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Exhibit 10.17
CREDIT AGREEMENT
Dated as of June 30, 1998
among
XXXXXX STEEL COMPANY
The Lenders herein named
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Arranger, Administrative Agent, Issuing Bank
and Swing Line Lender
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS................................ 1
1.1 Defined Term.................................................... 1
1.2 Use of Defined Terms............................................ 16
1.3 Accounting Terms................................................ 16
1.4 Rounding........................................................ 16
1.5 Exhibits and Schedules.......................................... 17
1.6 References to "Borrower and its Subsidiaries.".................. 17
1.7 Miscellaneous Terms............................................. 17
ARTICLE 2 LOANS........................................................... 18
2.1 Loans - General................................................. 18
2.2 Base Rate Loans................................................. 19
2.3 Eurodollar Rate Loans........................................... 19
2.4 Voluntary Reduction of the Commitment........................... 20
2.5 Administrative Agent's Right to Assume Funds Available for
Advances........................................................ 20
ARTICLE 2A LETTERS OF CREDIT................................................ 21
2A.1 Letters of Credit............................................... 21
2A.2 Notice.......................................................... 22
2A.3 Letter of Credit Participations................................. 22
2A.4 Disbursement and Reimbursement.................................. 22
ARTICLE 2B SWING LINE....................................................... 25
2B.1 Swing Line...................................................... 25
2B.2 Borrowing....................................................... 25
2B.3 Repayments...................................................... 25
ARTICLE 3 PAYMENTS AND FEES; SECURITY DOCUMENTS; GUARANTY................. 26
3.1 Principal and Interest.......................................... 26
3.2 Facility Fee.................................................... 27
3.4 Agency Fee...................................................... 27
3.5 Increased Commitment Costs...................................... 27
3.6 Eurodollar Fees and Costs....................................... 28
3.7 Default Rate.................................................... 30
3.8 Computation of Interest and Fees................................ 30
3.9 Non-Banking Days................................................ 31
3.10 Manner and Treatment of Payments................................ 31
3.11 Funding Sources................................................. 32
3.12 Failure to Charge Not Subsequent Waiver......................... 32
3.13 Administrative Agent's Right to Assume Payments Will be Made
by Borrower..................................................... 32
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3.14 Fee Determination Detail........................................ 33
3.15 Survivability................................................... 33
3.16 Security Documents.............................................. 33
3.17 Guaranty........................................................ 33
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.................................. 34
4.1 Existence and Qualification: Power; Compliance With Laws........ 34
4.2 Authority: Compliance With Other Agreements and Instruments and
Government Regulations.......................................... 34
4.3 No Governmental Approvals Required.............................. 35
4.4 Subsidiaries.................................................... 35
4.5 Financial Statements............................................ 35
4.6 No Other Liabilities; No Material Adverse Effect................ 35
4.7 Title to and Location of Property............................... 35
4.8 Intangible Assets............................................... 36
4.9 Governmental Regulation......................................... 36
4.10 Litigation...................................................... 36
4.11 Binding Obligations............................................. 36
4.12 No Default...................................................... 36
4.13 Pension Plans................................................... 36
4.14 Regulations G, U and X.......................................... 37
4.15 Disclosure...................................................... 37
4.16 Tax Liability................................................... 37
4.17 Priority Status................................................. 37
4.18 Hazardous Materials............................................. 37
ARTICLE 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS)..................................... 39
5.1 Payment of Taxes and Other Potential Liens...................... 39
5.2 Preservation of Existence....................................... 39
5.3 Maintenance of Properties....................................... 39
5.4 Maintenance of Insurance........................................ 39
5.5 Compliance With Laws............................................ 40
5.6 Inspection Rights............................................... 40
5.7 Keeping of Records and Books of Account......................... 40
5.8 Compliance With Agreements...................................... 40
5.9 Use of Proceeds................................................. 41
5.10 Hazardous Materials Laws........................................ 41
5.11 New Subsidiaries................................................ 41
ARTICLE 6 NEGATIVE COVENANTS.............................................. 42
6.1 Disposition of Property......................................... 42
6.2 Mergers......................................................... 42
6.3 Investments and Acquisitions.................................... 42
6.4 Liens, Rights of Others and Negative Pledges.................... 42
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6.5 Distributions................................................... 43
6.6 ERISA Compliance................................................ 43
6.7 Change in Nature of Business.................................... 43
6.8 Indebtedness Obligations........................................ 43
6.9 Transactions with Affiliates.................................... 44
6.10 Capital Expenditures............................................ 44
6.11 Financial Covenants............................................. 44
ARTICLE 7 INFORMATION AND REPORTING REQUIREMENTS.......................... 45
7.1 Financial and Business Information.............................. 45
ARTICLE 8 CONDITIONS...................................................... 47
8.1 Initial Advances................................................ 47
8.2 Any Advance, etc................................................ 48
ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT
OF DEFAULT...................................................... 50
9.1 Events of Default............................................... 50
9.2 Remedies Upon Event of Default.................................. 52
ARTICLE 10 THE ADMINISTRATIVE AGENT........................................ 54
10.1 Appointment and Authorization................................... 54
10.2 Administrative Agent and Affiliates............................. 54
10.3 Proportionate Interest of the Lenders in any Collateral......... 54
10.4 Lenders Credit Decisions........................................ 55
10.5 Action by Administrative Agent; Etc............................. 55
10.6 Liability of Administrative Agent and Arranger.................. 56
10.7 Indemnification................................................. 57
10.8 Successor Administrative Agent.................................. 57
10.9 No Obligations of Borrower...................................... 58
ARTICLE 11 MISCELLANEOUS................................................... 59
11.1 Cumulative Remedies; No Waiver.................................. 59
11.2 Amendments; Consents............................................ 59
11.3 Costs, Expenses and Taxes....................................... 60
11.4 Nature of Lenders' Obligations.................................. 60
11.5 Survival of Representations and Warranties...................... 60
11.6 Notices......................................................... 61
11.7 Execution of Loan Documents; Counterparts....................... 61
11.8 Binding Effect; Assignment...................................... 61
11.9 Setoff Rights................................................... 64
11.10 Sharing of Setoffs.............................................. 64
11.11 Indemnity by Borrower........................................... 64
11.12 Nonliability of the Lenders..................................... 65
11.13 No Third Parties Benefited...................................... 66
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11.14 Further Assurances........................................... 66
11.15 Integration.................................................. 66
11.16 Governing Law................................................ 67
11.17 Severability of Provisions................................... 67
11.18 Independent Covenants........................................ 67
11.19 Headings..................................................... 67
11.20 Time of the Essence.......................................... 67
11.21 Purported Oral Amendments.................................... 67
11.22 Jury Trial Waiver............................................ 67
List of Schedules and Exhibits:
Schedule 1.1 List of Lenders and Pro Rata Shares
Schedule 3.1 Pricing Grid
Schedule 4.4 Subsidiaries
Schedule 4.6 Contingent Liabilities
Schedule 4.10 Litigation
Schedule 4.13 Pension Plans
Schedule 4.12 Liens
Schedule 4.18 Hazardous Materials
Schedule 6.5 Indebtedness
Exhibit A Form of Commitment Assignment and Acceptance
Exhibit B Form of Compliance Certificate
Exhibit C Form of RLC Note
Exhibit D Form of Guaranty
Exhibit E Form of Request for Loan
Exhibit F Form of Pledge Agreement
Exhibit G Form of Security Agreement
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CREDIT AGREEMENT
Dated as of June 30, 1998
This CREDIT AGREEMENT ("Agreement") is entered into by and between XXXXXX
STEEL COMPANY, a Delaware corporation ("Borrower"), and each lender whose name
is set forth on the signature pages hereof or which may hereafter execute and
deliver a Commitment Assignment and Acceptance with respect to this Agreement
pursuant to Section 11.8 (collectively, the "Lenders" and individually, a
"Lender"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Arranger,
Administrative Agent, Issuing Bank and Swing Line Lender. 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 Term. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
transactions, by which Borrower and/or any of its Subsidiaries directly or
indirectly (a) acquires any going business or all or substantially all of the
assets of any firm, partnership, joint venture, corporation or division thereof
whether through purchase of assets, merger or otherwise, (b) 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
(c) acquires control of more than 50% of the ownership interests in any
partnership, joint venture, limited liability company or other business entity
which does not have outstanding voting securities.
"Administrative Agent" means Xxxxx Fargo Bank, National Association, when
acting in its capacity as the Administrative Agent under any of the Loan
Documents, and any successor Administrative Agent or assign, such successor or
assign to be reasonably acceptable to Borrower.
"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
Eurodollar Rate Advance.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly Controls, or is under common Control with, or is Controlled by, such
Person.
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"Agreement" means this Loan Agreement either as originally executed or as
it may from time to time be supplemented, modified, amended, restated or
extended.
"Arranger" means Xxxxx Fargo Bank, National Association and any successor
or assign.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or Friday,
other than a day on which banks are authorized or required to be closed in
Arizona, California or New York.
"Base Rate" means, as of any date of determination, the higher of (a) the
Prime Rate or (b) the Federal Funds Rate plus one half of one percent per annum.
"Base Rate Advance" means an Advance made hereunder and designated as a
Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and designated as a Base Rate
Loan in accordance with Article 2.
"Base Rate Spread" means an additional component of interest, which may
vary over the term of any Base Rate Loan, to be added to the Base Rate in
determining the interest rate payable with respect to Base Rate Loans. As of
each date of determination, the Base Rate Spread equals the interest rate per
annum set forth on the Pricing Grid.
"Borrower" means Xxxxxx Steel Company, a Delaware corporation, and its
successors and permitted assigns.
"Capital Lease" means, as to any Person, a lease of any Property by that
Person as lessee that is, or should be in accordance with Financial Accounting
Standards Board Statement No. 13, recorded as a "capital lease" on the balance
sheet of that Person prepared in accordance with GAAP.
"Cash" means, when used in connection with any Person, all monetary and
non-monetary items owned by that Person that are treated as cash in accordance
with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any Person, that
Person's Investments in:
(a) Government Securities due within one year after the date of
the making of the Investment;
(b) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such State
given on the date of such investment a credit rating of at least Aa by
Moody's Investors
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Service, Inc. or AA by Standard & Poor's Rating Group (a division of
XxXxxx- Xxxx, Inc.), in each case due within one year after the date of
the making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and reverse
repurchase agreements covering Government Securities executed by, any
Lender or any bank, savings and loan or savings bank 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 $250,000,000, in each case due
within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and reverse
repurchase agreements covering Government Securities executed by, any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital surplus
and undivided profits of at least $500,000,000, in each case due within
one year after the date of the making of the Investment; and
(e) 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 Xxxxx'x Investors Service, Inc. and Standard &
Poor's Rating Group (a division of XxXxxx-Xxxx, Inc.), in each case due
within 270 days 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 Banking Day on which the conditions set
forth in Section 8.1 are satisfied.
"Code" means the Internal Revenue Code of 1986, as amended or replaced and
as in effect from time to time.
"Collateral" means all of the property of Borrower and of each Subsidiary,
present and future.
"Commercial Letter of Credit" means a Letter of Credit that is not a
Standby Letter of Credit.
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"Commercial Letter of Credit Fee" means one percent (1.0%) of the stated
amount of the Letter of Credit.
"Commitment" means, subject to Section 2.4, $25,000,000. The respective
Pro Rata Shares of the Lenders with respect to the Commitment as of the Closing
Date are set forth in Schedule 1.1.
"Commitment Assignment and Acceptance" means a Commitment Assignment and
Acceptance executed by a Lender and an Eligible Assignee substantially in the
form of Exhibit A and registered with the Administrative Agent pursuant to
Section 11.8.
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Senior 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 effect of assuring or holding harmless any obligee against
loss with respect to any obligation of such other Person, or (c) any obligation
of a partnership or joint venture of which such Person is a partner or joint
venturer. 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 material provision
of any outstanding Securities 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.
"Control" (and the correlative terms, "Controlled by" and "under common
Control with") means 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, 5% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation having 100 or
more record owners of such securities (other than securities having such power
only by reason of the happening of a contingency), or 5% or more of the
partnership or other ownership interests of any other Person having 100 or more
owners of such partnership or other ownership interests
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(other than as a limited partner of such other Person), will be deemed to
control such corporation or other Person.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement receivership, insolvency,
reorganization, or similar debtor relief Laws from time to time in effect
affecting the rights of creditors generally.
"Default" means any Event of Default or any event that, with the giving of
any applicable notice or passage of time specified in Section 9.1, or both,
would be an Event of Default.
"Default Rate" means the interest rate described in Section 3.7.
"Designated Deposit Account" means a demand deposit account to be
maintained by Borrower with the Administrative Agent, as from time to time
designated by Borrower by written notification to the Administrative Agent.
"Designated Employee" means any natural Person designated by Borrower as
an employee of Borrower authorized to make requests for Loans under this
Agreement on behalf of Borrower pursuant to a written notice thereof signed by a
Responsible Official of Borrower delivered to Administrative Agent.
"Designated Eurodollar Market" means, with respect to any Eurodollar Rate
Loan, the London interbank market.
"Disposition" means the sale, transfer or other disposition in any single
transaction or series of related transactions of any asset or group of related
assets, of Borrower or any of its Subsidiaries (including a sale, transfer or
other disposition by Borrower to one or more of its Subsidiaries or by a
Subsidiary of Borrower to another Subsidiary of Borrower) that has or have at
the date of the Disposition either a book value or fair market value (which
shall be deemed to be equal to the sales price for such asset or assets upon a
sale to a Person that is not an Affiliate of Borrower) equal to or greater than
$50,000,000, other than (a) the sale or other disposition of inventory in the
ordinary course of business, (b) the sale or other disposition of equipment that
is replaced by equipment performing substantially the same function not later
than (30) days after such sale or disposition and (c) the sale or other
disposition of Cash Equivalents in the ordinary course of business.
"Distribution" means, with respect to any shares of capital stock or any
warrant or right to acquire shares of capital stock or any other equity security
issued by a Person, (a) the retirement, redemption, purchase, or other
acquisition for value (other than for common stock of such Person) by such
Person of any such security, (b) the declaration or (without duplication)
payment by such Person of any dividend in Cash or in Property (other than in
common stock of such Person) on or with respect to any such security, (c) any
Investment by such Person in the holder of any such security where such
Investment is made in lieu of, or to
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avoid characterization as, a Distribution described in clauses (a) or (b) above
and (d) any other payment by such Person constituting a distribution under
applicable Laws with respect to such security.
"dollars" or "$" means United States dollars.
"EBITDA" means, as of any date of determination, as to Borrower and its
Subsidiaries, the sum of their income from operations, less interest expense,
taxes, depreciation, amortization and all extraordinary items.
"Eligible Assignee" means (a) with respect to any Lender, any Affiliate of
that Lender, and (b) any other Person (including any Lender) approved in writing
by Borrower and the Arranger, which approval shall not be unreasonably withheld
or delayed.
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
regulations issued pursuant thereto, as amended or replaced and as in effect
from time to time.
"ERISA Affiliate" means, with respect to any Person, any 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 Banking Day" means any Banking Day on which dealings in dollar
deposits are conducted by and among banks in the Designated Eurodollar Market.
"Eurodollar Base Rate" means, with respect to any Eurodollar Rate Loan,
the interest rate per annum (determined solely by the Administrative Agent and
rounded upward to the next 1/16 of 1%) at which deposits in dollars are offered
to prime banks by major banks in the Designated Eurodollar Market at or about
11:00 a.m. local time in the Designated Eurodollar Market, two (2) Eurodollar
Banking Days before the first day of the applicable Eurodollar Period in an
aggregate amount approximately equal to the amount of such Eurodollar Rate Loan
and for a period of time comparable to the number of days in the applicable
Eurodollar Period. The determination of the Eurodollar Rate by the
Administrative Agent shall be conclusive in the absence of manifest error.
"Eurodollar Lending Office" means, as to each Lender, its office or branch
so designated by written notice to Borrower and the Administrative Agent as its
Eurodollar Lending Office. If no Eurodollar Lending Office is designated by a
Lender, its Eurodollar Lending Office shall be its office at its address for
purposes of notices hereunder.
"Eurodollar Obligations" means eurocurrency liabilities, as defined in
Regulation D.
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date specified by Borrower pursuant to Section 2.1(c) and
ending 1, 2, 3 or 6 months thereafter, as specified by Borrower in the
applicable Request for Loan; provided that:
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(a) The first day of any Eurodollar Period shall be a Eurodollar
Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day that
is not a Eurodollar Banking Day shall be extended to the next succeeding
Eurodollar Banking Day unless such Eurodollar Banking Day falls in another
calendar month, in which case such Eurodollar Period shall end on the next
preceding Eurodollar Banking Day; and
(c) No Eurodollar Period shall extend beyond the Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate Loan, the
interest rate (rounded upward to the next 1/16 of 1%) determined to be equal to
the Eurodollar Base Rate divided by [1 minus the Eurodollar Reserve Percentage].
"Eurodollar Rate Advance" means an Advance made hereunder and designated
as a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and designated as a
Eurodollar Rate Loan in accordance with Article 2.
"Eurodollar Rate Spread" means an additional component of interest (which
may vary over the term of any Eurodollar Rate Loan) to be added to the
Eurodollar Rate in determining the interest rate payable with respect to
Eurodollar Rate Loans. As of each date of determination the Eurodollar Rate
Spread equals the interest rate per annum set forth on the Pricing Grid.
"Eurodollar Reserve Percentage" means, with respect to any Eurodollar Rate
Loan, the percentage applicable as of the date of determination of the
Eurodollar Base Rate representing the aggregate reserve requirements of the
Administrative Agent (disregarding any offsetting amounts that may be available
to the Administrative Agent to decrease such requirements to the extent that
such offsetting amounts arose out of transactions other than those contemplated
by this Agreement) under Regulation D and any other applicable Laws with respect
to Eurodollar Obligations in an aggregate amount equal to the amount of such
Eurodollar Rate Loan and for a time period comparable to the number of months in
the applicable Eurodollar Period. The determination by the Administrative Agent
of any applicable Eurodollar Reserve Percentage shall be presumed correct in the
absence of manifest error.
"Event of Default" has the meaning provided in Section 9.1.
"Facility Fee Rate" means, as of each date of determination, the rate per
annum set forth on the Pricing Grid.
"Federal Funds Rate" means, as of any date of determination, the interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with
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members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Banking Day, for the next
preceding Banking Day) by the Federal Reserve Bank of New York in its
statistical release H-15 or, if such rate is not so published for any day which
is a Banking Day, the average of the quotations for such day on such
transactions, as received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Covenants" means those covenants provided for in Section 6.11.
"Fiscal Quarter" means the fiscal quarter of Borrower consisting of a
three month fiscal period ending on each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of Borrower consisting of a twelve
month fiscal period ending on each December 31.
"Fixed Charge Coverage Ratio" means, for the prior twelve months ending on
the last day of a Fiscal Quarter, the ratio of (i) EBITDA less all capital
expenditures and taxes paid, to (ii) the sum of interest expenses, lease
payments and scheduled principal payments of Borrower and its Subsidiaries.
"GAAP" means, as of any date of determination, accounting principles set
forth as "generally accepted" in then currently effective Statements of the
Auditing Standards Board of the American Institute of Certified Public
Accountants, or, if no such Statements are then in effect, that are then
approved by such other entity as may be approved by a significant segment of the
accounting profession in the United States of America. The term "consistently
applied," as used in connection therewith, means that the accounting principles
applied are consistent in all material respects to those applied at prior dates
or for prior periods.
"Government Securities" means readily marketable direct full faith and
credit obligations of the United States of America or obligations
unconditionally guaranteed by the full faith and credit of the United States of
America.
"Governmental Agency" means (a) any 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, (c) any court or administrative tribunal or (d)
with respect to any Person, any arbitration tribunal or other non-governmental
authority to whose jurisdiction that Person has consented.
"Guaranty" means a Continuing Guaranty from a Subsidiary of Borrower,
substantially in the form attached hereto as Exhibit D.
"Hazardous Materials" means substances defined as hazardous substances
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section 9601 et seq., or as hazardous, toxic or pollutant
pursuant to the Hazardous Materials Transportation Act 49 U.S.C. Section 1801,
et seq., the Resource Conservation and Recovery Act 42
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U.S.C. Section6901, et seq., or any other applicable Law governing environmental
health and hygiene, 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 of Hazardous Materials
applicable to any of the Property.
"Indebtedness" means, as to any Person, (a) all indebtedness of such
Person for borrowed money, (b) that portion of the obligations of such Person
under Capital Leases which is properly recorded as a liability on a balance
sheet of that Person prepared in accordance with GAAP, (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 in the ordinary
course of business in accordance with customary terms), (e) any obligation of
such Person that is secured by a Lien on assets of such Person, whether or not
that Person has assumed such obligation or 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 and (g) obligations of such Person for
unreimbursed draws under letters of credit issued for the account of such
Person.
"Intangible Assets" means assets that are considered intangible assets
under GAAP, including (a) any write-up in book value of any asset subsequent to
its acquisition and (b) customer lists, goodwill, computer software, copyrights,
trade names, trademarks, patents, unamortized deferred charges, unamortized debt
discount capitalized research and development costs and other intangible assets.
"Interest Coverage Ratio" means, for the prior twelve months ending on the
last day of a Fiscal Quarter, the ratio of EBITDA to the interest expense of
Borrower and its Subsidiaries.
"Interest Differential" means, with respect to any prepayment of a
Eurodollar Rate Loan on a day other than the last day of the applicable
Eurodollar Period and with respect to the failure to borrow a Eurodollar Rate
Loan on the date or in the amount specified in a Request for Loan, (a) the per
annum interest rate payable with respect to that Eurodollar Rate Loan as of the
date of the prepayment or failure to borrow, minus (b) the Eurodollar Rate, as
applicable, on or as near as practicable to, the date of the prepayment or
failure to borrow for a Eurodollar Rate Loan commencing on such date and ending
on the last day of the applicable Eurodollar Period. The determination of the
Interest Differential by the Administrative Agent shall be conclusive in the
absence of manifest error.
"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 capital stock or other Securities of any other Person or by means
of loan, advance, capital contribution, guaranty or other debt or equity
participation or interest or otherwise, in any other Person, including any
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partnership and joint venture interests of such Person in any other Person. The
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Issuing Bank" means Xxxxx Fargo Bank, National Association and any
successor or assign.
"Laws" means, collectively, all, foreign, federal, state and local
statutes, treaties, rules, regulations, ordinances, codes and administrative or
controlling precedents of any Governmental Agency.
"Lender" means any of the lenders signatory to this Agreement, their
successors and, upon the effective date after registration with the
Administrative Agent pursuant to Section 11.8 of a Commitment Assignment and
Acceptance executed by an Eligible Assignee, such Eligible Assignee.
"Letter of Credit Balance" means, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time for
which additional Collateral consisting of Cash Equivalents has not been pledged
plus (b) the aggregate amount which has been drawn under Letters of Credit but
for which the Issuing Bank or the Lenders, as the case may be, have not been
reimbursed by the Borrower.
"Letter of Credit Commitment" means $5,000,000.
"Letter of Credit Disbursement" means any payment or disbursement made by
the Issuing Bank under or pursuant to a Letter of Credit.
"Letters of Credit" means letters of credit issued by the Issuing Bank for
the account of the Borrower pursuant to Article 2A.
"Leverage Ratio" means the ratio of Net Funded Debt of Borrower and its
Subsidiaries to their EBITDA for the prior twelve month period.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, 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 grant any of the foregoing,
any conditional sale or other title retention agreement, any lease in the nature
of a security interest, and/or the filing of or agreement to give any financing
statement under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Loan" means any group of Advances made at any one time by the Lenders
under the Commitment pursuant to Article 2 or a Swing Line Loan.
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"Loan Documents" means, collectively, this Agreement, the Notes, any
Request for Loan, the Security Documents and any other certificates, documents
or agreements of any type or nature heretofore or hereafter executed and
delivered by Borrower to the Administrative Agent or to any Lender in
furtherance of this Agreement, in each case either as originally executed or as
the same may from time to time be supplemented, modified, amended, restated,
extended or supplanted.
"Majority Lenders" means, as of any date of determination, Lenders whose
aggregate Pro Rata Share is at least 51.0% of the Commitment then in effect or,
if the Commitment is then suspended or terminated, Lenders holding Notes
evidencing at least 51.0% of the aggregate Indebtedness evidenced by the Notes.
"Material Adverse Effect" means any set of circumstances or events which
(a) has or could reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan Document, (b) is or
could reasonably be expected to be material and adverse to the condition
(financial or otherwise) or business operations of Borrower and its
Subsidiaries, taken as a whole, or to the prospects of Borrower and its
Subsidiaries, taken as a whole, (c) materially impairs or could reasonably be
expected to materially impair the ability of Borrower and its Subsidiaries,
taken as a whole, to perform its Obligations or (d) materially impairs or could
reasonably be expected to materially impair the ability of any of the Lenders to
enforce any of its legal remedies pursuant to the Loan Documents.
"Maturity Date" means June 30, 2001.
"Multiemployer Plan" means any employee benefit plan of a type described
in Section 4001(a)(3) of ERISA.
"Negative Pledge" means any covenant binding on Borrower that prohibits
the creation of Liens on any Property of Borrower.
"Net Funded Debt" means the sum of the Indebtedness and Contingent
Obligations of Borrower and its Subsidiaries, less amounts in excess of
$5,000,000 fully collateralized by Cash or Cash Equivalents resulting from the
issuance of the Senior Notes.
"Note" means any of the promissory notes made by Borrower in favor of a
Lender evidencing Advances under that Lender's Pro Rata Share of the Commitment,
substantially in the form of Exhibit C, or the Swing Line Note, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Obligations" means all present and future obligations of every kind or
nature of Borrower at any time and from time to time owed to the Administrative
Agent, the Issuing Bank, the Swing Line Lender or the Lenders or any one or more
of them under any one or more of the Loan Documents, whether due or to become
due, matured or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of
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performance as well as obligations of payment, and including interest that
accrues after the commencement of any proceeding under any Debtor Relief Law by
or against Borrower or any Subsidiary of Borrower.
"Opinion of Counsel" means the favorable written legal opinion of counsel
to Borrower together with copies of any officer's certificate or legal opinion
of another counsel or law firm relied upon by such counsel in its opinion.
"Outstanding Balance" means the sum at any time of (i) the outstanding
principal amount of the Loans, plus (ii) the Letter of Credit Balance, plus
(iii) the Swing Line Balance.
"Party" means any Person other than the Administrative Agent and the
Lenders, which now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" that is subject
to Title IV of ERISA and which is maintained for employees of Borrower or any of
its ERISA Affiliates.
"Permitted Encumbrances" means:
(a) material inchoate Liens incident to construction or
maintenance of real property, or Liens incident to construction or
maintenance of real property, now or hereafter filed of record for which
adequate reserves have been set aside and which are being contested in
good faith by appropriate proceedings and have not proceeded to judgment;
(b) material Liens for taxes and assessments on real property
which are not yet past due, or Liens for taxes and assessments on real
property for which adequate reserves have been set aside and are being
contested in good faith by appropriate proceedings and have not proceeded
to judgment;
(c) easements, exceptions, reservations, or other agreements
granted or entered into after the date hereof 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;
(d) 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;
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(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, any right power, franchise, grant,
license, or permit;
(f) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of real
property;
(g) 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;
(h) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens
of judgments thereunder which are not currently dischargeable;
(i) 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 Borrower or a Subsidiary is a party as lessee;
(j) Liens consisting of deposits of Property to secure statutory
obligations of Borrower or a Subsidiary of Borrower in the ordinary course
of its business; and
(k) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds in proceedings to which Borrower
or a Subsidiary of Borrower is a party in the ordinary course of its
business.
"Permitted Right of Others" means a Right of Others consisting of (a) an
interest (other than a legal or equitable co-ownership interest, an option or
right to acquire a legal or equitable co-ownership interest and any interest of
a ground lessor under a ground lease) that does not materially impair the 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, limited liability company, joint stock
company, trust, estate, unincorporated organization, business association,
tribe, firm, joint venture, Governmental Agency, or otherwise.
"Pledge Agreement" means a Pledge and Irrevocable Proxy Security Agreement
from Borrower substantially in the form attached hereto as Exhibit F.
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"Pricing Grid" means the Pricing Grid attached hereto as Schedule 3.1.
"Prime Rate" means the rate of interest most recently announced by Xxxxx
Fargo Bank, National Association at its principal office in San Francisco as its
Prime Rate, with the understanding that the Prime Rate is one of several base
rates used by Xxxxx Fargo Bank and serves as the basis upon which effective
rates of interest are calculated for those loans making reference thereto, and
is evidenced by the recording thereof after its announcement in such internal
publication or publications as Xxxxx Fargo Bank may designate. Each change in
the Prime Rate will be effective on the day the change is announced within Xxxxx
Fargo Bank.
"Property" means any interest in any kind of property or asset whether
real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the percentage of the
Commitment set forth opposite the name of that Lender on Schedule 1.1.
"Quarterly Payment Date" means June 30, 1998 and each subsequent September
30, December 31, March 31 and June 30 through the Maturity Date.
"Regulations D, G, U and X" mean, respectively, Regulations D, G, U and X,
as at any time amended, of the Board of Governors of the Federal Reserve System,
or any other regulation in substance substituted therefor.
"Request for Loan" means a written request for a Loan 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.
"Requirement of Law" means, as to any Person, the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any Law, or judgment, award, decree, writ or determination of a
Governmental Agency, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is subject.
"Responsible Official" means (a) when used with reference to a Person
other than an individual, any corporate officer of such Person, general partner
of such Person, corporate 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 or his authorized agent acting through a power of
attorney. Any document or certificate hereunder that is signed or executed by a
Responsible Official of a Person shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of that Person.
"Right of Others" means, as to any Property in which a Person has an
interest, (a) any legal or equitable right, title or other interest (other than
a Lien) held by any other Person in or
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with respect to that Property, and (b) any option or right (including any option
or right to acquire a Lien) held by any other Person to acquire any such right,
title or other interest in or with respect to that Property.
"RLC Note" means a Note evidencing Advances made to Borrower pursuant to
Article 2.
"Securities" means any capital stock, share, voting trust certificate,
bond, debenture, note or other evidence of indebtedness, limited partnership
interest, or any warrant, option or other right to purchase or acquire any of
the foregoing.
"Security Agreement" means a Security Agreement from a Subsidiary of
Borrower, substantially in the form attached hereto as Exhibit G.
"Security Documents" has the meaning provided in Section 3.16.
"Senior Notes" means those 10.5% Senior Notes due 2008 issued on June 4,
1998 in the amount of $100,000,000.00.
"Senior Officer" means the (a) chief executive officer, (b) chief
operating officer, (c) chief financial officer, (d) vice president or (e)
treasurer, in each, case whatever the title nomenclature may be, of the Person
designated.
"Special Eurodollar Circumstance" means (a) the adoption of any Law by any
Governmental Agency, central branch or comparable authority with respect to
activities in the Designated Eurodollar Market, or (b) any change in the
interpretation or administration of any existing Law by any Governmental Agency,
central bank or comparable authority charged with the interpretation or
administration thereof, or (c) compliance by any Lender or its Eurodollar
Lending Office with any request or directive (whether or not having the force of
Law) of any such Governmental Agency, central bank or comparable authority, or
(d) the existence or occurrence of circumstances affecting the Designated
Eurodollar Market generally that are beyond the reasonable control of the
Lenders.
"Standby Letter of Credit" means a Letter of Credit intended to secure an
obligation of Borrower to the beneficiary of such Letter of Credit.
"Subsidiary" means, as of any date of determination and with respect to
any Person, any corporation, partnership, joint venture, limited liability
company or other business entity, 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 beneficially owned by such Person
and/or one or more Subsidiaries of such Person, or (b) in the case of a
partnership, joint venture, limited liability company or other business entity,
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
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interests are at the time beneficially owned by such Person and/or one or more
of its Subsidiaries.
"Swing Line" means the revolving line of credit established by the Swing
Line Lender in favor of Borrower pursuant to Article 2B.
"Swing Line Balance" means, as of any date of determination, the aggregate
principal Indebtedness of Borrower on all Swing Line Loans then outstanding.
"Swing Line Commitment" means $5,000,000.00.
"Swing Line Lender" means Xxxxx Fargo Bank, National Association.
"Swing Line Loans" means loans made by the Swing Line Lender to Borrower
pursuant to Article 2B.
"Swing Line Note" means that promissory note executed by Borrower in favor
of the Swing Line Lender in connection with the Swing Line.
"Termination Event" means (a) a "reportable event" as defined in Section
4043 of ERISA (other than a "reportable event" that is not subject to the
provision for 30 day notice to the PBGC), (b) the withdrawal of Borrower or any
of its ERISA Affiliates from a Pension Plan during any plan year in which it was
a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the
filing of a notice of intent to terminate a Pension Plan or the treatment of an
amendment to a Pension Plan as a termination thereof pursuant to Section 4041 of
ERISA, (d) the institution of proceedings to terminate a Pension Plan by the
PBGC or (e) any other event or condition which might reasonably be expected to
constitute grounds under ERISA for the termination of, or the apportionment of a
trustee to administer, any Pension Plan.
"Type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or Advance or a
Eurodollar Rate Loan or Advance.
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, except as otherwise specifically prescribed
herein. In the event that GAAP changes during the term of this Agreement such
that the Financial Covenants would then be calculated in a different manner or
with different components, (a) Borrower and the Lenders agree to promptly amend
this Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the same
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criteria as were effective prior to such change in GAAP and (b) unless and until
such an amendment to the Loan Documents is effected, Borrower shall report its
performance with respect to the affected covenants in accordance with GAAP as in
effect prior to such changes.
1.4 Rounding. Any financial ratios required to be maintained by Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed in this Agreement and rounding
the result up or down to the nearest number (with a round-up if there is no
nearest number) to the number of places by which such ratio is expressed in this
Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this Agreement
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries." Any reference herein to
"Borrower and its Subsidiaries" or the like shall refer solely to Borrower
during such times, if any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation. Each reference to an
hour or time of the day set forth in any Loan Document, unless otherwise stated,
shall be deemed to be a reference to the hour or time of the day in Phoenix,
Arizona.
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ARTICLE 2
LOANS
2.1 Loans - General.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date through the
Maturity Date, each Lender shall, pro rata according to its Pro Rata Share of
the then applicable Commitment, make Advances to Borrower under the Commitment
in such amounts as Borrower may request that do not exceed in the aggregate at
any one time outstanding the amount of that Lender's pro Rata Share of the then
applicable Commitment; provided that, after giving effect to the Loan of which
such Advance is a part, the Outstanding Balance shall not exceed the Commitment.
Subject to the limitations set forth herein, Borrower may borrow, repay and
reborrow under the Commitment without premium or penalty.
(b) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i) date of
such Loan, (ii) Type of Loan, (iii) amount of such Loan and (iv) if a Eurodollar
Rate Loan is requested, the Eurodollar Period for such Loan. Unless the
Administrative Agent has notified, in its sole and absolute discretion, Borrower
to the contrary, a Loan may be requested by telephone, telecopier or telex by a
Responsible Official of Borrower or by any Designated Employee, in which case
Borrower shall promptly confirm such request by transmitting a telecopy of, or
at Administrative Agent's request by mailing, a Request for Loan conforming to
the preceding sentence to Administrative Agent.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone, telecopier or telex
of the date and Type of the Loan, any applicable Eurodollar 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, each Lender shall make its Pro Rata
Share of the Loan available to the Administrative Agent at the Administrative
Agent's Office in immediately available funds. Upon fulfillment of the
applicable conditions set forth in Article 8, all Advances shall be credited in
immediately available funds to the Designated Deposit Account.
(d) Unless the Majority Lenders otherwise consent, each Base Rate
Loan shall be an integral multiple of $100,000 but not less than $500,000 and
each Eurodollar Rate Loan shall be an integral multiple of $500,000 but not less
than $1,000,000.
(e) The Advances made by each Lender under its Pro Rata Share of
the Commitment shall be evidenced by that Lender's RLC Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
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(g) The purpose of the Commitment is to provide for the working
capital needs and general corporate purposes of the Borrower.
(h) If no Request for Loan (or telephonic or other request for a
Loan referred to in the second sentence of Section 2.1(b), if applicable) has
been made within the requisite notice periods set forth in Sections 2.2 and 2.3
in connection with a Loan which, if made, would not increase the outstanding
principal Indebtedness outstanding under the Commitment, then Borrower shall be
deemed to have requested a Base Rate Loan in an amount equal to the amount
necessary to cause such outstanding principal Indebtedness to remain the same
and, subject to Section 8.2 the Lenders shall make the Advances necessary to
make such Loan notwithstanding Sections 2.1(b) and 2.2.
(i) 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 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 a
Loan referred to in the second sentence of Section 2.1(b), if applicable)
received by the Administrative Agent, at the Administrative Agent's Office, not
later than 11:00 a.m. (California time) on the day prior to the date of the
requested Base Rate Loan. All Loans shall constitute Base Rate Loans unless
properly designated as Eurodollar Rate Loans.
2.3 Eurodollar Rate Loans.
(a) Each request by Borrower for a Eurodollar Rate Loan shall be
made pursuant to a Request for Loan (or telephonic or other request for a Loan
referred to in the second sentence of Section 2.1(b), if applicable) received by
the Administrative Agent, at the Administrative Agent's Office, not later than
11:00 a.m. (California time) at least three (3) Eurodollar Banking Days before
the first day of the applicable Eurodollar Period.
(b) Prior to the first day of the applicable Eurodollar Period,
the Administrative Agent shall determine the applicable Eurodollar Rate (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,
telecopier or telex.
(c) Unless all of the Lenders otherwise consent, no Eurodollar
Rate Loan may be requested during the continuation of a Default or Event of
Default.
(d) Unless the Majority Lenders otherwise consent no more than
six (6) Eurodollar Rate Loans shall be outstanding at any one time.
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(e) Nothing contained herein shall require any Lender to fund any
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Voluntary Reduction of the Commitment. Borrower shall have the right,
at any time and from time to time, without penalty or charge, upon at least five
(5) Banking Days' prior written notice to the Administrative Agent, voluntarily
to reduce, permanently and irrevocably, in aggregate principal amounts in an
integral multiple of $250,000.00 which are not less than $1,000,000, all or a
portion of the then undisbursed portion of the Commitment; provided that any
such reduction shall be accompanied by payment of all accrued and unpaid
facility fees with respect to the portion of the Commitment being reduced.
2.5 Administrative Agent's Right to Assume Funds Available for Advances.
Unless the Administrative Agent shall have been notified by any Lender no later
than the Banking Day prior to the funding by the Administrative Agent of any
Loan that such Lender does not intend to make available to the Administrative
Agent such Lender's Pro Rata Share of the total amount of such Loan (and
provided that the Administrative Agent has given such Lender notice of such Loan
in accordance with Section 2.1(c)), 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 a 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 and
Borrower 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 Federal Funds Rate.
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ARTICLE 2A
LETTERS OF CREDIT
2A.1 Letters of Credit.
(a) Provided that the Borrower has satisfied the conditions
precedent contained in Section 2A.1(c) hereof, the Issuing Bank agrees, from
time to time, to issue and/or renew Standby Letters of Credit on behalf of the
Borrower so long as upon such issuance and/or renewal, after giving to such
Standby Letter of Credit, (i) the Outstanding Balance will not exceed the
Commitment and (ii) the Letter of Credit Balance will not exceed the Letter of
Credit Commitment. The expiration date of a Standby Letter of Credit may not
exceed the earlier of the Maturity Date or one year after its issuance. On each
Quarterly Payment Date and on the earlier of the expiration date of a Standby
Letter of Credit and the date upon which the Obligations are paid in full and
the Commitment terminated, Borrower shall pay in arrears to the Administrative
Agent, for the account of each Lender according to its Pro Rata Share of the
Commitment, a Standby Letter of Credit fee equal to the Eurodollar Rate Spread
times the undrawn amount of each outstanding Standby Letter of Credit.
(b) Provided that the Borrower has satisfied the conditions
precedent contained in Section 2A.1(c) hereof, the Issuing Bank agrees, from
time to time, to issue and/or renew Commercial Letters of Credit on behalf of
the Borrower so long as upon such issuance and/or renewal, after giving to such
Commercial Letter of Credit, (i) the Outstanding Balance, will not exceed the
Commitment and (ii) the Letter of Credit Balance will not exceed the Letter of
Credit Commitment. The expiration date of a Commercial Letter of Credit may not
exceed the Maturity Date. Borrower shall pay to the Administrative Agent, for
the account of each Lender according to its Pro Rata Share of the Commitment,
the Commercial Letter of Credit Fee upon the issuance and/or renewal of such
Commercial Letter of Credit.
(c) The obligation of the Issuing Bank to issue and/or renew any
Letters of Credit on behalf of the Borrower shall be subject to the following
conditions precedent on the date of issuance or renewal of each such Letter of
Credit:
(i) The Borrower shall execute and deliver to the Issuing Bank
an application for letter of credit, specifying the amount of the
requested Letter of Credit, the requested term thereof, the Type of Letter
of Credit and the beneficiary thereof; and
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, such reasonable fronting, issuance, drawing, amendment, transfer,
obligation and other fees as shall be agreed upon by Borrower and the
Issuing Bank from time to time.
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(iii) No Event of Default which has not been waived by the
Administrative Agent and the Majority Lenders shall exist and no event or
condition shall exist that after notice or lapse of time, or both would
constitute an Event of Default.
(d) That Letter of Credit No. NZS300285 in the stated amount of
$1,071,000.00 dated June 3, 1998, previously issued by Issuing Bank for the
account of Borrower, shall be deemed to be a Standby Letter of Credit and,
effective as of the Closing Date, shall be deemed to be outstanding under this
Agreement.
2A.2 Notice. The Issuing Bank shall give the Administrative Agent, which
shall in turn give to each Lender, prompt written or telecopy advice of any
notice received from the Borrower pursuant to this Section 2A.
2A.3 Letter of Credit Participations.
(a) By the issuance of a Letter of Credit and without any further
action on the part of the Issuing Bank or the Lenders in respect thereof, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Share, based upon the Pro Rata Shares in effect at the time of
any drawing thereunder (or, if the Commitment shall have been terminated, the
Pro Rata Shares in effect immediately prior to such termination), of the face
amount of such Letter of Credit, effective upon the issuance of such Letter of
Credit; provided, however, that no Lender shall be required to acquire
participations in Letters of Credit that would result in its Pro Rata Share of
the Letter of Credit Balance exceeding its Pro Rata Share of the Commitment. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, in accordance with Section 2A.4 below, such Lender's pro
rata percentage of each unreimbursed Letter of Credit Disbursement made by the
Issuing Bank.
(b) Each Lender acknowledges and agrees that its acquisition of
participations pursuant to paragraph (a) above in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including without limitation the occurrence and continuance of any
Event of Default hereunder, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever; provided that nothing
herein shall constitute a waiver of any rights a Lender may have by reason of
the gross negligence or wilful misconduct of the Issuing Bank.
2A.4 Disbursement and Reimbursement.
(a) Promptly after it shall have ascertained that any draft and
any accompanying documents presented under a Letter of Credit appear to be in
strict conformity with the terms and conditions of such Letter of Credit, the
Issuing Bank shall give telephone and telecopy notice to the Borrower and the
Administrative Agent of the receipt and amount of such draft and the date on
which payment thereon will be made. If the Administrative Agent
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shall not have received from the Borrower the payment required pursuant to
paragraph (b) below by 11:00 a.m. (California time), one Banking Day after the
date on which payment of a draft presented under any Letter of Credit has been
made, the Administrative Agent shall promptly so notify the Issuing Bank and
each Lender, specifying in the notice to each Lender such Lender's pro rata
percentage of such Letter of Credit Disbursement. Each Lender shall pay to the
Administrative Agent, not later than 11:00 a.m. (California time), on such date,
such Lender's percentage of such Letter of Credit Disbursement, which the
Administrative Agent shall promptly pay to the Issuing Bank. The Administrative
Agent will promptly remit to each Lender such Lender's percentage of any amounts
subsequently received by the Administrative Agent from the Borrower in respect
of such Letter of Credit Disbursement; provided that (i) amounts so received for
the account of any Lender prior to payment by such Lender of amounts required to
be paid by it hereunder in respect of any Letter of Credit Disbursement and (ii)
amounts representing interest on any Letter of Credit Disbursement for the
period prior to the payment by such Lender of such amounts shall in each case be
remitted to the Issuing Bank.
(b) If the Issuing Bank shall pay any draft presented under a
Letter of Credit, the Borrower shall pay to the Issuing Bank or to the
Administrative Agent for the account of the Issuing Bank or, if the
Administrative Agent shall have received the payments provided in paragraph (a)
above with respect to such drawing, for the accounts of the Lenders, an amount
equal to the amount of such draft before 11:00 a.m. (California time), on the
Banking Day immediately following the date of payment of such draft, together
with interest on such amount at a rate per annum equal to the interest rate in
effect for Base Rate Loans from (and including) the date of payment of such
draft to (but excluding) the date of such payment by the Borrower. The
obligation of the Borrower to pay the amounts referred to above in this
paragraph (b) shall be absolute, unconditional and irrevocable and shall be
satisfied strictly in accordance with their terms irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit (except as set forth in subparagraphs (iv) or (v) below);
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any other Person may at any time have against
the beneficiary under any Letter of Credit, the Administrative Agent, any
Issuing Bank or any Lender (other than the defense of payment in
accordance with the terms of this Agreement or a defense based on the
gross negligence or wilful misconduct of the Issuing Bank) or any other
Person in connection with this Agreement or any other transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect; provided that
payment by the Issuing Bank under such Letter of Credit against
presentation of such draft or document shall not have constituted gross
negligence or wilful misconduct;
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(iv) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document which does not comply in
any immaterial respect with the terms of such Letter of Credit; provided
that such payment shall not have constituted gross negligence or wilful
misconduct; or
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided that such other circumstance or
event shall not have been the result of gross negligence or wilful
misconduct of the Issuing Bank.
It is understood that in making any payment under a Letter of
Credit (1) the Issuing Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including without limitation, reliance on the amount of any draft presented
under such Letter of Credit, whether or not the amount due to the beneficiary
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be forged, fraudulent or invalid in
any respect, if such document on its face appears to be in order, and whether or
not any other statement or any other document presented pursuant to such Letter
of Credit proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever, and (2) any noncompliance in any
immaterial respect of the documents presented under a Letter of Credit with the
terms thereof shall, in either case, not be deemed wilful misconduct or gross
negligence of the Issuing Bank.
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ARTICLE 2B
SWING LINE
2B.1 Swing Line. The Swing Line Lender, for its own account, shall from
time to time from the Closing Date through the day prior to the Maturity Date
make Swing Line Loans to Borrower in such amounts as Borrower may request,
provided that (a) after giving effect to such Swing Line Loan, the Swing Line
Balance does not exceed the Swing Line Commitment, (b) after giving effect to
such Swing Line Loan, the Outstanding Balance does not exceed the Commitment,
and (c) no Swing Line Loan may be made during the continuation of a Default or
an Event of Default unless such Default or Event of Default has been waived by
the Administrative Agent and the Majority Lenders. Borrower may borrow, repay
and reborrow under the Swing Line Commitment without premium or penalty.
2B.2 Borrowing. Unless notified to the contrary by the Swing Line Lender,
borrowings under the Swing Line may be made in amounts which are integral
multiples of $1.00 upon telephonic request by a Responsible Official made to the
Administrative Agent not later than 11:00 a.m. (California time), on the Banking
Day of the requested borrowing (which telephonic request shall be promptly
confirmed in writing by telecopier). Promptly after receipt of such a request
for borrowing, the Administrative Agent shall provide telephonic verification to
the Swing Line Lender that availability for Swing Line Loans exists under
Section 2B.1 (and such verification shall be promptly confirmed in writing by
telecopier). Unless notified to the contrary by the Swing Line Lender, each
repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $1.00.
2B.3 Repayments.
(a) Swing Line Loans shall bear interest at a fluctuating rate
per annum equal to the Base Rate plus Base Rate Spread. Interest shall be
payable on such dates, not more frequent than monthly, as may be specified by
the Swing Line Lender and in any event on the Maturity Date. The Swing Line
Lender shall be responsible for invoicing Borrower for such interest. The
interest payable on Swing Line Loans is solely for the account of the Swing Line
Lender.
(b) The principal of a Swing Line Loan shall be payable no later
than ten (10) Banking Days after the date the Swing Line Loan is made by the
Swing Line Lender and in any event on the Maturity Date.
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ARTICLE 3
PAYMENTS AND FEES; SECURITY
DOCUMENTS; GUARANTY
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 herein
before and after an Event of 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 to bear interest at the
Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan through the
last day of each calendar month shall be due and payable on the fifth Banking
Day following that day. Except as otherwise provided in Section 3.7, 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 applicable to Base Rate Loans shall take effect simultaneously
with the corresponding changes in the Base Rate. Each change in the Base Rate
shall be effective as of 12:01 a.m. on the Banking Day on which such change in
the Base Rate is announced, unless otherwise specified in such announcement in
which case the change shall be effective as so specified.
(c) Interest accrued on each Eurodollar Rate Loan which is
for a term of three months or less shall be due and payable on the last day of
the related Eurodollar Period. Interest accrued on each other Eurodollar Rate
Loan shall be due and payable on each Quarterly Payment Date and on the last day
of the related Eurodollar Period. Except as otherwise provided in Section 3.7
the unpaid principal amount of any Eurodollar Rate Loan shall bear interest at a
rate per annum equal to the Eurodollar Rate for that Eurodollar Rate Loan plus
the applicable Eurodollar Rate Spread.
(d) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each Eurodollar Rate Loan
shall be payable immediately on the last day of the Eurodollar Period
for such Loan;
(ii) the principal Indebtedness evidenced by the
Notes shall be payable immediately in immediately available funds, to
the extent that the outstanding principal amount of the Loans at any
time exceeds the Commitment and in an amount sufficient to reduce the
amount outstanding to an amount equal to or less than the Commitment;
and
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(iii) the principal Indebtedness evidenced by the
Notes shall in any event be payable immediately in immediately
available funds on the Maturity Date.
(e) The Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without premium or penalty,
except that with respect to any voluntary prepayment under this subsection, (i)
any partial prepayment of Loans shall be in an integral multiple of $500,000,
but not less than $1,000,000, (ii) the Administrative Agent shall have received
written notice of any prepayment at least one (1) Banking Day, in the case of a
Base Rate Loan, and three (3) Banking Days, in the case of a Eurodollar Rate
Loan, before the date of prepayment which notice shall identify the date and
amount of the prepayment and the Loan(s) being prepaid, (iii) each prepayment of
principal shall be accompanied by payment of interest accrued through the date
of payment on the amount of principal paid and (iv) any payment or prepayment or
conversion of all or any part of any Eurodollar Rate Loan on a day other than
the last day of the applicable Eurodollar Period shall be subject to Section
3.6(d).
3.2 Facility Fee. On each Quarterly Payment Date and on the earlier of
the Maturity Date and the date upon which the Obligations are paid in full and
the Commitment terminated, Borrower shall pay in arrears to the Administrative
Agent, for the account of each Lender according to its Pro Rata Share of the
Commitment, a facility fee equal to the then applicable Facility Fee Rate times
the average unused portion of the Commitment for the period since the last
Quarterly Payment Date. For purposes of calculation of the facility fee, the
average unused portion of the Commitment shall not be reduced by the amount of
any Swing Line Loans made.
3.3 [Intentionally left blank.]
3.4 Agency Fee. Borrower shall pay to the Administrative Agent an
agency fee in such amounts and at such times as agreed upon by letter agreement
dated of even date herewith between Borrower and the Administrative Agent. The
agency fee paid to the Administrative Agent is solely for its own account and is
nonrefundable.
3.5 Increased Commitment Costs. If any Lender reasonably determines in
good faith that compliance with any Law or regulation enacted or promulgated
after the Closing Date, or with any guideline or request from any central bank
or other Governmental Agency issued or made after the Closing Date (whether or
not having the force of Law) has or would have the effect of materially reducing
the rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of, or with reference to, such Lender's portion of
the Commitment or its making or maintaining of Advances or Swing Line Loans,
below the rate which the Lender or such other corporation could have achieved
but for such compliance (taking into account the policies of such Lender or
corporation with regard to capital), then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), immediately pay to such Lender additional amounts reasonably sufficient
to compensate such Lender or other corporation for such reduction. A certificate
as to such amounts, submitted to the Borrower and the Administrative
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Agent by such Lender, shall be conclusive and binding for all purposes, absent
manifest error. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent of any circumstances that would cause the Borrower to pay
additional amounts pursuant to this Section, provided that the failure to give
such notice shall not affect the Borrower's obligation to pay such additional
amounts hereunder.
3.6 Eurodollar Fees and Costs.
(a) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance:
(1) shall materially subject any Lender or its
Eurodollar Lending Office to any tax, duty or other charge or cost with
respect to any Eurodollar Rate Advance, its Notes or its obligation to
make Eurodollar Rate Advances, or shall materially change the basis of
taxation of payments to any Lender of the principal of or interest on
any Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, its Notes or its
obligation to make Eurodollar Rate Advances (except for changes in any
tax on the overall net income, gross income or gross receipts of such
Lender or its Eurodollar Lending Office);
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System), special deposit or
similar requirements against assets of, deposits with or for the
account of, or credit extended by, any Lender or its Eurodollar Lending
Office; or
(3) shall impose on any Lender or its Eurodollar
Lending Office or the Designated Eurodollar Market any other condition
affecting any Eurodollar Rate Advance, its Notes, its obligation to
make Eurodollar Rate Advances or this Agreement or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined by such Lender, materially
increases the cost to such Lender or its Eurodollar Lending Office of making or
maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate
Advance, its Notes or its obligation to make Eurodollar Rate Advances or
materially reduces the amount of any sum received or receivable by such Lender
or its Eurodollar Lending Office with respect to any Eurodollar Rate Advance,
its Notes or its obligation to make Eurodollar Rate Advances (assuming such
Lender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advance in the Designated Eurodollar Market), then, upon demand by such Lender
(with a copy to the Administrative Agent), Borrower shall pay to such Lender
such additional amount or amounts as will reasonably compensate such Lender for
such increased cost or reduction (determined as though such Lender's Eurodollar
Lending Office had funded 100% of its Eurodollar Rate Advance in the Designated
Eurodollar Market). A statement of any Lender claiming compensation under this
subsection shall be conclusive in the absence of manifest error. Each Lender
agrees to
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endeavor promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Closing Date, which will entitle such Lender to
compensation pursuant to this Section, and agrees to designate a different
Eurodollar Lending Office if such designation will avoid the need for or reduce
the amount of such compensation and will not, in the judgment of such Lender,
otherwise be disadvantageous to such Lender. If any Lender claims compensation
under this Section, Borrower may at any time, upon at least two (2) Eurodollar
Banking Days' prior notice to the Administrative Agent and Lenders 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 3.6(d), pay in full all
Eurodollar Rate Advances or request that all Eurodollar Rate Advances be
converted to Base Rate Advances.
(b) If after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the opinion of any Lender, make
it unlawful, impossible or impracticable for such Lender or its Eurodollar
Lending Office to make, maintain or fund its portion of any Eurodollar Rate
Loan, or materially restrict the authority of such Lender to purchase or sell,
or to take deposits of, dollars in the Designated Eurodollar Market or to
determine or charge interest rates based upon the Eurodollar Rate, and such
Lender shall so notify the Administrative Agent and the other Lenders, then the
Lender's obligation to make Eurodollar Rate Advances shall be suspended for the
duration of such illegality, impossibility or impracticability and the
Administrative Agent forthwith shall give notice thereof to Borrower. Upon
receipt of such notice, the outstanding principal amount of all Eurodollar Rate
Advances, together with accrued interest thereon, automatically shall be
converted to Base Rate Advances with Eurodollar Periods corresponding to the
Eurodollar Loans of which such Eurodollar Rate Advances were a part on either
(1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if the affected Lender may lawfully continue to maintain and fund such
Eurodollar Rate Advances to such day(s) or (2) immediately if the affected
Lender may not lawfully continue to fund and maintain such Eurodollar Rate
Advances to such day(s), provided that in such event the conversion shall not be
subject to payment of a prepayment fee under Section 3.6(d).
(c) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated Eurodollar
Market generally that are beyond the reasonable control of the Lenders,
deposits in dollars (in the applicable amounts) are not being offered
to each of the Lenders in the Designated Eurodollar Market for the
applicable Eurodollar Period; or
(2) the Majority Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the Administrative
Agent (i) does not represent the effective pricing to such Lenders for
deposits in dollars in the Designated Eurodollar Market in the relevant
amount for the applicable Eurodollar Period, or (ii) will not
adequately and fairly reflect the cost to such Lenders of making the
applicable Eurodollar Rate Advances;
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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 Eurodollar Rate Advances shall be suspended.
If at the time of such notice there is then pending a Request for Loan that
specifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to
specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Rate
Advance, on a day other than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceleration, or otherwise),
or upon the failure of Borrower to borrow on the date or in the amount specified
for a Eurodollar Rate Loan in any Request for Loan, Borrower shall pay to the
appropriate Lender a prepayment fee or failure to borrow fee, as the case may
be, calculated as follows (and determined as though 100% of the Eurodollar Rate
Advance had been funded in the Designated Eurodollar Market):
(1) principal amount of the Eurodollar Rate Advance,
times [number of days between the date of prepayment and the last day
in the applicable Eurodollar Period], divided by 360, times the
applicable Interest Differential; plus
(2) all actual out-of-pocket expenses (other than
those taken into account in the calculation of the Interest
Differential) incurred by the Lender (excluding allocations of any
expense internal to that Lender) and reasonably attributable to such
payment or prepayment;
provided that no prepayment fee or failure to borrow fee shall be payable (and
no credit or rebate shall be required) if the product of the foregoing formula
is not a positive number. Each Lender's determination of the amount of any
prepayment fee or failure to borrow fee payable under this Section 3.6(d) shall
be conclusive in the absence of manifest error.
3.7 Default Rate. From and after the occurrence of any Event of Default
the Loans shall bear interest at a fluctuating interest rate per annum at all
times equal to the sum of the Base Rate plus 3% per annum, to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts
(including, without limitation, interest on past due interest) shall be
compounded annually, on the last day of each calendar quarter, to the fullest
extent permitted by applicable Laws.
3.8 Computation of Interest and Fees. Computation of interest and on
all fees shall be calculated on the basis of a year of 360 days and the actual
number of days elapsed. Borrower acknowledges that this calculation method will
result in a higher yield to the Lenders than a method based on a year of 365 or
366 days. 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
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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.
3.9 Non-Banking Days. If any payment to be made by Borrower or any
other Party under any Loan Document shall come due on a day other than a Banking
Day, payment shall instead be considered due on the next succeeding Banking Day
and the extension of time shall be reflected in computing interest.
3.10 Manner and Treatment of Payments.
(a) Each payment hereunder or on the Notes or under any
other Loan Document shall be made to the Administrative Agent for the account of
each of the Lenders, or the Administrative Agent as the case may be, in
immediately available funds not later than 12:00 noon (California time) on the
day of payment (which must be a Banking Day). The amount of all payments
received by the Administrative Agent for the account of each Lender shall be
promptly paid by the Administrative Agent to the applicable Lender in
immediately available funds. Should the Administrative Agent fail to remit to
any Lender any funds actually received by the Administrative Agent and due to
that Lender on the same Banking Day upon which such funds are deemed received by
the Administrative Agent as set forth above, that Lender shall be entitled to
recover interest on such funds solely from the Administrative Agent at a rate
per annum equal to 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
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 its
Note and such record shall be presumptive evidence of the amounts owing, absent
manifest error. Notwithstanding the foregoing sentence, no Lender shall be
liable to any Party for any failure to keep such a record.
(d) Each payment of any amount payable by Borrower or any
other Party under this Agreement or any other Loan Document shall be made free
and clear of, and without reduction by reason of any taxes, assessments or other
charges imposed by any Governmental Agency, central bank or comparable authority
(other than taxes on income or gross receipts generally applicable to banks). To
the extent that Borrower is obligated by applicable Laws to make any deduction
or withholding on account of taxes, assessments or other charges imposed by any
Governmental Agency from any amount payable to any Lender under any Loan
Document 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 (or
after-assessment or after- charge) amount equal to the amount to which that
Lender would have been entitled under the Loan Document 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, assessments or other charges,
that Lender shall refund such excess to Borrower.
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(e) Each Lender which is organized outside the United
States of America shall promptly deliver to Borrower and the Administrative
Agent a completed Internal Revenue Service Form 4224 and any other certificate
or statement or exemption required by applicable Laws, properly completed and
duly executed by such Lender, to establish that such payment is (1) not subject
to withholding under the Code because such payment is effectively connected with
the conduct by such Lender of a trade or business in the United States of
America or (2) totally exempt from United States tax under a provision of an
applicable tax treaty. Unless Borrower and the Administrative Agent have
received such Form or other documents satisfactory to them indicating that
payments hereunder or under the Notes are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Administrative Agent shall withhold the taxes from such payment
at the applicable statutory rate in the case of payments to or for any Lender
organized under the Laws of a jurisdiction outside the United States of America
and Section 3.10(d) shall not apply thereto.
3.11 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan 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 in any particular place or manner.
3.12 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.7), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.7), fee, cost or other
amount payable under any Loan Document or to calculate an amount payable by
another method, on any other or subsequent occasion.
3.13 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 a rate per annum equal to the actual cost to the
Administrative Agent of funding such amount as notified by the Administrative
Agent to such Lender.
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3.14 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 Lenders, or that Lender, under Article 3
has been determined.
3.15 Survivability. All of Borrower's obligations under Sections 3.5
and 3.6 shall survive the date on which all Loans are fully paid.
3.16 Security Documents. The Obligations shall be secured at all times
by valid and effective grants of security interest in the Collateral pursuant to
security documents (collectively, the "Security Documents") executed by Borrower
and each Subsidiary, present and future, subject to no prior Liens except for
Permitted Encumbrances, which Security Documents shall include among other
things the following:
(i) Security Agreements from Borrower and each Subsidiary,
present and future.
(ii) Pledge Agreements from Borrower as to each
Subsidiary, present and future.
3.17 Guaranty. The Obligations shall be guaranteed by each Subsidiary,
present and future, pursuant to a Guaranty.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders 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. Borrower is duly qualified to transact business, and is in
good standing, in Arizona 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 constitute a Material Adverse
Effect. Borrower has all requisite corporate power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform the Obligations. All outstanding
shares of capital stock of Borrower are duly authorized, validly issued, fully
paid, nonassessable 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 does not constitute a
Material Adverse Effect.
4.2 Authority: Compliance With Other Agreements and Instruments and
Government Regulations. The execution, delivery and performance by each Party of
the Loan Documents to which it is a party have been duly authorized by all
necessary corporate action, and do not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security holder or creditor of
such Party;
(b) Violate or conflict with any provision of such Party's
certificate of incorporation or bylaws;
(c) Result in or require the creation or imposition of any
Lien or Right of Others upon or with respect to any Property now owned or leased
or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such
Party;
(e) Result in a breach of or default under, or would, with
the giving of notice or the lapse of time or both, constitute a breach of or
default under, or cause or permit the acceleration of any obligation owed under,
any indenture or loan or credit agreement or
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any other Contractual Obligation to which such Party is a party or by which such
Party or any of its Property is bound or affected;
and no such Party is in violation to or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit agreement described in
Section 4.2(e), in any respect that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Subject to the representations
of the Lenders contained in Section 11.8, no authorization, consent approval,
order, license or permit from, or filing, registration or qualification with,
any Governmental Agency is required to authorize or permit under applicable Laws
the execution, delivery and performance by each Party of the Loan Documents to
which it is a party.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names,
the form of legal entity, number of shares of capital stock issued and
outstanding, jurisdictions of organization and chief executive offices of all
Subsidiaries of Borrower. Except as described in Schedule 4.4, Borrower does not
own any capital stock or equity interest in any Person.
(b) Each Subsidiary of Borrower is in compliance with all
Laws and other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from, and
each such Subsidiary has accomplished all filings, registrations, and
qualifications with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure so to comply, file, register, qualify or obtain
exemptions does not constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the Lenders the
audited consolidated financial statements of Borrower and its Subsidiaries as at
December 31, 1997 and for the Fiscal Year then ended. Such financial statements
fairly present the financial condition and the results of operations of Borrower
and its Subsidiaries as at such date and for such period in accordance with
GAAP, consistently applied.
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 balance sheet or notes thereto described in
Section 4.5, other than liabilities and contingent liabilities arising in the
ordinary course of business subsequent to March 31, 1998 or as disclosed on
Schedule 4.6 hereto. No event or circumstance has occurred that constitutes a
Material Adverse Effect with respect to Borrower and its Subsidiaries since
March 31, 1998.
4.7 Title to and Location of Property. Borrower and its Subsidiaries
have good and valid title to all the Property reflected in the balance sheet
described in Section 4.5, other than Property subsequently sold or disposed of
in the ordinary course of business, free and
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clear of all Liens and Rights of Others, other than (i) Liens and Rights of
Others permitted by Section 6.8.
4.8 Intangible Assets. Borrower owns, or possesses the right to use to
the extent necessary in its business, all trademarks, trade names, copyrights,
patents, patent rights, computer software, licenses and other Intangible Assets
that are used in the conduct of its business as now operated and which are
material to the condition (financial or otherwise), business or operations of
Borrower, 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
constitutes a Material Adverse Effect.
4.9 Governmental Regulation. Borrower and its Subsidiaries have
obtained all approvals necessary, if any, from Governmental Agencies to permit
the execution, delivery and performance of the Obligations under the Loan
Documents. Neither Borrower nor any of its Subsidiaries is subject to regulation
under the Interstate Commerce Act, the Investment Company Act of 1940 or to any
other Law limiting or regulating its ability to incur Indebtedness for money
borrowed.
4.10 Litigation. Except for (a) any matter fully covered (subject to
applicable deductibles and retentions) by insurance for which the insurance
carrier has assumed full responsibility, (b) any matter, or series of related
matters, involving a claim against Borrower or any of its Subsidiaries of less
than $1,000,000, (c) matters described in public documents filed with
Governmental Agencies and previously delivered to the Lenders, and (d) matters
set forth in Schedule 4.10, there are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower, threatened
against, or affecting Borrower or any of its Subsidiaries or any Property of any
of them before any Governmental Agency. Except for matters set forth in Schedule
4.10, there is no reasonable basis, to the best knowledge of Borrower, for any
action, suit, proceeding or investigation against or affecting Borrower or any
of its Subsidiaries or any Property of any of them before any Governmental
Agency which would constitute a Material Adverse Effect.
4.11 Binding Obligations. Each of the Loan Documents will when executed
and delivered by any Party, constitute the legal, valid and binding obligation
of such Party, enforceable against such Party in accordance with its terms,
except as enforcement may be limited by Debtor Relief Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing that is a
Default or Event of Default.
4.13 Pension Plans. Schedule 4.13 correctly lists each Pension Plan
which, as of the Closing Date, Borrower or any of its ERISA Affiliates maintains
or to which, as of the Closing Date, Borrower or any ERISA Affiliate contributes
or is required to contribute. As of
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the Closing Date, all contributions required to be made under any such Pension
Plan have been made to such plan or have been reflected as a liability on the
consolidated balance sheet described in Section 4.5. There is no "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or any liability
to the PBGC with respect to any Pension Plan other than a Multiemployer Plan.
4.14 Regulations G, U and X. No part of the proceeds of any Advance,
Letter of Credit Disbursement or Swing Line Loan hereunder will be used to
purchase or carry, or to extend credit to others for the purpose of purchasing
or carrying, any "margin stock" (as such term is defined in Regulation G) in
violation of Regulations G, U or X. Neither Borrower nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any such margin
stock."
4.15 Disclosure. No written statement made by a Responsible Official of
Borrower to the Administrative Agent the Arranger or any Lender in connection
with this Agreement or in connection with any Advance contains any untrue
statement of a material fact or omits a material fact necessary to make the
statement made not misleading in light of all, the circumstances existing at the
date the statement was made. Borrower has not intentionally withheld from the
Lenders any information with respect to any circumstance or event which
constitutes a Material Adverse Effect.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
any of its Subsidiaries, except (a) taxes for which Borrower has been fully
indemnified and (b) 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. To the best knowledge of Borrower, there is no tax assessment
contemplated or proposed by any Governmental Agency against Borrower or any of
its Subsidiaries that would constitute a Material Adverse Effect.
4.17 Priority Status. No Indebtedness of Borrower or any of its
Subsidiaries is entitled to priority of payment over the Obligations, whether by
contract or by operation of law. The Property of Borrower and its Subsidiaries
is not subject to any Lien or Negative Pledge not described on Schedule 4.17 or
Schedule 6.8.
4.18 Hazardous Materials. Except as described in Schedule 4,18, (a)
neither Borrower nor any Subsidiary of Borrower at any time has disposed of,
discharged, released or threatened the release of any Hazardous Materials on,
from or under the Property in violation of any Hazardous Materials Law that
would individually or in the aggregate constitute a Material Adverse Effect, (b)
to the best knowledge of Borrower, no condition exists that violates any
Hazardous Material Law affecting any Property except for such violations that
would not individually or in the aggregate have a Material Adverse Effect, (c)
no Property or any portion thereof is or has been utilized by Borrower or any
Subsidiary of Borrower as a site for the manufacture of any Hazardous Materials
and (d) to the extent that any Hazardous
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Materials are used, generated or stored by Borrower or any Subsidiary of
Borrower on any Property, or transported to or from such Property by Borrower or
any Subsidiary of Borrower, such use, generation, storage and transportation are
in compliance in all material respects with all Hazardous Materials Laws.
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ARTICLE 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance or Swing Line Loan remains unpaid or any Letter
of Credit outstanding, or any other Obligation remains unpaid or unperformed, or
any portion of the Commitment remains in force, Borrower shall, and shall cause
each of its Subsidiaries to, unless the Administrative Agent (with the approval
of the Majority Lenders) otherwise consents 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 Loan 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 or any other tax on or measured by income
generally applicable to banks 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.
5.2 Preservation of Existence. Preserve and maintain their respective
existences in the jurisdiction of their formation and all authorizations,
rights, franchises, privileges, consents, approvals, orders, licenses, permits,
or registrations from any Governmental Agency that are necessary for the
transaction of their respective business, and quality 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. The Borrower may, with the consent of the Administrative
Agent and the approval of the Majority Lenders, dissolve or otherwise
discontinue the operations of a Subsidiary if the Borrower's Board of Directors
concludes that it is in the best interests of the Borrower to do so.
5.3 Maintenance of Properties. Maintain, preserve and protect all of
their respective depreciable Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties.
5.4 Maintenance of Insurance. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions), in scope and amount
not less than, and not less extensive than, the scope and amount of insurance
coverages customary in the trades or businesses in which Borrower and its
Subsidiaries are from time to time engaged. All of the aforesaid insurance
coverages shall be issued by insurers reasonably acceptable to
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Administrative Agent. Copies of all policies of insurance evidencing such
coverages in effect from time to time shall be delivered to Administrative Agent
prior to the initial Advance under this Agreement and upon reasonable notice
upon issuance of new policies thereafter. From time to time, promptly upon
Administrative Agent's request, it shall provide evidence satisfactory to
Administrative Agent (i) that required coverage in required amounts is in
effect, and (ii) that Administrative Agent is shown as an additional loss payee
with respect to all such coverages, as Administrative Agent's interest may
appear, by standard (non-attribution) loss payable endorsement, additional
insured endorsement, insurer's certificate or other means acceptable to
Administrative Agent in its reasonable discretion. At Administrative Agent's
option, it shall deliver to Administrative Agent certified copies of all such
policies of insurance in effect from time to time, to be retained by
Administrative Agent so long as Administrative Agent shall have any commitment
to lend hereunder and/or any portion of the Obligation shall be outstanding or
unsatisfied. All such insurance policies shall provide for at least thirty (30)
days prior written notice of the cancellation or modification thereof to
Administrative Agent.
5.5 Compliance With Laws. Comply with all Requirements of Laws
noncompliance with which constitutes a Material Adverse Effect, except that
Borrower and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. At any time during regular business hours and as
often as reasonably requested (but not so as to materially interfere with the
business of Borrower or any of its Subsidiaries), permit the Administrative
Agent or any authorized employee, agent or representative thereof to examine,
audit and make copies and abstracts from the records and books of account of,
and to visit and inspect the Properties of Borrower and its Subsidiaries and to
discuss the affairs, finances and accounts of Borrower and its Subsidiaries with
any of their officers, key employees, accountants, customers or vendors.
Following the occurrence of any Default (if in any event the Administrative
Agent does not obtain information reasonably satisfactory to a Lender as a
result of any examination, audit, visit, inspection or discussion referred to
above), each Lender shall, upon written notice to Administrative Agent, be
permitted to exercise each of the rights granted to the Administrative Agent by
this Section.
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. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a Lender or another
Person, except that Borrower and its Subsidiaries need not comply with
Contractual Obligations (a) under any such agreements, indentures, leases or
instruments then being contested by any of them in good faith by appropriate
proceedings or (b) if the failure to comply with such agreements, indentures,
leases or instruments does not constitute a Material Adverse Effect.
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5.9 Use of Proceeds. Use the proceeds of Advances only for proper
corporate purposes of Borrower.
5.10 Hazardous Materials Laws. Keep and maintain all Property and each
portion thereof in compliance in all material respects with all applicable
Hazardous Materials Laws and promptly notify the Administrative Agent in writing
(attaching a copy of any pertinent written material) of (a) any and all material
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or. threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any and all material
claims made or threatened in writing by any Person against Borrower relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
any Hazardous Materials and (c) discovery by any Senior Officer of Borrower of
any material occurrence or condition on any real property adjoining or in the
vicinity of any Property that could reasonably be expected to cause such
Property or any part thereof to be subject to any restrictions on ownership,
occupancy, transferability or use of such Property under any applicable
Hazardous Materials Laws.
5.11 New Subsidiaries.
(a) Deliver to the Administrative Agent a Pledge Agreement
executed by Borrower as to any stock of each new Subsidiary owned by Borrower
together with all stock certificates owned by Borrower as to said Subsidiary and
a stock transfer power related thereto.
(b) Cause each new Subsidiary to execute and deliver to
the Administrative Agent a Guaranty, Security Documents and such other documents
as Administrative Agent may reasonably require.
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ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitment remains in force,
Borrower shall not, and shall not permit any of its Subsidiaries to, unless the
Administrative Agent (with the approval of the Majority Lenders or, if required
pursuant to Section 11.2, all of the Lenders) otherwise consents in writing:
6.1 Disposition of Property. Make any Disposition of all or a
substantial or material part of its Property, whether now owned or hereafter
acquired, if, after giving effect thereto, the aggregate book value or fair
market value of the Property which is the subject of all Dispositions by
Borrower and its Subsidiaries during the immediately preceding twelve (12) month
period exceeds $100,000,000.
6.2 Mergers. Merge, consolidate or amalgamate with or into any Person,
except:
(a) mergers, consolidations or amalgamations of a
Subsidiary of Borrower into Borrower; and
(b) mergers, consolidations or amalgamations in
furtherance of Investments and Acquisitions permitted by this Agreement;
provided, in each case, that (y) no Default or Event of Default occurs by reason
of the consummation of such merger, consolidation or amalgamation, and (z)
Borrower is the survivor of such merger, consolidation or amalgamation, or
Borrower's survivor expressly assumes the Obligations of Borrower to the
Administrative Agent and the Lenders pursuant to a written instrument which is
in form and substance acceptable to the Administrative Agent and the Majority
Lenders.
6.3 Investments and Acquisitions. Make any Acquisition or enter into
any agreement to make any Acquisition, or make or suffer to exist any
Investment, except:
(a) Investments existing on the Closing Date and disclosed
in Schedule 4.4;
(b) Investments consisting of Cash Equivalents; or
(c) Acquisitions and Investments approved by the Majority
Lenders.
6.4 Liens, Rights of Others and Negative Pledges. Create, incur, assume
or suffer to exist any Lien, Negative Pledge or Right of Others of any nature
upon or with respect
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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) Permitted Encumbrances and Permitted Rights of Others;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing
Date and disclosed in Schedule 4.17 and any renewals/extensions or amendments
thereof; provided that the obligations secured or benefitted thereby are not
increased; and
(d) Rights of Others existing on the Closing Date and
disclosed in Schedule 4.17.
6.5 Distributions. Make any Distribution which would result in a
Default or, in any event during the existence of an Event of Default whether
from capital, income or otherwise, and whether in Cash or other Property.
6.6 ERISA Compliance. (a) Permit any Pension Plan, other than a
Multiemployer Plan, to incur any material "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA, whether or not waived, or (b) in a
manner which could result in the imposition of a material Lien on any Property
of Borrower or any of its Subsidiaries pursuant to Section 4068 of ERISA, (i)
permit any Pension Plan maintained by any of them to suffer a Termination Event
or (ii) incur withdrawal liability under any Multiemployer Plan.
6.7 Change in Nature of Business. Make any material change in the
nature of the business of Borrower and its Subsidiaries, taken as a whole, as at
present conducted.
6.8 Indebtedness Obligations. Create, incur, assume or suffer to exist
any Indebtedness or Contingent Obligation, except:
(a) Indebtedness and Contingent Obligations in favor of
the Lenders or the Administrative Agent under the Loan Documents;
(b) Existing Indebtedness and Contingent Obligations
disclosed in Schedule 6.8 and Indebtedness or Contingent Obligations which
refinance or replace such Indebtedness or Contingent Obligations, provided in
each case, that the principal amount thereof is not increased;
(c) Indebtedness not described above that consists of
trade payables incurred in the ordinary course of business; and
(d) Any obligation of any future Subsidiary to execute a
guaranty as required under the terms of the indenture relating to the Senior
Notes.
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6.9 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of Borrower other than (a) transactions between or among
Borrower and its wholly-owned Subsidiaries or between or among its wholly-owned
Subsidiaries and (b) transactions on 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 Capital Expenditures. Make, or become legally obligated to make,
any capital expenditure except:
(a) Maintenance capital expenditures in any Fiscal Year
not in excess of $5,000,000; and
(b) Capital Expenditures to the extent financed by
Indebtedness permitted under Section 6.8.
6.11 Financial Covenants. Permit the following (collectively, the
"Financial Covenants"):
(a) Its Leverage Ratio at the end of any Fiscal Quarter to
exceed:
(i) After the Closing Date, to exceed 3.25 to 1.0;
(ii) After the first anniversary of the Closing Date,
to exceed 3.00 to 1.0: and
(iii) After the second anniversary of the Closing
Date, to exceed 2.75 to 1.0.
(b) Its Interest Coverage Ratio at the end of any Fiscal
Quarter for the prior twelve-month period to be less than:
(i) For 1998, 2.25 to 1.0;
(ii) For 1999, 2.75 to 1.0; and
(iii) Thereafter, 3.00 to 1.0.
(c) Its Fixed Charge Coverage Ratio at the end of any
Fiscal Quarter for the prior twelve-month period to be less than 1.5 to 1.0.
(d) Its EBITDA at the end of any Fiscal Quarter to be less
than $20,000,000.00 for the prior twelve-month period.
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ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitment remains in force, Borrower shall, unless the Administrative Agent
(with the approval of the Majority Lenders) otherwise consents in writing,
deliver to the Lenders, at Borrower's sole expense:
(a) Within 90 days after the end of each Fiscal Year, (i)
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries and the related consolidated and consolidating statements of income
showing the financial condition of the Borrower and its Subsidiaries as of the
close of such Fiscal Year and the results of operations during such year, and
(ii) consolidated and consolidating statements of cash flows of the Borrower and
its Subsidiaries for such fiscal year, all the foregoing financial statements to
be prepared in accordance with GAAP and reported on by an accounting firm of
nationally recognized standing;
(b) Within 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year of the Borrower, unaudited (i)
consolidated and consolidating balance sheets, (ii) consolidated and
consolidating statements of income and (iii) consolidated and consolidating
statements of cash flows, each showing the financial condition of the Borrower
and its Subsidiaries as of the end of such quarter and the results of operations
for the then-elapsed portion of the Fiscal Year, certified by a Senior Officer
of the Borrower as being correct and complete and as presenting fairly the
financial position and results of operations of the Borrower and its
Subsidiaries in accordance with GAAP, in each case subject to normal year-end
adjustments;
(c) As soon as practicable, and in any event within 45
days after the end of each Fiscal Quarter (other than the last Fiscal Quarter in
each Fiscal Year, and then within 90 days after the end of such Fiscal Quarter),
a Compliance Certificate certified by a Senior Officer;
(d) No later than 30 days before the start of each Fiscal
Year, projections of consolidated and consolidating financial statements for
such Fiscal Year prepared by Borrower;
(e) As soon as practicable, and in any event within two
Banking Days after a Responsible official of Borrower obtains actual knowledge
of the existence of any condition or event which constitutes a Default or Event
of Default written notice specifying the nature and period of existence thereof
and specifying what action Borrower or any of its Subsidiaries are taking or
propose to take with respect thereto;
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(f) Promptly upon a Senior Officer of Borrower becoming
aware, and in any event within five Banking Days after becoming aware, of the
occurrence of any (i) "reportable event" (as such term is defined in Section
4043 of ERISA) or (ii) "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) in connection with any Pension
Plan, other than a Multiemployer Plan, or any trust created thereunder, a
written notice specifying the nature thereof what action Borrower and any of its
Subsidiaries is taking or proposes to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect thereto;
and
(g) Such other data and information as from time to time
may be reasonably requested by the Administrative Agent or by any Lender.
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ARTICLE 8
CONDITIONS
8.1 Initial Advances. The obligation of each Lender to make the initial
Advance to be made by it hereunder, for the Issuing Bank to issue a Letter of
Credit and for the Swing Line Lender to make a Swing Line Loan is subject to the
fulfillment of the following conditions precedent each of which shall be
satisfied prior to the making of the initial Advance (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 reasonably satisfactory to
the Administrative Agent, its legal counsel, and the Lenders (unless otherwise
specified or, in the case of the date of any of the following, unless the
Administrative Agent and each Lender otherwise agree or direct):
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Lenders and Borrower;
(2) the RLC Notes executed by Borrower in favor of
each Lender, each in a principal amount equal to that Lender's Pro Rata
Share of the Commitment;
(3) such documentation as the Administrative Agent
may reasonably require to establish the due organization, valid
existence and good standing of each of Borrower and its Subsidiaries,
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 the Loan Documents, and the identity,
authority and capacity of each Responsible Official thereof authorized
to act on its behalf, including, without limitation, certified copies
of its certificate 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 Opinion of Counsel;
(5) evidence that the execution, delivery and
performance of the Loan Documents has been authorized and approved;
(6) an executed Compliance Certificate as of the
prior Fiscal Quarter;
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(7) a Guaranty executed by each Subsidiary;
(8) the Swing Line Note executed by Borrower in favor
of the Swing Line Lender;
(9) Security Documents and UCC Financing Statements
executed by Borrower and, to the extent applicable, each Subsidiary;
(10) projections of consolidated and consolidating
financial statements through the Maturity Date, prepared by Borrower;
(11) copies of Borrower's most recent financial
statements of its audited financial statements for the 1996 and 1997
Fiscal Years;
(12) evidence of insurance in compliance with Section
5.4;
(13) evidence of the termination of Borrower's
existing bank credit agreement and the release of all Liens related
thereto which termination need not include an unsecured $2,000,000 loan
from Southwest Bank to Addison Structural Services, Inc.;
(14) evidence that its Leverage Ratio does not exceed
3.25 to 1.0;
(15) documents executed with respect to the
Designated Deposit Account; and
(16) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(c) Borrower shall be in compliance with all the terms and
provisions of the Loan Documents, and no Default or Event of Default shall have
occurred and be continuing.
(d) To the extent due and payable, Borrower shall have
paid the fees described in Section 3.4 as well as the balance of the bridge loan
fee for Administrative Agent's own account pursuant to that letter agreement
dated of even date herewith between Borrower and the Administrative Agent.
8.2 Any Advance, etc. In addition to any applicable conditions
precedent set forth elsewhere in this Article 8, the obligation of each Lender
to make any Advance, for the Issuing Bank to issue a Letter of Credit and for
the Swing Line Lender to make a Swing Line Loan is subject to the following
conditions precedent:
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(a) except as disclosed by Borrower and approved in
writing by the Majority Lenders, the representations and warranties contained in
Article 4 (other than Sections 4.5, 4.6, 4.10 and 4.18) shall be true and
correct on and as of the date of the Advance as though made on that date;
(b) the Administrative Agent shall have timely received a
Request for Loan in compliance with Article 2 (or telephonic or other request
for loan referred to in the second sentence of Section 2.1(b), if applicable)
and shall have promptly notified each Lender that is to fund such Advance of
such request;
(c) no Default or Event of Default shall have occurred and
is continuing that has not been waived by the Administrative Agent and the
Majority Lenders; and
(d) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
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 and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the
Notes, or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any portion thereof, within five (5) Banking Days after the date when
due; or fails to pay any other fee or amount payable to Administrative Agent,
the Lenders, the Issuing Bank or the Swing Line Lender under any Loan Document
or any portion thereof within five (5) Banking Days after demand therefor; or
(c) Any failure to comply with Section 7.1(e); or
(d) Borrower, any of its Subsidiaries or any other Party
fails to perform or observe any covenant or agreement contained in Article 6 of
this Agreement; or
(e) Borrower, any of its Subsidiaries or any other Party
fails to perform or observe any other covenant or agreement contained in this
Agreement or any other Loan Document within thirty (30) days after the giving of
notice by the Administrative Agent or the Majority Lenders of such Default; or
(f) Any representation or warranty made in any Loan
Document proves to have been incorrect when made or reaffirmed in any respect
that is materially adverse to the interests of the Administrative Agent or the
Lenders; or
(g) Borrower or any of its Subsidiaries (i) fails to pay
the principal, or any principal installment of any present or future
indebtedness for borrowed money (other than under the Notes) in an amount in
excess of $1,000,000, or any guaranty of present or future indebtedness for
borrowed money in an amount in excess of $1,000,000, on its part to be paid,
when due (or within any stated grace period), whether at the maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) fails to
perform or observe any other term, covenant or agreement on its part to be
performed or observed, or suffers any event to occur, in connection with any
present or future indebtedness for borrowed money in an amount in excess of
$1,000,000, or of any guaranty of present or future indebtedness for borrowed
money in excess of $1,000,000, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their behalf) has
the right to declare such indebtedness due before the date on which it otherwise
would become due; or
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(h) Any Loan Document at any time after its execution and
delivery and for any reason other than the agreement of the Lenders or
satisfaction in full of 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 any such event in the
reasonable opinion of the Majority Lenders, is materially adverse to the
interests of the Lenders; or Borrower denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind same; or
(i) A judgment against Borrower or any of its Subsidiaries
is entered for the payment of money in excess of $1,000,000 and, absent
procurement of a stay of execution, such judgment remains unbonded or
unsatisfied for thirty (30) calendar days after the date of entry of judgment or
in any event, later than five (5) days prior to the date of any proposed
foreclosure sale thereunder; or
(j) Borrower or any of its Subsidiaries institutes or
consents to any proceeding under a Debtor Relief Law relating to it or to all or
any part of its Property, or is unable or admits in writing its inability to pay
its debts as they mature, or makes an assignment for the benefit of creditors;
or applies for or consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of that Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any proceeding under a
Debtor Relief Law relating to any such Person or to all or any part of its
Property is instituted without the consent Of that Person and continues
undismissed or unstayed for sixty (60) calendar days; or any judgment, writ,
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the Property of any such Person and is not
released, vacated or fully bonded within sixty (60) calendar days after its
issue or levy; or
(k) The occurrence subsequent to the Closing Date of a
Termination Event with respect to any Pension Plan, maintained by Borrower or
any ERISA Affiliate of Borrower if the aggregate liability of Borrower and its
ERISA Affiliates under ERISA as a result thereof exceeds $5,000,000; or the
complete or partial withdrawal subsequent to the Closing Date by Borrower or any
of its ERISA Affiliates from any Multiemployer Plan if the aggregate liability
of Borrower and its ERISA Affiliates as a result thereof exceeds $5,000,000; or
(l) The occurrence of a change in Control without the
written consent of the Required Lenders; or
(m) The occurrence of any adverse change in the financial
condition of Borrower and its Subsidiaries that the Majority Lenders, in their
reasonable discretion, deems material, or the Majority Lenders in good faith
shall believe that the prospect of payment or performance of the Loans is
impaired.
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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 Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence of any Event of Default other than
an Event of Default described in Section 9.1(j) which remains uncured or not
waived within ten (10) Banking Days of such Event of Default:
(1) the commitment to make Advances and all other
obligations of the Administrative Agent, the Lenders, the Issuing Bank
or the Swing Line Lender and all rights of Borrower and any other
Parties under the Loan Documents shall be suspended without notice to
or demand upon Borrower, which are expressly waived by Borrower, except
that subject to Section 11.2, the Majority Lenders may waive the Event
of Default or, without waiving, determine, upon terms and conditions
satisfactory to the Majority Lenders (or all of the Lenders, as the
case may be), to reinstate the Commitment and make further Advances
which waiver or determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) the Majority Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon shall
terminate the Commitment and declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon and all
other amounts payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith due and
payable, without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived by
Borrower; and
(3) the Majority Lenders may require that the
Borrower deposit cash with the Administrative Agent in an amount equal
to the aggregate Letter of Credit Balance as collateral (under its sole
dominion and control) for the repayment of drawings under outstanding
Letters of Credit.
(b) Upon the occurrence of any Event of Default described
in Section 9.1(j):
(1) the commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all rights
of Borrower and any other Parties under the Loan 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 Commitment
and make further Advances, which waiver or determination shall apply
equally to, and shall be binding upon, all the Lenders; and
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(2) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the
Lenders and the Administrative Agent, or any of them, without notice to or
demand upon Borrower, which are expressly waived by Borrower, may proceed to
protect, exercise and enforce their rights and remedies under the Loan Documents
against Borrower and any other Party and such other rights and remedies as are
provided by Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Majority 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 attorneys' fees and disbursements) of the Administrative Agent,
acting as Administrative Agent and of the Lenders, and thereafter paid pro rata
to the Lenders in the same proportions that the aggregate Obligations owed to
each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all the Lenders, without priority or preference
among the Lenders. Regardless of how each Lender may treat payments for the
purpose of its own accounting, for the purpose of computing Borrower's
Obligations hereunder and under the Notes, payments shall be applied first, to
the costs and expenses (including attorneys' fees and disbursements) of the
Administrative Agent acting as the Administrative Agent, and then to the
Lenders, as set forth above, second, to the payment of accrued and unpaid
interest due under any Loan Documents to and including the date of such
application (ratably, and without duplication, according to the accrued and
unpaid interest due under each of the Loan Documents), and third, to the payment
of all other amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan Documents. No application of
payments will cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan 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 Lender hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms thereof or are reasonably incidental,
as determined by the Administrative Agent, thereto. This appointment and
authorization is intended solely for the purpose of facilitating the servicing
of the Advances and does not constitute appointment of the Administrative Agent
as trustee for any Lender or as representative of any Lender for any other
purpose and, except as specifically set forth in the Loan Documents to the
contrary, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity. The Administrative
Agent is the agent of the Lenders only and does not assume any agency
relationship with Borrower, express or implied.
10.2 Administrative Agent and Affiliates. Xxxxx Fargo Bank, National
Association (and each successor Administrative Agent) has the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as
though it was not the Administrative Agent and the term "Lender" or "Lenders"
includes Xxxxx Fargo Bank, National Association in its individual capacity.
Xxxxx Fargo Bank, National Association (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. Xxxxx Fargo Bank, National Association (and each successor
Administrative Agent) need not account to any other Lender for any monies
received by it for reimbursement of its fees, costs and expenses as
Administrative Agent hereunder, or for any monies received by it in its capacity
as a Lender hereunder. Neither the Arranger, the Swing Line Lender, the Issuing
Bank nor the Administrative Agent shall be deemed to hold a fiduciary
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent, the Swing Line
Lender or the Arranger.
10.3 Proportionate Interest of the Lenders in any Collateral. The
Administrative Agent, on behalf of all the Lenders, shall hold in a Accordance
with the Loan Documents all collateral or interests therein, if any, received or
held by the Administrative Agent. Subject to the Administrative Agents, the
Swing Line Lender's and the Lender's rights to reimbursement for their costs and
expenses hereunder (including attorneys' fees and disbursements and other
professional services) and subject to the application of payments in accordance
with Section 9.2(d), each Lender (including the Swing Line Lender) shall have an
interest in any collateral or interests therein in the same proportions that the
aggregate Obligations beneficially owed such Lender under the Loan Documents
bear to the aggregate Obligations owed under the Loan Documents to all the
Lenders, without priority or preference among the Lenders.
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10.4 Lenders Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, the Arranger,
the Swing Line Lender, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent, the Arranger, the Swing Line
Lender or of any other Lender, 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 Lender also agrees that it shall, independently
and without reliance upon the Administrative Agent the Arranger, the Swing Line
Lender any other Lender or the directors, officers, agents, employees or
attorneys of the Administrative Agent the Arranger, the Swing Line Lender or of
any other Lender, continue to make its own independent credit analyses and
decisions in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent; Etc.
(a) The Administrative Agent and the Swing Line Lender may
assume that no Default has occurred and is continuing, unless the Administrative
Agent and the Swing Line Lender have received written notice from Borrower
stating the nature of the Default or has received written notice from a Lender
stating the nature of the Default and that such Lender considers the Default to
have occurred and to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein. The Arranger has no
obligations under the Loan Documents, although it is an intended third party
beneficiary of those Sections of this Agreement which refer to the Arranger.
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may, but
shall not be required to, exercise its discretion to act or not act, except that
the Administrative Agent shall be required to act or not act upon the
instructions of the Majority Lenders (or of all the Lenders, to the extent
required by this Agreement) and those instructions shall be binding upon the
Administrative Agent and all the Lenders, provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to any
Loan Document or to applicable Law or would result, in the reasonable judgment
of the Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a written
notice specified in clause (a), the Administrative Agent shall give notice
thereof to the Lenders and shall act or not act upon the instructions of the
Majority Lenders (or of all the Lenders, to the extent required by Section
11.2), provided that the Administrative Agent shall not be required to act or
not act if to do so would be contrary to any Loan Document or to applicable Law
or would result, in the reasonable judgment of the Administrative Agent in
substantial risk of liability to the Administrative Agent, and except that if
the Majority Lenders (or all the Lenders, if required under this Agreement) fail
for five (5) Banking Days after the receipt of notice from the Administrative
Agent, to instruct the Administrative Agent, then the Administrative Agent,
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in its sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to
any Lender for acting, or not acting, as instructed by the Majority Lenders (or
all the Lenders, if required under this Agreement), notwithstanding any other
provision hereof.
10.6 Liability of Administrative Agent and Arranger. Neither the
Administrative Agent, the Arranger, nor any of their respective directors,
advisors, officers, agents, employees or attorneys shall be liable for any
action taken or not taken by them under or in connection with the Loan
Documents, except for their own gross negligence or willful misconduct. Without
limitation on the foregoing, the Administrative Agent, the Arranger and their
respective directors, advisors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives written 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 written 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 to any Lender for any action taken or not taken
by it in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts.
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents or in
any notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents, unless such
statement warranty or representation is an independent statement, warranty or
representation of the Administrative Agent which is not based upon information
received by the Administrative Agent from Borrower or any other Person not
affiliated with the Administrative Agent.
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms, conditions or
covenants of any of the Loan 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 Loan Document any other instrument or writing
furnished pursuant thereto or in connection therewith, or any collateral.
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(f) Will not incur any liability to any Lender by acting
or not acting in reliance upon any Loan 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 to any Lender for any
arithmetical error in computing any amount paid or payable by the Borrower or
any Subsidiary or Affiliate thereof or paid or payable to or received or
receivable from any Lender under any Loan Document, including, without
limitation, principal, interest, commitment fees, Advances, Swing Line Loans and
other amounts; provided that, promptly upon discovery of such an error in
computation, the Administrative Agent, the Lenders 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 and the Swing Line Lender shall
ratably in accordance with their respective portions of the Commitment,
indemnify and hold the Administrative Agent and the Arranger and their
respective directors, advisors, 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) that may be imposed on, incurred by or asserted against it or
them in any way relating to or arising out of the Loan Documents (other than
losses incurred by reason of the failure of Borrower to pay the indebtedness
represented by the Notes and interest thereon or to pay the fees described in
Sections 3.2 and 3.3) or any action taken or not taken by Xxxxx Fargo Bank,
National Association as Administrative Agent 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 Arranger
upon demand for that Lender's ratable share of any cost or expense incurred by
the Administrative Agent or the Arranger in connection with the negotiation,
preparation., execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement or attempted
enforcement of the Loan 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.
10.8 Successor Administrative Agent. If the Administrative Agent
determines that for it to continue as Administrative Agent would result in a
conflict of interest affecting the Administrative Agent, or would create an
unacceptable risk of significant liability of the Administrative Agent to a
third party, or would otherwise be inadvisable under prevailing standards of
banking prudence, it may resign as such at any time upon prior written notice to
Borrower and the Lenders, to be effective upon a successor's acceptance of
appointment as Administrative Agent. The Administrative Agent may also resign as
such absent such a determination by it with the consent of Borrower, which shall
not be unreasonably withheld, to be likewise effective. The Majority Lenders at
any time may remove the Administrative Agent by written notice to that effect to
be effective on such date as the Majority Lenders designate. In either event:
(a) the Majority Lenders shall appoint a successor Administrative Agent who
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must be from among the Lenders, provided that any resigning Administrative Agent
shall be entitled to appoint a successor Administrative Agent from among the
Lenders, subject to acceptance of appointment by that successor Administrative
Agent, if the Majority Lenders have not appointed a successor Administrative
Agent within thirty (30) days after the date the resigning Administrative Agent
gave notice of resignation; (b) upon a successor's acceptance of appointment as
Administrative Agent, the successor win thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the resigning
Administrative Agent or the removed Administrative Agent; and (c) upon the
effectiveness of any resignation or removal, the resigning Administrative Agent
or the removed Administrative Agent thereupon will be discharged from its duties
and obligations thereafter arising under the Loan Documents other than
obligations arising as a result of any action or inaction of the resigning
Administrative Agent or the removed Administrative Agent prior to the
effectiveness of such resignation or removal.
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 the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
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ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of the Administrative Agent and the Lenders provided herein or in any
Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on the
part of the Administrative Agent or any Lender in exercising any right power,
privilege or remedy may be, or may be deemed to be, a waiver thereof, nor may
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 8 hereof are inserted for the
sole benefit of the Administrative Agent and the Lenders; the same may be waived
in whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Administrative Agent's or the Lenders' rights to assert
them in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment modification, supplement
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by the Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the approval
in writing of the Majority Lenders and Borrower, and then only in the specific
instance and for the specific purpose given; and, without the approval in
writing of all the Lenders, no amendment, modification, supplement, termination,
waiver or consent may be effective:
(a) To amend or modify the principal of or the amount of
principal, or the rate of interest payable on, any Note, or the amount of the
Commitment or of any facility fee payable to any Lender, or any other fee or
amount payable to any Lender under the Loan Documents;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of interest on, any
Note or any installment of any facility fee, or any other fee or amount payable
to any Lender under the Loan Documents, or to extend the term of the Commitment,
or to release any collateral for the Obligations;
(c) To amend or modify the provisions of the definitions
of "Commitment" or "Majority Lenders," or Section 6.8 or this Section; or
(d) To amend or modify 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 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
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11.3 Costs, Expenses and Taxes. Borrower shall pay on demand the
reasonable costs and expenses of the Administrative Agent (including the fees
and expenses of counsel to the Administrative Agent) in connection with the
negotiation, preparation, execution and delivery of the Loan Documents, and of
the Administrative Agent and the Lenders in connection with any amendment,
waiver, refinancing, restructuring, reorganization (including a bankruptcy
reorganization), enforcement or attempted enforcement of the Loan Documents, and
any matter related thereto, including, without limitation, reasonably incurred
filing fees, recording fees, title insurance fees, appraisal fees, search fees
and other out-of-pocket expenses and the reasonable fees and out-of-pocket
expenses of any legal counsel, independent public accountants and other outside
experts retained by the Administrative Agent or any Lender, and including,
without limitation, any reasonable costs, expenses or fees incurred or suffered
by the Administrative Agent or any Lender in connection with or during the
course of any bankruptcy or insolvency proceedings of Borrower or any Subsidiary
thereof Borrower shall pay any and all documentary and other taxes (other than
income or gross receipts taxes generally applicable to banks) and all reasonable
costs, expenses, fees and charges payable or determined to be payable in
connection with the filing or recording of this Agreement any other Loan
Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto,
and shall reimburse, hold harmless and indemnify the Administrative Agent and
the Lenders from and against any and all reasonable loss, liability or legal or
other expense with respect to or resulting from any delay in paying or failure
to pay any tax, cost, expense, fee or charge or that any of them may suffer or
incur by reason of the failure of any Party to perform any of its Obligations.
Any amount payable to the Administrative Agent or any Lender under this Section
shall bear interest from the second Banking Day following the date of demand for
payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent or the Lenders or any of them pursuant hereto or thereto
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with the Borrower or
any Affiliate of the Borrower. Each Lender's several obligation to make Advances
is conditioned upon the performance by all other Lenders of their obligations to
make similar Advances. A default by any Lender will not increase the amount of
the Commitment attributable to any other Lender, and 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 Loan Document or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Advances hereunder
and the execution and delivery. of the Notes, and have been or will be relied
upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
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11.6 Notices. Except as otherwise expressly provided in any Loan
Document, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telecopied, or personally delivered to the appropriate party at
the address set forth on the signature pages of this Agreement or other
applicable Loan Document or, as to any party to any Loan Document, at any other
address as may be designated by it in a written notice sent to all other parties
to such Loan Document in accordance with this Section. Except as otherwise
expressly provided in any Loan Document, if any notice, request, demand,
direction or other communication required or permitted by any Loan Document is
given by mail it will be effective on the earlier of receipt or the third
calendar day after deposit in the United States mail with first class or mail
postage prepaid; if given by telex or telecopier, when sent; or if given by
personal delivery, when delivered.
11.7 Execution of Loan Documents; Counterparts. Unless the
Administrative Agent otherwise specifies with respect to any Loan Document, this
Agreement and any other Loan Document may be executed in any number of
counterparts and any party hereto or thereto may execute any counterpart, each
of which when executed and delivered will be deemed to be an original and all of
which counterparts of this Agreement or any other Loan Document, as the case may
be, when taken together will be deemed to be but one and the same instrument.
The execution of this Agreement or any other Loan Document by any party hereto
or thereto will not become effective until counterparts hereof or thereof, as
the case may be, have been executed by all the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrower is a Party will be binding upon and inure to the benefit of Borrower,
the Administrative Agent each of the Lenders, 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 of the Commitment; provided that (i) such Eligible Assignee, if
not then a Lender, shall be reasonably acceptable to the Administrative Agent
and Borrower, (ii) such assignment shall be evidenced by a Commitment Assignment
and Acceptance, a copy of which shall be furnished to the Administrative Agent
for registration as hereinbelow provided, (iii) the assignment shall not assign
a Pro Rata Share of the Commitment equivalent to less than $3,000,000 unless the
assigning Lender thereby assigns its entire Pro Rata Share and (iv) the
effective date of any
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such assignment shall be as specified in the Commitment Assignment and
Acceptance, but without the consent of the Administrative Agent not earlier than
the date which is ten (10) Banking Days after the date the Administrative Agent
has registered the Commitment Assignment and Acceptance in the register kept for
that purpose by the Administrative Agent described below. Upon the effective
date of such Commitment Assignment and Acceptance, the Eligible Assignee named
therein shall be a Lender for all purposes of this Agreement with the Pro Rata
Share of the Commitment therein set forth and, to the extent of such Pro Rata
Share, the assigning Lender shall be released from its obligations under this
Agreement. 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 of the Commitment and to the
assigning Lender, a Note evidencing the remaining balance of the Pro Rata Share
retained by the assigning Lender.
(c) By executing and delivering a Commitment Assignment
and Acceptance, the Eligible Assignee thereunder acknowledges and agrees that:
(i) other than the representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share of the Commitment being assigned thereby
free and clear of any adverse claim, the assigning Lender has made no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the assigning
Lender has made no representation or warranty and assumes no responsibility 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 Commitment Assignment
and Acceptance; (iv) it will, independently and without reliance upon the
Administrative Agent or any Lender and based on such documents and information
as it shall deem appropriate at the time, 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 as are delegated to the Administrative Agent by this
Agreement; and (vi) it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitment Assignment and
Acceptance delivered to it and a register for recordation of the names and
addresses of the Lenders and their respective Pro Rata Shares of the Commitment.
Upon receipt of a completed Commitment Assignment and Acceptance executed by any
Lender and an Eligible Assignee, and upon receipt of a registration fee of
$3,000 from such Eligible Assignee, Administrative Agent shall record the making
of the assignments contemplated in such Commitment Assignment and Acceptance in
such register. The entries in such register shall be conclusive in the absence
of manifest error, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the register as a Lender
hereunder for all purposes of this Agreement.
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(e) Each Lender may from time to time without the consent
of Borrower or the Administrative Agent grant participations to one or more
banks or other financial institutions in a portion of its Pro Rata Share of the
Commitment; provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other financial institutions shall not be a
Lender hereunder for any purpose if the participation agreement so provides, for
the purposes of Sections 3.5, 3,6 and 11.11 but only to the extent that the cost
of such 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 consent of the holder of such
participation interest shall not be required for amendments or waivers of
provisions of the Loan Documents other than those which (A) increase the
monetary amount of any of the Commitment, (B) extend the Maturity Date or any
other date upon which any payment of money is due to the Lenders or (C) reduce
the rate of interest on the Notes, or any fee or any other monetary amount
payable to the Lenders and (vi) such Lender shall notify the Administrative
Agent in writing of the identity of the participant and the amount of the
participation interest within five Banking Days after the date granted.
(f) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPC") of such Granting Lender, identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and Borrower,
the option to provide to Borrower all or any part of any Loan that such Granting
Lender would otherwise be obligated to make to the Borrower pursuant to Sections
2. l(a) provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC and (ii) if an 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. The making of
a Loan by an SPC shall utilize the Pro Rata Share of the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party 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 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 proceeding under any Debtor Relief Law, 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 its
inability to institute any such proceeding against the SPC related to such
Granting Lender. In addition, notwithstanding anything to the contrary contained
in this Section 11.8, any SPC may (i) with notice to, but without the consent
of, 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 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
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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 Loan Documents except for those amendments or waivers for
which the consent of participants is required under Section 11.8(e)(v), and (ii)
disclose on a confidential basis 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 Setoff Rights. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but only with the consent of
the Majority Lenders) may, to the extent permitted by applicable Laws, exercise
its rights under applicable Laws to setoff and apply any funds in any deposit
account maintained with it by Borrower and/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, through any means, of the
Obligations held by it that is in excess of that Lender's Pro Rata Share of such
payment, then: (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, bankers 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 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; provided, however, that
each Lender agrees that it shall not exercise any right of setoff, banker's lien
or counterclaim without first obtaining the consent of the Majority Lenders.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
hold harmless the Administrative Agent, the Arranger and each Lender and their
directors, officers,
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agents, advisors, attorneys and employees (collectively the "Indemnitees") from
and against: (a) Any and all claims, demands, actions or causes of action that
are asserted against any Indemnitee by any Person (other than the Administrative
Agent, the Arranger or a Lender) if the claim, demand, action or cause of action
directly or indirectly relates to a claim, demand, action or cause of action
that such Person has or asserts against Borrower, any Affiliate of Borrower or
any officer, director or shareholder of Borrower and relating to the Loan
Documents; (b) Any and all claims, demands, actions or causes of action that are
asserted against any Indemnitee if the claim, demand, action or cause of action
arises out of or relates to the relationship between Borrower and the Lenders
under any of the Loan Documents or the transactions contemplated thereby; (c)
Any and all administrative or investigative proceedings by any Governmental
Agency arising out of or related to any claim, demand, action or cause of action
described in clauses (a) or (b) above; and (d) Any and all liabilities, losses,
costs or expenses (including attorneys, fees and disbursements and other
professional services) that any Indemnitee suffers or incurs as a result of the
assertion of any of the foregoing; provided that no Indemnitee shall be entitled
to indemnification for any loss caused by its own gross negligence or
misconduct. Each Indemnitee is authorized to employ counsel of its own choosing
in enforcing its rights hereunder and in defending against any claim, demand,
action, cause of action or administrative or investigative proceeding covered by
this Section; provided that each Indemnitee shall endeavor, in connection with
any matter covered by this Section which also involves other Indemnitees, to use
reasonable efforts to avoid unnecessary duplication of effort by counsel for all
Indemnitees. Any obligation or liability of Borrower to any Indemnitee under
this Section shall be and hereby is covered and secured by the Loan Documents
and the Collateral, and shall survive the expiration or termination of this
Agreement and the repayment of all Loans and the payment and performance of all
other Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and agrees
that:
(a) Any inspections of any Property of Borrower made by or
through the Administrative Agent, the Arranger or the Lenders are for purposes
of administration of the Loan Documents only and Borrower is not entitled to
rely upon the same;
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Loan Documents, neither the Administrative Agent nor the
Lenders shall be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any term, provision
or condition thereof, and such acceptance or approval thereof shall not
constitute a warranty or representation to anyone with respect thereto by the
Administrative Agent or the Lenders;
(c) The relationship between Borrower and the
Administrative Agent the Arranger and the Lenders is, and shall at all times
remain, solely that of a borrower and lenders; neither the Administrative Agent
the Arranger nor the Lenders shall under any circumstance be construed to be
partners or joint venturers of Borrower or its Affiliates; neither the
Administrative Agent, the Arranger nor the Lenders shall under any circumstance
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be deemed to be in a relationship of confidence or trust or a fiduciary
relationship with Borrower or its Affiliates, or to owe any fiduciary duty to
Borrower or its Affiliates; neither the Administrative Agent, the Arranger nor
the Lenders undertake or assume any 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 Administrative Agent the Arranger or the Lenders in
connection with such matters is solely for the protection of the Administrative
Agent, the Arranger, the Swing Line Lender and the Lenders and neither Borrower
nor any other Person is entitled to rely thereon; and
(d) The Administrative Agent the Arranger and the Lenders
shall not be responsible or liable to any Person for any loss, damage, liability
or claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrower and/or its
Affiliates and Borrower hereby indemnities and holds the Administrative Agent,
the Arranger and the Lenders harmless from any such loss, damage, liability or
claim.
11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Administrative Agent, the Arranger and the Lenders in connection
with the Loans and is made for the sole benefit of Borrower, the Administrative
Agent, the Arranger and the Lenders, and the Administrative Agents, the
Arranger's and the Lenders' successors and assigns. Except as provided in
Sections 11.8 and 11.11, no other Person shall have any rights of any nature
hereunder or by reason hereof.
11.14 Further Assurances. Borrower and its Subsidiaries shall, at their
expense and without expense to the Lenders or the Administrative Agent, do,
execute and deliver such further acts and documents as any Lender or the
Administrative Agent from time to time reasonably requires for the assuring and
confirming unto the Lenders or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
11.15 Integration. This Agreement together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
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11.16 Governing Law. Except to the extent otherwise expressly provided
therein, each loan document shall be governed by, and construed and enforced in
accordance with, the local Laws of Arizona.
11.17 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.18 Independent Covenants. Each covenant in Articles 5, 6 and 7 is
independent of the other covenants in those Articles; the breach of any such
covenant shall not be excused by the fact that the circumstances underlying such
breach would be permitted by another such covenant.
11.19 Headings. Article and Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES THAT
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR
THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN
WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT WILL NOT RELY
ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS
BY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY BANK THAT DOES NOT
COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR
SUPPLEMENT TO THE AGREEMENT OF THE OTHER LOAN DOCUMENTS.
11.22 Jury Trial Waiver. EACH PARTY TO THIS AGREE HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY TRIAL COURT WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
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COPY OF THIS SECTION WITH ANY COURT AS EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
XXXXXX STEEL COMPANY, a Delaware
corporation
By:_________________________________________________
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President and Chief
Financial
Officer
Address:
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: ________________________________________
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BANKS:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, individually, as the Swing Line
Lender, the Issuing Bank and Administrative Agent
By:_________________________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Its: Vice President
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Address for Matters Other than Loan
Administration:
Xxxxx Fargo Bank, National Association
Corporate Banking Division
000 Xxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Vice President,
#4101-251
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Address for Loan Administration:
Xxxxx Fargo Bank, National Association
Commercial Bank Loan Center
Agency Dept. 2840
000 0xx Xxxxxx 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Manager
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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