nonpayment of the obligations secured by such
Liens, no such Property is subject to a material risk of loss or
forfeiture;
(c) minor defects and irregularities in title to any
real property which in the aggregate do not materially impair
the fair market value or use of the real property for the
purposes for which it is or may reasonably be expected to be
held;
(d) easements, exceptions, reservations, or other
agreements granted or entered into after the date hereof for the
purpose of pipelines, conduits, cables, wire communication
lines, power lines and substations, streets, trails, walkways,
drainage, irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or other
minerals, and other like purposes affecting real property which
in the aggregate do not materially burden or impair the fair
market value or use of such real property for the purposes for
which it is or may reasonably be expected to be held;
(e) rights reserved to or vested in any Governmental
Agency by Law to control or regulate, or obligations or duties
under Law to any Governmental Agency with respect to, the use of
any real property;
(f) rights reserved to or vested in any Governmental
Agency by Law to control or regulate, or obligations or duties
under Law to any Governmental Agency with respect to, any right,
power, franchise, grant, license, or permit;
(g) present or future zoning laws and ordinances or
other laws and ordinances restricting the occupancy, use, or
enjoyment of real property;
(h) 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 by appropriate proceedings,
provided that, if delinquent, adequate reserves have been set
aside with respect thereto and, by reason of nonpayment, no
Property is subject to a material risk of loss or forfeiture;
(i) Liens consisting of pledges or deposits made in
connection with obligations under workers' compensation laws,
unemployment insurance or similar legislation, including Liens
of judgments thereunder which are not currently dischargeable;
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(j) Liens consisting of pledges or deposits of Property
to secure performance in connection with operating leases made
in the ordinary course of business to which the Borrower is a
party as lessee, provided the aggregate value of all such
pledges and deposits in connection with any such lease does not
at any time exceed 10% of the annual fixed rentals payable under
such lease;
(k) Liens consisting of deposits of Property to secure
statutory obligations of the Borrower in the ordinary course of
its business;
(l) Liens consisting of deposits of Property to secure
(or in lieu of) surety, appeal or customs bonds in proceedings
to which the Borrower is a party in the ordinary course of its
business not in excess of $5,000,000; and
(m) Liens created by or resulting from any litigation or
legal proceeding involving the Borrower in the ordinary course
of its business which is currently being contested in good faith
by appropriate proceedings, provided that adequate reserves have
been set aside with respect thereto or a bond posted as provided
by Law, and such Liens are discharged or stayed within 60 days
of creation or such Liens are being contested in good faith by
appropriate proceedings and no Property is subject to a material
risk of loss or forfeiture.
"Permitted Rights 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 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, and (c) the reversionary interest of a landlord under a
lease of Property.
"Person" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock
company, limited liability company, trust, unincorporated organization,
Lender, business association, firm, joint venture, Governmental Agency,
or otherwise.
"Plan" means any employee benefit plan subject to ERISA and
maintained by Borrower and/or any Subsidiary of Borrower or to which
Borrower and/or any Subsidiary of Borrower is required to contribute on
behalf of its employees.
"Pricing Period" means, (a) the period beginning on the Closing
Date and ending on November 30, 2000, and (b) each subsequent period of
three months that commences on the date that is two calendar months
after the last day of each Fiscal Quarter, provided in each case that
the current Pricing Period (and a new shortened Pricing Period) shall
commence on the date upon which Borrower consummates any Material
Permitted Acquisition.
"Pro Forma Leverage Ratio" means, as to each Material Permitted
Acquisition, the effective Leverage Ratio as of the date thereof, after
adjustment of the Leverage Ratio as of the then most recent Fiscal
Quarter for which a Compliance Certificate has been delivered to reflect
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(a) the additional Indebtedness incurred or assumed by Borrower and its
Subsidiaries in connection with the Material Permitted Acquisition (net
of any equity securities of Borrower issued substantially concurrently
therewith), and (b) without duplication, Acquired EBITDA for the Person
or assets so acquired for the most recent twelve month period for which
operating results of such Person or assets are then available.
"Pro Rata Share" of any amount (the "Determination Amount")
means, with respect to any Lender, the product of (a) a fraction the
numerator of which is the amount of such Lender's Commitment (or if such
Commitment shall have expired or been terminated, the amount of such
Lender's Advances) and the denominator of which is the Aggregate
Commitments or Advances, as the case may be, multiplied by (b) the
Determination Amount.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quarterly Payment Date" means each March 31, June 30, September
30 and December 31 to occur following the date of this Agreement.
"Reduction Amount" means the amount set forth in the matrix
below opposite that Reduction Date in the column headed "Reduction
Amount" or such lesser amount to which that Reduction Amount may be
reduced in accordance with the second sentence of Section 2.7:
Reduction Dates Reduction Amount
--------------- ----------------
09/30/02 $ 2,500,000
12/31/02 $ 2,500,000
03/31/03 $ 2,500,000
06/30/03 $ 2,500,000
09/30/03 $ 3,750,000
12/31/03 $ 3,750,000
03/31/04 $ 3,750,000
06/30/04 $ 3,750,000
09/30/04 $ 3,750,000
12/31/04 $ 3,750,000
03/31/05 $ 3,750,000
06/30/05 $ 3,750,000
Maturity Date $ 60,000,000
"Reduction Date" means September 30, 2002, and the last day of
each succeeding December, March, June and September through the Maturity
Date.
"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.
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"Request for Loan" means a written request for a Revolving Loan
substantially in the form of Exhibit D, signed by a Responsible Official
of Borrower and properly completed to provide all information required
to be included therein.
"Request for Letter of Credit" means a written request for the
issuance of a Letter of Credit substantially in the form of Exhibit E,
signed by a Responsible Official of Borrower and properly completed to
provide all information required to be included therein.
"Request for Redesignation" means a written request for a
redesignation of loans substantially in the form of Exhibit E, signed by
a Responsible Official of Borrower and properly completed to provide all
information required to be included therein.
"Required Lenders" means, as of each date of determination (a)
if the Commitments are then in effect, Lenders having Pro Rata Shares
constituting 66 2/3% of the Aggregate Commitments, and (b) if the
Commitments have then been terminated and there are then any Obligations
outstanding, Lenders holding 66 2/3% or more of the Outstanding
Obligations.
"Reserve Percentage" means, with respect to any LIBOR Loan, the
maximum reserve percentage (expressed as a decimal, rounded upward, if
necessary, to the nearest 1/100th of 1%) in effect on the date the LIBOR
Base Rate for that LIBOR Loan is determined (whether or not applicable
to any Lender) under regulations issued from time to time by the Federal
Reserve Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with
respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities") having a term comparable to the Interest Period for such
LIBOR Loan. The determination by the Administrative Agent of any
applicable Reserve Percentage shall be conclusive in the absence of
manifest error.
"Responsible Official" means (a) when used with reference to a
Person other than an individual, any officer of such Person, general
partner of such Person, officer of a corporate general partner of such
Person, or corporate officer of a corporate general partner of a
partnership that is a general partner of such Person, or any other
responsible official thereof duly acting on behalf thereof, and (b) when
used with reference to a Person who is an individual, such Person. Any
document or certificate hereunder that is signed or executed by a
Responsible Official of another Person shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or
other action on the part of such other Person.
"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.
"SPC" means, as to each Lender, one or more special purpose
funding vehicles maintained or established by that Lender.
"Special LIBOR Circumstance" means the application or adoption
after the Closing Date of any Law or interpretation, or any change after
the Closing Date therein or thereof, or any change after the Closing
Date in the interpretation or administration thereof by any
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Governmental Agency, central bank or comparable authority charged with
the interpretation or administration thereof, or compliance by any
Lender or its LIBOR Office with any request or directive (whether or not
having the force of Law) of any such Governmental Agency, central bank
or comparable authority issued after the Closing Date, or the existence
or occurrence after the Closing Date of circumstances affecting the
Designated Eurodollar Market generally that are beyond the reasonable
control of the Lenders.
"Standby Letter of Credit" means any Letter of Credit, other
than a Letter of Credit that is a commercial Letter of Credit, issued by
Issuing Lender pursuant to Section 2.4, in the standard form for standby
letters of credit of Issuing Lender, either as originally issued or as
the same may from time to time be supplemented, modified, amended,
renewed or extended. The determination by the Administrative Agent of
which Letters of Credit constitute "Standby Letters of Credit" shall be
determinative.
"Subordinated Obligations" means Indebtedness of Borrower which
is fully subordinated to the Obligations pursuant to written provisions
approved in writing by the Required Lenders.
"Subsidiary" means, as of any date of determination thereof and
with respect to any Person, any corporation, partnership, limited
liability company or joint venture, whether now existing or hereafter
organized or acquired: (a) in the case of a corporation, 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
owned by such Person and/or one or more Subsidiaries of such Person, or
(b) in the case of a partnership or joint venture, of which such Person
or a Subsidiary of such Person is a general partner or joint venturer or
of which a majority of the partnership or other ownership interests are
at the time owned by such Person and/or one or more of its Subsidiaries.
"Swap Agreement" means a written agreement between Borrower and
one or more financial institutions providing for "swap", "cap", "collar"
or other interest rate protection with respect to any Indebtedness.
"Swing Line" means the revolving line of credit established by
the Swing Line Lender in favor of Borrower pursuant to Section 2.5.
"Swing Line Documents" means the $5,000,000 promissory note
dated as of the Closing Date (as at any time amended) and any other
documents executed by Borrower in favor of the Swing Line Lender in
connection with the Swing Line.
"Swing Line Lender" means Bank of America.
"Swing Line Loans" means loans made by the Swing Line Lender to
Borrower pursuant to Section 2.5.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower on all
Swing Line Loans then outstanding.
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00
"Xxxxxx XXXXXX" means, with respect to each Material Permitted
Acquisition, the sum of (a) net income of the Person or assets which are
the subject of such Permitted Acquisition for the most recent twelve
month period prior to the consummation thereof, plus (b) any
extraordinary loss reflected in such net income, minus (c) any
extraordinary gain reflected in such net income, plus (d) Interest
Expense of such Person or fairly attributable to such assets for that
period, plus (e) the aggregate amount of federal and state taxes on or
measured by the income of such Person or fairly attributable to such
assets for that period (whether or not payable during that period), plus
(f) all related depreciation, amortization and all other non-cash
expenses for that period, plus (g) nonrecurring compensation paid to the
owners of such Person or assets, in each case determined in accordance
with GAAP, consistently applied.
"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 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 and consistent with Borrower's normal
business practices) should have been known by the Person (or, in the
case of a Person other than a natural Person, should have been known by
a Responsible Official of that Person).
"Total Funded Debt" means, as of each date of determination, the
sum of Borrower's consolidated (a) Indebtedness, including Capital Lease
Obligations, and (b) Contingent Obligations in respect of Indebtedness
or Capital Lease Obligations of others.
"type" means whether a Loan is a LIBOR Loan or a Base Rate Loan.
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 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, as in effect on the date hereof, except as
otherwise specifically prescribed herein. In the event that GAAP change during
the term of this Agreement such that the financial covenants contained herein
would then be calculated in a different manner or with different components,
Borrower and the Lenders agree to amend this Agreement in such respects as are
necessary to conform those covenants as criteria for evaluating Borrower's
financial condition, or limiting the aggregate Loans hereunder, to substantially
the same criteria as were effective prior to such change in GAAP. Without
limiting the foregoing, and unless otherwise expressly stated to the contrary,
all financial covenants set forth in this Agreement and all calculations
required thereby shall be applied and calculated with respect to the performance
of Borrower and its Subsidiaries on a consolidated basis.
1.4 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.
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1.5 "References to "Borrower and/or its Subsidiaries". Any reference
herein to "Borrower and/or its Subsidiaries" or the like shall refer solely to
Borrower during such times, if any, as Borrower shall have no Subsidiaries.
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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, from time to time from the Closing Date through the Maturity
Date each Lender shall, pro rata according to that Lender's Commitment,
make revolving Advances to Borrower under its Commitment in such amounts
as Borrower may request that do not result in the Outstanding
Obligations being in excess of the then applicable Aggregate
Commitments. The proceeds of the initial Advances made hereunder shall
refinance the loans heretofore made by Bank of America under the
Existing Credit Agreement. Subject to the limitations set forth herein,
Borrower may borrow, repay and reborrow under the Commitments 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, and
(iv) in the case of a LIBOR Loan, the Interest Period for such Loan.
Unless the Administrative Agent has previously notified Borrower to the
contrary (which notice may be given in the sole and absolute discretion
of the Administrative Agent), Loans may be requested by telephone by a
Responsible Official of Borrower, in which case Borrower shall confirm
such request by promptly delivering a Request for Loan in person or by
telecopier conforming to the preceding sentence to the Administrative
Agent. Neither the Administrative Agent nor any Lender shall incur any
liability whatsoever hereunder in acting upon any telephonic request for
a Loan purportedly made by a Responsible Official of Borrower, which
hereby agrees to indemnify the Administrative Agent and the Lenders from
any loss, cost, expense or liability as a result of so acting.
(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 applicable Interest Period, and that Lender's Pro
Rata Share of the Loan. Not later than 11:00 a.m. (California time) on
the date specified for any Loan (which must be a Business 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. 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 Required Lenders otherwise consent, each Loan
shall be in an amount which is an integral multiple of $100,000 which is
not less than $1,000,000.
(e) The Advances made by each Lender shall be evidenced by that
Lender's Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's receipt thereof (or, in the case of a telephonic
request for Loan referred to in the second sentence of Section 2.1(b),
upon the Administrative Agent's receipt of that telephone call).
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(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(b), if applicable) or
Request for Redesignation has been made within the requisite notice
periods set forth in Section 2.2 or 2.3 in connection with a Loan which,
if made and giving effect to the application of the proceeds thereof,
would not increase the outstanding principal Indebtedness evidenced by
the Notes, then Borrower shall be deemed to have requested, as of the
date upon which the related then outstanding Loan is due pursuant to
Section 3.1(e), a Base Rate Loan in an amount equal to the amount
necessary to cause the outstanding principal Indebtedness evidenced by
the Notes to remain the same and the Lenders shall make the Advances
necessary to make such Loan notwithstanding Sections 2.1(b) and 2.2.
(h) If a Loan is to be made on the same date that another Loan
is due and payable, Borrower or the Lenders, as the case may be, shall
at the request of the Administrative Agent make available to the
Administrative Agent the net amount of funds giving effect to both such
Loans and the effect for purposes of this Agreement shall be the same as
if separate transfers of funds had been made with respect to each such
Loan.
2.2 Base Rate Loans. Each request by Borrower for a 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(b), if applicable) or Request
for Redesignation received by the Administrative Agent, at the Administrative
Agent's Office, not later than 9:00 a.m. California local time, on the date
(which must be a Business Day) of the requested Base Rate Loan. All Loans shall
constitute Base Rate Loans unless properly designated as LIBOR Loans pursuant to
Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower for a LIBOR 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(b), if applicable) or
Request for Redesignation received by the Administrative Agent, at the
Administrative Agent's Office, not later than 11:00 a.m. (California
time) at least three LIBOR Business Days before the first day of the
applicable Interest Period.
(b) On the date which is two LIBOR Business Days before the
first day of the applicable Interest Period, the Administrative Agent
shall confirm its determination of the applicable LIBOR (which
determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to Borrower and the Lenders by
telephone or telecopier (and if by telephone, promptly confirmed by
telecopier).
(c) Unless the Administrative Agent and the Required Lenders
otherwise consent, no more than ten LIBOR Loans shall be outstanding at
any one time.
(d) No LIBOR Loan may be requested where a Default or Event of
Default has occurred and remains continuing.
(e) Nothing contained herein shall require any Lender to fund
any LIBOR Advance in the Designated Eurodollar Market.
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2.4 Letters of Credit.
(a) On the Closing Date, each letter of credit outstanding under
the Existing Credit Agreement shall be deemed to have been issued
hereunder, and each Lender shall thereupon acquire a participation
interest therein in accordance with its Pro Rata Share and the terms of
this Section. Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the Business Day
immediately prior to the Maturity Date, the Issuing Lender shall issue
such Letters of Credit under the Commitments as Borrower may request by
a Request for Letter of Credit; provided that (i) giving effect to the
face amount of all such Letters of Credit, the Outstanding Obligations
do not exceed the then applicable Aggregate Commitments, and (ii) the
Aggregate Effective Amount under all outstanding Letters of Credit shall
not exceed $5,000,000. 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, no Letter of
Credit shall have a term which exceeds one year or extends 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 two
Business Days prior to the date upon which the related Letter of Credit
is proposed to be issued. The Administrative Agent shall promptly notify
the 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, who 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 Borrower 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, pay the purchase price
for such participation to the Issuing Lender through the Administrative
Agent promptly upon demand therefor. The obligation of each Lender to so
pay the participation purchase price to 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
payment of the purchase price shall not relieve or otherwise impair the
obligation of Borrower 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) Borrower agrees 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 upon demand by the Issuing
Lender therefor, together with interest on such amount from the date of
any payment made by the Issuing Lender 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 paid the participation purchase price to the Issuing Lender pursuant
to Section 2.4(c) shall thereupon acquire a pro rata participation,
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to the extent of such payment, in the claim of the Issuing Lender
against Borrower 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 Borrower with respect to
such claim and in any interest payment made by Borrower (but only with
respect to periods subsequent to the date such Lender paid the
participation purchase price to the Issuing Lender) with respect to such
claim.
(e) Borrower 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 Borrower fails to make the payment required by Section
2.4(d) on a timely basis then, in lieu of the payment of the
participation purchase price 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 Borrower, instruct the Administrative Agent to cause Base
Rate Advances to be made by the Lenders under their respective
Commitments 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 to Advances 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,
provided that this clause (g) shall not require the payment of any
letter of credit fees except to the extent that such supplementation,
modification, amendment, renewal or extension results in an increase to
the amount of the related Letter of Credit or any extension of its
tenor.
(h) The obligation of Borrower 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 Borrower
under Uniform Commercial Code Section 5109, as in effect in the State of
California. Without limiting the foregoing, the obligations of Borrower
to the Issuing Lender shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the Letter
of Credit, this Agreement, or any other Agreement or instrument
relating thereto;
(ii) any amendment or waiver of the terms of the Letter
of Credit, or any consent to departure from the Letter of
Credit, this Agreement, or any other Agreement or instrument
relating thereto;
(iii) the existence of any claim, setoff, defense, or
other rights which Borrower may have at any time against any
Creditor, any beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary
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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 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, except to the extent that the
making of such payment has been determined by a court or
arbitrator to result from the gross negligence or wilful
misconduct of the Issuing Lender;
(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;
(x) any error in the transmission of any message
relating to a Letter of Credit, or any delay or interruption in
any such message, not caused by the Issuing Lender;
(xi) any error, neglect or default of any correspondent
of the Issuing Lender in connection with a Letter of Credit (but
without prejudice to any claim by Borrower against such
correspondent);
(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;
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(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears 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.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Article 10, mutatis
mutandis.
2.5 Swing Line. (a) Subject to the terms and conditions set forth
herein, from the Closing Date through the day prior to the Maturity Date the
Swing Line Lender may, from time to time in its discretion, make Swing Line
Loans to Borrower in such amounts as Borrower may request which do not result in
the Outstanding Obligations being in excess of the then effective Aggregate
Commitments, provided that (i) after giving effect to each Swing Line Loan, the
Swing Line Outstandings shall not exceed $5,000,000 and (ii) without the consent
of all of the Lenders, no Swing Line Loan may be made during the continuation of
an Event of Default. Borrower may borrow, repay and reborrow under this Section.
Unless notified to the contrary by the Swing Line Lender, Swing Line Loans may
be made in amounts which are integral multiples of $100,000 upon telephonic
request by a Responsible Official of Borrower made to the Administrative Agent
not later than 1:00 p.m., California local time, on the Business Day of the
requested borrowing (which telephonic request shall be promptly confirmed in
writing by telecopier), provided that if the requested Swing Line Loan is to be
credited to an account which is not with the Swing Line Lender, the request must
be submitted by 11:30 a.m., California local time. Promptly after receipt of
such a request for borrowing, the Administrative Agent shall provide telephonic
verification to the Swing Line Lender that, after giving effect to such request,
the Outstanding Obligations will not exceed the Aggregate Commitments. Each
Swing Line Loan shall bear interest at a fluctuating rate per annum equal to the
Base Rate plus the then applicable Base Rate Spread. Each change in the interest
rate under this Section 2.5(a) due to a change in the Base Rate shall take
effect simultaneously with the corresponding change in the Base Rate. Unless
notified to the contrary by the Swing Line Lender, each repayment of a Swing
Line Loan shall be in an amount which is an integral multiple of $100,000. If
Borrower instructs the Swing Line Lender to debit its demand deposit account at
the Swing Line Lender in the amount of any payment with respect to a Swing Line
Loan, or the Swing Line Lender otherwise receives repayment, after 3:00 p.m.,
California local time, on a Business Day, such payment shall be deemed received
on the next Business Day. The Swing Line Lender shall promptly notify the
Administrative Agent of the Swing Loan Outstandings each time there is a change
therein under the Swing Line.
(b) Upon the making of a Swing Line Loan in accordance with
Section 2.5(a), each Lender shall be deemed to have purchased from the Swing
Line Lender a participation therein in an amount equal to that Lender's Pro Rata
Share times the amount of the Swing Line Loan. Upon demand made by the Swing
Line Lender through the Administrative Agent, each Lender shall, according to
its Pro Rata Share, promptly provide to the Swing Line Lender its purchase price
therefor in an amount equal to its participation therein. The obligation of each
Lender to so provide its purchase price to the Swing Line Lender shall be
absolute and unconditional (subject only to the making of a demand upon that
Lender by the Swing Line Lender) and shall not be affected by the occurrence of
a Default or Event
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of Default; provided that no Lender shall be obligated to purchase its Pro Rata
Share of (i) Swing Line Loans to the extent that Swing Line Outstandings are in
excess of $5,000,000 or to the extent that the sum of the Indebtedness evidenced
by the Notes plus the Aggregate Effective Amount of all outstanding Letters of
Credit plus the Swing Line Outstandings exceeds the Aggregate Commitments (as in
effect on the date of the making of the related Swing Line Loan) and (ii) any
Swing Line Loan made (absent the consent of all of the Lenders) during the
continuation of an Event of Default. Each Lender that has provided to the Swing
Line Lender the purchase price due for its participation in Swing Line Loans
shall thereupon acquire a pro rata participation, to the extent of such payment,
in the claim of the Swing Line Lender against Borrower for principal and
interest and shall share, in accordance with that pro rata participation, in any
principal payment made by Borrower with respect to such claim and in any
interest payment made by Borrower (but only with respect to periods subsequent
to the date such Lender paid the Swing Line Lender its purchase price) with
respect to such claim.
(c) Upon any demand for payment of the Swing Line Outstandings
by the Swing Line Lender (unless Borrower has made other arrangements acceptable
to the Swing Line Lender to reduce the Swing Line Outstandings to $0), Borrower
shall request a Loan pursuant to Section 2.1(a) sufficient to repay all Swing
Line Outstandings (and, for this purpose, Section 2.1(d) shall not apply). The
Administrative Agent shall automatically provide the respective Advances made by
each Lender to the Swing Line Lender (which the Swing Line Lender shall then
apply to the Swing Line Outstandings). In the event that Borrower fails to
request a Loan within the time specified by Section 2.2 on any such date, the
Administrative Agent may, but is not required to, without notice to or the
consent of Borrower, cause Advances to be made by the Lenders under their
respective Commitments in amounts which are sufficient to reduce the Swing Line
Outstandings as required above. The conditions precedent set forth in Article 8
shall not apply to Advances to be made by the Lenders pursuant to the two
preceding sentences but the Lenders shall not be obligated to make such Advances
to the extent that the conditions set forth in Section 2.5(a)(i) and (ii) were
not satisfied as to any Swing Line Loan which is part of such Swing Line
Outstandings. The proceeds of such Advances shall be paid directly to the Swing
Line Lender for application to the Swing Line Outstandings.
2.6 Voluntary Reduction of Commitments. Borrower shall have the right,
at any time and from time to time, without penalty or charge, effective
following at least three Business Days' prior written notice by a Responsible
Official of Borrower to the Administrative Agent, voluntarily to reduce,
permanently and irrevocably, in aggregate principal amounts in an integral
multiple of $1,000,000 but not less than $5,000,000, or to terminate, all or a
portion of the then undisbursed portion of the Aggregate Commitments; provided
that the Aggregate Commitments may not be so reduced below an amount equal to
the then Outstanding Obligations. The voluntary reduction of the Aggregate
Commitments by Borrower under this Section shall have no effect upon the
requirement of mandatory reductions thereof in accordance with Section 2.7. The
Administrative Agent shall promptly notify the Lenders of any reduction or
termination of their Commitments under this Section.
2.7 Mandatory Reductions of the Aggregate Commitments. The Aggregate
Commitments shall be automatically and permanently reduced (a) on each Reduction
Date by the related Reduction Amount, (b) to the extent that the aggregate
amount of all Dispositions made pursuant to Section 6.1 is in excess of
$5,000,000, on the date which is six months following the date of any
Disposition, by the Net Cash Proceeds received by Borrower and its Subsidiaries
as the consideration therefor (net of any associated transactional expenses)
minus the amount thereof then reinvested by Borrower through permitted Capital
Expenditures or Permitted Acquisitions following the date of such Disposition
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(written notice of which shall be delivered to the Administrative Agent promptly
following such reinvestment), and (c) to the extent that such Net Cash Proceeds
of any issuances by Borrower or its Subsidiaries of Indebtedness (other than
Indebtedness permitted by Section 6.8 and Indebtedness to Borrower and its
Subsidiaries or the Lenders under and pursuant to this Agreement), concurrently
with the receipt of such Net Cash Proceeds in the amount of such Net Cash
Proceeds. Each reduction of the Aggregate Commitments pursuant to Sections (b)
and (c) shall be applied to the Reduction Amounts on then remaining Reduction
Dates ratably.
2.8 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. (California time) on the Business 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 available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower the corresponding amount. If the Administrative Agent has made funds
available to Borrower 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 Borrower who 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 Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment.
2.9 Senior Indebtedness. The Obligations shall be and hereby are
designated by Borrower as "Senior Indebtedness" and "Designated Senior
Indebtedness" with respect to all Indebtedness and other obligations of Borrower
and its Subsidiaries (to the effect that the Obligations shall be afforded all
rights afforded to the most senior class of creditors thereunder) which are
subordinated in any manner or to any extent to any other Indebtedness and other
obligations of Borrower or its Subsidiaries.
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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 Base Rate Loan through the last
Business Day of each calendar month shall be due and payable on the next
Business Day. Except as otherwise provided in Section 3.9, the unpaid
principal amount of each Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Base Rate plus the Base Rate
Spread. Each change in the interest rate under this Section 3.1(b) due
to a change in the Base Rate shall take effect simultaneously with the
corresponding change in the Base Rate.
(c) Interest accrued on each LIBOR Loan which is for a term of
three months or less shall be due and payable on the last day of the
related Interest Period. Interest accrued on each other LIBOR Loan shall
be due and payable on the date which is three months after the date such
LIBOR Loan was made and on the last day of the related Interest Period.
Except as otherwise provided in Sections 3.1(d) and 3.9, the unpaid
principal amount of any LIBOR Loan shall bear interest at a rate per
annum equal to the LIBOR for that LIBOR Loan plus the LIBOR Spread.
(d) During the existence of a Default or Event of Default, the
Required Lenders may determine that any or all then outstanding LIBOR
Loans shall be converted to Base Rate Loans. Such conversion shall be
effective upon notice to Borrower from the Required Lenders (or from the
Administrative Agent on behalf of the Required Lenders) and shall
continue so long as such Default or Event of Default continues to exist.
(e) If not sooner paid, the principal Indebtedness evidenced by
the Notes shall be payable as follows:
(i) the principal amount of each LIBOR Loan shall be
payable on the last day of the Interest Period for such Loan
(provided that such principal amount may be paid using the
proceeds of a Base Rate Loan made pursuant to Section 2.1(g));
(ii) the amount, if any, by which the Outstanding
Obligations at any time exceed the Aggregate Commitments shall
be payable immediately; and
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(iii) the principal Indebtedness evidenced by the Notes
and the Swing Line Documents shall in any event be payable on
the Maturity Date.
(f) 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
Section, (i) any partial prepayment of a LIBOR Loan shall be not less
than $500,000, (ii) the Administrative Agent shall have received written
notice of any prepayment by 10:00 a.m. on the Business Day of such
prepayment (which must be a Business Day) in the case of a Base Rate
Loan, and, in the case of a LIBOR Loan, three LIBOR Business Days before
the date of prepayment, which notice shall identify the date and amount
of the prepayment and the Loans being prepaid, (iii) each prepayment of
principal 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 LIBOR Loan on a day other than the
last day of the applicable Interest Period shall be subject to Section
3.8(d).
3.2 Lead Arranger's Fees. On the date hereof, Borrower shall pay to Lead
Arranger through the Administrative Agent certain fees in the amount heretofore
agreed upon by letter agreement between Borrower and the Lead Arranger. These
fees are for the services of the Lead Arranger in arranging the credit
facilities under this Agreement and are fully earned when paid and are
nonrefundable.
3.3 Upfront Fees. On the date hereof, Borrower shall pay to the
Administrative Agent, for the account of each Lender, upfront fees in an amount
equal to (a) that Lender's allocated Commitment times (b) a fee percentage based
upon the amount of the offered commitment of that Lender to the credit facility
described herein, as set forth in a letter agreement of even date herewith among
Borrower, the Lead Arranger and Bank of America. Such upfront fees are for the
credit facilities committed by each Lender under this Agreement and are fully
earned when paid. The upfront fees paid to each Lender are solely for its own
account and are nonrefundable.
3.4 Non-Use Fee. From the date hereof, Borrower shall pay to the
Administrative Agent, for the ratable accounts of the Lenders pro rata according
to their respective Pro Rata Shares, a commitment fee equal to the Non-Use Fee
Rate in effect from time to time times the average daily amount by which the
Aggregate Commitments exceed the sum of (a) the aggregate principal amount
outstanding under the Notes (but not the Swing Line Outstandings except to the
extent a Lender has provided the purchase price due for its participation in
Swing Line Loans to the Swing Line Lender in Cash) plus (b) the Aggregate
Effective Amount under all outstanding Standby Letters of Credit. The non-use
fee shall be payable quarterly in arrears on each Quarterly Payment Date, on the
Maturity Date and upon the date of any partial reduction or termination of the
Aggregate Commitments pursuant to Sections 2.6 or 2.7.
3.5 Letter of Credit Fees. Concurrently with the issuance of each Letter
of Credit, Borrower shall pay a letter of credit issuance fee to the Issuing
Lender, for the sole account of the Issuing Lender, in an amount set forth in a
letter agreement between Borrower and the Issuing Lender. Each letter of credit
issuance fee is nonrefundable. On each Quarterly Payment Date and on the
Maturity Date, Borrower shall also pay to the Administrative Agent in arrears,
for the ratable account of the Lenders in accordance with their Pro Rata Share,
letter of credit fees in an amount equal to (a) the then applicable LIBOR Spread
times the average daily Aggregate Effective Amount of all Standby
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Letters of Credit and (b) fifty percent (50%) of the then applicable LIBOR
Spread times the average daily Aggregate Effective Amount of all commercial
Letters of Credit, in each case for the period from the Closing Date or the most
recent Quarterly Payment Date. All letter of credit fees shall also be
non-refundable.
3.6 Administrative Fees. On the date hereof and annually thereafter,
Borrower shall pay to the Administrative Agent an administrative fee in such
amounts as heretofore agreed upon by letter agreement between Borrower and Bank
of America and the Lead Arranger. The administrative fee is for the services to
be performed by the Administrative Agent in acting as Administrative Agent and
is fully earned on the date paid. The administrative fee paid to the
Administrative Agent is solely for its own account and is nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall determine in good
faith that the introduction after the date hereof 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 the 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, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
reasonably expected return on capital under this Agreement) 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 Business Days after demand of such Lender, Borrower 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 Borrower shall not be obligated to pay any such amount
which arose prior to the date which is ninety days preceding the date of such
demand or is attributable to periods prior to the date which is ninety days
preceding the date of such demand, and provided further that in the case where
Borrower becomes obligated to pay a material amount under this Section to any
Lender, that Lender will be subject to removal in accordance with Section 11.26,
provided that Borrower shall have paid such amount to that Lender and that
Borrower, within the thirty (30) day period following the date of such payment,
shall have notified that Lender in writing of Borrower's intent to so remove the
Lender. Each Lender's determination of such amounts shall be conclusive in the
absence of manifest error.
3.8 LIBOR Costs and Related Matters.
(a) If, after the date hereof, the existence or occurrence of
any Special LIBOR Circumstance:
(i) shall subject any Lender or its LIBOR Office to any
tax, duty or other charge or cost with respect to any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its
obligation to make LIBOR Advances, or shall change the basis of
taxation of payments to any Lender attributable to the principal
of or interest on any LIBOR Advance or any other amounts due
under this Agreement in respect of any LIBOR Advance, any of its
Notes evidencing LIBOR Loans or its obligation to make
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LIBOR Advances, excluding, in the case of each Lender, the
Administrative Agent and each Eligible Assignee, and any
Affiliate or LIBOR Office thereof, (i) taxes imposed on or
measured in whole or in part by its overall net income, gross
income or gross receipts or capital and franchise taxes imposed
on it, by (A) any jurisdiction (or political subdivision
thereof) in which it is organized or maintains its principal
office or LIBOR Office or (B) any jurisdiction (or political
subdivision thereof) in which it is "doing business" (unless it
would not be doing business in such jurisdiction (or political
subdivision thereof) absent the transactions contemplated
hereby), (ii) any withholding taxes or other taxes based on
gross income imposed by the United States of America (other than
withholding taxes and taxes based on gross income resulting
solely from or attributable to any change in any law, rule or
regulation or any change in the interpretation or administration
of any law, rule or regulation by any Governmental Agency) or
(iii) 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 11.20, to the
extent such forms are then required by applicable Laws;
(b) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof
(including, without limitation, any reserve imposed by the Board
of Governors of the Federal Reserve System, but excluding the
Reserve Percentage taken into account in calculating the LIBOR),
special deposit, capital or similar requirements against assets
of, deposits with or for the account of, or credit extended by,
any Lender or its LIBOR Office; or
(iii) shall impose on any Lender or its LIBOR Office or
the Designated LIBOR Market any other condition affecting any
LIBOR Advance, any of its Notes evidencing LIBOR Loans, its
obligation to make LIBOR 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 LIBOR Office of
making or maintaining any LIBOR Advance or in respect of any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its obligation to
make LIBOR Advances or reduces the amount of any sum received or
receivable by such Lender or its LIBOR Office with respect to any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its obligation to
make LIBOR Advances (assuming such Lender's LIBOR Office had funded 100%
of its LIBOR Advance in the Designated LIBOR Market), then, within five
(5) Business Days after demand by such Lender (with a copy to the
Administrative Agent), Borrower 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 LIBOR Office had funded
100% of its LIBOR Advance in the Designated LIBOR Market). Borrower
hereby indemnifies each Lender against, and agrees to hold each Lender
harmless from and reimburse such Lender within ten Business Days after
demand for (without duplication) all costs, expenses, claims, penalties,
liabilities, losses, reasonable legal fees and damages incurred or
sustained by each Lender in connection with this Agreement, or any of
the rights, obligations or transactions provided for or contemplated
herein, as a direct result of the existence or occurrence of any Special
LIBOR Circumstance. A statement of any Lender claiming compensation
under this subsection and setting forth in reasonable detail the
additional amount
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or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. Each Lender agrees to endeavor promptly to notify
Borrower of any event of which it has actual knowledge, occurring after
the Effective Date, which will entitle such Lender to compensation
pursuant to this Section, and agrees to designate a different LIBOR
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. If any
Lender claims compensation under this Section, Borrower may at any time,
upon at least four LIBOR Business Days' prior notice to the
Administrative Agent and such Lender and upon payment in full of the
amounts provided for in this Section through the date of such payment
plus any prepayment fee required by Section 3.8(d), pay in full the
affected LIBOR Advances of such Lender or request that such LIBOR
Advances be converted to Base Rate Advances.
(b) If, after the date hereof, the existence or occurrence of
any Special LIBOR Circumstance shall, in the good faith opinion of any
Lender, make it unlawful or impossible for such Lender or its LIBOR
Office to make, maintain or fund its portion of any LIBOR Loan, or
materially restrict the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the Designated LIBOR Market, or to
determine or charge interest rates based upon the LIBOR, and such Lender
shall so notify the Administrative Agent, then such Lender's obligation
to make LIBOR 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 Borrower. Upon receipt of
such notice, the outstanding principal amount of such Lender's LIBOR
Advances, together with accrued interest thereon, automatically shall be
converted to Base Rate Advances with Interest Periods corresponding to
the LIBOR Loans of which such LIBOR Advances were a part on either (1)
the last day of the Interest Period(s) applicable to such LIBOR Advances
if such Lender may lawfully continue to maintain and fund such LIBOR
Advances to such day(s) or (2) immediately if such Lender may not
lawfully continue to fund and maintain such LIBOR Advances to such
day(s), provided that in such event the conversion shall not be subject
to payment of a prepayment fee under Section 3.8(d). Each Lender agrees
to endeavor promptly to notify Borrower of any event of which it has
actual knowledge, occurring after the Effective Date, which will cause
that Lender to notify the Administrative Agent under this Section
3.8(b), and agrees to designate a different LIBOR 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 LIBOR Loan, such Lender shall fund such amount as a Base Rate
Advance for the same period of time, and such amount shall be treated in
all respects as a Base Rate Advance. Any Lender whose obligation to make
LIBOR Advances has been suspended under this Section 3.8(b) shall
promptly notify the Administrative Agent and Borrower of the cessation
of the Special LIBOR Circumstance which gave rise to such suspension. In
the case where Borrower becomes obligated to pay a material amount under
this Section to any Lender, that Lender will be subject to removal in
accordance with Section 11.26, provided that Borrower shall have paid
such amount to that Lender and that Borrower, within the thirty (30) day
period following the date of such payment, shall have notified that
Lender in writing of Borrower's intent to so remove the Lender.
(c) If, with respect to any proposed LIBOR Loan:
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(i) the Administrative Agent reasonably determines that,
by reason of circumstances affecting the Designated LIBOR Market
generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being
offered to any Lender in the Designated LIBOR Market for the
applicable Interest Period; or
(ii) the Required Lenders advise the Administrative
Agent that the LIBOR as determined by the Administrative Agent
(i) does not represent the effective pricing to such Lenders for
deposits in Dollars in the Designated LIBOR Market in the
relevant amount for the applicable Interest Period, or (ii) will
not adequately and fairly reflect the cost to such Lenders of
making the applicable LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of the Lenders to make any future LIBOR
Advances shall be suspended. If at the time of such notice there is then
pending a Request for Loan that specifies a LIBOR Loan, such Request for
Loan shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any LIBOR Advance (other than
as the result of a conversion required under Section 3.8(b)), on a day
other than the last day in the applicable Interest Period (whether
voluntarily, involuntarily, by reason of acceleration, or otherwise), or
upon the failure of Borrower (for a reason other than the failure of a
Lender to make an Advance) to borrow on the date or in the amount
specified for a LIBOR Loan in any Request for Loan, Borrower shall pay
to the appropriate Lender within ten Business Days after demand a
prepayment fee or failure to borrow fee, as the case may be (determined
as though 100% of the LIBOR Advance had been funded in the Designated
LIBOR Market) equal to the sum of:
(i) the principal amount of the LIBOR Advance prepaid or
not borrowed, as the case may be, times the number of days
between the date of prepayment or failure to borrow, as
applicable, and the last day in the applicable Interest Period,
divided by 360, times the applicable Interest Differential
(provided that the product of the foregoing formula must be a
positive number); plus
(ii) all reasonable out-of-pocket expenses incurred by
each Lender which are 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 3.8(d) shall be conclusive in the absence of manifest
error.
3.9 Default Rate. If any installment of principal or interest or any fee
or cost or other amount payable under any Credit Document to the Administrative
Agent or any Lender is not paid when due (after giving effect to any applicable
grace period), or at the option of the Required Lenders upon the occurrence and
during the continuance of any Event of Default, the outstanding Loans, and any
such delinquent fees, costs or other amounts, shall thereafter bear interest at
a rate which is 2% per annum in excess of the otherwise applicable rate, and the
outstanding Letters of Credit shall thereafter accrue fees at a rate which is 2%
per annum in excess of the otherwise applicable fees, in each case to the
fullest
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extent permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including 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.
3.10 Computation of Interest and Fees. Computation of interest on Base
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed; computation of interest on
LIBOR Loans and all fees under this Agreement shall be calculated on the basis
of a year of 360 days and the actual number of days elapsed. Borrower
acknowledges that such latter calculation method will result in a higher yield
to the Lenders than a method based on a year of 365 or 366 days. 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 otherwise be in excess
of such maximum permitted amount shall instead be treated as a payment of
principal.
3.11 Non-Business Days. If any payment to be made by Borrower or any
other Party under any Credit Document shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest
and fees.
3.12 Manner and Treatment of Payments.
(a) Subject to Section 3.12(e) below, each payment hereunder
(except payments pursuant to Sections 2.5, 3.7, 3.8, 11.3, 11.11 and
11.22) or on the Notes, on the Swing Line Documents or under any other
Credit Document shall be made to the Administrative Agent, at the
Administrative Agent's Office, 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. on the day of payment (which must be a
Business Day). All payments received after 11:00 a.m. on any Business
Day, shall be deemed received on the next succeeding Business 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. on a
Business Day and not so made available to the account of a Lender on
that Business 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 lawful money of the
United States of America.
(b) Each payment or prepayment on account of any Loan (other
than Swing Line Advances) shall be applied pro rata according to the
outstanding Advances made by each Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record 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
Borrower, be presumptive evidence of the amounts owing absent
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manifest error. Notwithstanding the foregoing sentence, no Lender shall
be liable to any Obligor for any failure to keep such a record.
(d) Each payment of any amount payable by Borrower or any other
Obligor under this Agreement or any other Credit 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, in the case of each Lender, the
Administrative Agent and each Eligible Assignee, and any Affiliate or
LIBOR Office thereof, (i) taxes imposed on or measured in whole or in
part by its overall net income, gross income or gross receipts or
capital and franchise taxes imposed on it, (ii) any withholding taxes or
other taxes based on gross income imposed by the United States of
America (other than withholding taxes and taxes based on gross income
resulting solely from or attributable to any change in any law, rule or
regulation or any change in the interpretation or administration of any
law, rule or regulation by any Governmental Agency) or (iii) 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 (all such non-excluded taxes, assessments or other
charges being hereinafter referred to as "Taxes"). To the extent that
Borrower is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender
under this Agreement, Borrower 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 Borrower.
(e) On each date when payments are due pursuant to Section
3.12(a), Borrower agrees to maintain on deposit in the Designated
Deposit Account an amount sufficient to pay any and all amounts so due
in full on such date. Borrower hereby authorizes Administrative Agent
(i) to deduct automatically from the Designated Deposit Account all such
amounts when due under this Agreement or the other Credit Documents, and
(ii) if and to the extent any payment of such amounts is not made when
due, to deduct automatically any such amounts from any and all other
accounts of Borrower or its Subsidiaries maintained with Bank of
America. Administrative Agent agrees to provide timely written notice to
Borrower of any automatic deduction made pursuant to this Section
3.12(e) showing in reasonable detail the amounts of such deduction. Each
Lender agrees to reimburse Borrower for amounts, if any, deducted from
such accounts in excess of amounts due hereunder or under any other
Credit Document to the extent such amounts shall have been actually
received by such Lender.
3.13 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.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest at the Default Rate), fee, cost or
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other amount payable under any Credit 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 at the Default Rate), fee, cost
or other amount payable under any Credit Document, or to calculate an amount
payable by another method that is not inconsistent with this Agreement, on any
other or subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made by
Borrower. Unless the Administrative Agent shall have been notified by Borrower
prior to the date on which any payment to be made by Borrower hereunder is due
that Borrower does not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrower has 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 Borrower has 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.
3.16 Fee Determination Detail. The Administrative Agent and any Lender
shall provide reasonable detail to Borrower regarding the manner in which the
amount of any payment to the Creditors, or that Lender, under Article 3 has been
determined, concurrently with demand for such payment.
3.17 Survivability. All of Borrower's obligations under Sections 3.7 and
3.8 shall survive for ninety days following the date on which the Commitments
are terminated, all Obligations hereunder are fully paid and all Letters of
Credit have expired.
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ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Issuing Lender,
and the Lenders to enter into this Agreement and the other Credit Documents, to
extend Loans and to issue and participate in Letters of Credit, Borrower
represents and warrants to the Administrative Agent, the Issuing Lender and each
Lender that:
4.1 Existence and Qualification; Power; Compliance With Laws. Borrower
is a corporation duly formed, validly existing and in good standing under the
Laws of Delaware. The chief executive offices of Borrower are in Long Beach,
California. Borrower is duly qualified or registered to transact business and is
in good standing in California and 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 have a material adverse effect
on the business, operations or condition (financial or otherwise) of Borrower
and its Subsidiaries, taken as a whole. Borrower has all requisite power and
authority to conduct its business, to own and lease its Properties and to
execute, deliver and perform all of its Obligations under the Credit Documents.
All outstanding shares of capital stock of Borrower are duly authorized, validly
issued, fully paid, non-assessable and issued in compliance with all applicable
state and federal securities and other Laws. 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, file, register, qualify or obtain exemptions would not have a material
adverse effect on the business, operations or condition (financial or otherwise)
of Borrower and its Subsidiaries, taken as a whole.
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations. The execution, delivery and performance by each of
Borrower and its Subsidiaries of the Credit Documents and the Acquisition
Documents to which it is a Party have been duly authorized by all necessary
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;
(b) Violate or conflict with any provision of such Party's
partnership agreement, certificate of limited partnership, charter,
articles of incorporation or bylaws, or amendments thereto, as
applicable;
(c) Result in or require the creation or imposition of any Lien
or Right of Others (other than as provided under the Credit Documents)
upon or with respect to any Property now owned or leased or hereafter
acquired by such Party;
(d) Violate any provision of any Law (including, without
limitation, Regulations T, U or X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award presently in effect and having applicability to
such Party; or
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(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 material agreement,
lease or instrument to which such Party is a party or by which such
Party or any of its Property is bound or affected;
and neither Borrower nor any Subsidiary thereof is in default under any Law,
order, writ, judgment, injunction, decree, determination or award, or any
indenture, agreement, lease or instrument described in Section 4.2(e), in any
respect that is materially adverse to the interests of any Creditor or that
would have any material adverse effect on the business, operations or condition
(financial or otherwise) of Borrower and its Subsidiaries, taken as a whole.
4.3 No Governmental Approvals Required. No authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, or exemption from any of the foregoing from, any
Governmental Agency is or will be required to authorize or permit under
applicable Law the execution, delivery and performance by Borrower or any
Subsidiary thereof of the Credit Documents to which it is a Party.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names, forms of
legal entity and jurisdictions of formation of all Subsidiaries of
Borrower. Except as described in Schedule 4.4, Borrower does not own any
capital stock, partnership interest, joint venture interest or other
equity interest in any Person. Unless otherwise indicated in Schedule
4.4, all of the outstanding shares of capital stock or partnership or
joint venture interests of each Subsidiary of Borrower are owned of
record and beneficially by Borrower, and all securities and interests so
owned are duly authorized, validly issued, fully paid, non-assessable
and issued in compliance with all applicable state and federal
securities and other Laws, and are free and clear of all Liens and
Rights of Others.
(b) Each Subsidiary of Borrower is a legal entity of the form
described for that Subsidiary in Schedule 4.4, duly formed, validly
existing and in good standing under the Laws of its jurisdiction of
formation, is duly qualified or registered to transact business and is
in good standing in each other jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the failure so to
qualify or register and to be in good standing would not have a material
adverse effect on the business, operations or condition (financial or
otherwise) of Borrower and its Subsidiaries, taken as a whole, and has
all requisite legal power and authority to conduct its business and to
own and lease its Properties and to execute, deliver and perform all of
its Obligations under the Credit Documents.
(c) Each Subsidiary of Borrower is in compliance with all Laws
(subject to the matters referred to in Schedule 4.18) 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, file, register, qualify or obtain
exemptions
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would not have a material adverse effect on the business, operations or
condition (financial or otherwise) of Borrower and its Subsidiaries,
taken as a whole.
4.5 Financial Statements. Borrower has furnished to each Creditor (a)
the audited consolidated balance sheet of Borrower and its Subsidiaries as at
December 31, 1999, and audited consolidated statements of profit and loss and of
changes in financial position of Borrower and its Subsidiaries for their fiscal
year then ended, and (b) the unaudited consolidated balance sheets of Borrower
and its Subsidiaries as at June 30, 2000, and unaudited consolidated statements
of profit and loss and of changes in financial position of Borrower and its
Subsidiaries for such quarter and for the portion of their fiscal year ended
with such quarter. Such financial statements fairly present in all material
respects the financial condition, results of operations and changes in financial
position of Borrower and its Subsidiaries as at such dates and for such periods,
in conformity with GAAP, consistently applied, provided that the balance sheets
and statements referred to in (b) above are subject to normal year-end audit
adjustments and do not contain footnotes.
4.6 No Other Liabilities; No Material Adverse Effect. Borrower and its
Subsidiaries do not have any material liability or material contingent liability
not reflected or disclosed in the financial statements or notes thereto
described in Section 4.5. There has been no Material Adverse Effect since
December 31, 1999.
4.7 Title to and Location of Property. Borrower and its Subsidiaries
have good and valid title to all the Property reflected in the financial
statements described in Section 4.5, other than Property subsequently sold in
the ordinary course of business, free and clear of all Liens and Rights of
Others other than Liens or Rights of Others permitted pursuant to Section 6.7.
Schedule 4.7 hereto sets forth the street address for all material interests in
real Property owned or held by Borrower or any of its Subsidiaries.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or possess the
unrestricted right to use, all trademarks, trade names, copyrights, patents,
patent rights, 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 Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to the
extent that such conflict would have a material adverse effect on the business,
operations or condition (financial or otherwise) of Borrower and its
Subsidiaries, taken as a whole.
4.9 Public Utility Holding Company Act. Neither Borrower nor any
Subsidiary thereof 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 (i) any matter fully covered (subject to
usual deductibles and retentions) by insurance for which the insurance carrier
has assumed full responsibility, (ii) any matter, or series of related or
similar matters, involving a claim against Borrower or any of its Subsidiaries
of less than $500,000, and (iii) matters set forth in Schedule 4.10 and in the
financial statements (or the notes thereto) described in Section 4.5, there are
no actions, suits or proceedings pending or, to the best knowledge of Borrower,
threatened against or affecting Borrower or any of its Subsidiaries or any
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Property of any of them in any court of Law or before any Governmental Agency
that would impair Borrower's or any Subsidiary's financial condition or ability
to repay the Loans.
4.11 Binding Obligations. Each of the Credit Documents to which Borrower
or any Subsidiary thereof 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 Bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar Laws relating to or affecting
creditors' rights generally 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.
4.13 ERISA Plans. With respect to each Plan maintained by Borrower or
any of its ERISA Affiliates:
(a) such Plan complies in all material respects with ERISA and
any other applicable Laws to the extent that noncompliance may
reasonably be expected to have a Material Adverse Effect;
(b) such Plan has not incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA);
(c) no "reportable event" (as defined in Section 4043 of ERISA)
has occurred; and
(d) neither Borrower nor any of its ERISA Affiliates has engaged
in any "prohibited transaction" (as defined in Section 4975 of the Code)
that may reasonably be expected to have a Material Adverse Effect; and
(e) Neither Borrower nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that
may reasonably be expected to have a Material Adverse Effect.
4.14 Regulations T, U and X; Investment Company Act. Neither Borrower
nor any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" or "margin security" within the meanings of
Regulations T, U or X, respectively, of the Board of Governors of the Federal
Reserve System. No part of the proceeds of any Loan hereunder will be used to
purchase or carry any such "margin security" or "margin stock" or to extend
credit to others for the purpose of purchasing or carrying any such "margin
security" or "margin stock" in violation of Regulations T, U or X of said Board
of Governors. Neither Borrower nor any of its Subsidiaries is or is required to
be registered under the Investment Company Act of 1940.
4.15 Disclosure. No written statement made by Borrower or any Subsidiary
thereof to any Creditor in connection with this Agreement, or in connection with
any Loan, or in connection with the issuance of any Letter of Credit, contains
any untrue statement of a material fact or omits a material fact necessary to
make the statement made not misleading. To the best knowledge of Borrower, there
is
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no fact which Borrower has not disclosed to any Creditor in writing which
materially and adversely affects nor, so far as Borrower can now foresee, is
reasonably likely to prove to affect materially and adversely the business,
operations, Properties, prospects, profits or condition (financial or otherwise)
of Borrower and its Subsidiaries, taken as a whole, or the ability of Borrower
and its Subsidiaries to perform their Obligations under the Credit Documents.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all income
tax returns which are required (including any extensions obtained pursuant to
applicable Law) 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 Borrower or any
Subsidiary thereof, except such taxes, if any, as are being contested in good
faith by appropriate proceedings and as to which adequate reserves have been
established and maintained.
4.17 Employee Matters. There is no strike, work stoppage or labor
dispute with any union or group of employees pending or overtly threatened
involving Borrower or any of its Subsidiaries that could have a Material Adverse
Effect.
4.18 Environmental Matters. Except as disclosed on Schedule 4.18 and in
the financial statements (or the notes thereto) described in Section 4.5, (i)
the real Property of Borrower and its Subsidiaries and the operations conducted
thereon do not violate any applicable Law, statute, ordinance, rule, regulation,
order or determination of any governmental authority or any restrictive covenant
or deed restriction (recorded or otherwise), including without limitation all
applicable zoning ordinances and building codes, flood disaster Laws and
Environmental Laws and regulations, in any respect which could have a Material
Adverse Effect; (ii) without limitation of clause (i) above, such real Property
and the operations conducted by Borrower, its subsidiaries or any current or
prior owner or operator of such real Property or operation, are not in violation
of or subject to any existing, pending or threatened action, suit,
investigation, inquiry or proceeding by any governmental authority or to any
remedial obligations under any Environmental Laws which, if determined adversely
to Borrower and its Subsidiaries, could have a Material Adverse Effect; (iii)
all notices, permits, licenses or similar authorizations, if any, required to be
obtained or filed in connection with the operation or use of the real Property
of Borrower, including without limitation past or present treatment, storage,
disposal or release of a hazardous substance or solid waste into the
environment, have been duly obtained or filed, except where the failure to
obtain or file same would not have a material adverse effect on the business,
operations or condition (financial or otherwise) of Borrower; (iv) all
significant amounts of hazardous waste generated at the real Property of
Borrower have in the past been and shall continue to be transported, treated and
disposed of only by carriers maintaining valid permits under RCRA and any other
Environmental Laws and only at treatment, storage and disposal facilities
maintaining valid permits under RCRA and any other Environmental Law, which
carriers and facilities have been and are, to the best of Borrower's knowledge,
operating in compliance with such permits or are exempt from obtaining such
permits; (v) Borrower has no actual or constructive knowledge of the disposal or
other release of any hazardous substance or solid waste, or the threatened
release of hazardous substances, on or to the real Property of Borrower except
in compliance with Environmental Laws, and that it has not been notified of same
by any Governmental Agency; (vi) Borrower has no material contingent liability
in connection with any release or threatened release of any hazardous substance
or solid waste into the environment; and (vii) the use which Borrower makes or
intends to make of Borrower's real Property will not result in the unlawful or
unauthorized disposal or other release of any hazardous substance or solid waste
on or to the real Property of Borrower. The terms "hazardous substance,"
"release" and
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"threatened release" have the meanings specified in CERCLA, and the terms "solid
waste" and "disposal" (or "disposed") have the meanings specified in RCRA;
provided, however, in the event either CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such broader meaning shall
apply subsequent to the effective date of such amendment, and provided further
that, to the extent the laws of any state in which any of the real Property of
Borrower is located establish a meaning for "hazardous substance," "release,"
"solid waste" or "disposal" which is broader than that specified in either
CERCLA or RCRA, such broader meaning shall apply with regard to the real
Property of Borrower located in such state.
4.19 Projections. The projections and each of the pro forma financial
statements and certificates delivered to the Administrative Agent and the
Lenders in accordance with clauses (d), (g) and (h) of the definition of
"Permitted Acquisition" represent Borrower's best estimate, as of the date of
each such statement, of the future financial performance of Borrower and its
Subsidiaries for the periods set forth therein. Such pro forma financial
statements are based on facts, as of the date of each such statement, known to
Borrower and on assumptions that, as of the date of each such statement, are
reasonable and consistent with such facts. No material (in amount and
likelihood) fact or assumption is omitted as a basis for such pro forma
financial statements which, in Borrower's reasonable business judgment, should
be included, and such pro forma financial statements are reasonably based on
such facts and assumptions.
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ARTICLE 5.
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Loan remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitments remain
outstanding, Borrower shall, and shall cause each of its Subsidiaries to, unless
the Required Lenders otherwise consent in writing:
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, upon their
respective income or profits or any part thereof or upon any right or interest
of the Administrative Agent or any Lender under any Credit Document, except that
Borrower and its Subsidiaries shall not be required to pay or cause to be paid
(a) any income or gross receipts tax generally applicable to Lenders or (b) any
tax, assessment, charge or levy that is not yet past due, or is being contested
in good faith by appropriate proceedings, so long as the relevant entity has
established and maintains adequate reserves for the payment of the same and by
reason of such nonpayment and contest no material item or portion of Property of
Borrower and its Subsidiaries, taken as a whole, is in jeopardy of being seized,
levied upon or forfeited, or (c) miscellaneous taxes not willfully unpaid in an
aggregate amount not greater than $500,000 so long as by reason of such
nonpayment no material item or portion of Property of Borrower and its
Subsidiaries, taken as a whole, is in jeopardy of being seized, levied upon or
forfeited.
5.2 Preservation of Existence. Other than where the failure of which
would not result in a Material Adverse Effect, preserve and maintain their
respective existences, licenses, rights, franchises and privileges in the
jurisdiction of their formation and all authorizations, consents, approvals,
orders, licenses, permits, or exemptions from, or registrations with, 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.
5.3 Maintenance of Properties. Maintain, preserve and protect all of
their respective Properties and equipment 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 or equipment that is not of significant
value, either intrinsically or to the operations of Borrower and its
Subsidiaries, taken as a whole, shall not constitute a violation of this
covenant.
5.4 Maintenance of Insurance. Maintain liability and casualty insurance
with responsible insurance companies in such amounts and against such risks as
is usually carried by responsible companies engaged in similar businesses and
owning similar Properties in the general areas in which Borrower and its
Subsidiaries operate, nor shall the coverage or terms or exclusions thereof be
materially modified, without at least thirty (30) days prior written notice to
the Administrative Agent.
5.5 Compliance With Laws. Comply with the requirements of all applicable
Laws and orders of any Governmental Agency, noncompliance with which could
materially adversely affect the business, operations or condition (financial or
otherwise) of Borrower and its Subsidiaries, taken as a
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whole, except that Borrower and its Subsidiaries need not comply with a
requirement then being contested by any of them in good faith by appropriate
proceedings so long as no interest of any Creditor would be materially impaired
thereby.
5.6 [RESERVED].
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
Borrower or any of its Subsidiaries.
5.8 Compliance With Agreements, Duties and Obligations. Promptly and
fully comply with all their respective agreements, duties and obligations under
the Credit Documents, and under any other agreements, indentures, leases and/or
instruments to which any one or more of them is a party, whether such other
agreements, indentures, leases and/or instruments are with any Creditor or
another Person, except where failure to comply with any such agreement,
indenture, lease or instrument (other than any Credit Document) would not have a
Material Adverse Effect.
5.9 Use of Proceeds. The proceeds of the Loans, the Letters of Credit
and the Swing Line Loans shall be used (a) on the Closing Date, to refinance the
obligations of Borrower and its Subsidiaries under the Existing Credit
Agreement, and (b) thereafter (i) to finance Capital Expenditures permitted
hereby, (ii) to provide for working capital and other general corporate purposes
of Borrower and its Subsidiaries, (iii) to fund Distributions permitted by
Section 6.3, and (iv) to finance Permitted Acquisitions.
5.10 Subsidiary Guaranty. Cause each of its Subsidiaries, hereafter
formed or acquired, to execute and deliver a joinder of the Guaranty as soon as
practicable, but in any event within 5 days following such formation or
acquisition.
5.11 [RESERVED].
5.12 Inspection Rights. Upon reasonable notice, at any time during
regular business hours and as often as requested upon reasonable prior notice
(but not so as to unreasonably interfere with the business of the Borrower),
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 operations of
Borrower and its Subsidiaries, and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, key employees, and
accountants, and, upon request, furnish promptly to the Administrative Agent or
any Lender true copies of all financial information made available to the senior
management of Borrower. All reasonable expenses incurred by the Creditors in
connection with this Section shall be promptly reimbursed by the Borrower.
5.13 Interest Rate Protection Agreement. If at any time the Outstanding
Obligations are in excess of $60,000,000, and either (a) the Leverage Ratio as
of the last day of the then most recently ended Fiscal Quarter for which a
Compliance Certificate is required to have been delivered was in excess of
2.50:1.00, or (b) giving pro forma effect to any Indebtedness incurred since
such date to the Leverage Ratio as of such date, the Pro Forma Leverage Ratio as
of that date is in excess of 2.50:1.00,
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then Borrower, within ninety (90) days thereafter, shall enter into a Swap
Agreement, in form and content and on terms and conditions satisfactory to the
Administrative Agent, which shall provide interest rate protection to Borrower
with respect to a portion of its Indebtedness in an amount equal to or greater
than at least fifty percent of the principal amount of the then outstanding
principal balance of the Loans.
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ARTICLE 6.
NEGATIVE COVENANTS
So long as any Loan remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitments remain
outstanding, Borrower shall not, and shall cause each of its Subsidiaries to
not, unless the Required Lenders otherwise consent in writing:
6.1 Disposition of Property. Make any Disposition of their Property,
whether now owned or hereafter acquired, other than Dispositions of the types
described below made when no Default or Event of Default exists or would result
therefrom:
(a) obsolete or worn-out Property, tools or equipment no longer used
or useful in its business or Real Property no longer used or
useful in their business;
(b) any inventory or other Property sold or disposed of in the
ordinary course of business; and
(c) other Dispositions of Property having an aggregate fair market
value which is not in excess of $10,000,000.
6.2 Mergers. Merge, consolidate or amalgamate with or into any Person,
except mergers, consolidations or amalgamations of a Subsidiary of Borrower into
Borrower (with Borrower as the surviving entity) or into any other Subsidiary of
Borrower and mergers conducted pursuant to Permitted Acquisitions where Borrower
or its pre-existing Subsidiary is the survivor thereof.
6.3 Distributions. Make any Distribution, whether from capital, income
or otherwise, and whether in Cash or other Property, other than:
(a) Distributions from any Subsidiary of Borrower to Borrower;
(b) Provided that no Default or Event of Default exists or would
result therefrom Borrower may repurchase shares of its common stock held
by employees or former employees pursuant to employee stock ownership
plans in existence on the Closing Date in an aggregate amount not to
exceed $1,000,000 in any Fiscal Year; and
(c) other Distributions made when no Default or Event of Default
exists or would result therefrom in an aggregate amount not to exceed
$10,000,000 during any period of twelve consecutive months or
$25,000,000 during the term of this Agreement.
6.4 Hostile Tender Offers. Make any offer to purchase or acquire, or
consummate a purchase or acquisition of, 5% or more of the capital stock of any
corporation or other business entity if the board of directors or management of
such corporation or business entity has notified Borrower that it opposes such
offer or purchase and such notice has not been withdrawn or superseded.
6.5 ERISA. At any time, permit any 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 in all material respects; (iii)
incur any material "accumulated funding deficiency" (as
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defined in Section 302 of ERISA); or (iv) terminate in any manner, which, with
respect to each event listed above, may reasonably be expected to result in any
Material Adverse Effect, or (b) withdraw, completely or partially, from any
Multiemployer Plan if to do so may reasonably be expected to result in a
Material Adverse Effect.
6.6 Change in Nature of Business. Make any material change in the nature
of the business of Borrower and its Subsidiaries, as conducted and presently
proposed to be conducted.
6.7 Liens, Negative Pledges and Rights of Others. Create, incur, assume
or suffer to exist any Lien, Negative Pledge prohibiting the granting of Liens
to the Creditors or any Right of Others of any nature upon or with respect to
any of their respective Properties, or engage in any sale and leaseback
transaction with respect to any of their respective Properties, whether now
owned or hereafter acquired, except:
(a) Liens and Negative Pledges described on Schedule 6.7;
(b) Permitted Encumbrances and Permitted Rights of Others;
(c) Liens and Negative Pledges in favor of the Administrative
Agent and the Lenders under the Credit Documents;
(d) Liens securing Indebtedness and Liens securing real property
financings, in each case to the extent permitted under Section 6.8(c)
and Negative Pledges in favor of the holders of such Indebtedness with
respect to such Property;
(e) any Lien or Negative Pledge to the extent constituting a
renewal, extension, refunding, refinancing or replacement of any Lien or
Negative Pledge referred to in clauses (a); provided that the
Indebtedness secured by any such Lien or Negative Pledge shall not be
increased, or (c) of this Section, provided that such Lien or Negative
Pledge relates solely to the Property which was subject to the Lien or
Negative Pledge securing the obligation so renewed, extended, refunded,
refinanced or replaced.
6.8 Indebtedness and Contingent Obligations. Create, incur, assume or
suffer to exist any Indebtedness or Contingent Obligation except:
(a) Indebtedness existing on the Closing Date and described on
Schedule 6.8;
(b) Indebtedness and Contingent Obligations under the Credit
Documents;
(c) purchase money Indebtedness (including Indebtedness incurred
within one hundred eighty (180) days of such purchase for the purpose of
financing such purchase), Capital Lease Obligations and real estate
financing Indebtedness incurred when no Default or Event of Default has
occurred and remains continuing, provided that the aggregate principal
amount of such purchase money Indebtedness, real estate financing
Indebtedness and Capital Lease Obligations outstanding at any time does
not exceed $15,000,000;
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(d) Indebtedness consisting of one or more Swap Agreements
entered into with respect to the Obligations;
(e) Subordinated Obligations incurred when no Default or Event
of Default exists;
(f) unsecured Indebtedness to sellers in connection with
Permitted Acquisitions in an aggregate principal amount not to exceed
$5,000,000 at any time; and
(g) amendments, renewals, extensions and refinancings of any of
the Indebtedness and Capital Lease Obligations described in the
foregoing clauses of this Section, to the extent that the then current
principal amount thereof is not increased.
6.9 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of Borrower other than (a) transactions between or among any
of Borrower and its Subsidiaries, (b) employment arrangements with officers and
directors of the Borrower in the ordinary course of business and (c)
transactions on overall terms at least as favorable to Borrower or its
Subsidiaries as would be the case in an arm's-length transaction between
unrelated parties of equal bargaining power.
6.10 Change in Fiscal Year. Change its Fiscal Year.
6.11 Payment or Prepayment of Subordinated Obligations. Pay or prepay
any principal (including sinking fund payments), interest or any other amount
with respect to any Subordinated Obligation, or purchase or redeem any
Subordinated Obligation, except Borrower may pay interest in accordance with the
terms of any Subordinated Obligation so long as there has not occurred and is
then continuing any Default or Event of Default.
6.12 Leverage Ratio. Permit the Leverage Ratio as of the last day of any
Fiscal Quarter of Borrower and its Subsidiaries ending during any period
specified below to exceed the designated ratios for the periods specified below:
Period Maximum Ratio
------ -------------
Closing Date through and including 3.00:1.00
third Fiscal Quarter in 2002
Fourth Fiscal Quarter in 2002 through 2.75:1.00
and including the third Fiscal Quarter in
2004
Thereafter 2.50:1.00
6.13 Minimum EBITDA. Permit Adjusted EBITDA, for the period of four
fiscal quarters ending on the last day of any Fiscal Quarter to be less than the
sum of $25,000,000 plus (a) 75% of the cumulative Acquired EBITDA since the
Closing Date, and minus (b) 100% of the cumulative EBITDA attributable to any
Person or assets sold, transferred or otherwise disposed of by Borrower or its
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Subsidiaries following the Closing Date for the most recent twelve month period
prior to such sale, transfer or other disposition.
6.14 Interest Coverage Ratio. Permit the Interest Coverage Ratio as of
the last day of any Fiscal Quarter of Borrower and its Subsidiaries to be less
than 3.00:1.00.
6.15 Net Worth. Permit Net Worth as of any date to be less than the sum
of (a) $80,000,000, plus (b) 75% of Net Income for each Fiscal Quarter which has
ended following the Closing Date (without deduction for any net loss occurring
in any such Fiscal Quarter), plus (c) 75% of the aggregate amount of the Net
Cash Proceeds of each issuance of equity securities by Borrower or any of its
Subsidiaries following the Closing Date, minus (d) the aggregate amount of the
Distributions made by Borrower pursuant to Section 6.3(c).
6.16 Capital Expenditures. Make or commit to make any Capital
Expenditure other than:
(a) Capital Expenditures made during each Fiscal Year described
below in an aggregate amount not to exceed the amount set forth opposite
that Fiscal Year
Fiscal Year Ending Maximum Amount
------------------ --------------
December 31, 2000 $17,000,000
December 31, 2001 $11,400,000
December 31, 2002 $ 9,400,000
December 31, 2003 $ 9,000,000
December 31, 2004 $ 9,500,000
December 31, 2005 $10,000,000;
provided that any such amount not expended during any Fiscal Year may
instead be carried over and expended in the immediately succeeding
Fiscal Year (but not in any subsequent Fiscal Year);
(b) additional Capital Expenditures made during Borrower's
Fiscal Year ending December 31, 2000 and each subsequent year in an
amount which does not exceed, during any such Fiscal Year, 1.5 times the
depreciation during that Fiscal Year (determined in accordance with
GAAP) associated with assets acquired pursuant to Permitted
Acquisitions, provided that any such amount not expended during any
Fiscal Year may instead be carried over and expended in the immediately
succeeding Fiscal Year (but not in any subsequent Fiscal Year); and
(c) to the extent treated as Capital Expenditures in accordance
with GAAP, the amount of the consideration paid in connection with
Permitted Acquisitions.
6.17 Acquisitions and Investments. Borrower shall not, and shall not
suffer or permit any of its Subsidiaries to, make any Acquisition or Investment
other than:
(a) Permitted Acquisitions;
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(b) Investments in Cash and Cash Equivalents;
(c) other Investments in an aggregate amount not to exceed
$5,000,000; and
(d) Investments made in the ordinary course of business pursuant
to (i) Xxxxxxxx Incorporated Executive Compensation Deferral Plan dated
May 5, 1993 and (ii) Xxxxxxxx Incorporated Compensation Deferral Plan
No. 2 dated October 15, 1994.
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ARTICLE 7.
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Loan remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitment remain outstanding, Borrower shall, unless the Required Lenders
otherwise consent in writing, deliver to the Administrative Agent for provision
to each Lender, at Borrower's sole expense:
(a) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter of Borrower (including the last
fiscal quarter of each fiscal year, provided that with respect to such
last quarter the financial statements required hereby may be in
preliminary form, prior to year-end audit adjustments), (i) consolidated
and consolidating balance sheets of Borrower and its Subsidiaries as at
the end of such quarter, setting forth in comparative form the
corresponding figures as at the end of the corresponding quarter of
their preceding fiscal year and (ii) consolidated and consolidating
statements of profit and loss and of changes in financial position of
Borrower and its Subsidiaries for such quarter and for the portion of
their fiscal year ended with such quarter, setting forth in comparative
form the corresponding figures for the corresponding periods of their
preceding fiscal year, all in reasonable detail. The preceding financial
statements shall be certified by a Responsible Official of Borrower as
fairly presenting the financial condition, results of operations and
changes in financial position of Borrower and its Subsidiaries in
accordance with GAAP, consistently applied, as at such date and for such
periods, subject only to normal year-end audit adjustments and the
absence of footnotes.
(b) As soon as practicable, and in any event within 90 days
after the close of each Fiscal Year of Borrower, (i) the consolidated
balance sheet of Borrower and its Subsidiaries as at the end of such
fiscal year, setting forth in comparative form the corresponding figures
as at the end of their preceding fiscal year, and (ii) the consolidated
statement of profit and loss and of changes in financial position of
Borrower and its Subsidiaries for such fiscal year, setting forth in
comparative form the corresponding figures for their previous fiscal
year, all in reasonable detail. Such balance sheets and statements shall
be prepared in accordance with GAAP, consistently applied, and such
consolidated balance sheet and consolidated statements shall be
accompanied by a report and opinion of independent public accountants of
nationally recognized standing selected by Borrower and reasonably
satisfactory to Lender, which report and opinion shall be prepared in
accordance with generally accepted auditing principles as at such date,
and shall be subject only to such qualifications and exceptions as are
acceptable to the Required Lender.
(c) Within 45 days after the end of each Fiscal Quarter of
Borrower (or more frequently, if requested by the Administrative Agent),
a consolidated and consolidating project backlog (with work in progress
information on major projects, if requested by the Administrative Agent)
of Borrower and its Subsidiaries.
(d) Promptly after request by the Administrative Agent, copies
of any detailed audit reports or recommendations submitted to Borrower
or any of its Subsidiaries by independent accountants in connection with
the accounts or books of Borrower or any of its Subsidiaries, or any
audit of any of them.
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(e) Promptly after request by any Lender, copies of any report
or other document filed by Borrower or any of its Subsidiaries with any
Governmental Agency.
(f) Within ten days of the filing or sending thereof, copies of
each annual report, proxy or financial statement or other report or
communication sent to the shareholders of Borrower, and copies of all
annual, regular, periodic and special reports and registration
statements which Borrower may file or be required to file with the
Securities and Exchange Commission or any similar or corresponding
Governmental Agency or with any securities exchange.
(g) As soon as practicable, and in any event within two Business
Days after a corporate officer of Borrower becomes aware of the
existence of any condition or event which constitutes a Default, a
written notice specifying the nature and period of existence thereof and
what action Borrower or its Subsidiaries are taking or propose to take
with respect thereto.
(h) Promptly upon a corporate officer of Borrower becoming aware
that (i) a dispute exists between Borrower or any of its Subsidiaries
and any Governmental Authority or law enforcement authority which, if
determined adversely to Borrower or its Subsidiary, would have a
material adverse effect on Borrower or its Subsidiary, together with
written notice describing the pertinent facts relating thereto and what
action Borrower or its Subsidiary is taking or proposes to take with
respect thereto, (ii) any Person commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsidiaries in excess
of $500,000 that is not fully covered by insurance, (iii) any creditor
or lessor under a written credit agreement or material lease has
asserted a default thereunder on the part of Borrower or any of its
Subsidiaries or (iv) any Person commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsidiaries under a
contract that is not a credit agreement or material lease in excess of
$500,000 or which otherwise may reasonably be expected to result in a
material adverse effect on Borrower and its Subsidiaries, taken as a
whole, together with a written notice describing the pertinent facts
relating thereto and what action Borrower or its Subsidiaries are taking
or propose to take with respect thereto.
(i) Updated projections for Borrower and its Subsidiaries
(prepared on a consolidated and consolidating basis), as follows: (1)
within 60 days prior to the end of each Fiscal Year, the strategic/long
range plan on an annual basis for the Fiscal Years from present through
December 31, 2005, and (2) within 30 days after the end of each Fiscal
Year, the annual operating plan for the current Fiscal Year; such
projections required by (1) and (2) above each to be in form and detail
satisfactory to the Administrative Agent, and each to be submitted
together with the certification of Borrower's chief financial officer
stating that the projections are based on facts known to Borrower and on
assumptions that are reasonable and consistent with such facts, that no
material (in amount and likelihood) fact or assumption has been omitted
as a basis for such projections which, in Borrower's reasonable business
judgment, should be included, and that such projections are reasonably
based on such facts and assumptions.
(j) Promptly upon request, such other information, financial or
otherwise, as the Administrative Agent or the Required Lenders may
reasonably request.
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7.2 Compliance Certificates. So long as any Loan remains unpaid, or any
other Obligation remains unpaid or unperformed, or any portion of the
Commitments remain outstanding, Borrower shall, unless the Required Lenders
otherwise consent in writing, deliver to the Administrative Agent, at Borrower's
sole expense, not later than 60 days after the end of each fiscal quarter of
Borrower, a Compliance Certificate (a) setting forth computations showing, in
detail satisfactory to the Administrative Agent, whether Borrower and its
Subsidiaries were in compliance with their obligations pursuant to Sections 6.12
through 6.17; and (b) stating that a review of the activities of Borrower and
its Subsidiaries during such fiscal period has been made under supervision of
the certifying Responsible Official with a view to determining whether during
such fiscal period Borrower and its Subsidiaries performed and observed all
their respective Obligations under the Credit Documents, and either (i) stating
that, to the best knowledge of the certifying Responsible Official, during such
fiscal period, Borrower and its Subsidiaries performed and observed each
covenant and condition of the Credit Documents applicable to them, or (ii) if
Borrower and its Subsidiaries have not performed and observed such covenants and
conditions, specifying all such Defaults and their nature and status.
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ARTICLE 8.
CONDITIONS
8.1 Closing Conditions. The obligation of each Lender to make the
initial Advance to be made by it on the Closing Date, and the obligation of Bank
of America to make available the initial Swing Line Advances and Letters of
Credit, are each 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
following, 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) executed counterparts of this Agreement, sufficient
in number for distribution to the Administrative Agent, each
Lender, Borrower and their respective counsel;
(2) the Notes executed by Borrower payable to the order
of each Lender;
(3) with respect to Borrower and any and each Subsidiary
of Borrower, such documentation as the Administrative Agent may
require to establish the due organization, valid existence and
good standing of Borrower and each such Subsidiary, its
qualification to engage in business in each jurisdiction in
which it is engaged in business or required to be so qualified,
its authority to execute, deliver and perform any Credit
Documents to which it is a Party, and the identity, authority
and capacity of each Responsible Official thereof authorized to
act on its behalf, including, without limitation, certified
copies of articles 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;
(4) the Guaranty executed by all Subsidiaries of
Borrower;
(5) the written legal opinion of Xxxxx Xxxxxx, General
Counsel for the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP,
special counsel for Borrower and each of the Guarantors;
(6) the fee letter described in Article 3;
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(7) a Certificate of a Responsible Official of Borrower
certifying that the conditions specified in Sections 8.1(b),
8.1(c) and 8.1(d) have been satisfied and setting forth the
Leverage Ratio as of the last Fiscal Quarter ending prior to the
Closing Date; and
(8) such other certificates, documents, consents or
opinions as the Administrative Agent or any Lender reasonably
may require.
(b) The representations and warranties of Borrower contained in
Article 4 shall be true and correct.
(c) Borrower and its Subsidiaries and any other Parties shall be
in compliance with all the terms and provisions of the Credit Documents,
and no Default shall have occurred and be continuing.
(d) No Material Adverse Effect shall have occurred since
December 31, 1999.
(e) The Administrative Agent and the Lead Arranger shall have
received payments of the fees described in Sections 3.2 through 3.6 to
be paid on the Closing Date, together with reimbursement for their
expenses invoiced prior to the Closing Date.
8.2 Any Increasing Loan, Etc. In addition to any applicable conditions
precedent set forth elsewhere in this Article 8, the obligation of each Lender
to make any Advance which would increase the principal amount outstanding under
the Notes, the obligation of the Issuing Lender to issue any Letter of Credit,
and the obligation of the Swing Line Lender to make any Swing Line Loan, are
subject to the following conditions precedent:
(a) the representations and warranties contained in Article 4,
other than Sections 4.4(a), 4.5, 4.6 (first sentence), 4.10 and 4.19,
shall be true and correct on and as of the date of the Loan or issuance,
as the case may be, as though made on and as of that date; there shall
be no actions, suits or proceedings pending against or affecting
Borrower or any of its Subsidiaries or any Property of any of them in
any court of Law or before any Governmental Agency which might
reasonably be expected adversely to have a Material Adverse Effect; no
Material Adverse Effect shall have occurred and be continuing since the
Closing Date; no Default shall have occurred and be continuing; the
Administrative Agent shall have timely received a properly completed
Request for Loan or Request for Letter of Credit, as the case may be, in
compliance with all applicable provisions of Article 2; and
Administrative Agent shall have received, dated as of the date of the
Loan or issuance, as the case may be, a Certificate of a Responsible
Official of Borrower to the effect that all of the above conditions have
been satisfied, with any changes or exceptions thereto being described
in a schedule attached to such certificate and with such changes or
exceptions being subject to the approval of Administrative Agent; and
(b) Administrative Agent shall have received, in form and
substance satisfactory to Administrative Agent such other certificates,
documents, consents or opinions as Administrative Agent reasonably may
require.
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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, shall constitute an Event of
Default:
(a) Borrower (i) fails to pay any principal on any of the Notes,
or any portion thereof, on the date when due, (ii) fails to make any
payment with respect to any Letter of Credit when due, or (iii) fails to
make any payment of principal with respect to any Swing Line Advance
when due; or
(b) Borrower fails to pay any interest on any of the Notes, or
any fees under Article 3 or any portion thereof, within two Business
Days after the date when due; or fails to pay any other fee or amount
payable to the Lenders under any Credit Document, or any portion
thereof, within five Business Days after demand therefor; or
(c) Borrower fails to comply with any of the covenants contained
in Article 6;
(d) Borrower or any other Obligor fails to perform or observe
any other covenant or agreement (not specified in clauses (a), (b) or
(c) above) contained in any Credit Document on its part to be performed
or observed within twenty-five Business Days after the giving of notice
by the Administrative Agent or the Required Lenders of such Default; or
(e) Any representation or warranty of Borrower or any other
Obligor made in any Credit Document proves to have been incorrect when
made or reaffirmed, or in any certificate or other writing delivered by
Borrower pursuant to any Credit Document, proves to have been incorrect
when made or reaffirmed; or
(f) Any failure to comply with Section 7.1(g) that is materially
adverse to the interest of any Creditor; or
(g) Borrower or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, of any present or future
indebtedness for borrowed money or in connection with the purchase or
lease of Property, or any guaranty of present or future indebtedness for
borrowed money or issued in connection with the purchase or lease of
Property, 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 (other than any such obligation under
an unsecured promissory note or related documentation, executed by
Borrower or any of its Subsidiaries in favor of the seller in any
Permitted Acquisition, that is being contested in good faith), which
equals or exceeds in the aggregate, $1,000,000 or (ii) fails to perform
or observe any other term, covenant or agreement on its part to be
performed or observed in connection with any present or future
indebtedness for borrowed money or in connection with the purchase or
lease of Property, or of any guaranty of present or future indebtedness
for borrowed money or issued in connection with the purchase or lease of
Property (other than any such obligation under an unsecured promissory
note or related documentation, executed by Borrower or any of its
Subsidiaries in favor of the seller in any Permitted
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Acquisition, that is being contested in good faith), which equals or
exceeds in the aggregate, $1,000,000 if as a result of such failure 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 has commenced judicial or
nonjudicial action to collect such indebtedness or to foreclose or
otherwise realize upon security held therefor; or
(h) Any Credit Document, at any time after its execution and
delivery and for any reason other than the agreement of the Lenders or
satisfaction in full of 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, in the
reasonable opinion of the Lenders, is materially adverse to the
interests of the Lenders; or any Party thereto denies that it has any or
further liability or obligation under any Credit Document, or purports
to revoke, terminate or rescind same; or
(i) A final judgment against Borrower or any of its Subsidiaries
is entered for the payment of money in excess of $500,000 (which is not
covered by insurance) and such judgment remains unsatisfied, unvacated,
or unstayed pending appeal within thirty days after the date of entry of
judgment, or in any event later than five days prior to the date of any
proposed sale thereunder; or
(j) Borrower or any of its Subsidiaries is the subject of an
order for relief in a Bankruptcy case, or is unable or admits in writing
its inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any
part of its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues
undischarged or unstayed for forty-five days; or institutes or consents
to any Bankruptcy, insolvency, reorganization, arrangement, readjustment
of debt, dissolution, custodianship, conservatorship, liquidation,
rehabilitation or similar case or proceedings relating to it or to all
or any part of its Property under the Laws of any jurisdiction; or any
similar case or proceeding is instituted without the consent of that
Person and continues undismissed or unstayed for forty-five days; or
(k) Any judgment, writ, warrant of attachment or execution or
similar process is issued or levied against all or any material Property
or portion thereof of any such Person and is not released, vacated or
fully bonded within forty-five days after its issue or levy; or
(l) Borrower or any Subsidiary thereof is dissolved or
liquidated or all or substantially all of the assets of Borrower or any
Subsidiary of Borrower are sold or otherwise transferred in violation of
the provisions of this Agreement without the written consent of the
Required Lenders; or
(m) An event or set of events occurs which has or could
reasonably be expected to have a material adverse effect on (i) the
validity or enforceability of this Agreement, any other agreement or
document executed in connection with this Agreement, or the ability of
the Administrative Agent and the Lenders to enforce their legal remedies
thereunder; or (ii) the condition (financial or otherwise), business
operations or prospects of Borrower and its
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Subsidiaries, taken as a whole, which could in turn reasonably be
expected to impair the ability of Borrower and its Subsidiaries, taken
as a whole, to perform their obligations under this Agreement and all
such other documents and agreements; or
(n) The occurrence of any one or more of the following events
with respect to Borrower or any Subsidiary, provided such event or
events could reasonably be expected, in the judgment of the
Administrative Agent, to subject the Borrower to any tax, penalty or
liability (or any combination of the foregoing) which, in the aggregate,
could have a material adverse effect on the financial condition of
Borrower with respect to a Plan:
(1) A reportable event shall occur with respect to a
Plan which is, in the reasonable judgment of Lender likely to
result in the termination of such Plan for purposes of Title IV
of ERISA.
(2) Any Plan termination (or commencement of proceedings
to terminate a Plan) or Borrower's full or partial withdrawal
from a Plan.
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 Credit 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):
(i) the Commitments to make Advances, the obligation of
the Issuing Lender to issue Letters of Credit, the obligation of
the Swing Line Lender to make Swing Line Advances and all other
obligations of the Creditors to the Obligors and all rights of
Borrower and the other Obligors under the Credit Documents shall
be suspended without notice to or demand upon Borrower, which
are expressly waived by Borrower, except that all of the Lenders
or the Required 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 Required Lenders, as the case may be, to reinstate the
Commitments and make further Advances, and cause the Issuing
Lender to issue further Letters of Credit, which waiver or
determination shall apply equally to, and shall be binding upon,
all the Lenders;
(ii) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Required Lenders, demand
immediate payment by Borrower of an amount equal to the
aggregate amount of all outstanding Letters of Credit to be held
by the Issuing Lender as cash collateral hereunder; and
(iii) the Required Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon
shall, terminate the Commitments and may declare all or any part
of the unpaid principal of the Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Credit
Documents to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without
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protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by
Borrower.
(b) Upon the occurrence of any Event of Default described in
Section 9.1(j):
(i) the Commitments to make Advances, the obligation of
the Issuing Lender to issue Letters of Credit, the obligation of
the Swing Line Lender to make Swing Line Advances and all other
obligations of the Creditors to the Obligors and all rights of
Borrower and any other Obligors under the Credit Documents shall
terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all the Lenders may
waive the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to all the Lenders, to
reinstate the Commitments and make further Advances and to cause
the Issuing Lender to issue further Letters of Credit, which
determination shall apply equally to, and shall be binding upon,
all the Lenders;
(ii) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and
payable to the Issuing Lender without notice to or demand upon
Borrower, which are expressly waived by Borrower, to be held by
the Issuing Lender in an interest-bearing account as collateral
hereunder; and
(iii) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under
the Credit Documents shall 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
Borrower.
(c) Upon the occurrence and during the continuance 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 Credit
Document) or demand upon Borrower, which are expressly waived by
Borrower (except as to notices expressly provided for in any Credit
Document), may proceed (but only with the consent of the Required
Lenders) to protect, exercise and enforce their rights and remedies
under the Credit Documents against Borrower and any other Obligor and
such other rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Lenders' and the
Administrative Agent's rights and remedies are to be exercised shall be
determined by the Required 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 Credit Documents
bear to the aggregate Obligations owed under the Credit 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 Borrower's 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 Credit Documents to and
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including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each
of the Credit 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 Credit Documents. No application of payments will
cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Credit Documents, or 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. Each Creditor hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit 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 the other Obligations 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 Credit 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. Bank of America (and each
successor Administrative Agent) has the same rights and powers under the Credit
Documents as any other Lender and may exercise the same as though it was not the
Administrative Agent, and the term "Lender" or "Lenders" includes Bank of
America in its individual capacity. Bank of America (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 was not the Administrative Agent and without any duty to
account therefor to the Lenders. Bank of America (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 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 (other than with respect to funds it receives on
behalf of 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 Credit 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
attorneys' fees and disbursements and other professional services and the
allocated costs of attorneys employed by the Administrative Agent or a Lender),
each Lender shall have an interest in the Lenders' interest in any collateral or
interests therein in the same proportions that the aggregate Obligations owed
such Lender under the Credit Documents bear to the aggregate Obligations owed
under the Credit Documents to all the Lenders, without priority or preference
among the Lenders.
10.4 Creditors' Credit Decisions. Each Creditor agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys of any other
Creditor, and instead in reliance upon information supplied to it by or on
behalf of Borrower and upon such other information as it has deemed appropriate,
made its own independent credit analysis and decision to enter into this
Agreement. Each Creditor also agrees that it shall, independently and without
reliance upon any other Creditor or the directors, officers, agents, employees
or attorneys of any other Creditor, continue to make its own independent credit
analyses and decisions in acting or not acting under the Credit Documents.
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10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of the
existence of a Default or Event of Default, the Administrative Agent may
assume that no Default or Event of Default has occurred and is
continuing, unless the Administrative Agent has received notice from
Borrower 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 Credit Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Credit
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, provided that (i) the Administrative Agent shall be required
to act or not act upon the instructions of the Required 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 of
the other Creditors, and (ii) the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any Credit
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.
(d) If the Administrative Agent has received a notice specified
in clause (a), the Administrative Agent shall immediately give notice
thereof to the Lenders, which notice shall specify a requested action
with respect thereto (such notice, a "Default Action Request"), and
shall act or not act upon the instructions of the Required Lenders (or
of all the Lenders, to the extent required by Section 11.2), provided
that (i) the Administrative Agent shall not be required to act or not
act if to do so would be contrary to any Credit 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 (ii) if the Required Lenders (or all the
Lenders, if required under Section 11.2) fail, for five Business Days
after the receipt of the Default Action Request from the Administrative
Agent, to instruct the Administrative Agent, then the Administrative
Agent shall (A) treat such failure to respond as an affirmative response
to the Default Action Request and (B) act in accordance therewith.
(e) The Administrative Agent shall have no liability to any
Creditor for acting, or not acting, as instructed by the Required
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
Credit 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:
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(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 professionals or experts for Borrower and/or its
Subsidiaries or the Lenders, and shall not be liable for any action
taken or not taken by it in accordance with this Article 10 and in good
faith in accordance with any advice of such legal counsel, accountants
or other professionals or experts.
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Credit Documents or in any
notice, certificate, report, request or other statement (written or
oral) given or made in connection with any of the Credit Documents.
(d) Except to the extent expressly set forth in the Credit
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms,
conditions or covenants of any of the Credit Documents or to inspect any
collateral or the Property, books or records of Borrower or its
Subsidiaries.
(e) Will not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Credit 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 Credit Document, notice, consent, certificate,
statement, request or other instrument or writing believed by it to be
genuine and signed or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from
any Lender under any Credit Document, including, without limitation,
principal, interest, commitment fees, Advances and other amounts;
provided that, promptly upon discovery of such an error in computation,
the Creditors (and, to the extent applicable Borrower and/or its
Subsidiaries or Affiliates) shall make such adjustments as are necessary
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, indemnify and hold the Administrative Agent, the Lead Arranger
and their respective 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, without limitation, attorneys' fees and
disbursements and allocated costs of attorneys
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employed by the Administrative Agent or the Lead Arranger) that may be imposed
on, incurred by or asserted against it or them in any way relating to or arising
out of the Credit Documents (other than losses incurred by reason of the failure
of Borrower to pay the indebtedness represented by the Notes) or any action
taken or not taken by it as Administrative Agent and the Lead Arranger
thereunder, except such as result from their own gross negligence or willful
misconduct. Without limitation on the foregoing, each Lender shall reimburse the
Administrative Agent and the Lead Arranger upon demand for that Lender's Pro
Rata Share of any out-of-pocket cost or expense incurred by the Administrative
Agent or the Lead Arranger in connection with the negotiation, preparation,
execution, delivery, amendment, waiver, restructuring, reorganization (including
a bankruptcy reorganization), enforcement or attempted enforcement of the Credit
Documents, to the extent that Borrower 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 shall entitle the Administrative Agent or the Lead Arranger to recover
any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any of its Subsidiaries, and the
Administrative Agent shall promptly refund to the Lenders any amount for which
it is indemnified for which it later receives duplicative reimbursement.
10.8 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon thirty days notice to the Lenders and Borrower. If the Administrative Agent
shall resign as Administrative Agent under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders, which successor administrative agent shall be approved by Borrower (and
such approval shall not be unreasonably withheld or, during the continuation of
an Event of Default, required). 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 Borrower, 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 (except for any liabilities incurred prior to such termination).
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. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is thirty days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor administrative agent as provided for above.
10.9 No Obligations of Borrower. Nothing contained in this Article 10
shall be deemed to impose upon Borrower 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 Borrower shall have no
liability to any Creditor in respect of any failure by any Creditor to perform
any of its obligations to any other Creditor 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 Credit Documents
provides that such payments shall be made by Borrower to the Administrative
Agent for the account of any Creditor, Borrower's obligations to the Lenders in
respect
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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.
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ARTICLE 11.
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of the Creditors provided herein, in the Notes and in the other Credit
Documents 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 any
Creditor 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 are inserted for the sole benefit of the Creditors; the same may be
waived in whole or in part, with or without terms or conditions, in respect of
any Loan or Letter of Credit without prejudicing the Creditors' 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
Credit Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other Obligor therefrom, may in any event be
effective unless in writing signed or approved in writing by the Required
Lenders or by the Administrative Agent with the consent of the Required Lenders
(and, in the case of any amendment, modification or supplement to (i) Article
10, signed by the Administrative Agent, and (ii) any Credit Document, signed by
the Obligors party thereto), and then only in the specific instance and for the
specific purpose given. No amendment, modification, supplement, termination,
waiver or consent shall (a) increase the Aggregate Commitment without the
consent of the Required Lenders; provided that no such increase shall increase
the Commitment or decrease the Pro Rata Share of any Lender absent the consent
of that Lender, (b) extend, postpone or delay the date for payment of any
principal of or interest on any Loan or any fees payable hereunder or under any
other Credit Document without the consent of the Required Lenders and each
Lender directly affected thereby, or (c) reduce the principal amount of any
Loan, the rate of interest payable with respect thereto or any fees or other
amounts payable hereunder or under any other Credit Document (or change the
method of calculating any of the foregoing) without the consent of the Required
Lenders and each Lender directly affected thereby. Without the consent of all of
the Lenders, no amendment, modification, supplement, termination, waiver or
consent shall (a) permit the term of any Letter of Credit to exceed one year or
extend beyond the Maturity Date or permit the Aggregate Effective Amount of all
outstanding Letters of Credit to exceed $5,000,000 (unless such Letters of
Credit are supported by cash collateral in a manner acceptable to the
Administrative Agent), (b) amend the provisions of the definition of "Required
Lenders" or this Section 11.2, (c) consent to the assignment or transfer by
Borrower of its rights or obligations hereunder or release any Guarantor from
the Guaranty (except to the extent that such Guarantor is the subject of a
Disposition permitted hereby), or (d) amend any provision of this Agreement that
expressly requires the consent or approval of all 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 of the
Creditors.
11.3 Costs, Expenses and Taxes. Borrower shall pay within five Business
Days after demand, accompanied by an invoice therefor:
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(a) the reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the negotiation, preparation,
syndication, administration, execution and delivery of the Credit
Documents;
(b) the reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with any amendment to the Credit
Documents or any waiver of the terms thereof; and
(c) the reasonable costs and expenses of the Administrative
Agent and, after a Default, the Lenders in connection with the
refinancing, restructuring, reorganization (including a bankruptcy
reorganization) and enforcement or attempted enforcement of the Credit
Documents, and any matter related thereto.
The foregoing costs and expenses shall include the actual environmental review
fees, filing fees, recording fees, title insurance premiums and 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, without duplication,
reasonably allocated costs of legal counsel employed by the Administrative Agent
or, with respect to Section 11.3(c) 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 Obligor. Such costs and expenses
shall also include, in the case of any amendment or waiver of any Credit
Document requested by Borrower, the administrative costs of the Administrative
Agent reasonably attributable thereto. Borrower shall pay any and all
documentary, recording, stamp and other taxes, 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 Credit Document or any other instrument
or writing to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto. Any amount payable to the Administrative
Agent or any Lender under this Section 11.3 shall bear interest from the fifth
Business 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 Credit Document and no action taken by any Creditor
pursuant hereto or thereto may, or may be deemed to, make any of the Creditors a
partnership, an association, a joint venture or other entity, either among
themselves or with Borrower or any Affiliate of Borrower. Each Lender's
obligation to make any Advance pursuant hereto is several and not joint or joint
and several, and in the case of the initial Advance only, is conditioned upon
the performance by all other Lenders of their obligations to make initial
Advances. A default by any Lender will not increase the Commitment of 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.
11.5 Survival of Representations and Warranties. All representations and
warranties contained herein or in any other Credit Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Obligors, 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 each Creditor,
notwithstanding any investigation made by the Creditors or on their behalf.
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11.6 Notices. Except as otherwise expressly provided in the Credit
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Credit Document must be in writing and
must be mailed, 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 Credit Document or, as to any party to any Credit
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Credit Document in accordance with this
Section. Except as otherwise expressly provided in any Credit Document, if any
notice, request, demand, direction or other communication required or permitted
by any Credit Document is given by mail it will be effective on the earlier of
receipt or the fifth calendar day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telecopier, when receipt is
confirmed; if dispatched by commercial courier, on the scheduled delivery date;
or if given by personal delivery, when delivered.
11.7 Execution of Credit Documents. Unless the Administrative Agent
otherwise specifies with respect to any Credit Document, (a) this Agreement and
any other Credit 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 Credit 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 Credit
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 Credit Documents to which
Borrower is a party will be binding upon and inure to the benefit of
Borrower and the Creditors, and their respective successors and assigns,
except that Borrower may not assign its 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 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; 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 Borrower (neither of which approvals shall be
unreasonably withheld or delayed), provided that the consent of Borrower
to assignments shall not be required when any Default or Event of
Default has occurred and remains continuing, (ii) such assignment shall
be evidenced by an Assignment Agreement, a copy of which shall be
furnished to the Administrative Agent as provided below, (iii) except in
the case of an assignment to an Affiliate of the assigning Lender, to
another Lender or of the entire remaining Commitment of the assigning
Lender, the assignment shall not assign a Commitment equivalent to less
than
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$10,000,000, and (iv) the effective date of any such assignment shall be
as specified in the Assignment Agreement, but not earlier than the date
which is five Business Days after the date the Administrative Agent has
received the Assignment Agreement. Upon the effective date of such
Assignment Agreement, the Eligible Assignee named therein shall be a
Lender for all purposes of this Agreement, with the Pro Rata Share
therein set forth and, to the extent of such Pro Rata Share, the
assigning Lender shall be released from its further obligations under
the Credit Documents. Borrower agrees that it shall execute and deliver
(against delivery by the assigning Lender to Borrower of its Note) to
such assignee Lender, a Note evidencing that assignee Lender's Pro Rata
Share, and to the assigning Lender, a Note evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment Agreement, 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 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 Credit
Document; (ii) the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to the financial
condition of Borrower or the performance by Borrower 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 Assignment
Agreement; (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, continue 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 and
the other Credit Documents 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 Assignment Agreement
delivered to it. After receipt of a completed Assignment Agreement
executed by any Lender and an Eligible Assignee, and receipt of an
assignment fee of $3,500 from such Eligible Assignee (which fee shall
not be required when such Eligible Assignee is an Affiliate of the
assigning Lender), the Administrative Agent shall, promptly following
the effective date thereof, provide to Borrower and the Lenders a
revised list of the Pro Rata Shares of the Lenders giving effect
thereto.
(e) Each Lender may from time to time grant participations to
one or more banks or other financial institutions (including another
Lender) in a portion of its Pro Rata Share; 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 a Lender hereunder
for any purpose except, if the participation Agreement so provides, for
the purposes of Sections 3.7, 3.8, 11.11 and 11.22 but only to the
extent that the cost of such
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benefits to Borrower does not exceed the cost which Borrower would have
incurred in respect of such Lender absent the participation, (iv)
Borrower, the Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (v) the
participation interest shall be expressed as a percentage of the
granting Lender's Commitment as it then exists and shall not restrict an
increase in the Aggregate Commitments, or in the granting Lender's
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 Credit 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 payable with respect
to the participation, any fee or any other monetary amount payable to
the participant, or (C) reduce the amount of any installment of
principal due under the Notes in a manner which affects the participant.
(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to one or more SPC's
established or maintained by that Granting Lender the option to provide
all or any part of any Loan or Advance that such Granting Lender would
otherwise be obligated to make, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPC, (ii) if a SPC
elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof, (iii) the rights of any such SPC
shall be derivative of the rights of the Granting Lender, and each SPC
shall be subject to all of the restrictions upon the Granting Lender
herein contained, and (iv) the use of any SPC shall not increase any
costs of Borrower hereunder. Each SPC shall be conclusively presumed to
have made arrangements with its Granting Lender for the exercise of
voting and other rights hereunder in a manner which is acceptable to the
SPC, and the Administrative Agent, the other Creditors, Borrower and
each other Party shall be entitled to rely upon and deal solely with the
Granting Lender with respect to Loans and Advances made by or through
its SPC. The making of a Loan by a SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by the Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain
with the related Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
similar proceedings under the laws of the United States or any State
thereof, provided that the Granting Lender for each SPC hereby agrees to
indemnify, save, and hold harmless each other party hereto for any loss,
cost, damage and expense arising out of their inability to institute any
such proceeding against its SPC. In addition, notwithstanding anything
to the contrary contained in this Section 11.8, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower or the
Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions providing liquidity and/or
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credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans (but nothing contained herein shall be construed in
derogation of the obligation of the Granting Lender to make Loans
hereunder), provided that neither the consent of the SPC or of any such
assignee shall be required for amendments or waivers of provisions of the
Credit Documents except for those amendments or waivers for which the
consent of participants is required under Section 11.8(e)(vi), and (ii)
disclose on a confidential basis (in the same manner described in Section
11.14) any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or
credit or liquidity enhancement to such SPC.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, each Creditor may (but only with the consent of the Required
Lenders) 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 Borrower or any Property of
Borrower in its possession against the Obligations.
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 Borrower, 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 the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender 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 Borrower or any Person claiming through or succeeding
to the rights of Borrower, 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. Borrower expressly consents to
the foregoing arrangements and agrees that any Lender holding a participation in
an Obligation so purchased 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 Borrower. Borrower agrees to indemnify, save and hold
harmless the Creditors and their directors, officers, agents, attorneys and
employees (collectively the "Indemnitees") from and against: (a) any and all
claims, demands, actions or causes of action, 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 Borrower, any other Obligor, their respective Affiliates or any
of their respective partners, officers,
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directors or stockholders relating to the Commitments, the use or contemplated
use of proceeds of any Loan, Letter of Credit or Swing Line Advance, or the
relationship between any such Person and the Creditors 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, costs or
expenses (including reasonable attorneys' fees and, without duplication, 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 (i) any loss caused by its own gross negligence
or willful misconduct, (ii) any claims or causes of action between two or more
of the Creditors or (iii) as to any claim asserted by that Indemnitee against
Borrower to the extent that Borrower prevails on that claim in a final and
non-appealable determination by a court of competent jurisdiction or an
arbitrator appointed in accordance herewith. If any claim, demand, action or
cause of action is asserted against any Indemnitee, such Indemnitee shall
promptly notify Borrower, but the failure to so promptly notify Borrower shall
not affect Borrower's obligations under this Section unless such failure
materially prejudices Borrower's right to participate in the contest of such
claim, demand, action or cause of action, as hereinafter provided. Each
Indemnitee may (i) contest the validity, applicability and amount of such claim,
demand, action or cause of action with counsel of its own choosing and (ii)
reasonably (as determined by a Lender providing credit facilities substantially
similar to those described in this Agreement) settle or compromise any claim or
proceeding for which Borrower may be liable for payment of indemnities
hereunder. Any Indemnitee that proposes to so settle or compromise any claim or
proceeding for which Borrower may be liable for payment of indemnity hereunder
shall give Borrower written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding. Any obligation or liability of Borrower to any Indemnitee under this
Section 11.11 shall survive the expiration or termination of this Agreement, the
repayment of all Loans, the expiration or termination of all Letters of Credit
and the payment and performance of all other Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and agrees
that:
(a) Any inspections of any Property of Borrower made by or
through the Creditors are for purposes of administration of the Loans
and Letters of Credit only and Borrower is not entitled to rely upon the
same (whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Creditors pursuant to the Credit
Documents, no Creditor 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 any Creditor;
(c) The relationship between each Obligor and Creditors is, and
shall at all times remain, solely that of borrower and lenders; no
Creditor shall under any circumstance be construed to be a partner or
joint venturer with Borrower or its Affiliates; no creditor shall under
any circumstance be deemed to be in a relationship of confidence or
trust or a fiduciary or other special relationship with Borrower or its
Affiliates, or to owe any fiduciary duty or other special duty to
Borrower or its Affiliates; no Creditor undertakes or assumes any
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responsibility or duty to Borrower or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform Borrower or its
Affiliates of any matter in connection with their Property or the
operations of Borrower or its Affiliates; Borrower and its Affiliates
shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment
or supply of information undertaken or assumed by the Creditors in
connection with such matters is solely for the protection of the
Creditors and neither Borrower nor any other Person is entitled to rely
thereon; and
(d) The Creditors 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 Borrower or its Affiliates and Borrower hereby
indemnifies and holds each Creditor harmless from any such loss, damage,
liability or claim.
11.13 Nonliability of Responsible Official. In the absence of actual
fraud, no Certificate of a Responsible Official delivered hereunder shall create
personal liability on the part of such Responsible Official for performance or
payment hereunder of any of the Credit Documents.
11.14 No Third Parties Benefitted. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower and the Creditors in connection with the Loans, Letters of Credit and
Swing Line Advances and is made for the sole benefit of Borrower, the Creditors
and the Creditors' successors and assigns. Except as provided in Sections 11.8,
11.11 and 11.14, no other Person shall have any rights of any nature hereunder
or by reason hereof.
11.15 Confidentiality. Subject to clause (b) of this Section, each
Lender agrees to hold any confidential information that it may receive from
Borrower pursuant to this Agreement in confidence, except for disclosure: (i) to
other Lenders; (ii) to legal counsel and accountants for Borrower or any Lender;
(iii) to other professional advisors to Borrower or any Lender, provided that
the recipient has accepted such information subject to a confidentiality
Agreement substantially similar to this Section 11.14; (iv) to regulatory
officials having jurisdiction over that Lender; (v) as required by Law or legal
process or in connection with any legal proceeding to which that Lender and
Borrower are adverse parties; and (vi) 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 Note, provided that the recipient has accepted
such information subject to a written confidentiality Agreement. For purposes of
the foregoing, "confidential information" shall mean any information respecting
Borrower reasonably considered by 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) information
previously disclosed by Borrower to any Person not associated with themselves
without a confidentiality Agreement or obligation substantially similar to this
Section 11.14. Nothing in this Section shall be construed to create or give rise
to any fiduciary duty or other special duty on the part of any Creditor to
Borrower.
(b) Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
Borrower, or one or more of its Affiliates (in connection with this Agreement or
otherwise) by any Creditor or by one or more Subsidiaries or Affiliates of that
Creditor and Borrower hereby authorizes each Lender to share any information
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delivered to that Lender by Borrower and its Subsidiaries pursuant to the Credit
Documents, or in connection with the decision of such Lender to enter into this
Agreement, to any Subsidiary or Affiliate of that Lender, it being understood
that any such Subsidiary or Affiliate of any Lender receiving such information
shall be bound by any obligation of confidentiality as if it were a Lender
hereunder. This authorization shall survive the repayment of the Obligations and
the termination of the Commitments.
11.16 Further Assurances. Borrower covenants that Borrower and each
other Obligor shall, at their expense and without expense to the Creditors, do,
execute and deliver such further acts and documents as any Creditor from time to
time reasonably requires for the assuring and confirming unto the Creditors 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 Credit
Document.
11.17 Governing Law. Except to the extent otherwise provided therein,
each Credit Document shall be governed by, and construed and enforced in
accordance with, the local Laws of California, without reference to the choice
of law or conflicts of laws provisions thereof.
11.18 Severability of Provisions. Any provision in any Credit 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 Credit
Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and the
other Credit Documents are included for convenience of reference only and are
not part of this Agreement or the other Credit Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Credit
Documents.
11.21 Foreign Lenders and Participants. Each Lender, and each holder of
a participation interest herein, 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 Borrower (with a copy
to the Administrative Agent) on the Effective Date (or after 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 1001 (relating to such Person and entitling it to a
complete exemption from withholding on all payments to be made to such Person by
Borrower pursuant to this Agreement) or Form W-8 ECI (relating to all payments
to be made to such Person by Borrower pursuant to this Agreement) of the United
States Internal Revenue Service or such other evidence (including, if reasonably
necessary, Form W-9) satisfactory to Borrower and the Administrative Agent that
no withholding under the federal income tax laws is required with respect to
such Person. Thereafter and from time to time, each such Person shall (a)
promptly submit to Borrower (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
Borrower and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Person by
Borrower 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
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the re-designation of its LIBOR Office, if any) to avoid any requirement of
applicable Laws that Borrower make any deduction or withholding for taxes from
amounts payable to such Person.
11.22 Integration. This Agreement, together with the other Credit
Documents and the letter agreements referred to in Sections 3.2, 3.3, 3.5 and
3.6, 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 Credit Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Creditors in any other Credit Document shall
not be deemed a conflict with this Agreement. Each Credit 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.
11.23 Hazardous Material Indemnity. Borrower hereby agrees to indemnify,
hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Creditors 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 requirements,
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 any of the
Creditors, and expenses to the extent that the defense of any such action has
not been assumed by Borrower), arising directly or indirectly out of:
(a) the presence on, in, under or attributable to any Real
Property of any Hazardous Materials, or any releases or discharges of
any Hazardous Materials on, under or from any Real Property; and
(b) any activity carried on or undertaken on any Real Property
by Borrower, any of its Subsidiaries, or any of their respective
predecessors in title, whether prior to or during the term of this
Agreement (but not after the Obligations are paid in full and the
Commitments terminated), and whether by Borrower, its Subsidiaries or
any predecessor in title or any employees, agents, contractors or
subcontractors of Borrower, its Subsidiaries or any predecessor in
title, or any third persons at any time prior to the payment in full of
the Obligations and the termination of the Commitments 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 affecting any Real Property.
The foregoing indemnity shall further apply to any residual contamination
remaining on, in, under or affecting any Real Property, or affecting any natural
resources, and to any contamination of any Real Property or related natural
resources arising from 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
Hazardous Materials Laws, but the foregoing indemnity shall not apply to
Hazardous Materials on any Real Property, the presence of which is caused by the
relevant Creditor. Borrower hereby acknowledges and agrees that, notwithstanding
any other provision of this Agreement or any of the other Credit Documents to
the contrary, the obligations of Borrower under this Section shall be unlimited
obligations of Borrower and shall not be secured by any
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mortgage or deed of trust on any Real Property. Any obligation or liability of
Borrower to any Indemnitee under this Section shall survive the expiration or
termination of this Agreement and the repayment of all of the Obligations until
(but not beyond) the date upon which the applicable statute of limitations for
the related cause of action shall have expired.
11.24 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 CREDIT 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 CREDIT 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.
11.25 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES THAT
THIS AGREEMENT AND THE OTHER CREDIT 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. BORROWER AGREES THAT IT WILL NOT RELY
ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS
BY ANY CREDITOR OR ITS REPRESENTATIVES THAT DOES NOT COMPLY WITH SECTION 11.2 TO
EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER CREDIT DOCUMENTS.
11.26 Removal of a Lender. Borrower shall have the right to remove a
Lender as a party to this Agreement in accordance with this Section under the
circumstances set forth in Sections 3.7 and 3.8(b). If Borrower is entitled to
remove a Lender pursuant to this Section, upon notice from Borrower, the Lender
being removed shall execute and deliver an Assignment Agreement (but shall not
be obligated to pay any assignment fee) covering that Lender's Commitment in
favor of one or more Eligible Assignees designated by Borrower (and acceptable
to the Administrative Agent) subject to payment of a purchase price by such
Eligible Assignee equal to all principal and accrued interest, fees and other
amounts payable to such Lender under this Agreement through the date of
assignment.
[THIS SPACE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGES TO FOLLOW]
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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.
XXXXXXXX INCORPORATED, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA N.A., as
Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address: WA1-501-37-20
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA N.A., as Issuing Lender, Swing
Line Lender and a Lender
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Address: CA6-137-02-02
000 Xxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
S-1 [XXXXXXXX INCORPORATED]
CREDIT AGREEMENT SIGNATURE PAGE]
85
FIRST UNION NATIONAL BANK, as Syndication Agent
and a Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
Address: 000 Xxxxx Xxxxxxx Xxxxxx
CP-6 (NC0760)
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx XxxXxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WASHINGTON MUTUAL BANK, dba WM BUSINESS
BANK
By: /s/ S.C. Xxxxxxxxxx
---------------------------------
Name: S.C. Xxxxxxxxxx
Title: Vice President and Manager
Address: 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Vice President and Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SANWA BANK CALIFORNIA
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Address: 000 Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
S-2 [XXXXXXXX INCORPORATED]
CREDIT AGREEMENT SIGNATURE PAGE]
