EXHIBIT 10.19
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 11, 2003
AMONG
SUNTRON CORPORATION
AS COMPANY
K*TEC OPERATING CORP.
AND
EFTC OPERATING CORP.
AS BORROWERS
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT
* * *
CITIGROUP GLOBAL MARKETS INC.
AS BOOK MANAGER AND LEAD ARRANGER
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
TABLE OF CONTENTS
PAGE
Article I Definitions, Interpretation And Accounting Terms..................................................... 2
Section 1.1 Defined Terms............................................................................ 2
Section 1.2 Computation of Time Periods.............................................................. 35
Section 1.3 Accounting Terms and Principles.......................................................... 35
Section 1.4 Certain Terms............................................................................ 36
Article II The Facility......................................................................................... 37
Section 2.1 The Revolving Credit Commitments......................................................... 37
Section 2.2 Borrowing Procedures..................................................................... 38
Section 2.3 Swing Loans.............................................................................. 39
Section 2.4 Letters of Credit........................................................................ 41
Section 2.5 Reduction and Termination of the Revolving Credit Commitments............................ 45
Section 2.6 Repayment of Loans....................................................................... 45
Section 2.7 Evidence of Debt......................................................................... 45
Section 2.8 Optional Prepayments..................................................................... 46
Section 2.9 Mandatory Prepayments.................................................................... 46
Section 2.10 Interest................................................................................. 47
Section 2.11 Conversion/Continuation Option........................................................... 48
Section 2.12 Fees..................................................................................... 49
Section 2.13 Payments and Computations................................................................ 50
Section 2.14 Special Provisions Governing Eurodollar Rate Loans....................................... 52
Section 2.15 Capital Adequacy......................................................................... 54
Section 2.16 Taxes.................................................................................... 54
Section 2.17 Substitution of Lenders.................................................................. 56
Article III Conditions To Loans And Letters Of Credit............................................................ 57
Section 3.1 Conditions Precedent to the Effectiveness of this Agreement.............................. 57
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit................................... 59
Article IV Representations and Warranties....................................................................... 60
Section 4.1 Corporate Existence; Compliance with Law................................................. 60
Section 4.2 Corporate Power; Authorization; Enforceable Obligations.................................. 61
Section 4.3 Ownership of Subsidiaries................................................................ 61
Section 4.4 Financial Statements..................................................................... 62
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Section 4.5 Material Adverse Change.................................................................. 63
Section 4.6 Solvency................................................................................. 63
Section 4.7 Litigation............................................................................... 63
Section 4.8 Taxes.................................................................................... 63
Section 4.9 Full Disclosure.......................................................................... 64
Section 4.10 Margin Regulations....................................................................... 64
Section 4.11 No Burdensome Restrictions; No Defaults.................................................. 64
Section 4.12 Investment Company Act; Public Utility Holding Company Act............................... 64
Section 4.13 Use of Proceeds.......................................................................... 65
Section 4.14 Insurance................................................................................ 65
Section 4.15 Labor Matters............................................................................ 65
Section 4.16 ERISA.................................................................................... 65
Section 4.17 Environmental Matters.................................................................... 66
Section 4.18 Intellectual Property.................................................................... 67
Section 4.19 Title; Real Property..................................................................... 67
Section 4.20 Related Documents........................................................................ 68
Section 4.21 Bank Accounts............................................................................ 69
Section 4.22 Regulation H............................................................................. 69
Article V Financial Covenants.................................................................................. 70
Section 5.1 Minimum EBITDA........................................................................... 70
Section 5.2 Maintenance of Tangible Net Worth........................................................ 70
Section 5.3 Maximum Capital Expenditures............................................................. 71
Article VI Reporting Covenants.................................................................................. 71
Section 6.1 Financial Statements..................................................................... 71
Section 6.2 Default Notices.......................................................................... 73
Section 6.3 Litigation............................................................................... 74
Section 6.4 Asset Sales.............................................................................. 74
Section 6.5 Notices under Related Documents.......................................................... 74
Section 6.6 SEC Filings; Press Releases.............................................................. 74
Section 6.7 Labor Relations.......................................................................... 74
Section 6.8 Tax Returns.............................................................................. 75
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Section 6.9 Insurance................................................................................ 75
Section 6.10 ERISA Matters............................................................................ 75
Section 6.11 Environmental Matters.................................................................... 75
Section 6.12 Borrowing Base Determination............................................................. 76
Section 6.13 Customer Contracts....................................................................... 78
Section 6.14 Other Information........................................................................ 78
Article VII Affirmative Covenants................................................................................ 78
Section 7.1 Preservation of Corporate Existence, Etc................................................. 78
Section 7.2 Compliance with Laws, Etc................................................................ 78
Section 7.3 Conduct of Business...................................................................... 78
Section 7.4 Payment of Taxes, Etc.................................................................... 79
Section 7.5 Maintenance of Insurance................................................................. 79
Section 7.6 Access................................................................................... 79
Section 7.7 Keeping of Books......................................................................... 80
Section 7.8 Maintenance of Properties, Etc........................................................... 80
Section 7.9 Application of Proceeds.................................................................. 80
Section 7.10 Environmental............................................................................ 80
Section 7.11 Additional Collateral and Guaranties..................................................... 80
Section 7.12 Real Property............................................................................ 81
Section 7.13 Account Debtors.......................................................................... 82
Article VIII Negative Covenants................................................................................... 82
Section 8.1 Indebtedness............................................................................. 82
Section 8.2 Liens, Etc............................................................................... 83
Section 8.3 Investments.............................................................................. 84
Section 8.4 Sale of Assets........................................................................... 85
Section 8.5 Restricted Payments...................................................................... 86
Section 8.6 Prepayment of Long-Term Indebtedness..................................................... 87
Section 8.7 Restriction on Fundamental Changes; Permitted Acquisitions............................... 87
Section 8.8 Change in Nature of Business............................................................. 87
Section 8.9 Transactions with Affiliates............................................................. 87
Section 8.10 Restrictions on Subsidiary Distributions; No New Negative Pledge......................... 88
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Section 8.11 Modification of Constituent Documents.................................................... 88
Section 8.12 Modification of Subordinated Debt Agreements............................................. 89
Section 8.13 Modification of Related Documents........................................................ 89
Section 8.14 Accounting Changes; Fiscal Year.......................................................... 89
Section 8.15 Margin Regulations....................................................................... 89
Section 8.16 Sale/Leasebacks.......................................................................... 89
Section 8.17 Cancellation of Indebtedness Owed to It.................................................. 90
Section 8.18 No Speculative Transactions.............................................................. 90
Section 8.19 Compliance with ERISA.................................................................... 90
Section 8.20 Environmental............................................................................ 90
Section 8.21 Compliance with Blocked Account Provisions............................................... 90
Article IX Events of Default.................................................................................... 90
Section 9.1 Events of Default........................................................................ 90
Section 9.2 Remedies................................................................................. 92
Section 9.3 Actions in Respect of Letters of Credit.................................................. 93
Section 9.4 Rescission............................................................................... 93
Article X The Administrative Agent; the agents................................................................. 94
Section 10.1 Authorization and Action................................................................. 94
Section 10.2 Administrative Agent's Reliance, Etc..................................................... 94
Section 10.3 Posting of Approved Electronic Communications............................................ 95
Section 10.4 The Administrative Agent Individually.................................................... 96
Section 10.5 Lender Credit Decision................................................................... 96
Section 10.6 Indemnification.......................................................................... 96
Section 10.7 Successor Administrative Agent........................................................... 97
Section 10.8 Concerning the Collateral and the Collateral Documents................................... 97
Section 10.9 Collateral Matters Relating to Related Obligations....................................... 98
Article XI Miscellaneous........................................................................................ 99
Section 11.1 Amendments, Waivers, Etc................................................................. 99
Section 11.2 Assignments and Participations........................................................... 101
Section 11.3 Costs and Expenses....................................................................... 103
Section 11.4 Indemnitees.............................................................................. 104
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PAGE
Section 11.5 Limitation of Liability.................................................................. 106
Section 11.6 Right of Set-off......................................................................... 106
Section 11.7 Sharing of Payments, Etc................................................................. 106
Section 11.8 Notices, Etc............................................................................. 107
Section 11.9 No Waiver; Remedies...................................................................... 109
Section 11.10 Amendment and Restatement; Binding Effect................................................ 109
Section 11.11 Governing Law............................................................................ 110
Section 11.12 Submission to Jurisdiction; Service of Process........................................... 110
Section 11.13 Waiver of Jury Trial..................................................................... 111
Section 11.14 Marshaling; Payments Set Aside........................................................... 111
Section 11.15 Section Titles........................................................................... 112
Section 11.16 Execution in Counterparts................................................................ 112
Section 11.17 Entire Agreement......................................................................... 112
Section 11.18 Confidentiality.......................................................................... 112
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SCHEDULES
Schedule I- Revolving Credit Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Accounts Advance Rate
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.4 - Balance Sheet Items Not In Accordance With GAAP
Schedule 4.7 - Litigation
Schedule 4.15 - Labor Matters
Schedule 4.16 - List of Plans
Schedule 4.17 - Environmental Matters
Schedule 4.19 - Real Property
Schedule 4.21 - Bank Accounts
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.9 - Transactions with Affiliates
Schedule 8.14 - Fiscal Quarter
Schedule 8.22 - Post Closing Deliveries
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Revolving Credit Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Letter of Credit Request
Exhibit E - Form of Notice of Conversion or Continuation
Exhibit F - Form of Guaranty
Exhibit G - Form of Pledge and Security Agreement
Exhibit H - Form of Opinion of Counsel for the Loan Parties
Exhibit I - Form of Borrowing Base Certificate
Exhibit J - Form of No-Offset Letter
vi
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April
11, 2003, among SUNTRON CORPORATION (as successor in interest by merger to
Suntron Intermediate Holding Corp.), a Delaware corporation (together with any
successor and permitted assign, the "Company"), K*TEC OPERATING CORP. (f/k/a
K*TEC Operating Company, L.L.C., a Delaware limited liability company, as
successor in interest by merger to K*TEC Electronics Holding Corporation (f/k/a
K*TEC Electronics Corporation)), a Delaware corporation (together with any
successor and permitted assign, "K*TEC"), EFTC OPERATING CORP. (as successor in
interest by merger to EFTC Corporation, Circuit Test, Inc. and CTLLC Acquisition
Corp.), a Delaware corporation (together with any successor and permitted
assign, "EFTC"), the Lenders (as defined below), the Issuers (as defined below)
and CITICORP USA, INC. ("CUSA"), as agent for the Lenders and the Issuers (in
such capacity, the "Administrative Agent") amends and restates in its entirety
the Credit Agreement (the "Existing Credit Agreement"), dated as of January 26,
2001 (the "Initial Closing Date"), among K*TEC Electronics Holding Corporation
(f/k/a K*TEC Electronics Corporation), the lenders and issuers from time to time
party thereto and CUSA, as agent for such lenders and issuers.
W I T N E S S E T H:
WHEREAS, K*TEC Electronics Holding Corporation (f/k/a K*TEC
Electronics Corporation), EFTC, CUSA and certain of the Lenders and Issuers are
party to the Existing Credit Agreement;
WHEREAS, Suntron Intermediate Holding Corp., an indirect
corporate parent of K*TEC Electronics Holding Corporation, desires to merge with
and into the Company, with the Company being the surviving company;
WHEREAS, K*TEC Electronics Holding Corporation (f/k/a K*TEC
Electronics Corporation), a Delaware corporation ("K*TEC Holdings") desires to
merge with and into K*TEC Operating Company L.L.C, a Delaware limited liability
company ("K*TEC Operating Company"), with K*TEC Operating Company being the
surviving company (the "K*TEC Corporate Restructuring");
WHEREAS, each of Circuit Test, Inc. and CTLLC Acquisition,
each a Florida corporation, desire to merge with and into EFTC, in each case
with EFTC being the surviving corporation (the "EFTC Corporate Restructuring");
WHEREAS, after the consummation of the K*TEC Corporate
Restructuring and the EFTC Corporate Restructuring, K*TEC Operating Company,
L.L.C. desires to reorganize as a Delaware corporation and change its name to
"K*TEC Operating Corp." (the "K*TEC Reorganization", together with the K*TEC
Corporate Restructuring and the EFTC Corporate Restructuring, the "Corporate
Restructuring");
WHEREAS, the Borrowers and the Lenders have agreed to amend
and restate the Existing Credit Agreement, on the terms and subject to the
conditions set forth herein, to reflect the Corporate Restructuring and to make
additional changes as set forth herein; and
WHEREAS, it is the intent of the parties hereto that (a) this
Agreement not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or evidence payment of all or any of such
obligations and liabilities, (b) this Agreement amend and restate in its
entirety the Existing Credit Agreement and (c) from and after
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
the Effective Date (as defined below), the Existing Credit Agreement be of no
further force or effect except as to evidence the incurrence of the
"Obligations" under and as defined thereunder, the representations and
warranties made and the actions or omissions performed or required to be
performed thereunder, in each case prior to the Effective Date;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS
As used in this Agreement, the following terms have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Account" has the meaning specified in the Pledge and Security
Agreement.
"Account Debtor" has the meaning specified in the Pledge and
Security Agreement.
"Acquisition" means the purchase by K*TEC Operating Company of
all of the outstanding capital stock of K*TEC Holdings pursuant to the terms of
the Acquisition Agreement.
"Acquisition Agreement" means the Stock Purchase Agreement,
dated as of October 10, 2000, by and between Kent Electronics Corporation and
K*TEC Operating Company.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement.
"Advance Rate" means:
(a) in the case of Eligible Receivables, the Applicable
Receivables Rate;
(b) in the case of Eligible Raw Materials, 35%;
(c) in the case of Eligible Finished Goods, 37%;
(d) in the case of Eligible Work-in-Process Inventory, 50%;
(e) in the case of Eligible Equipment, 75%; and
(f) in the case of Eligible Real Property, 55%;
provided, however, that each percentage rate as to any class
of Collateral described in clauses (b) through (f) hereof is subject to
reduction (or, if so reduced, increase up to
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
the percentages set forth above) at the Administrative Agent's sole discretion
exercised reasonably.
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by or is under
common control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each other Person who is the beneficial owner
of 5% or more of any class of Voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent Affiliate" has the meaning specified in Section 10.3(c)
(Posting of Approved Electronic Communications).
"Agreement" means the Existing Credit Agreement, as amended
and restated by this Amended and Restated Credit Agreement.
"Aggregate Borrowing Base" means, at any time, the aggregate
Borrowing Base of the Borrowers at such time.
"Applicable Lending Office" means, with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan, and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to the Revolving Loans
maintained as (a) Base Rate Loans, a rate equal to 2.5% per annum and (b)
Eurodollar Rate Loans, a rate equal to 3.75% per annum.
"Applicable Receivables Rate" means, at any given time and
with respect to Accounts, (a) if the Dilution applicable to such Accounts at
such time does not exceed 10%, the percentage set forth on Schedule III
(Accounts Advance Rate) opposite the Dilution applicable to such Accounts at
such time and (b) otherwise, if the Dilution applicable to such Accounts at such
time is greater than 10%, a percentage as may be determined by the
Administrative Agent at any time in its sole discretion exercised reasonably.
"Approved Electronic Communications" means each notice,
demand, communication, information, document and other material that any Loan
Party is obligated to, or otherwise chooses to, provide to the Administrative
Agent pursuant to any Loan Document or the transactions contemplated therein,
including (a) any supplement to the Guaranty, any joinder to the Pledge and
Security Agreement and any other written Contractual Obligation in connection
with and related to the foregoing and (b) any Financial Statement, financial and
other report, notice, request, certificate and other information material;
provided, however, that, "Approved Electronic Communication" shall exclude (x)
any Notice of Borrowing, Letter of Credit Request, Swing Loan Request, Notice of
Conversion or Continuation, and any other notice, demand, communication,
information, document and other material relating to a request for a new, or a
conversion of an existing, Borrowing, (ii) any notice pursuant to Section 2.8
(Optional Prepayments) and Section 2.9 (Mandatory Prepayments) and any other
notice relating to the payment of any principal or other amount due under any
Loan Document prior to the scheduled date therefor, (iii) all notices of any
Default or Event of Default and (iv) any notice, demand, communication,
information, document and other material required to be delivered to satisfy any
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
of the conditions set forth in Article III (Conditions To Loans And Letters Of
Credit) or Section 2.4(a) (Letters of Credit) or any other condition to any
Borrowing or other extension of credit hereunder or any condition precedent to
the effectiveness of this Agreement.
"Approved Electronic Platform" has the meaning specified in
Section 10.3(a) (Posting of Approved Electronic Communications).
"Approved Fund" means any Fund that is advised or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Xxxxxxx Xxxxx Xxxxxx Inc., in its capacity as
sole book manager and arranger.
"Asset Sale" has the meaning specified in Section 8.4 (Sale of
Assets).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit A (Form of Assignment
and Acceptance).
"Assumption Agreement" means an assumption agreement entered
into by a Lender or an Eligible Assignee, and accepted by the Administrative
Agent, in form and substance acceptable to the Administrative Agent.
"Availability Reserve" means, at any time, effective upon
receipt by the Company of notice from the Administrative Agent of any
determination thereof (which notice may be given orally or in writing), such
amounts as the Administrative Agent may from time to time establish against the
Facility, in the Administrative Agent's sole discretion exercised reasonably, in
order either (a) to preserve the value of the Collateral or the Administrative
Agent's Lien thereon or (b) to provide for the payment of unanticipated
liabilities of any of the Loan Parties arising after the Initial Closing Date.
"Available Credit" means, at any time, an amount equal to (a)
the lesser of (i) the Revolving Credit Commitments in effect at such time and
(ii) the Aggregate Borrowing Base at such time, minus (b) the sum of (i) the
aggregate Revolving Credit Outstandings at such time and (ii) any Availability
Reserves in effect at such time.
"Bailee's Letter" means a letter in form and substance
reasonably acceptable to the Administrative Agent executed by any Person (other
than the Borrowers) who is in possession of Inventory on behalf of any Borrower
pursuant to which such Person acknowledges, among other things, the
Administrative Agent's Lien with respect thereto.
"Bankruptcy Code" means title 11, United States Code, as
amended from time to time.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
(b) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum plus
(ii) the rate per annum obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States
money market banks, such three-week moving average being determined
weekly on each Monday (or, if any such day is not a Business Day, on
the next succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) for Citibank in respect of
liabilities consisting of or including (among other liabilities)
three-month U.S. dollar nonpersonal time deposits in the United States,
plus (iii) the average during such three-week period of the maximum
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar deposits
in the United States; and
(c) the sum of (i) 0.5% per annum plus (ii) the Federal Funds
Rate.
"Base Rate Loan" means any Loan during any period in which it
bears interest based on the Base Rate.
"Blocked Account" has the meaning specified in the Pledge and
Security Agreement.
"Blocked Account Bank" has the meaning specified in the Pledge
and Security Agreement.
"Blocked Account Letter" has the meaning specified in the
Pledge and Security Agreement.
"Borrowers" means each of K*TEC and EFTC.
"Borrowing" means a borrowing consisting of Loans made on the
same day by the Lenders ratably according to their respective Revolving Credit
Commitments.
"Borrowing Base" means, with respect to any Borrower at any
time, (a) the sum of (i) the product of the Advance Rate then in effect for
Eligible Receivables and the face amount of all Eligible Receivables of such
Borrower and its Eligible Subsidiaries (calculated net of all finance charges,
late fees and other fees that are unearned, sales, excise or similar taxes, and
credits or allowances granted at such time), (ii) the sum of the products of the
Advance Rate then in effect for each class of Eligible Inventory of such
Borrower and its Eligible Subsidiaries and the value of such Eligible Inventory
(valued, in each case, at the lower of cost and market on a first-in, first-out
basis) constituting each such class at such time, (iii) the product of the
Advance Rate then in effect for Eligible Equipment and the orderly liquidation
value of Eligible Equipment of such Borrower and its Eligible Subsidiaries (as
determined by the Administrative Agent based
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
on the appraisal delivered with respect thereto (or any update thereof)) at such
time and (iv) the product of the Advance Rate then in effect for Eligible Real
Property and the Mortgage Value of the Eligible Real Property of such Borrower
and its Eligible Subsidiaries at such time, minus (b) any Eligibility Reserve
then in effect.
"Borrowing Base Certificate" means a certificate of the
Borrowers, substantially in the form of Exhibit I (Form of Borrowing Base
Certificate).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to notices, determinations, fundings and payments in connection with
the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in
Dollar deposits are also carried on in the London interbank market.
"Business Plan" means the business plan, dated as of November
21, 2002, in respect of the Company, covering the Fiscal Years ending in
calendar years 2003 through 2005 and delivered to the Administrative Agent by
the Company prior to the date hereof.
"Capital Expenditures" means, with respect to any Person for
any period, the aggregate of amounts that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person and
its Subsidiaries prepared in conformity with GAAP, excluding interest
capitalized during construction.
"Capital Lease" means, with respect to any Person, any lease
of property by such Person as lessee that would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"Capital Lease Obligations" means, with respect to any Person,
the capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
"Cash Collateral Account" has the meaning specified in the
Pledge and Security Agreement.
"Cash Equivalents" means (a) securities issued or fully
guaranteed or insured by the United States government or any agency thereof, (b)
certificates of deposit, eurodollar time deposits, overnight bank deposits and
bankers' acceptances of any Lender or any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations) that, at the time of acquisition, are rated at least "A-1" by
Standard & Poor's Rating Services ("S&P") or "P-1" by Xxxxx'x Investors
Services, Inc. ("Moody's"), (c) commercial paper of an issuer rated at least
"A-1" by S&P or "P-1" by Moody's and (d) shares of any money market fund that
(i) has at least 95% of its assets invested continuously in the types of
investments referred to in clauses (a) through (c) above, (ii) has net assets of
not less than $500,000,000 and (iii) is rated at least "A-1" by S&P or "P-1" by
Moody's; provided, however, that the maturities of all obligations of the type
specified in clauses (a) through (c) above shall not exceed 180 days.
"Change of Control" means any event, transaction or occurrence
as a result of which (a) the Investors shall cease to own and control (either
directly or indirectly through one or more persons (a "Holding Company"), taking
into account any dilution resulting from the interest
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
of other holders of the Stock of each Holding Company) at least 25% of the
outstanding Voting Stock of all classes of the Voting Stock of the Company and
at least 25% of the economic and voting rights associated with ownership of
Stock of the Company on a fully diluted basis, (b) any person or group of
persons (within the meaning of the Securities Exchange Act of 1934, as amended)
other than the Investors or a group of such persons composed principally of
Investors shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) or otherwise own or control economic and
voting rights associated with ownership of a percentage of the outstanding
Voting Stock of any class of the Voting Stock of the Company on a fully diluted
basis greater than the percentage collectively held by the Investors (either
directly or indirectly through one or more Holding Companies, taking into
account any dilution resulting from the interest
of other holders of the Voting Stock of each Holding Company), (c) during any
period of twelve consecutive calendar months, individuals who at the beginning
of such period constituted the board of directors (or managing members) of the
Company (together with any new directors (or managing members) nominated by the
Investors or whose election by the board of directors (or managing members) of
the Company or whose nomination for election by the stockholders of the Company
was approved by a vote of at least a majority of the directors (or managing
members) then still in office who either were directors (or managing members) at
the beginning of such period or whose elections or nomination for election was
previously so approved) cease for any reason other than death or disability to
constitute a majority of the directors (or managing members) then in office or
(d) any Borrower shall cease to be a Wholly-Owned Subsidiary of the Company.
"Citibank" means Citibank, N.A., a national banking
association.
"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Collateral Documents.
"Collateral Documents" means the Pledge and Security
Agreement, the Mortgages, the Blocked Account Letters and any other document
executed and delivered by a Loan Party granting a Lien on any of its property to
secure payment of the Secured Obligations.
"Commitment Letter" shall mean the letter dated as of December
19, 2000, addressed to the Company from CUSA and the Arranger and accepted by
the Company on December 20, 2000 with respect to the Facility.
"Company" means Suntron Corporation, a Delaware corporation.
"Company's Accountants" means KPMG LLP or any other
independent, nationally-recognized public accountant acceptable to the
Administrative Agent.
"Compliance Certificate" has the meaning specified in Section
6.1(d) (Financial Statements).
"Consolidated Net Income" means, for any Person for any
period, the net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
in conformity with GAAP; provided, however, that (a) the net income of any other
Person in which such Person or one of its Subsidiaries has a joint interest with
a third party (which interest does not cause the net income of such other Person
to be consolidated into the net income of such Person in accordance with GAAP)
shall be included only to the extent of the amount of dividends or distributions
paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such
Person that is subject to any restriction or limitation on the payment of
dividends or the making of other distributions shall be excluded to the extent
of such restriction or limitation, (c) the net income (or loss) of any Person
acquired in a purchase or pooling of interest transaction for any period prior
to the date of such acquisition and (d) extraordinary gains and losses and any
one-time increase or decrease to net income which is required to be recorded
because of the adoption of new accounting policies, practices or standards in
accordance with GAAP shall be excluded.
"Constituent Documents" means, with respect to any Person, (a)
the articles of incorporation, certificate of incorporation or certificate of
formation (or the equivalent organizational documents) of such Person, (b) the
by-laws, operating agreement (or the equivalent governing documents) of such
Person and (c) any document setting forth the manner of election and duties of
the directors or managing members of such Person (if any) and the designation,
amount or relative rights, limitations and preferences of any class or series of
such Person's Stock.
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its properties is subject.
"Control Account Letter" has the meaning specified in the
Pledge and Security Agreement.
"Corporate Chart" means a corporate organizational chart, list
or other similar document in each case in form reasonably acceptable to the
Administrative Agent and setting forth, for each Person that is a Loan Party,
that is subject to Section 7.11 (Additional Collateral and Guaranties) or that
is a Subsidiary of any Loan Party, (a) the full legal name of such Person (and
any trade name, fictitious name or other name such Person may have had or
operated under), (b) the jurisdiction of organization, the organizational number
(if any) and the tax identification number (if any) of such Person, (c) the
location of such Person's chief executive office (or sole place of business) and
(d) the number of shares of each class of such Person's Stock authorized (if
applicable), the number outstanding as of the date of delivery and the number
and percentage of such outstanding shares for each such class owned (directly or
indirectly) by any Loan Party or any Subsidiary of any Loan Party.
"Corporate Restructuring" has the meaning specified in the
recitals to this Agreement.
"CUSA" has the meaning specified in the preamble to this
Agreement.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Customary Permitted Liens" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes,
assessments or governmental charges in all cases that are not yet due
or that are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate
provisions are being maintained to the extent required by GAAP;
(b) Liens of landlords arising by statute and
liens of suppliers, mechanics, carriers, materialmen, warehousemen or
workmen and other liens imposed by law created in the ordinary course
of business for amounts not yet due or that are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(c) deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance or other types of social security benefits or to secure the
performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money) and surety, appeal, customs or performance
bonds;
(d) encumbrances arising by reason of zoning
restrictions, easements, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of real property not materially
detracting from the value of such real property or not materially
interfering with the ordinary conduct of the business conducted and
proposed to be conducted at such real property;
(e) encumbrances arising under leases or
subleases of real property that do not, in the aggregate, materially
detract from the value of such real property or interfere with the
ordinary conduct of the business conducted and proposed to be conducted
at such real property; and
(f) financing statements of a lessor's rights in
and to personal property leased to such Person in the ordinary course
of such Person's business.
"Debt Issuance" means the incurrence of Indebtedness of the
type specified in clause (a) or (b) of the definition of "Indebtedness" by the
Company or any of its Subsidiaries.
"Default" means any event that, with the passing of time or
the giving of notice or both, would become an Event of Default.
"Dilution" means, at any given time in respect of all Accounts
of the Borrowers and their Eligible Subsidiaries, 100 times a quotient, (a) the
numerator of which is the sum (for the most recent twelve months) of any net
credits, rebates, markdowns, freight charges, cash discounts, volume, early
payment and other discounts, cooperative advertising expenses, royalty payments,
warranties, cost of parts required to be maintained by Contractual Obligation
(whether express or implied), warehouse and other allowances, disputes,
chargebacks, defective returns, other returned or repossessed goods, inventory
transfers, reductions in balance in respect of billing errors or adjustments to
estimated billing settlements for defective products or other reasons,
allowances for early payments and other similar allowances that are made or
coordinated
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AMENDED AND RESTATED CREDIT AGREEMENT
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with the usual practices of the Borrowers and their Eligible Subsidiaries owning
such Account, and (b) the denominator of which is the sum (for the most recent
twelve months) of the gross amount of any sales made on account (including,
without limitation, the original balances of such Accounts).
"Disqualified Stock" means with respect to any Person, any
Stock that, by its terms, by the terms of any security into which it is
convertible or for which it is exchangeable or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, is exchangeable for Indebtedness of such Person or is redeemable at
the option of the holder thereof, in whole or in part, on or prior to the
Scheduled Termination Date.
"Documentary Letter of Credit" means any Letter of Credit
intended to be drawn upon presentation of documents evidencing the sale or
shipment of goods purchased by the Borrowers or any of their respective
Subsidiaries in the ordinary course of their respective businesses.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Lender or such other
office of such Lender as such Lender may from time to time specify to the
Company and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of the Company
organized under the laws of any state of the United States of America or the
District of Columbia.
"EBITDA" means, with respect to any Person for any period, an
amount equal to (a) Consolidated Net Income of such Person for such period plus
(b) the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any provision for income
taxes, (ii) Interest Expense, (iii) loss from extraordinary items (including (A)
any loss resulting from an Asset Sale by such Person or any of its Subsidiaries
other than in the ordinary course of business, and (B) restructuring charges and
cash non-recurring charges not to exceed $3,000,000 in any Fiscal Year (whether
or not incurred after the Effective Date), (iv) depreciation, depletion,
amortization and impairment of intangibles or financing or acquisition costs and
(v) all other non-cash charges and non-cash losses for such period, including
the amount of any compensation deduction as the result of any grant of Stock or
Stock Equivalents to employees, officers, directors or consultants accrued
during such period and not paid in cash during such period minus (c) the sum of,
in each case to the extent included in the calculation of such Consolidated Net
Income but without duplication, (i) any credit for income tax, (ii) gains from
extraordinary items for such period, (iii) any aggregate net gain (but not any
aggregate net loss) from the sale, exchange or other disposition of capital
assets by such Person and (iv) any other non-cash gains or other items which
have been added in determining Consolidated Net Income, including any reversal
of a charge referred to in clause (b)(v) above by reason of a decrease in the
value of any Stock or Stock Equivalent.
"Effective Date" has the meaning specified in Section 3.1
(Conditions Precedent to the Effectiveness of this Agreement).
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AMENDED AND RESTATED CREDIT AGREEMENT
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"EFTC" means EFTC Operating Corp., a Delaware corporation,
together with any successors and permitted assigns.
"EFTC Corporate Restructuring" has the meaning specified in
the recitals to this Agreement.
"EFTC Joinder Date" means March 8, 2002.
"EFTC Merger" means the series of transactions described in
the EFTC Merger Agreement.
"EFTC Merger Agreement" means the Amended and Restated
Agreement and Plan of Merger in respect of the EFTC Merger, dated as of May 3,
2001, with such changes or additions as are reasonably acceptable to the
Administrative Agent, and each other agreement, document and instrument executed
in connection therewith, each of which shall be reasonably satisfactory to the
Administrative Agent.
"EFTC Subsidiaries" means those Subsidiaries of EFTC as of the
Initial Closing Date.
"Eligibility Reserves" means the sum of (i) ten million
Dollars ($10,000,000) and (ii) effective upon receipt by the applicable Borrower
of notice from the Administrative Agent of any determination thereof (which
notice may be given orally or in writing), such amounts as the Administrative
Agent, in its sole discretion exercised reasonably, may from time to time
establish against the gross amounts of Eligible Receivables, Eligible Equipment,
Eligible Real Property and any class of Eligible Inventory to reflect risks or
contingencies arising after the Initial Closing Date that may affect any one or
class of such items and that have not already been taken into account in the
calculation of the Borrowing Base.
"Eligible Assignee" means (a) a Lender or any Affiliate or
Approved Fund of such Lender, (b) a commercial bank having total assets in
excess of $5,000,000,000, (c) a finance company, insurance company, other
financial institution or fund reasonably acceptable to the Administrative Agent,
regularly engaged in making, purchasing or investing in loans and having a net
worth, determined in accordance with GAAP, in excess of $250,000,000 (or, to the
extent net worth is less than such amount, a finance company, insurance company,
other financial institution or fund, reasonably acceptable to the Administrative
Agent and the Company) or (d) a savings and loan association or savings bank
organized under the laws of the United States or any State thereof having a net
worth, determined in accordance with GAAP, in excess of $250,000,000.
"Eligible Equipment" means Equipment of any Borrower or any of
its Eligible Subsidiaries (a) that is owned solely by such Borrower (or, as the
case may be, such Eligible Subsidiary), (b) with respect to which the
Administrative Agent has a valid and perfected first priority Lien, (c) as to
which, at the time they were made and at the time of the determination (except
for representations and warranties expressly referring to an earlier date that
shall be measured as of such date), all representation and warranties contained
in any of the Loan Documents are correct, (d) that is not, in the Administrative
Agent's sole discretion exercised reasonably, obsolete or unmerchantable, (e)
that the Administrative Agent deems to be Eligible Equipment, based on such
credit and collateral considerations as the Administrative Agent may, in its
sole discretion, deem appropriate and (f) in respect of which the Administrative
Agent shall
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AMENDED AND RESTATED CREDIT AGREEMENT
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have received pursuant to the definition of Permitted Acquisition, subclause (v)
of clause (a) of Section 3.1 (Conditions Precedent to Initial Loans and Letters
of Credit) of the Existing Credit Agreement or Section 6.12 (Borrowing Base
Determination) an appraisal that is satisfactory in form and substance to the
Administrative Agent and performed by an appraiser that is satisfactory to the
Administrative Agent. Notwithstanding the foregoing, unless otherwise agreed by
the Administrative Agent in its sole discretion exercised reasonably, "Eligible
Equipment" shall not include any Equipment of EFTC or any of its Eligible
Subsidiaries.
"Eligible Finished Goods" means a class of Eligible Inventory
consisting of the Eligible Inventory of a Borrower or an Eligible Subsidiary
thereof that is classified, consistent with past practice, on such Borrower's
(or, as the case may be, such Eligible Subsidiary's) accounting system as
"finished goods".
"Eligible Inventory" means Inventory of a Borrower and its
Eligible Subsidiaries (other than any Inventory that has been consigned by such
Borrower (or, as the case may be, such Eligible Subsidiary)) including raw
materials, work-in-process and finished goods:
(a) owned solely by such Borrower (or, as the case
may be, such Eligible Subsidiary);
(b) with respect to which the Administrative Agent
has a valid and perfected first priority Lien;
(c) as to which, at the time they were made and at
the time of the determination (except for representations and
warranties expressly referring to an earlier date that shall be
measured as of such date), all representations and warranties contained
in any of the Loan Documents are correct;
(d) which is not obsolete or unmerchantable;
provided, however, that such Inventory shall be deemed to be obsolete
or unmerchantable if (i) with respect to Eligible Finished Goods, such
Inventory has not been used for a period of three months and (ii) for
all other classes of Inventory, (A) such Inventory has not been used
(1) if such Inventory is subject to the Module Supplier Agreement, in
the last twelve months and (2) otherwise, in the last six months, (B)
additional quantities of such Inventory have not been received in the
last six months and (C) there has been no forecasted usage of such
Inventory in the last six months;
(e) with respect to which (in respect of any
Inventory labeled with a brand name or trademark and sold by such
Borrower (or, as the case may be, such Eligible Subsidiary) pursuant to
a trademark owned by such Borrower (or, as the case may be, such
Eligible Subsidiary) or a license granted to such Borrower (or, as the
case may be, such Eligible Subsidiary)) the Administrative Agent would
have rights under such trademark or license pursuant to the Pledge and
Security Agreement or other agreement satisfactory to the
Administrative Agent to sell such Inventory in connection with a
liquidation thereof; and
(f) that the Administrative Agent deems to be
Eligible Inventory based on such credit and collateral considerations
as the Administrative Agent may, in its sole discretion, deem
appropriate.
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AMENDED AND RESTATED CREDIT AGREEMENT
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No Inventory of any Borrower or Eligible Subsidiary thereof shall be Eligible
Inventory if such Inventory consists of (i) goods returned or rejected by
customers other than goods that are undamaged or are resaleable in the normal
course of business, (ii) goods to be returned to suppliers, (iii) goods in
transit, (iv) packaging material or (v) goods located, stored, used or held at
the premises of a third party unless (x)(A) the Administrative Agent shall have
received a Landlord Waiver or Bailee's Letter or (B) in the case of Inventory
located at a leased premises, an Eligibility Reserve satisfactory to the
Administrative Agent shall have been established with respect thereto and (y) an
appropriate UCC-1 financing statement shall have been executed and properly
filed.
"Eligible Raw Materials" means a class of Eligible Inventory
consisting of all Eligible Inventory of a Borrower or an Eligible Subsidiary
thereof that is classified, consistent with past practice, on such Borrower's
(or, as the case may be, such Eligible Subsidiary's) accounting system as "raw
materials".
"Eligible Real Property" means any parcel of Real Property in
the United States owned by any Borrower or any of its Eligible Subsidiaries as
to which each of the following conditions has been satisfied at such time:
(a) (i) a first priority Lien (subject to Customary
Permitted Liens) on such parcel of Real Property shall have been
granted by such Borrower (or, as the case may be, such Eligible
Subsidiary) in favor of the Administrative Agent pursuant to a Mortgage
and (ii) such Lien shall be in full force and effect in favor of the
Administrative Agent at such time;
(b) except as otherwise permitted by the
Administrative Agent, the Administrative Agent and the title insurance
company issuing the policy referred to in clause (c) below shall have
received maps or plats of an as-built survey of such parcel of Real
Property certified to the Administrative Agent and such title insurance
company in a manner reasonably satisfactory to them, dated a date
reasonably satisfactory to the Administrative Agent and such title
insurance company, by an independent professional licensed land
surveyor reasonably satisfactory to the Administrative Agent and such
title insurance company, which maps or plats and the surveys on which
they are based shall be made in form and substance satisfactory to the
Administrative Agent;
(c) the Administrative Agent shall have received in
respect of such parcel of Real Property (i) a mortgagee's title policy
(or policies) or marked-up unconditional binder (or binders) for such
insurance (or other evidence acceptable to the Administrative Agent
proving ownership thereof) ("Mortgagee's Title Insurance Policy"),
dated a date reasonably satisfactory to the Administrative Agent, and
such policy shall (A) be in an amount not less than the Mortgage Value
(as of the Initial Closing Date or, in respect of property of EFTC or
the EFTC Subsidiaries, as of the EFTC Joinder Date) of such parcel of
Real Property, (B) be issued at ordinary rates, (C) insure that the
Lien granted pursuant to the Mortgage insured thereby creates a valid
first Lien on such parcel of Real Property free and clear of all
defects and encumbrances, except such as may be approved by the
Administrative Agent and Customary Permitted Liens, (D) name the
Administrative Agent for the benefit of the Secured Parties as the
insured thereunder, (E) be in the form of ALTA Loan Policy - 1992 (or
such local equivalent thereof as is reasonably satisfactory to the
Administrative Agent), (F) contain a comprehensive lender's endorsement
(including, but not limited to, a revolving credit
13
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
endorsement and a floating rate endorsement) and (G) be issued by
Chicago Title Insurance Company, First American Title Insurance
Company, Lawyers Title Insurance Corporation or any other title company
reasonably satisfactory to the Administrative Agent (including any such
title companies acting as co-insurers or reinsurers), (ii) evidence
satisfactory to it that all premiums in respect of each such policy,
all recording fees and stamp, documentary, intangible or mortgage
taxes, if any, in connection with the Mortgage have been paid and (iii)
a copy of all documents referred to, or listed as exceptions to title,
in such title policy (or policies);
(d) the Administrative Agent shall have received,
pursuant to the definition of Permitted Acquisition or Section 6.12
(Borrowing Base Determination), an appraisal with respect to such
parcel of Real Property that is satisfactory in form and substance to
the Administrative Agent and performed by an appraiser that is
satisfactory to the Administrative Agent;
(e) a Phase I environmental report with respect to
such parcel of Real Property, dated a date not more than one year prior
to the Initial Closing Date (or, in respect of property of EFTC or and
its Eligible Subsidiaries, the EFTC Joinder Date), showing no material
condition of environmental concern shall have been delivered to the
Administrative Agent and in form reasonably satisfactory to the
Administrative Agent;
(f) no uninsured casualty not reflected in an
Eligibility Reserve or an Availability Reserve shall have occurred
affecting the use, operation or value of such parcel of Real Property
if such casualty has not been restored or repaired by the mortgagor
under the Mortgage encumbering such parcel of Real Property;
(g) no condemnation or taking by eminent domain shall
have occurred nor shall any notice of any pending or threatened
condemnation or other proceeding against such parcel of Real Property
been delivered to the owner or lessee of such parcel of Real Property
that would materially affect the use, operation or value of such parcel
of Real Property; and
(h) the mortgagor under the relevant Mortgage
encumbering such parcel of Real Property shall (i) make such
representations and warranties and covenants as are reasonably required
by the Administrative Agent, (ii) in all material respects comply with
all Requirements of Law of any Governmental Authority applicable to
such parcel of Real Property or to the use or occupancy thereof and
(iii) pay and discharge all taxes of every kind and nature, all
assessments, all water and sewer rents and charges and all other
charges that may become a lien on the Real Property.
Notwithstanding the foregoing (except in respect of the parcel of Real Property
located in Sugarland, Texas that is subject to a Mortgage on the date hereof in
favor of the Administrative Agent), "Eligible Real Property" shall include any
parcel of Real Property of any Borrower or any of its Eligible Subsidiaries (or
any portion thereof) only to the extent agreed by the Administrative Agent in
its sole discretion exercised reasonably, and only for so long as such agreement
by the Administrative Agent shall continue.
"Eligible Receivable" means the gross outstanding balance of
those Accounts of a Borrower or any of its Eligible Subsidiaries arising out of
sales of merchandise, goods or services in the ordinary course of business, that
are made by such Borrower (or, as the case may
14
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
be, such Eligible Subsidiary) to a Person that is not an Affiliate of any
Borrower or any Eligible Subsidiary of any Borrower, that are not in dispute and
that constitute Collateral in which the Administrative Agent has a fully
perfected first priority Lien; provided, however, that an Account shall in no
event be an Eligible Receivable if:
(a) such Account is more than (i) 60 days past due
according to the original terms of sale or (ii) 90 days past the
original invoice date thereof; or
(b) any warranty contained in this Agreement or any
other Loan Document with respect to such specific Account is not true
and correct with respect to such Account; or
(c) the Account Debtor on such Account has disputed
liability or made any claim with respect to any other Account due from
such Account Debtor to such Borrower (or, as the case may be, such
Eligible Subsidiary) but only to the extent of such dispute or claim;
or
(d) the Account Debtor on such Account has (i) filed
a petition for bankruptcy or any other relief under the Bankruptcy Code
or any other law relating to bankruptcy, insolvency, reorganization or
relief of debtors, (ii) made an assignment for the benefit of
creditors, (iii) had filed against it any petition or other application
for relief under the Bankruptcy Code or any such other law, (iv) has
failed, suspended business operations, become insolvent, called a
meeting of its creditors for the purpose of obtaining any financial
concession or accommodation or (v) had or suffered a receiver or a
trustee to be appointed for all or a significant portion of its assets
or affairs; or
(e) the Account Debtor on such Account or any of its
Affiliates is also a supplier to or creditor of such Borrower (or, as
the case may be, such Eligible Subsidiary) unless such supplier or
creditor has executed a no-offset letter substantially in the form of
Exhibit J (Form of No-Offset Letter); provided, however, that, if such
Account Debtor is also a supplier of such Borrower (or, as the case may
be, such Eligible Subsidiary), then the Accounts owing by such Account
Debtor (net of any amount owing by such Borrower (or, as the case may
be, such Eligible Subsidiary) to such Account Debtor in its capacity as
a supplier) shall be "Eligible Receivables" (unless otherwise deemed
ineligible pursuant to this definition); or
(f) the sale represented by such Account is to an
Account Debtor located outside the United States, unless the sale is on
letter of credit or acceptance terms acceptable to the Administrative
Agent or otherwise on terms acceptable to the Administrative Agent, in
each case, in its sole discretion exercised reasonably; or
(g) the sale to such Account Debtor (other than any
such sale to Emulex Corporation in the ordinary course of business as
practiced on the Initial Closing Date) on such Account is on a
xxxx-and-hold, guaranteed sale, sale-and-return, sale-on-approval or
consignment basis; or
(h) such Account is subject to a Lien in favor of any
Person other than the Administrative Agent for the benefit of the
Secured Parties; or
15
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
(i) such Account is subject, on account of any
liquidated claim, to any deduction, offset, counterclaim, return
privilege or other conditions other than volume sales discounts given
in the ordinary course of such Borrower's (or, as the case may be, such
Eligible Subsidiary's) business and discounts or other allowances for
early payments; or
(j) the Account Debtor on such Account is located in
any state of the United States requiring the holder of such Account, as
a precondition to commencing or maintaining any action in the courts of
such state either to (i) receive a certificate of authorization to do
business in such state or be in good standing in such state or (ii)
file a Notice of Business Activities Report with the appropriate office
or agency of such state, in each case unless the holder of such Account
has received such a certificate of authority to do business, is in good
standing or, as the case may be, has duly filed such a notice in such
state; or
(k) the Account Debtor on such Account is a
Governmental Authority, unless such Borrower (or, as the case may be,
such Eligible Subsidiary) has assigned its rights to payment of such
Account to the Administrative Agent pursuant to the Assignment of
Claims Act of 1940, as amended, in the case of a federal Governmental
Authority, and pursuant to applicable law, if any, in the case of any
other Governmental Authority, and such assignment has been accepted and
acknowledged by the appropriate government officers; or
(l) 50% or more of the outstanding Accounts of the
Account Debtor have become, or have been determined by the
Administrative Agent, in accordance with the provisions hereof, to be,
ineligible; or
(m) the sale represented by such Account is
denominated in a currency other than Dollars; or
(n) such Account is not evidenced by an invoice or
other writing in form acceptable to the Administrative Agent, in its
sole discretion exercised reasonably; or
(o) such Borrower (or, as the case may be, such
Eligible Subsidiary), in order to be entitled to collect such Account,
is required to perform any additional service for, or perform or incur
any additional obligation to, the Person to whom or to which it was
made; or
(p) the total Accounts of such Account Debtor to any
Borrower or any Eligible Subsidiary thereof represent more than 20%
(or, if such Account Debtor is Applied Materials, Inc., Honeywell
International Inc., Input/Output, Inc. or Emulex Corporation, 50%) of
the Eligible Receivables, individually or in the aggregate, as to all
Borrowers and their Eligible Subsidiaries at such time, but only to the
extent of such excess.
"Eligible Subsidiaries" means (a) in the case of K*TEC,
Suntron GCO and any other Wholly-Owned Subsidiary of K*TEC that is a Loan Party
and whose designation as an "Eligible Subsidiary" has been approved by the
Administrative Agent in its sole discretion exercised reasonably and (b) in the
case of EFTC, RMEI and any other Wholly-Owned
16
AMENDED AND RESTATED CREDIT AGREEMENT
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Subsidiary of EFTC that is a Loan Party and whose designation as an "Eligible
Subsidiary" has been approved by the Administrative Agent in its sole discretion
exercised reasonably.
"Eligible Work-in-Process Inventory" means a class of Eligible
Inventory consisting of the Eligible Inventory of a Borrower or an Eligible
Subsidiary thereof that is classified, consistent with past practice, on such
Borrower's (or, as the case may be, such Eligible Subsidiary) accounting system
as "work-in-process".
"Environmental Laws" means all applicable Requirements of Law
now or hereafter in effect, as amended or supplemented from time to time,
relating to pollution or the regulation and protection of human health, safety,
the environment or natural resources, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.Sections
9601 et seq.); the Hazardous Material Transportation Act, as amended (49
U.S.C.Sections 180 et seq.); the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C.Sections 136 et seq.); the Resource Conservation and
Recovery Act, as amended (42 U.S.C.Sections 6901 et seq.); the Toxic Substance
Control Act, as amended (42 U.S.C.Sections 7401 et seq.); the Clean Air Act, as
amended (42 U.S.C.Sections 740 et seq.); the Federal Water Pollution Control
Act, as amended (33 U.S.C.Sections 1251 et seq.); the Occupational Safety and
Health Act, as amended (29 U.S.C.Sections 651 et seq.); the Safe Drinking Water
Act, as amended (42 U.S.C.Sections 300f et seq.); and their state and local
counterparts or equivalents and any transfer of ownership notification or
approval statute, including the Industrial Site Recovery Act (N.J. Stat.
Xxx.Sections 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to
any Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, including any thereof arising under
any Environmental Law, Permit, order or agreement with any Governmental
Authority or other Person, relating to any environmental, health or safety
condition or a Release or threatened Release, and result from the past, present
or future operations of, or ownership of property by, such Person or any of its
Subsidiaries.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"Equipment" has the meaning specified in the Pledge and
Security Agreement.
"Equity Issuance" means the issue and the sale of any Stock of
the Company or any of its Subsidiaries by the Company or any of such
Subsidiaries to any Person other than the Company or any of such Subsidiaries or
any cash contribution to the equity capital of the Company or any Subsidiary
thereof, except for the issue of Stock in a Permitted Acquisition for
consideration other than cash and Cash Equivalents. "ERISA" means the Employee
Retirement Income Security Act of 1974 (or any successor legislation thereto),
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of Section 414 (b), (c),
(m) or (o) of the Code.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"ERISA Event" means (a) a reportable event described in
Section 4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with
respect to a Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the
Company, any of its Subsidiaries or any ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the
complete or partial withdrawal of the Company, any of its Subsidiaries or any
ERISA Affiliate from any Multiemployer Plan, (d) notice of reorganization or
insolvency of a Multiemployer Plan, (e) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a termination
under Section 4041 of ERISA, (f) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any
required contribution to a Title IV Plan or Multiemployer Plan, (h) the
imposition of a lien under Section 412 of the Code or Section 302 of ERISA on
the Company or any of its Subsidiaries or any ERISA Affiliate or (i) any other
event or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from time to
time.
"Eurodollar Base Rate" means, with respect to any Interest
Period for any Eurodollar Rate Loan, the rate of interest determined by the
Administrative Agent to be the rate per annum at which deposits in Dollars are
offered by the principal office of Citibank in London to major banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to the
Eurodollar Rate Loan of Citibank for a period equal to such Interest Period.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule II (Applicable Lending Offices and Addresses for Notices)
or on the Assignment and Acceptance by which it became a Lender (or, if no such
office is specified, its Domestic Lending Office) or such other office of such
Lender as such Lender may from time to time specify to the Company and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period
for any Eurodollar Rate Loan, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the Eurodollar Base Rate by (b) a percentage
equal to 100% minus the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that includes deposits by
reference to which the Eurodollar Rate is determined) having a term equal to
such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest
Period, bears interest based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1
(Events of Default).
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Exempted Proceeds" means the first $25,000,000, in the
aggregate, of Net Cash Proceeds arising after the Initial Closing Date from one
or more Equity Issuances or the issuance of Subordinated Debt, in each case by
the Company, and permitted under the Loan Documents.
"Existing Credit Agreement" has the meaning ascribed to such
term in the preamble to this Agreement.
"Facility" means the Revolving Credit Commitments and the
provisions herein related to the Revolving Loans, Swing Loans and Letters of
Credit.
"Facility Increase" has the meaning specified in clause (b) of
Section 2.1 (The Revolving Credit Commitments).
"Facility Increase Effective Date" has the meaning specified
in clause (b) of Section 2.1 (The Revolving Credit Commitments).
"Fair Market Value" means (a) with respect to any asset or
group of assets (other than a marketable Security) of any Person at any date,
the value of the consideration obtainable in a sale of such asset at such date
assuming a sale by a willing seller to a willing purchaser dealing at arm's
length and arranged in an orderly manner over a reasonable period of time having
regard to the nature and characteristics of such asset, as reasonably determined
by the Board of Directors of such Person, or, if such asset shall have been the
subject of a relatively contemporaneous appraisal by an independent third party
appraiser, for which the basic underlying assumptions have not materially
changed since its date, the value set forth in such appraisal and (b) with
respect to any marketable Security of any Person at any date, the closing sale
price of such Security on the Business Day next preceding such date, as
appearing in any published list of any national securities exchange or the
NASDAQ Stock Market or, if there is no such closing sale price of such Security,
the final price for the purchase of such Security at face value quoted on such
business day by a financial institution of recognized standing regularly dealing
in securities of such type selected by the Administrative Agent.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Letter" means, the letter dated as of April 11, 2003,
addressed to the Borrowers from CUSA and accepted by the Borrowers on April 11,
2003, with respect to certain fees to be paid from time to time to CUSA.
"Financial Covenant Debt" of any Person means Indebtedness of
such Person and its Subsidiaries of the type specified in clauses (a), (b), (d),
(e), (f) and (h) of the definition of
19
AMENDED AND RESTATED CREDIT AGREEMENT
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"Indebtedness" determined on a consolidated basis at the amount of the liability
therefor required to be shown on a balance sheet prepared in accordance with
GAAP.
"Financial Statements" means the financial statements of the
Company and its Subsidiaries delivered in accordance with Section 4.4 (Financial
Statements) and Section 6.1 (Financial Statements).
"Fiscal Quarter" means each of the periods starting on January
1 or on the next succeeding calendar day after the end of the previous period
and ending on the dates set forth on Schedule 8.14 (Fiscal Quarter).
"Fiscal Year" means the twelve month period ending on December
31.
"Fund" means any Person (other than a natural Person) that is
or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantor" means each party to the Guaranty other than CUSA.
"Guaranty" means the Amended and Restated Guaranty, dated as
of the Effective Date, among CUSA, the Company, each Borrower, K*TEC Holdings
and each Subsidiary Guarantor from time to time party thereto.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of such
Person in incurring the Guaranty Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness will be paid or discharged,
that any agreement relating thereto will be complied with or that any holder of
such Indebtedness will be protected (in whole or in part) against loss in
respect thereof including, (a) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of
Indebtedness of another Person and (b) any liability of such Person for
Indebtedness of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for
20
AMENDED AND RESTATED CREDIT AGREEMENT
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the purpose of enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss or (v) to supply funds to,
or in any other manner invest in, such other Person (including to pay for
property or services irrespective of whether such property is received or such
services are rendered), if in the case of any agreement described under clause
(b)(i), (ii), (iii), (iv) or (v) above the primary purpose or intent thereof is
to provide assurance that Indebtedness of another Person will be paid or
discharged, that any agreement relating thereto will be complied with or that
any holder of such Indebtedness will be protected (in whole or in part) against
loss in respect thereof. The amount of any Guaranty Obligation shall be equal to
the amount of the Indebtedness so guaranteed or otherwise supported or, if the
amount of the maximum liability under such Guaranty Obligation is less than the
amount of such Indebtedness, then the amount of such maximum liability.
"Hedging Contracts" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"Holding Company" has the meaning specified in the definition
of "Change of Control" in this Section 1.1.
"Indebtedness" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or that bear
interest, (c) all reimbursement and all obligations with respect to letters of
credit, bankers' acceptances, and any amount funded under surety bonds and
performance bonds, whether or not matured, (d) all indebtedness for the deferred
purchase price of property or services, other than trade payables, deferred
compensation and other accrued liabilities incurred in the ordinary course of
business, (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (f) all Capital Lease Obligations of such Person, (g)
all Guaranty Obligations of such Person, (h) all obligations of such Person to
purchase, redeem, retire, defease or otherwise acquire for value any Stock or
Stock Equivalents of such Person, valued, in the case of redeemable preferred
stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends (but excluding any such obligations if the
payment thereof is not required as a result of a prohibition contained in this
Agreement or any other agreement evidencing Indebtedness of the Company or any
of its Subsidiaries), (i) all payments that such Person would have to make in
the event of an early termination on the date Indebtedness of such Person is
being determined in respect of Hedging Contracts of such Person and (j) all
Indebtedness of the type referred to above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including Accounts and general
intangibles) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness.
"Indemnitees" has the meaning specified in Section 11.4
(Indemnitees).
"Initial Closing Date" has the meaning specified in the
preamble to this Agreement.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Interest Expense" means, for any Person for any period, (a)
total interest expense of such Person and its Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP and including, in any
event, interest capitalized during construction for such period and net costs
under Interest Rate Contracts for such period minus (b) the sum of (i) net gains
of such Person and its Subsidiaries under Interest Rate Contracts for such
period determined on a consolidated basis in conformity with GAAP plus (ii) any
interest income of such Person and its Subsidiaries for such period determined
on a consolidated basis in conformity with GAAP.
"Interest Period" means, in the case of any Eurodollar Rate
Loan, (a) initially, the period commencing on the date such Eurodollar Rate Loan
is made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate
Loan and ending one, two, three or six months (or, prior to the Syndication
Completion Date, ending on such date as shall be determined by the
Administrative Agent in its sole discretion) thereafter (or if deposits of such
duration are available to all Lenders, ending twelve months thereafter), as
selected by any Borrower in its Notice of Borrowing or Notice of Conversion or
Continuation given to the Administrative Agent pursuant to Section 2.2
(Borrowing Procedures) or Section 2.11 (Conversion/Continuation Option) and (b)
thereafter, if such Loan is continued, in whole or in part, as a Eurodollar Rate
Loan pursuant to Section 2.11 (Conversion/Continuation Option), a period
commencing on the last day of the immediately preceding Interest Period therefor
and ending one, two, three or six months (or, prior to the Syndication
Completion Date, ending on such date as shall be determined by the
Administrative Agent in its sole discretion) thereafter (or if deposits of such
duration are available to all Lenders, ending twelve months thereafter), as
selected by any Borrower in its Notice of Conversion or Continuation given to
the Administrative Agent pursuant to Section 2.11 (Conversion/Continuation
Option); provided, however, that all of the foregoing provisions relating to
Interest Periods in respect of Eurodollar Rate Loans are subject to the
following:
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, unless the result of such
extension would be to extend such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month;
(iii) no Borrower may select any Interest Period
that ends after the Scheduled Termination Date or, if applicable, after
the date of a scheduled principal payment on the Loans as set forth in
Article II (The Facility) unless, in each case, after giving effect to
such selection, the aggregate unpaid principal amount of the Loans for
which Interest Periods end after such scheduled principal payment shall
be equal to or less than the principal amount to which the Loans are
required to be reduced after such scheduled principal payment is made;
(iv) no Borrower may select any Interest Period
in respect of Loans having an aggregate principal amount of less than
$5,000,000; and
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
(v) there shall be outstanding at any one time
no more than seven Interest Periods in the aggregate.
"Interest Rate Contracts" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"Inventory" has the meaning specified in the Pledge and
Security Agreement.
"Inventory Sale Agreement" means an unconditional, written
Contractual Obligation of a third party purchaser (in form and substance and
with a third party acceptable to the Administrative Agent in its sole discretion
exercised reasonably), pursuant to which such purchaser is obligated to purchase
from such Borrower or Eligible Subsidiary specifically designated Inventory in
the possession of such Borrower or Eligible Subsidiary, within a specified
period (or at a specified date), for a determined price and pursuant to specific
payment terms.
"Investment" means, with respect to any Person, (a) any
purchase or other acquisition by that Person of (i) any Security issued by, (ii)
a beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by that Person of all
or a significant part of the assets of a business conducted by another Person
and (c) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable and
similar items made or incurred in the ordinary course of business as presently
conducted) or capital contribution by that Person to any other Person, including
all Indebtedness of any other Person to that Person arising from a sale of
property by that Person other than in the ordinary course of its business and
(d) any Guaranty Obligation incurred by that Person in respect of Indebtedness
of any other Person.
"Investor" means each of Xxxxxx Equity Investors IV, L.P., a
Delaware limited partnership, TCK Co. L.L.C., a Delaware limited liability
company, and RCBA Strategic Partners L.P., a Delaware limited partnership (the
"Specified Funds") and any other Person directly or indirectly in control of,
controlled by, or under common control with, any such Specified Fund or that is
organized by any other Person primarily for the purpose of making equity or debt
investments in one or more companies and any investment fund or investment
partnership principally managed or principally advised by any Permitted Advisor.
For purposes of this definition, (a) "control" of a Person means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise, and (b) "Permitted
Advisor" means the principal manager or principal advisor of any Specified Fund
or any Subsidiary of the principal manager or principal advisor of any Specified
Fund.
"IRS" means the Internal Revenue Service of the United States
or any successor thereto.
"Issuer" means each Lender or Affiliate of a Lender that (a)
is listed on the signature pages hereof as an "Issuer" or (b) hereafter becomes
an Issuer with the approval of the Administrative Agent and the Company by
agreeing pursuant to an agreement with and in form and substance satisfactory to
the Administrative Agent and the Company to be bound by the terms hereof
applicable to Issuers.
"K*TEC" has the meaning specified in the preamble to this
Agreement.
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
"K*TEC Corporate Restructuring" has the meaning specified in
the recitals to this Agreement.
"K*TEC Holdings" has the meaning specified in the recitals to
this Agreement.
"K*TEC Reorganization" has the meaning specified in the
recitals to this Agreement.
"K*TEC Operating Company" has the meaning specified in the
recitals to this Agreement.
"Land" of any Person means all of those plots, pieces or
parcels of land now owned, leased or hereafter acquired or leased or purported
to be owned, leased or hereafter acquired or leased (including, in respect of
the Loan Parties, as reflected in the most recent Financial Statements) by such
Person.
"Landlord Waiver" means a letter in form and substance
acceptable to the Administrative Agent, executed by a landlord in respect of
Inventory of a Borrower located at any leased premises of such Borrower pursuant
to which such landlord, among other things, waives any Lien such landlord may
have in respect of such Inventory.
"Leases" means, with respect to any Person, all of those
leasehold estates in real property of such Person, as lessee, as such may be
amended, supplemented or otherwise modified from time to time.
"Lender" means each financial institution or other entity that
(a) is listed on the signature pages hereof as a "Lender" or (b) from time to
time becomes a party hereto by execution of an Assignment and Acceptance or an
Assumption Agreement.
"Letter of Credit" means any letter of credit issued pursuant
to Section 2.4 (Letters of Credit).
"Letter of Credit Obligations" means, at any time, the
aggregate of all liabilities at such time of the Borrowers to all Issuers with
respect to Letters of Credit, whether or not any such liability is contingent,
including the sum of (a) the Reimbursement Obligations at such time and (b) the
Letter of Credit Undrawn Amounts at such time.
"Letter of Credit Reimbursement Agreement" has the meaning
specified in Section 2.4(e) (Letters of Credit).
"Letter of Credit Request" has the meaning specified in
Section 2.4(c) (Letters of Credit).
"Letter of Credit Undrawn Amounts" means, at any time, the
aggregate undrawn face amount of all Letters of Credit outstanding at such time.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or other obligation, including
any
24
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction naming the owner of the asset to which such Lien relates as debtor.
"Loan" means any loan made by any Lender pursuant to this
Agreement.
"Loan Documents" means, collectively, this Agreement, the
Notes (if any), the Guaranty, the Commitment Letter, the Fee Letter, each Letter
of Credit Reimbursement Agreement, each Hedging Contract to which a Loan Party
and a Lender or an Affiliate of a Lender is a party, each agreement pursuant to
which a Lender or an Affiliate of a Lender provides cash management services to
a Loan Party, and each Collateral Document and each certificate, waiver,
consent, agreement or document executed by a Loan Party and delivered to the
Administrative Agent or any Lender in connection with or pursuant to any of the
foregoing.
"Loan Party" means each of the Company, each Borrower, each
Subsidiary Guarantor and each other Subsidiary of the Company that executes and
delivers a Loan Document.
"Material Adverse Change" means a material adverse change in
any of (a) the condition (financial or otherwise), business, performance,
prospects, operations or properties of the Company and its Subsidiaries taken as
a whole, (b) the legality, validity or enforceability of any Loan Document or
any Related Document, (c) the perfection or priority of the Liens granted
pursuant to the Collateral Documents, (d) the ability of the Borrowers to repay
the Obligations or of the Loan Parties to perform their obligations under the
Loan Documents or (e) the rights and remedies of the Administrative Agent or the
Lenders under the Loan Documents.
"Material Adverse Effect" means an effect that results in or
causes, or could reasonably be expected to result in or cause, a Material
Adverse Change.
"Material Subsidiary" means any Wholly-Owned Subsidiary of the
Company.
"Maximum Credit" means, at any time, (a) the lesser of (i) the
Revolving Credit Commitments in effect at such time and (ii) the Aggregate
Borrowing Base at such time minus (b) the aggregate amount of any Availability
Reserve in effect at such time.
"Minimum Liquidity Condition" refers, at any time, to the sum
of the Revolving Credit Outstandings and the Availability Reserves in effect at
such time being lower than the greater of (A) 80% of the aggregate Revolving
Credit Commitments in effect at such time and (B) 80% of the Aggregate Borrowing
Base at such time.
"Module Supplier Agreement" means the Module Supplier
Agreement, dated as of February 2, 2000, by and between Applied Materials, Inc.
and K*TEC Holdings, as the same may be amended, restated, supplemented or
otherwise modified (including any changes to Attachment 1 thereto) with the
approval of the Administrative Agent.
"Mortgage Value" means, with respect to any parcel of Eligible
Real Property, the lesser of (a) the maximum stated amount secured by the Lien
on such parcel of Eligible Real Property granted in favor of the Administrative
Agent pursuant to the relevant Mortgage and (b) the fair market value of such
parcel of Eligible Real Property as determined by the
25
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
Administrative Agent based on the appraisal delivered with respect thereto (or
any update thereof) pursuant to the definition of Permitted Acquisition or
Section 6.12 (Borrowing Base Determination).
"Mortgagee's Title Insurance Policy" has the meaning specified
in the definition of Eligible Real Property.
"Mortgages" means the mortgages, deeds of trust or other real
estate security documents made or required herein to be made by any Borrower or
any other Loan Party.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"Net Cash Proceeds" means proceeds received by any Loan Party
after the Initial Closing Date (or, in the case of EFTC or the EFTC
Subsidiaries, after the EFTC Joinder Date) in cash or Cash Equivalents from any
(a) Asset Sale, other than an Asset Sale permitted under clauses (a) and (c)
through (f) of Section 8.4 (Sale of Assets), net of (i) the reasonable cash
costs of sale, assignment or other disposition, (ii) taxes paid or payable as a
result thereof and (iii) any amount required to be paid or prepaid on
Indebtedness (other than the Obligations) secured by the assets subject to such
Asset Sale; provided, however, that the evidence of each of (i), (ii) and (iii)
are provided to the Administrative Agent in form and substance satisfactory to
it; (b) Property Loss Event or (c)(i) Equity Issuance (other than (A) any such
issuance of common Stock of the Company occurring in the ordinary course of
business to any director, member of the management or employee of the Company or
any of its Subsidiaries or (B) the Exempted Proceeds) or (ii) any Debt Issuance
permitted under clause (i) of Section 8.1 (Indebtedness) except Exempted
Proceeds thereof, in each case net of brokers' and advisors' fees and other
costs incurred in connection with such transaction; provided, however, that in
the case of this clause (c), evidence of such costs is provided to the
Administrative Agent in form and substance satisfactory to it.
"Net Worth" of any Person means, at any date, (a) the Total
Assets of such Person at such date (other than investments in and moneys due
from Affiliate other than the Company and its Subsidiaries) minus (b) Total
Liabilities of such Person at such date except for Subordinated Debt that is not
due at any time prior to the first anniversary of the Scheduled Termination
Date, that does not provide for the cash payment of interest or principal at any
time prior to such anniversary date and that is otherwise on terms reasonably
satisfactory to the Administrative Agent.
"Non-Funding Lender" has the meaning specified in Section
2.2(d) (Borrowing Procedures).
"Non-U.S. Lender" means each Lender or Administrative Agent
that is not a United States person as defined in Section 7701(a)(30) of the
Code.
"Note" means any Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section
2.2(a) (Borrowing Procedures).
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Notice of Conversion or Continuation" has the meaning
specified in Section 2.11 (Conversion/Continuation Option).
"Obligations" means the Loans, the Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
any Borrower to the Administrative Agent, any Lender, any Issuer, any Affiliate
of any of them or any Indemnitee, of every type and description (whether by
reason of an extension of credit, opening or amendment of a letter of credit or
payment of any draft drawn thereunder, loan, guaranty, indemnification, foreign
exchange or currency swap transaction, interest rate hedging transaction or
otherwise), present or future, arising under this Agreement, any other Loan
Document, any Hedging Contract (unless the parties to such Hedging Contract
expressly specify in writing that none of the obligations thereunder shall be
considered "Obligations" hereunder) or any agreement for cash management
services entered into in connection with this Agreement or any other Loan
Document (unless the parties to such agreement expressly specify in writing that
none of the obligations thereunder shall be considered "Obligations" hereunder),
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired and whether or not evidenced by any note, guaranty or other instrument
or for the payment of money, including all letter of credit, cash management and
other fees, interest, charges, expenses, fees, attorneys' fees and disbursements
and other sums chargeable to any Borrower under this Agreement, any other Loan
Document, any Hedging Contract or any agreement for cash management services
entered into in connection with this Agreement or any other Loan Document and
all obligations of any Borrower to provide cash collateral for Letter of Credit
Obligations.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any Proposed Acquisition subject
to each of the following conditions:
(a) the Administrative Agent shall receive at least
10 Business Days' prior written notice of such Proposed Acquisition,
which notice shall include, without limitation, a reasonably detailed
description of such Proposed Acquisition;
(b) such Proposed Acquisition shall comprise a
business, or those assets of a business, of the type engaged in by the
Company and its Subsidiaries as of the Effective Date and, after giving
effect to such Proposed Acquisition, the book value of the assets of
the Proposed Acquisition Target located outside of the United States
and acquired in such Proposed Acquisition shall not exceed 15% of the
Total Assets of the Company and its Subsidiaries on a consolidated
basis;
(c) such Proposed Acquisition shall be consensual and
shall have been approved by the Proposed Acquisition Target's board of
directors;
(d) no additional Indebtedness or other liabilities
shall be incurred, assumed or otherwise be reflected on a consolidated
balance sheet of the Company and the Proposed Acquisition Target after
giving effect to such Proposed Acquisition, except
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AMENDED AND RESTATED CREDIT AGREEMENT
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(i) Loans made hereunder, (ii) ordinary course trade payables, accrued
expenses, (iii) Indebtedness of the Proposed Acquisition Target that
would be permitted under Section 8.1 (Indebtedness) after giving effect
to such Proposed Acquisition and (iv) other cash liabilities that would
be permitted to be outstanding hereunder after giving effect to such
Proposed Acquisition;
(e) the sum of all amounts payable in connection with
all Proposed Acquisitions (including all "Permitted Acquisitions" made
under the Existing Credit Agreement) shall not exceed $50,000,000 in
the aggregate and all transaction costs, fees and expenses incurred or
assumed in connection with all such Proposed Acquisitions (including
all "Permitted Acquisitions" made under the Existing Credit Agreement)
or otherwise reflected in a consolidated balance sheet of the Company
and Target shall not exceed an additional $10,000,000;
(f) the Available Credit (after giving effect to such
Proposed Acquisition but without giving effect to the reserve set forth
in clause (i) of the definition of "Eligibility Reserves") shall not be
less than $35,000,000;
(g) at or prior to the closing of any Proposed
Acquisition, the Company (or the Subsidiary making such Proposed
Acquisition) and the Proposed Acquisition Target shall have executed
such documents and taken such actions as may be required under Section
7.11 (Additional Collateral and Guaranties) and Section 7.12 (Real
Property);
(h) on or prior to the date of such Proposed
Acquisition, the Administrative Agent shall have received copies of the
acquisition agreement, related agreements and instruments and all
opinions and certificates; and
(i) at the time of such Proposed Acquisition and
after giving effect thereto, (A) no Default or Event of Default shall
have occurred and be continuing (and the Company shall have
demonstrated compliance with the covenants set forth in Article V
(Financial Covenants) on a Pro Forma Basis), (B) all representations
and warranties contained in Article IV (Representations and Warranties)
and in the other Loan Documents shall be true and correct in all
material respects (including as to the Company, EFTC and its
Subsidiaries) and (C) all conditions precedent set forth in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) shall have
been met.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, estate, trust, limited
liability company, unincorporated association, joint venture or other entity or
a Governmental Authority.
"Pledge and Security Agreement" means the Amended and Restated
Pledge and Security Agreement, dated as of the Effective Date, among CUSA, each
Borrower, K*TEC Holdings and each Subsidiary Guarantor.
"Pledged Notes" has the meaning specified in the Pledge and
Security Agreement.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Pledged Stock" has the meaning specified in the Pledge and
Security Agreement.
"Pro Forma Basis" means, with respect to any determination for
any period, that such determination shall be made giving pro forma effect to
each Permitted Acquisition consummated during such period, together with all
transactions relating thereto consummated during such period (including any
incurrence, assumption, refinancing or repayment of Indebtedness), as if such
Permitted Acquisition and related transactions had been consummated on the first
day of such period, in each case based on historical results accounted for in
accordance with GAAP and, to the extent applicable, reasonable assumptions that
are specified in details in the relevant Compliance Certificate, Financial
Statement or other document provided to the Administrative Agent or any Lender
in connection herewith in accordance with Regulation S-X of the Securities Act
of 1933.
"Property Loss Event" means any loss of or damage to property
of any Loan Party that results in the receipt by such Person of proceeds of
insurance (other than business interruption insurance) in excess of $1,000,000
or any taking of property of any Loan Party that results in the receipt by such
Person of a compensation payment in respect thereof in excess of $1,000,000.
"Proposed Acquisition" means the proposed acquisition by the
Company, any Borrower or any of its Subsidiaries of all or substantially all of
the assets or all the Stock of any Proposed Acquisition Target, or the merger of
any Proposed Acquisition Target with or into any Borrower or any Wholly-Owned
Subsidiary of any Borrower, with a Wholly-Owned Subsidiary of the Company being
the surviving corporation (and, in the case of a merger with any Borrower, with
such Borrower being the surviving corporation).
"Proposed Acquisition Target" means any Person or any
operating division thereof subject to a Proposed Acquisition.
"Protective Advances" means all expenses, disbursements and
advances incurred by the Administrative Agent pursuant to the Loan Documents
after the occurrence and during the continuance of an Event of Default that the
Administrative Agent, in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof or to enhance the
likelihood or maximize the amount of repayment of the Obligations.
"Ratable Portion" or "ratably" means, with respect to any
Lender, the percentage obtained by dividing (a) the Revolving Credit Commitment
of such Lender by (b) the aggregate Revolving Credit Commitments of all Lenders
(or, at any time after the Revolving Credit Termination Date, the percentage
obtained by dividing the aggregate outstanding principal balance of the
Revolving Credit Outstandings owing to such Lender by the aggregate outstanding
principal balance of the Revolving Credit Outstandings owing to all Lenders).
"Real Property" of any Person means the Land of such Person,
together with the right, title and interest of such Person, if any, in and to
the streets, the Land lying in the bed of any streets, roads or avenues, opened
or proposed, in front of, the air space and development rights pertaining to the
Land and the right to use such air space and development rights, all rights of
way, privileges, liberties, tenements, hereditaments and appurtenances belonging
or in any way appertaining thereto, all fixtures, all easements now or hereafter
benefiting the Land and all royalties and rights appertaining to the use and
enjoyment of the Land, including all alley, vault,
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AMENDED AND RESTATED CREDIT AGREEMENT
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drainage, mineral, water, oil and gas rights, together with all of the buildings
and other improvements now or hereafter erected on the Land and any fixtures
appurtenant thereto.
"Register" has the meaning specified in Section
11.2(c)(Assignments and Participations).
"Reimbursement Obligations" means all matured reimbursement or
repayment obligations of any Borrower to any Issuer with respect to amounts
drawn under Letters of Credit.
"Reinvestment Deferred Amount" means, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by any Loan Party
in connection therewith which are not initially applied to prepay the Loans
pursuant to Section 2.9 (Mandatory Prepayments) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event" means any Asset Sale or Property Loss
Event in respect of which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a
Responsible Officer of the Company stating that no Default or Event of Default
has occurred and is continuing and that the Company (directly or indirectly
through one of its Subsidiaries) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Property Loss Event to
acquire replacement Equipment or Real Property useful in its or one of its
Subsidiaries' businesses or to effect repairs in the case of a Property Loss
Event.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or required to be expended pursuant to a Contractual Obligation
entered into prior to the relevant Reinvestment Prepayment Date to acquire
replacement Equipment or Real Property useful in the business of the Company or
any of its Subsidiaries or to effect repairs in the case of a Property Loss
Event (or failure to diligently pursue such repairs).
"Reinvestment Prepayment Date" means, with respect to any
Reinvestment Event, the earlier of (i) the date occurring 270 days after such
Reinvestment Event and (ii) the date five Business Days after the date on which
the Company shall have notified the Administrative Agent of the Company's
determination not to acquire replacement Equipment or Real Property useful in
the Company's or a Subsidiary's business (or not to effect repairs in the case
of a Property Loss Event) with all or any portion of the relevant Reinvestment
Deferred Amount.
"Related Documents" means the Acquisition Agreement, the EFTC
Merger Agreement and, in each case, each other document and instrument executed
with respect thereof.
"Release" means, with respect to any Person, any release,
spill, emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration, in each case, of any Contaminant into the
indoor or outdoor environment or into or out of any property owned by such
Person, including the movement of Contaminants through or in the air, soil,
surface water, ground water or property.
"Remedial Action" means all actions required to (a) clean up,
remove, treat or in any other way address any Contaminant in the indoor or
outdoor environment, (b) prevent the
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AMENDED AND RESTATED CREDIT AGREEMENT
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Release or threat of Release or minimize the further Release so that a
Contaminant does not migrate or endanger or threaten to endanger public health
or welfare or the indoor or outdoor environment or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care.
"Requirement of Law" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, rules and
regulations, orders, judgments, decrees and other determinations of any
Governmental Authority or arbitrator, applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Requisite Lenders" means, collectively, Lenders having not
less than fifty-one percent (51%) of the aggregate outstanding amount of the
Revolving Credit Commitments or, after the Revolving Credit Termination Date,
fifty-one percent (51%) of the aggregate Revolving Credit Outstandings. A
Non-Funding Lender shall not be included in the calculation of "Requisite
Lenders."
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers, managing members or general partners of
such Person, but in any event, with respect to financial matters, the chief
financial officer, treasurer or controller of such Person.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any Stock or Stock Equivalents
of the Company or any of its Subsidiaries now or hereafter outstanding, except a
dividend payable solely in Stock or Stock Equivalents, (b) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any Stock or Stock Equivalents of the Company or
any of its Subsidiaries now or hereafter outstanding other than one payable
solely to the Company or one or more Subsidiary Guarantors and (c) any payment
or prepayment of principal, premium (if any), interest, fees (including fees to
obtain any waiver or consent in connection with any Security) or other charges
on, or redemption, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any subordinated Indebtedness of the Company (including
Subordinated Debt) or any of its Subsidiaries or any other Loan Party, other
than any required payment, prepayment, redemption, retirement, purchases or
other payments, in each case to the extent permitted to be made by the terms of
such Indebtedness after giving effect to any applicable subordination
provisions.
"Revolving Credit Borrowing" means Revolving Loans made on the
same day by the Lenders ratably according to their respective Revolving Credit
Commitments.
"Revolving Credit Commitment" means, with respect to each
Lender, the commitment of such Lender to make Revolving Loans and acquire
interests in other Revolving Credit Outstandings in the aggregate principal
amount outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I (Revolving Credit Commitments) under the caption "Revolving
Credit Commitment," as amended to reflect each Assignment and Acceptance and
Assumption Agreement executed by such Lender and as such amount may be adjusted
pursuant to this Agreement.
"Revolving Credit Note" means a promissory note of a Borrower
payable to the order of any Lender in a principal amount equal to the amount of
such Lender's Revolving Credit Commitment evidencing the aggregate Indebtedness
of such Borrower to such Lender resulting from the Revolving Loans owing to such
Lender by such Borrower.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Revolving Credit Outstandings" means, at any particular time,
the sum of (a) the principal amount of the Revolving Loans outstanding at such
time plus (b) the Letter of Credit Obligations outstanding at such time plus (c)
the principal amount of the Swing Loans outstanding at such time.
"Revolving Credit Termination Date" shall mean the earliest of
(a) the Scheduled Termination Date, (b) the date of termination of the Revolving
Credit Commitments pursuant to Section 2.5 (Reduction and Termination of the
Revolving Credit Commitments) and (c) the date on which the Obligations become
due and payable pursuant to Section 9.2 (Remedies).
"Revolving Loan" has the meaning specified in Section 2.1 (The
Revolving Credit Commitments).
"RMEI" means RM Electronics, Inc., a New Hampshire
corporation.
"Scheduled Termination Date" means April 11, 2005.
"Secured Obligations" means, in the case of any Borrower, the
Obligations of such Borrower and, in the case of any other Loan Party, the
obligations of such Loan Party under the Guaranty and the other Loan Documents
to which it is a party.
"Secured Parties" means the Lenders, the Issuers, the
Administrative Agent and any other holder of any of the Obligations.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness, whether
secured, unsecured, convertible or subordinated, or any certificate of interest,
share or participation in, any temporary or interim certificate for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, but shall not include any evidence of the Obligations.
"Solvent" means, with respect to any Person, that the value of
the assets of such Person (both at fair value and present fair saleable value)
is, on the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person as of such
date and that, as of such date, such Person is able to pay all liabilities of
such Person as such liabilities mature and does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities shall be computed at the amount that, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"Specified Funds" has the meaning specified in the definition
of "Investor" in this Section 1.1.
"Standby Letter of Credit" means any Letter of Credit that is
not a Documentary Letter of Credit.
"Stock" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent
entity, whether voting or non-voting.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company or other business entity of
which an aggregate of more than 50% of the outstanding Voting Stock is, at the
time, directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of any Borrower
party to the Guaranty.
"Subordinated Debt" means unsecured Indebtedness of the
Company that (i) is not due and does not provide for cash payment of principal
at any time prior to the first anniversary of the Scheduled Termination Date,
(ii) is subordinated to the payment in full in cash of the Obligations on terms
satisfactory to the Administrative Agent and (iii) is otherwise in form and
substance satisfactory to the Administrative Agent.
"Suntron GCO" means Suntron GCO, L.P. (formerly known as K*TEC
Electronics L.P.), a Delaware limited partnership and a Wholly-Owned Subsidiary
of K*TEC.
"Supermajority Lenders" means, collectively, Lenders having
not less than 66 2/3% of the aggregate outstanding amount of the Revolving
Credit Commitments or, after the Revolving Credit Termination Date, 66 2/3% of
the aggregate Revolving Credit Outstandings. A Non-Funding Lender shall not be
included in the calculation of "Supermajority Lenders."
"Swing Loan" has the meaning specified in Section 2.3 (Swing
Loans).
"Swing Loan Borrowing" means a borrowing consisting of a Swing
Loan.
"Swing Loan Lender" means Citicorp or any other Lender who
becomes the Administrative Agent or who agrees with the approval of the
Administrative Agent and the Company to act as the Swing Loan Lender hereunder.
"Swing Loan Request" has the meaning specified in Section
2.3(b) (Swing Loans).
"Syndication Completion Date" means the date upon which the
Arranger determines in its sole discretion that the primary syndication of the
Loans and Revolving Credit Commitments has been completed.
"Tangible Net Worth" of any Person means, at any date, the Net
Worth of such Person at such date plus any transaction expenses and any
one-time, non-cash charges incurred in connection with, and booked anytime
within six months of, the closing of a Permitted Acquisition, excluding,
however, from the determination of the Total Assets of such Person at such date,
(a) all goodwill, organizational expenses, research and development expenses,
trademarks, trade names, copyrights, patents, patent applications, licenses,
rights in any of the foregoing, and other similar intangibles, (b) all prepaid
expenses (other than rent prepaid by the lessee on an operating lease and
prepaid insurance premiums), deferred charges or unamortized debt discount and
expense, (c) Securities not readily marketable, (d) cash held in a sinking or
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
other analogous fund established for the purpose of redemption, retirement,
defeasance or prepayment of any Stock or Indebtedness, (e) any write-up in the
book value of any asset resulting from a revaluation thereof and (f) any items
not included in clauses (a) through (e) above but treated as intangibles in
conformity with GAAP.
"Tax Affiliate" means, with respect to any Person, (a) any
Subsidiary of such Person and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.
"Tax Return" has the meaning specified in Section 4.8(a)
(Taxes).
"Taxes" has the meaning specified in Section 2.16(a) (Taxes).
"Title IV Plan" means a pension plan, other than a
Multiemployer Plan, that is covered by Title IV of ERISA to which the Company,
any of its Subsidiaries or any ERISA Affiliate has any obligation or liability
(contingent or otherwise).
"Total Assets" of any Person means, at any date, the total
assets of such Person and its Subsidiaries at such date determined on a
consolidated basis in conformity with GAAP.
"Total Liabilities" of any Person means, at any date, all
obligations that, in conformity with GAAP, would be included in determining
total liabilities as shown on the liabilities side of a consolidated balance
sheet of such Person and its Subsidiaries at such date.
"UCC" means "Uniform Commercial Code," as such term is defined
in the Pledge and Security Agreement.
"Unfunded Pension Liability" means, with respect to the
Company at any time, the sum of (a) the amount, if any, by which the present
value of all accrued benefits under each Title IV Plan (other than any Title IV
Plan subject to Section 4063 of ERISA) exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, as determined as of the most recent valuation date for such Title
IV Plan using the actuarial assumptions in effect under such Title IV Plan and
(b) the aggregate amount of withdrawal liability that could be assessed under
Section 4063 with respect to each Title IV Plan subject to such Section,
separately calculated for each such Title IV Plan as of its most recent
valuation date and (c) for a period of five years following a transaction
reasonably likely to be covered by Section 4069 of ERISA, the liabilities
(whether or not accrued) that could be avoided by the Company, any of its
Subsidiaries or any ERISA Affiliate as a result of such transaction.
"Unused Commitment" means, with respect to any Lender on any
day, the difference between (a) such Lender's Revolving Credit Commitment and
(b) the sum of (i) such Lender's Ratable Portion of the sum of (A) the
outstanding principal amount of Revolving Loans and (B) the outstanding amount
of the Letter of Credit Obligations and (ii) if such Lender is the Swing Loan
Lender, the aggregate principal amount of Swing Loans outstanding.
"Unused Commitment Fee" has the meaning specified in Section
2.12(a) (Fees).
"Unused Ratable Portion" means, with respect to any Lender,
the percentage obtained by dividing (a) the Unused Commitment of such Lender by
(b) the aggregate Unused Commitments of all Lenders.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Voting Stock" means Stock of any Person having ordinary power
to vote in the election of members of the board of directors, managers, trustees
or other controlling Persons, of such Person (irrespective of whether, at the
time, Stock of any other class or classes of such entity shall have or might
have voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" of any Person, means any other
Person all of the Stock of which (other than director's qualifying shares, as
may be required by law) is owned by such Person directly or by other
Wholly-Owned Subsidiaries of such Person.
"Withdrawal Liability" means, with respect to the Company at
any time, the aggregate liability incurred (whether or not assessed) with
respect to all Multiemployer Plans pursuant to Section 4201 of ERISA or for
increases in contributions required to be made pursuant to Section 4243 of
ERISA.
SECTION 1.2 COMPUTATION OF TIME PERIODS
In this Agreement, in the computation of periods of time from
a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
SECTION 1.3 ACCOUNTING TERMS AND PRINCIPLES
(a) Except as set forth below, all accounting terms not
specifically defined herein shall be construed in conformity with GAAP and all
accounting determinations required to be made pursuant hereto shall, unless
expressly otherwise provided herein, be made in conformity with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section 6.1
(Financial Statements) is hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or any
successors thereto) and such change is adopted by the Company with the agreement
of the Company's Accountants and results in a change in any of the calculations
required by Article V (Financial Covenants) or Article VIII (Negative Covenants)
had such accounting change not occurred, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably reflect such
change with the desired result that the criteria for evaluating compliance with
such covenants by the Company shall be the same after such change as if such
change had not been made; provided, however, that no change in GAAP that would
affect a calculation that measures compliance with any covenant contained in
Article V (Financial Covenants) or Article VIII (Negative Covenants) shall be
given effect until such provisions are amended to reflect such changes in GAAP.
SECTION 1.4 CERTAIN TERMS
(a) The words "herein," "hereof" and "hereunder" and similar
words refer to this Agreement as a whole and not to any particular Article,
Section, subsection or clause in, this Agreement.
(b) References in this Agreement to an Exhibit, Schedule,
Article, Section, clause or subclause refer to the appropriate Exhibit or
Schedule to, or Article, Section, clause or
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AMENDED AND RESTATED CREDIT AGREEMENT
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subclause in this Agreement. References in this Agreement to numbered clauses
and subclauses immediately followed by the words "above" and "below" refer
respectively to the clauses and subclauses with the corresponding numbers
immediately preceding or following such reference.
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. Unless otherwise expressly stated
therein and unless the prior written consent of the Administrative Agent, the
Requisite Lenders or the Supermajority Lenders is required hereunder for an
amendment, restatement, supplement or other modification to any such agreement
and such consent is not obtained, if such agreement is duly amended, restated,
supplemented or otherwise modified, references in this Agreement to such
agreement shall be to such agreement as so amended, restated, supplemented or
modified.
(d) References in this Agreement to any statute shall be to
such statute as amended or modified and in effect at the time any such reference
is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods.
(f) The terms "Lender," "Issuer" and "Administrative Agent"
include, without limitation, their respective successors.
(g) Upon the appointment of any successor Administrative Agent
pursuant to Section 10.7 (Successor Administrative Agent), references to CUSA in
Section 10.4 (The Administrative Agent Individually) and to Citibank in the
definitions of Base Rate, and Eurodollar Rate shall be deemed to refer to the
financial institution then acting as the Administrative Agent or one of its
Affiliates if it so designates.
ARTICLE II
THE FACILITY
SECTION 2.1 THE REVOLVING CREDIT COMMITMENTS
(a) On the terms and subject to the conditions contained in
this Agreement, each Lender severally agrees to continue to make loans (each,
together with each "Revolving Loan" as defined in and made under the Existing
Credit Agreement, a "Revolving Loan") to the Borrowers from time to time on any
Business Day during the period from the Effective Date until the Revolving
Credit Termination Date in an aggregate amount not to exceed at any time
outstanding for all Revolving Loans by such Lender such Lender's Revolving
Credit Commitment; provided, however, that at no time shall any Lender be
obligated to make a Revolving Loan (i) in excess of such Lender's Ratable
Portion of the Available Credit, (ii) to the extent that the aggregate Revolving
Credit Outstandings, after giving effect to such Revolving Loan, would exceed
the Maximum Credit in effect at such time and (iii) to the extent that, in the
case of any Borrower, the aggregate Revolving Credit Outstandings owing by such
Borrower would exceed the Borrowing Base of such Borrower at such time. Within
the limits of each Lender's Revolving Credit Commitment, amounts of Revolving
Loans repaid may be reborrowed under this Section 2.1.
(b) The Borrowers may, at any time, request the Lenders to
provide additional Revolving Credit Commitments in an amount up to $50,000,000
(the "Facility Increase");
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AMENDED AND RESTATED CREDIT AGREEMENT
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provided, however, that (i) the Borrowers shall have given the Administrative
Agent at least 60 days prior written notice of its intention to effect a
Facility Increase and the desired amount of such Facility Increase, (ii) the
conditions precedent to a Borrowing set forth in Section 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) are satisfied as of the Facility
Increase Effective Date and (iii) an opinion of counsel to the Loan Parties in
form and substance and from counsel reasonably satisfactory to the
Administrative Agent and addressed to the Administrative Agent, the Issuers and
the Lenders and addressing such matters as any Lender through the Administrative
Agent may reasonably request (including an opinion as to no conflicts with other
Indebtedness) shall be delivered to the Administrative Agent. The Borrowers
shall have the right to offer such increase to (x) the Lenders, and each Lender
will have the right, but not the obligation, to commit to all or a portion of
the proposed Facility Increase or (y) Eligible Assignees; provided, however,
that the minimum additional Revolving Credit Commitment of each such Lender or
Eligible Assignee equals or exceeds $5,000,000 and such Lender or Eligible
Assignee executes an Assumption Agreement pursuant to which such Lender or
Eligible Assignee agrees to commit to all or a portion of such Facility Increase
and, in the case of an Eligible Assignee, to be bound by the terms of this
Agreement as a Lender. On the effective date provided for in the Assumption
Agreements providing for a Facility Increase (the "Facility Increase Effective
Date"), the Revolving Credit Commitments shall be increased by the amount
committed to by each Lender or Eligible Assignee on the Facility Increase Date.
In the event there are Lenders and Eligible Assignees that have committed to a
Facility Increase in excess of the maximum amount requested (or permitted), then
the Administrative Agent shall have the right to allocate such commitments,
first to Lenders and then to Eligible Assignees, on whatever basis the
Administrative Agent determines is appropriate in consultation with the
Borrowers. The Administrative Agent and the Lenders reserve the right to request
the Borrowers to pay compensation for such additional commitments for the
Facility Increase and such Facility Increase shall not become effective until
such fees shall have been paid. Only one Facility Increase may be effected
pursuant to this clause (b).
SECTION 2.2 BORROWING PROCEDURES
(a) Each Revolving Credit Borrowing shall be made on notice given by any
Borrower to the Administrative Agent not later than 11:00 A.M. (New York City
time) (i) one Business Day, in the case of a Borrowing of Base Rate Loans and
(ii) three Business Days, in the case of a Borrowing of Eurodollar Rate Loans,
prior to the date of the proposed Revolving Credit Borrowing. Each such notice
shall be in substantially the form of Exhibit C (Form of Notice of Borrowing) (a
"Notice of Borrowing"), specifying (A) the date of such proposed Revolving
Credit Borrowing, (B) the aggregate amount of such proposed Revolving Credit
Borrowing, (C) whether any portion of the proposed Revolving Credit Borrowing
will be of Base Rate Loans or Eurodollar Rate Loans, (D) the initial Interest
Period or Periods for any such Eurodollar Rate Loans and (E) the Available
Credit (after giving effect to the proposed Revolving Credit Borrowing). The
Revolving Loans shall be made as Base Rate Loans unless, subject to Section 2.14
(Special Provisions Governing Eurodollar Rate Loans), the Notice of Borrowing
specifies that all or a portion thereof shall be Eurodollar Rate Loans;
provided, however, that the Interest Period of any Eurodollar Rate Loan made
before the Syndication Completion Date shall be determined by the Administrative
Agent in its sole discretion. Notwithstanding anything to the contrary contained
in clause (a) of Section 2.3 (Swing Loans), if any Notice of Borrowing requests
a Revolving Credit Borrowing of Base Rate Loans, the Administrative Agent may,
in its sole discretion, make a Swing Loan available to the applicable Borrower
in an aggregate amount not to exceed such proposed Revolving Credit Borrowing,
and the aggregate amount of the
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AMENDED AND RESTATED CREDIT AGREEMENT
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corresponding proposed Revolving Credit Borrowing shall be reduced accordingly
by the principal amount of such Swing Loan. Each Revolving Credit Borrowing
shall be in an aggregate amount of not less than $3,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent's receipt of a Notice of Borrowing and, if
Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate determined pursuant to Section 2.14(a) (Determination
of Interest Rate). Each Lender shall, before 11:00 A.M. (New York City time) on
the date of the proposed Borrowing, make available to the Administrative Agent
at its address referred to in Section 11.8 (Notices, Etc.), in immediately
available funds, such Lender's Ratable Portion of such proposed Borrowing. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Section 3.1 (Conditions Precedent to the
Effectiveness of this Agreement) and Section 3.2 (Conditions Precedent to Each
Loan and Letter of Credit), the Administrative Agent shall make such funds
available to the applicable Borrower.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any proposed Borrowing by any Borrower that
such Lender shall not make available to the Administrative Agent such Lender's
Ratable Portion of such Borrowing, the Administrative Agent may assume that such
Lender has made such Ratable Portion available to the Administrative Agent on
the date of such Borrowing in accordance with this Section 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available to
such Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such Ratable Portion available to the
Administrative Agent, such Lender and such Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of such Borrower, the interest rate applicable at the
time to the Loans comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate for the first Business Day and thereafter at the interest
rate applicable at the time to the Loans comprising such Borrowing. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Loan as part of such Borrowing
for purposes of this Agreement. If such Borrower shall repay to the
Administrative Agent such corresponding amount, such payment shall not relieve
such Lender of any obligation it may have hereunder to such Borrower.
(d) The failure of any Lender to make the Loan or any payment
required by it on the date specified (a "Non-Funding Lender"), including any
payment in respect of its participation in Swing Loans and Letter of Credit
Obligations, shall not relieve any other Lender of its obligations to make such
Loan or payment on such date but no such other Lender shall be responsible for
the failure of any Non-Funding Lender to make a Loan or payment required under
this Agreement.
SECTION 2.3 SWING LOANS
(a) On the terms and subject to the conditions contained in
this Agreement, the Swing Loan Lender may, in its sole discretion, make loans
(each, together with each "Swing Loan" as defined in and made under the Existing
Credit Agreement, a "Swing Loan") otherwise available to the Borrowers under the
Facility from time to time on any Business Day during the period from the
Effective Date until the Revolving Credit Termination Date in an aggregate
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AMENDED AND RESTATED CREDIT AGREEMENT
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amount at any time outstanding at any time not to exceed $10,000,000; provided,
however, that the Swing Loan Lender shall not make any Swing Loan to the extent
that, after giving effect to such Swing Loan, the aggregate Revolving Credit
Obligations would exceed the Maximum Credit. The Swing Loan Lender shall be
entitled to rely on the most recent Borrowing Base Certificate delivered to the
Administrative Agent. Each Swing Loan shall be a Base Rate Loan and must be
repaid in full upon any Revolving Credit Borrowing hereunder and shall in any
event mature no later than the Revolving Credit Termination Date. Within the
limits set forth in the first sentence of this clause (a), amounts of Swing
Loans repaid may be reborrowed under this clause (a). Swing Loans shall be Base
Rate Loans.
(b) In order to request a Swing Loan, a Borrower shall
telecopy (or forward by electronic mail or similar means) to the Administrative
Agent a duly completed request setting forth the date, the requested amount and
date of the Swing Loan (a "Swing Loan Request"), to be received by the
Administrative Agent not later than 1:00 P.M. (New York City time) on the day of
the proposed borrowing. The Administrative Agent shall promptly notify the Swing
Loan Lender of the details of the requested Swing Loan. Subject to the terms of
this Agreement, the Swing Loan Lender may make a Swing Loan available to the
Administrative Agent in an amount up to the amount requested and, in turn, the
Administrative Agent shall make such amounts available to such Borrower on the
date of the relevant Swing Loan Request. The Swing Loan Lender shall not make
any Swing Loan in the period commencing on the first Business Day after it
receives written notice from any Lender that one or more of the conditions
precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter
of Credit) shall not on such date be satisfied, and ending when such conditions
are satisfied. The Swing Loan Lender shall not otherwise be required to
determine that, or take notice whether, the conditions precedent set forth in
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have been
satisfied in connection with the making of any Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative
Agent in writing (which writing may be a telecopy or electronic mail) weekly, by
no later than 10:00 A.M. (New York City time) on the first Business Day of each
week, of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each
Lender pay to the Administrative Agent, for the account of the Swing Loan
Lender, in the manner provided in clause (e) below, such Lender's Ratable
Portion of all or a portion of the outstanding Swing Loans, which demand shall
be made through the Administrative Agent, shall be in writing and shall specify
the outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice
referred to in clause (c) above and each demand referred to in clause (d) above
to each Lender on the day such notice or such demand is received by the
Administrative Agent (except that any such notice or demand received by the
Administrative Agent after 2:00 P.M. (New York City time) on any Business Day or
any such demand received on a day that is not a Business Day shall not be
required to be forwarded to the Lenders by the Administrative Agent until the
next succeeding Business Day), together with a statement prepared by the
Administrative Agent specifying the amount of each Lender's Ratable Portion of
the aggregate principal amount of the Swing Loans stated to be outstanding in
such notice or demanded to be paid pursuant to such demand, and, notwithstanding
whether or not the conditions precedent set forth in Section 3.2 (Conditions
Precedent to Each Loan and Letter of Credit) shall have been satisfied (which
conditions precedent the Lenders hereby irrevocably waive), each Lender shall,
before 11:00 A.M. (New York City time) on the
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AMENDED AND RESTATED CREDIT AGREEMENT
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Business Day next succeeding the date of such Lender's receipt of such written
statement, make available to the Administrative Agent, in immediately available
funds, for the account of the Swing Loan Lender, the amount specified in such
statement. Upon such payment by a Lender, such Lender shall, except as provided
in clause (f) below, be deemed to have made a Revolving Loan to the applicable
Borrower. The Administrative Agent shall use such funds to repay the Swing Loans
to the Swing Loan Lender. To the extent that any Lender fails to make such
payment available to the Administrative Agent for the account of the Swing Loan
Lender, such Borrower shall repay such Swing Loan on demand.
(f) Upon the occurrence of a Default under Section 9.1(f)
(Events of Default), each Lender shall acquire, without recourse or warranty, an
undivided participation in each Swing Loan otherwise required to be repaid by
such Lender pursuant to clause (e) above, which participation shall be in a
principal amount equal to such Lender's Ratable Portion of such Swing Loan, by
paying to the Swing Loan Lender on the date on which such Lender would otherwise
have been required to make a payment in respect of such Swing Loan pursuant to
clause (e) above, in immediately available funds, an amount equal to such
Lender's Ratable Portion of such Swing Loan. If such amount is not in fact made
available by such Lender to the Swing Loan Lender on such date, the Swing Loan
Lender shall be entitled to recover such amount on demand from such Lender
together with interest accrued from such date at the Federal Funds Rate for the
first Business Day after such payment was due and thereafter at the rate of
interest then applicable to Base Rate Loans.
(g) From and after the date on which any Lender is deemed to
have made a Revolving Loan pursuant to clause (e) above with respect to any
Swing Loan or purchases an undivided participation interest in a Swing Loan
pursuant to clause (f) above, the Swing Loan Lender shall promptly distribute to
such Lender such Lender's Ratable Portion of all payments of principal of and
interest received by the Swing Loan Lender on account of such Swing Loan other
than those received from a Lender pursuant to clause (e) or (f) above.
SECTION 2.4 LETTERS OF CREDIT
(a) On the terms and subject to the conditions contained in
this Agreement, each Issuer agrees to issue one or more Letters of Credit at the
request of a Borrower for the account of such Borrower from time to time during
the period commencing on the Effective Date and ending on the earlier of the
Revolving Credit Termination Date and 30 days prior to the Scheduled Termination
Date; provided, however, that no Issuer shall be under any obligation to issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall purport by its terms to
enjoin or restrain such Issuer from issuing such Letter of Credit or
any Requirement of Law applicable to such Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuer shall
prohibit, or request that such Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon such Issuer with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which such Issuer is
not otherwise compensated) not in effect on the date of this Agreement
or result in any unreimbursed loss, cost or expense that was not
applicable, in effect or known to such Issuer as of the date of this
Agreement and that such Issuer in good xxxxx xxxxx material to it;
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AMENDED AND RESTATED CREDIT AGREEMENT
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(ii) such Issuer shall have received written
notice from the Administrative Agent, any Lender or any Borrower, on or
prior to the requested date of issuance of such Letter of Credit, that
one or more of the applicable conditions contained in Section 3.1
(Conditions Precedent to the Effectiveness of this Agreement) or
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) is
not then satisfied;
(iii) after giving effect to the issuance of such
Letter of Credit, the aggregate Revolving Credit Outstandings would
exceed the Maximum Credit at such time or the aggregate Revolving
Credit Outstandings owing by the Borrower for whose account such Letter
of Credit is being issued exceeds such Borrower's Borrowing Base;
(iv) after giving effect to the issuance of such
Letter of Credit, the sum of (i) the Letter of Credit Undrawn Amounts
at such time and (ii) the Reimbursement Obligations at such time
exceeds $10,000,000; or
(v) any fees due in connection with a requested
issuance have not been paid.
None of the Lenders (other than the Issuers in their capacity as such) shall
have any obligation to issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of
Credit (i) be more than one year after the date of issuance thereof or (ii) be
less than seven days prior to the Scheduled Termination Date; provided, however,
that any Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which shall in no event extend beyond
the expiry date referred to in clause (ii) above).
(c) In connection with the issuance of each Letter of Credit
for the account of any Borrower, such Borrower shall give the relevant Issuer
and the Administrative Agent at least two Business Days' prior written notice,
in substantially the form of Exhibit D (Form of Letter of Credit Request) (or in
such other written or electronic form as is acceptable to the Issuer), of the
requested issuance of such Letter of Credit (a "Letter of Credit Request"). Such
notice shall be irrevocable and shall specify the Issuer of such Letter of
Credit, the stated amount of the Letter of Credit requested, which stated amount
shall not be less than $50,000, the date of issuance of such requested Letter of
Credit (which day shall be a Business Day), the date on which such Letter of
Credit is to expire (which date shall be a Business Day), and the Person for
whose benefit the requested Letter of Credit is to be issued. Such notice, to be
effective, must be received by the relevant Issuer and the Administrative Agent
not later than 11:00 A.M. (New York City time) on the second Business Day prior
to the requested issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in
this Section 2.4, the relevant Issuer shall, on the requested date, issue a
Letter of Credit on behalf of the applicable Borrower in accordance with such
Issuer's usual and customary business practices. No Issuer shall issue any
Letter of Credit in the period commencing on the first Business Day after it
receives written notice from any Lender that one or more of the conditions
precedent contained in Section 3.2 (Conditions Precedent to Each Loan and Letter
of Credit) shall not on such date be satisfied, and ending when such conditions
are satisfied. The relevant Issuer shall not otherwise be required to determine
that, or take notice whether, the conditions precedent set forth in
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AMENDED AND RESTATED CREDIT AGREEMENT
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Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) have been
satisfied in connection with the issuance of any Letter of Credit.
(e) If requested by the relevant Issuer, prior to the issuance
of each Letter of Credit for the account of any Borrower by such Issuer, and as
a condition of such issuance and of the participation of each Lender in the
Letter of Credit Obligations arising with respect thereto, such Borrower shall
have delivered to such Issuer a letter of credit reimbursement agreement, in
such form as the Issuer may employ in its ordinary course of business for its
own account (a "Letter of Credit Reimbursement Agreement"), signed by such
Borrower, and such other documents or items as may be required pursuant to the
terms thereof. In the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreement and this Agreement, the terms of this Agreement
shall govern.
(f) Each Issuer shall:
(i) give the Administrative Agent written notice
(or telephonic notice confirmed promptly thereafter in writing), which
writing may be a telecopy or electronic mail, of the issuance or
renewal of a Letter of Credit issued by it for the account of any
Borrower, of all drawings under a Letter of Credit issued by it and the
payment (or the failure to pay when due) by such Borrower of any
Reimbursement Obligation when due (which notice the Administrative
Agent shall promptly transmit by telecopy, electronic mail or similar
transmission to each Lender);
(ii) upon the request of any Lender, furnish to
such Lender copies of any Letter of Credit Reimbursement Agreement to
which such Issuer is a party and such other documentation as may
reasonably be requested by such Lender; and
(iii) no later than 10 Business Days following the
last day of each calendar month, provide to the Administrative Agent
(and the Administrative Agent shall provide a copy to each Lender
requesting the same) and the Company separate schedules for Documentary
and Standby Letters of Credit issued by it, in form and substance
reasonably satisfactory to the Administrative Agent, setting forth the
aggregate Letter of Credit Obligations outstanding at the end of each
month and any information requested by the Company or the
Administrative Agent relating thereto.
(g) Immediately upon the issuance by an Issuer of a Letter of
Credit for the account of any Borrower in accordance with the terms and
conditions of this Agreement, such Issuer shall be deemed to have sold and
transferred to each Lender, and each Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such Lender's Ratable Portion, in such Letter of Credit and the obligations of
such Borrower with respect thereto (including all Letter of Credit Obligations
with respect thereto) and any security therefor and guaranty pertaining thereto.
(h) Each Borrower for whose account a Letter of Credit has
been issued agrees to pay to the Issuer of such Letter of Credit the amount of
all Reimbursement Obligations owing to such Issuer under such Letter of Credit
when such amounts are due and payable, irrespective of any claim, set-off,
defense or other right that any Borrower may have at any time against such
Issuer or any other Person. In the event that any Issuer makes any payment under
any Letter of Credit and no Borrower shall have repaid such amount to such
Issuer pursuant to this clause (h)
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AMENDED AND RESTATED CREDIT AGREEMENT
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or such payment is rescinded or set aside for any reason, such Reimbursement
Obligation shall bear interest computed from the date on which such
Reimbursement Obligation arose to the date of repayment in full at the rate of
interest applicable to Revolving Loans bearing interest at a rate based on the
Base Rate during such period, and such Issuer shall promptly notify the
Administrative Agent, that shall promptly notify each Lender of the failure to
repay such Reimbursement Obligation, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of such Issuer
the amount of such Lender's Ratable Portion of such payment in Dollars and in
immediately available funds. If the Administrative Agent so notifies such Lender
prior to 11:00 A.M. (New York City time) on any Business Day, such Lender shall
make available to the Administrative Agent for the account of such Issuer its
Ratable Portion of the amount of such payment on such Business Day in
immediately available funds. Upon such payment by a Lender, such Lender shall,
except during the continuance of a Default or Event of Default under Section
9.1(f) (Events of Default) and notwithstanding whether or not the conditions
precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and Letter
of Credit) shall have been satisfied (which conditions precedent the Lenders
hereby irrevocably waive) be deemed to have made a Revolving Loan to the
Borrowers in the principal amount of such payment. Whenever any Issuer receives
from any Borrower a payment of a Reimbursement Obligation as to which the
Administrative Agent has received for the account of such Issuer any payment
from a Lender pursuant to this clause (h), such Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Lender, in immediately available funds, an amount equal to such Lender's Ratable
Portion of the amount of such payment adjusted, if necessary, to reflect the
respective amounts the Lenders have paid in respect of such Reimbursement
Obligation.
(i) Each Borrower's obligation to pay each Reimbursement
Obligation and the obligations of the Lenders to make payments to the
Administrative Agent for the account of the Issuers with respect to Letters of
Credit issued for the account of such Borrower shall be absolute, unconditional
and irrevocable and shall be performed strictly in accordance with the terms of
this Agreement, under any and all circumstances whatsoever, including the
occurrence of any Default or Event of Default, and irrespective of:
(i) any lack of validity or enforceability of
any Letter of Credit or any Loan Document, or any term or provision
therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter of Credit or
any Loan Document;
(iii) the existence of any claim, set off, defense
or other right that any Borrower, any other party guaranteeing, or
otherwise obligated with, any Borrower, any Subsidiary or other
Affiliate thereof or any other Person may at any time have against the
beneficiary under any Letter of Credit, any Issuer, the Administrative
Agent or any Lender or any other Person, whether in connection with
this Agreement, any other Loan Document or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under
a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
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AMENDED AND RESTATED CREDIT AGREEMENT
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(v) payment by the Issuer under a Letter of
Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of
any kind of the Issuer, the Lenders, the Administrative Agent or any
other Person or any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions
of this Section 2.4, constitute a legal or equitable discharge of any
Borrower's obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to any Borrower or any Lender. In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary and, in making any payment under any
Letter of Credit the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient 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 any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
the Issuer.
(j) If and to the extent such Lender shall not have so made
its Ratable Portion of the amount of the payment required by clause (i) above
available to the Administrative Agent for the account of such Issuer, such
Lender agrees to pay to the Administrative Agent for the account of such Issuer
forthwith on demand such amount together with interest thereon, for the first
Business Day after payment was first due at the Federal Funds Rate and,
thereafter until such amount is repaid to the Administrative Agent for the
account of such Issuer, at the rate per annum applicable to Base Rate Loans
under the Facility. The failure of any Lender to make available to the
Administrative Agent for the account of such Issuer its Ratable Portion of any
such payment shall not relieve any other Lender of its obligation hereunder to
make available to the Administrative Agent for the account of such Issuer its
Ratable Portion of any payment on the date such payment is to be made, but no
Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent for the account of the Issuer such other
Lender's Ratable Portion of any such payment.
SECTION 2.5 REDUCTION AND TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS
(a) The Company may, upon at least three Business Days' prior
notice to the Administrative Agent, terminate in whole or reduce in part ratably
the unused portions of the respective Revolving Credit Commitments of the
Lenders; provided, however, that each partial reduction shall be in the
aggregate amount of not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
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(b) The then current Revolving Credit Commitments shall be
reduced on each date on which a prepayment of Revolving Loans or Swing Loans is
made pursuant to subclause (i) (other than for Asset Sales made pursuant to and
in accordance with clause (b) of Section 8.4 (Sale of Assets)) or (ii) of clause
(a) of Section 2.9 (Mandatory Prepayments) or would be required to be made had
the outstanding Revolving Loans and Swing Loans equaled the Revolving Credit
Commitments then in effect, in each case in the amount of such prepayment (or
deemed prepayment) (and the Revolving Credit Commitment of each Lender shall be
reduced by its Ratable Portion of such amount).
SECTION 2.6 REPAYMENT OF LOANS
Each Borrower promises to repay the entire unpaid principal
amount of the Revolving Loans and the Swing Loans owing by it on the Scheduled
Termination Date.
SECTION 2.7 EVIDENCE OF DEBT
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing Indebtedness of each Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(b) The Administrative Agent shall maintain accounts in
accordance with its usual practice in which it shall record (i) the amount of
each Loan made and, if a Eurodollar Rate Loan, the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable by any
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from any Borrower and each Lender's share
thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to
clauses (a) and (b) above shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations recorded
therein; provided, however, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of any Borrower to repay the Loans in accordance with
their terms.
(d) Notwithstanding any other provision of the Agreement, in
the event that any Lender requests that a Borrower execute and deliver a
promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by such Borrower hereunder, such Borrower
shall promptly execute and deliver a Revolving Credit Note or Revolving Credit
Notes to such Lender evidencing any Revolving Loans of such Lender,
substantially in the form of Exhibit B (Form of Revolving Credit Note).
SECTION 2.8 OPTIONAL PREPAYMENTS
Any Borrower may prepay the outstanding principal amount of
the Revolving Loans or Swing Loans owing by it at any time in whole or in part,
without premium or penalty; provided, however, that if any prepayment of any
Eurodollar Rate Loan is made by any Borrower other than on the last day of an
Interest Period for such Loan, such Borrower shall also pay any amounts owing
pursuant to Section 2.14(e) (Breakage Costs). Upon the giving of such notice of
prepayment, the principal amount of Revolving Loans specified to be prepaid
shall become due and payable on the date specified for such prepayment.
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SECTION 2.9 MANDATORY PREPAYMENTS
(a) Upon receipt by the Company, any Borrower or any of their
respective Subsidiaries of Net Cash Proceeds arising (i) from an Asset Sale, the
Borrowers shall immediately prepay the Loans (or provide cash collateral in
respect of Letters of Credit) in an amount equal to 100% of such Net Cash
Proceeds (except for Net Cash Proceeds that, together with all other Net Cash
Proceeds arising from Asset Sales received by the Company, any Borrower or any
of their respective Subsidiaries since the Effective Date, do not exceed
$2,000,000 in the aggregate) and (ii) from a Property Loss Event, the Borrowers
shall immediately prepay the Loans (or provide cash collateral in respect of
Letters of Credit) in an amount equal to 100% of such Net Cash Proceeds and
(iii) from an Equity Issuance or Debt Issuance, the Borrowers shall immediately
prepay the Loans (or provide cash collateral in respect of Letters of Credit) in
an amount equal to 100% of such Net Cash Proceeds; provided, however, that, in
the case of any Net Cash Proceeds arising from a Reinvestment Event, the
Borrowers shall prepay the Loans (or provide cash collateral in respect of
Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount
applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment
Date with respect to such Reinvestment Event and, pending application of such
proceeds as specified in the Reinvestment Notice, shall pay the same to the
Administrative Agent to be held in a Cash Collateral Account. Any such mandatory
prepayment shall be applied in accordance with clause (b) below.
(b) Any prepayments made by any Borrower required to be
applied in accordance with this clause (b) shall be applied as follows: first,
to repay the outstanding principal balance of the Swing Loans until such Swing
Loans shall have been repaid in full; second, to repay the outstanding principal
balance of the Revolving Loans until such Revolving Loans shall have been paid
in full; and then, to provide cash collateral for any Letter of Credit
Obligations in the manner set forth in Section 9.3 (Actions in Respect of
Letters of Credit) until all such Letter of Credit Obligations have been fully
cash collateralized in the manner set forth therein.
(c) If at any time, (x) the aggregate Revolving Credit
Outstandings owing by the Borrowers exceed the Maximum Credit at such time or
(y) the aggregate Revolving Credit Outstandings owing by any Borrower exceeds
such Borrower's Borrowing Base, the Borrowers or such Borrower, as the case may
be, shall forthwith prepay the Swing Loans first and then the Revolving Loans of
the Borrowers or such Borrower, as applicable, then outstanding in an amount
equal to such excess. If any such excess remains after repayment in full of the
aggregate outstanding Swing Loans and Revolving Loans of the Borrowers or such
Borrower (as the case may be), the Borrowers or such Borrower, as applicable,
shall provide cash collateral for the Letter of Credit Obligations in the manner
set forth in Section 9.3 (Actions in Respect of Letters of Credit) to the extent
required to eliminate such excess.
(d) The Borrowers hereby irrevocably waive the right to direct
the application of all funds in the Cash Collateral Account (other than an
amount equal to any proceeds arising from a Reinvestment Event that are held in
the Cash Collateral Account pending application of such proceeds as specified in
a Reinvestment Notice) and agree that the Administrative Agent may, and, upon
the written direction of the Requisite Lenders or Supermajority Lenders, shall,
except as provided in Section 2.13(f) (Payments and Computations), apply all
payments in respect of any Obligations and all available funds in the Cash
Collateral Account on a daily basis as follows: first, to repay the outstanding
principal amount of the Swing Loans until such Swing Loans have been repaid in
full; second, to repay the outstanding principal balance of the Revolving Loans
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AMENDED AND RESTATED CREDIT AGREEMENT
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until such Revolving Loans shall have been repaid in full; and then to any other
Obligation then due and payable. The Administrative Agent agrees so to apply
such funds and the Borrowers consent to such application. If, following such
application, there are no Loans outstanding and no other Obligations that are
then due and payable (and cash collateral has been provided in the amount of
105% of all outstanding Letter of Credit Obligations), then the Administrative
Agent shall cause any remaining funds in the Cash Collateral Account to be paid
at the written direction of the Company.
SECTION 2.10 INTEREST
(a) Rate of Interest. All Loans and the outstanding amount of
all other Obligations shall bear interest, in the case of Loans, on the unpaid
principal amount thereof from the date such Loans are made and, in the case of
such other Obligations, from the date such other Obligations are due and payable
until, in all cases, paid in full, except as otherwise provided in clause (c)
below, as follows:
(i) if a Base Rate Loan or such other
Obligation, at a rate per annum equal to the sum of (A) the Base Rate
as in effect from time to time, plus (B) the Applicable Margin; and
(ii) if a Eurodollar Rate Loan, at a rate per
annum equal to the sum of (A) the Eurodollar Rate determined for the
applicable Interest Period, plus (B) the Applicable Margin in effect
from time to time during such Eurodollar Interest Period.
(b) Interest Payments. (i) Interest accrued on each Base Rate
Loan (other than Swing Loans) shall be payable in arrears (A) on the last
Business Day of each calendar month, commencing on the first such day following
the making of such Base Rate Loan and (B) if not previously paid in full, at
maturity (whether by acceleration or otherwise) of such Base Rate Loan; (ii)
interest accrued on Swing Loans shall be payable in arrears on the first
Business Day of the immediately succeeding calendar month; (iii) interest
accrued on each Eurodollar Rate Loan shall be payable in arrears (A) on the last
day of each Interest Period applicable to such Loan and if such Interest Period
has a duration of more than three months, on each day during such Interest
Period occurring exactly three months or an integral multiple thereof after the
first day of such Interest Period, (B) upon the payment or prepayment thereof in
full or in part and (C) if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Eurodollar Rate Loan; and (iv) interest
accrued on the amount of all other Obligations shall be payable on demand from
and after the time such Obligation becomes due and payable (whether by
acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere herein, except as otherwise agreed by
the Requisite Lenders, effective immediately upon the occurrence of an Event of
Default and for as long thereafter as such Event of Default shall be continuing,
the principal balance of all Loans and the amount of all other Obligations shall
bear interest at a rate that is two percent per annum in excess of the rate of
interest applicable to such Obligations from time to time.
SECTION 2.11 CONVERSION/CONTINUATION OPTION
(a) A Borrower may elect (i) at any time to convert Base Rate
Loans (other than Swing Loans) owing by it or any portion thereof to Eurodollar
Rate Loans or (ii) at the end of any
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AMENDED AND RESTATED CREDIT AGREEMENT
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applicable Interest Period, to convert Eurodollar Rate Loans owing by it or any
portion thereof into Base Rate Loans or to continue such Eurodollar Rate Loans
or any portion thereof for an additional Interest Period; provided, however,
that the aggregate amount of the Eurodollar Loans for each Interest Period must
be in the amount of $3,000,000 or an integral multiple of $1,000,000 in excess
thereof. Each conversion or continuation shall be allocated among the Loans of
each Lender in accordance with its Ratable Portion. Each such election shall be
in substantially the form of Exhibit E (Form of Notice of Conversion or
Continuation) (a "Notice of Conversion or Continuation") and shall be made by
giving the Administrative Agent at least three Business Days' prior written
notice specifying (A) the amount and type of Loan being converted or continued,
(B) in the case of a conversion to or a continuation of Eurodollar Rate Loans,
the applicable Interest Period and (C) in the case of a conversion, the date of
conversion (which date shall be a Business Day and, if a conversion from
Eurodollar Rate Loans, shall also be the last day of the applicable Interest
Period).
(b) The Administrative Agent shall promptly notify each Lender
of its receipt of a Notice of Conversion or Continuation and of the options
selected therein. Notwithstanding the foregoing, (i) no conversion in whole or
in part of Base Rate Loans to Eurodollar Rate Loans shall be permitted at any
time prior to the Syndication Completion Date except to Eurodollar Rate Loans
with Interest Periods otherwise determined by the Administrative Agent pursuant
to clause (a) of Section 2.2 (Borrowing Procedures) and (ii) no conversion in
whole or in part of Base Rate Loans to Eurodollar Rate Loans, and no
continuation in whole or in part of Eurodollar Rate Loans upon the expiration of
any applicable Interest Period, shall be permitted at any time at which (i) an
Event of Default shall have occurred and be continuing or (ii) the continuation
of, or conversion into, would violate any of the provisions of Section 2.14
(Special Provisions Governing Eurodollar Rate Loans). If, within the time period
required under the terms of this Section 2.11, the Administrative Agent does not
receive a Notice of Conversion or Continuation from the applicable Borrower
containing a permitted election to continue any Eurodollar Rate Loans for an
additional Interest Period or to convert any such Loans, then, upon the
expiration of the applicable Interest Period, such Loans shall be automatically
converted to Base Rate Loans. Each Notice of Conversion or Continuation shall be
irrevocable.
SECTION 2.12 FEES
(a) Unused Commitment Fee. The Borrowers, jointly and
severally, agree to pay to each Lender from the Initial Closing Date until the
Revolving Credit Termination Date a commitment fee (the "Unused Commitment Fee")
payable in arrears (x) on the last Business Day of each calendar month,
commencing on the first such Business Day following the Initial Closing Date and
(y) on the Revolving Credit Termination Date and, in each case, calculated daily
to equal the following:
(i) if the aggregate Unused Commitments of all
Lenders does not exceed $50,000,000, 0.5% per annum of such Lender's
Unused Commitment; and
(ii) if the aggregate Unused Commitments of all
Lenders exceeds $50,000,000, then the sum of (A) such Lender's Unused
Ratable Portion of an amount equal to 0.5% per annum of $50,000,000 and
(B) such Lender's Unused Ratable Portion of an amount equal to 1% per
annum of the excess of the aggregate Unused Commitments of all Lenders
over $50,000,000.
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(b) Letter of Credit Fees. Each Borrower agrees to pay the
following amounts with respect to Letters of Credit issued by any Issuer for its
account:
(i) to the Administrative Agent for the account
of each Issuer of a Letter of Credit issued for the account of such
Borrower, with respect to each such Letter of Credit issued by such
Issuer, an issuance fee equal to 0.25% per annum of the maximum amount
available from time to time to be drawn under such Letter of Credit,
payable in arrears (A) on the last Business Day of each calendar month,
commencing on the first such Business Day following the issuance of
such Letter of Credit and (B) on the Revolving Credit Termination Date;
(ii) to the Administrative Agent for the ratable
benefit of the Lenders, with respect to each Letter of Credit issued
for the account of such Borrower, a fee accruing at a rate per annum
equal to the Applicable Margin for Revolving Loans that are Eurodollar
Rate Loans on the maximum amount available from time to time to be
drawn under such Letter of Credit, payable in arrears (A) on the last
Business Day of each calendar month, commencing on the first such
Business Day following the issuance of such Letter of Credit and (B) on
the Revolving Credit Termination Date; provided, however, that, except
as otherwise agreed by the Requisite Lenders, during the continuance of
an Event of Default, such fee shall be increased by two percent per
annum and shall be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with
respect to the issuance, amendment or transfer of each Letter of Credit
and each drawing made thereunder, documentary and processing charges in
accordance with such Issuer's standard schedule for such charges in
effect at the time of issuance, amendment, transfer or drawing, as the
case may be.
(c) Additional Fees. The Company has agreed to pay to CUSA,
the Administrative Agent and the Arranger additional fees, the amount and dates
of payment of which are embodied in the Fee Letter.
SECTION 2.13 PAYMENTS AND COMPUTATIONS
(a) Each Borrower shall make each payment hereunder (including
fees and expenses) not later than 11:00 A.M. (New York City time) on the day
when due, in Dollars, to the Administrative Agent at its address referred to in
Section 11.8 (Notices, Etc.) in immediately available funds without set-off or
counterclaim. The Administrative Agent shall promptly thereafter cause to be
distributed immediately available funds relating to the payment of principal or
interest or fees to the Lenders, in accordance with the application of payments
set forth in clauses (e) and (f) below, as applicable, for the account of their
respective Applicable Lending Offices; provided, however, that amounts payable
pursuant to Section 2.15 (Capital Adequacy), Section 2.16 (Taxes) or clause (c)
or (d) of Section 2.14 (Special Provisions Governing Eurodollar Rate Loans)
shall be paid only to the affected Lender or Lenders and amounts payable with
respect to Swing Loans shall be paid only to the Swing Loan Lender. Payments
received by the Administrative Agent after 11:00 A.M. (New York City time) shall
be deemed to be received on the next Business Day.
(b) All computations of interest and of fees shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the
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AMENDED AND RESTATED CREDIT AGREEMENT
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first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination by the Administrative Agent of
an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that if such extension would cause payment of interest on any
Eurodollar Rate Loan to be made in the next calendar month, such payment shall
be made on the immediately preceding Business Day. All repayments of any
Revolving Loan shall be applied as follows: first, to repay such Loans
outstanding as Base Rate Loans; and then, to repay such Loans outstanding as
Eurodollar Rate Loans with those Eurodollar Rate Loans that have earlier
expiring Eurodollar Interest Periods being repaid prior to those that have later
expiring Eurodollar Interest Periods.
(d) Unless the Administrative Agent shall have received notice
from the Company to the Lenders prior to the date on which any payment is due
hereunder that the applicable Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that such Borrower shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon (at the Federal Funds Rate for the first Business Day and
thereafter at the rate applicable to Base Rate Loans) for each day from the date
such amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent.
(e) Subject to the provisions of clause (f) below (and except
as otherwise provided in Section 2.9 (Mandatory Prepayments)), all payments and
any other amounts received by the Administrative Agent from or for the benefit
of any Borrower shall be applied as follows: first, to pay principal of and
interest on any portion of the Loans that the Administrative Agent may have
advanced pursuant to the express provisions of this Agreement on behalf of any
Lender, for which the Administrative Agent has not then been reimbursed by such
Lender or any Borrower; second, to pay all other Obligations then due and
payable; and then, as the Company so designates. Payments in respect of Swing
Loans received by the Administrative Agent shall be distributed to the Swing
Loan Lender; payments in respect of Revolving Loans received by the
Administrative Agent shall be distributed to each Lender in accordance with such
Lender's Ratable Portion; and all payments of fees and all other payments in
respect of any other Obligation shall be allocated among such of the Lenders and
Issuers as are entitled thereto and, for such payments allocated to the Lenders,
in proportion to their respective Ratable Portions.
(f) Each Borrower hereby irrevocably waives the right to
direct the application of any and all payments in respect of the Obligations and
any proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agrees that the Administrative Agent may, and, upon either
(A) the written direction of the Requisite Lenders or (B) the acceleration of
the Obligations pursuant to Section 9.2 (Remedies), shall, apply all payments in
respect of any Obligations and all funds on deposit in any Cash Collateral
Account (including all proceeds arising from a Reinvestment Event that are held
in the Cash Collateral Account pending
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
application of such proceeds as specified in a Reinvestment Notice) and all
other proceeds of Collateral in the following order:
(i) first, to pay interest on and then principal
of any portion of the Revolving Loans that the Administrative Agent may
have advanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or any Borrower;
(ii) second, to pay interest on and then
principal of any Swing Loan;
(iii) third, to pay Obligations in respect of any
expense reimbursements or indemnities then due to the Administrative
Agent;
(iv) fourth, to pay Obligations in respect of any
expense reimbursements or indemnities then due to the Lenders and the
Issuers;
(v) fifth, to pay Obligations in respect of any
fees then due to the Administrative Agent, the Lenders and the Issuers;
(vi) sixth, to pay interest then due and payable
in respect of the Loans and Reimbursement Obligations;
(vii) seventh, to pay or prepay principal payments
on the Loans and Reimbursement Obligations and to provide cash
collateral for outstanding Letter of Credit Undrawn Amounts in the
manner described in Section 9.3 (Actions in Respect of Letters of
Credit), ratably to the aggregate principal amount of such Loans,
Reimbursement Obligations and Letter of Credit Undrawn Amounts; and
(viii) eighth, to the ratable payment of all other
Obligations;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any of the Obligations described in any of
clauses first through eighth above, the available funds being applied with
respect to any such Obligation (unless otherwise specified in such clause) shall
be allocated to the payment of such Obligations ratably, based on the proportion
of the Administrative Agent's and each Lender's or Issuer's interest in the
aggregate outstanding Obligations described in such clauses. The order of
priority set forth in clauses first through eighth above may at any time and
from time to time be changed by the agreement of the Requisite Lenders without
necessity of notice to or consent of or approval by any Borrower, any Secured
Party that is not a Lender or Issuer or by any other Person that is not a Lender
or Issuer. The order of priority set forth in clauses first through fifth above
may be changed only with the prior written consent of the Administrative Agent
in addition to the Requisite Lenders.
(g) At the option of the Administrative Agent, principal on
the Swing Loans, Reimbursement Obligations, interest, fees, expenses and other
sums due and payable in respect of the Revolving Loans and Protective Advances
may be paid from the proceeds of Swing Loans or Revolving Loans. Each Borrower
hereby authorizes the Swing Loan Lender to make Swing Loans pursuant to Section
2.3(a) (Swing Loans) and the Lenders to make Revolving Loans pursuant to Section
2.2(a) (Borrowing Procedures) from time to time in the Swing Loan Lender's or
such Lender's discretion, that are in the amounts of any and all principal
payable with respect to the Swing Loans and interest, fees, expenses and other
sums payable in respect of the
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AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Loans, and further authorizes the Administrative Agent to give the
Lenders notice of any Borrowing with respect to such Swing Loans and Revolving
Loans and to distribute the proceeds of such Swing Loans and Revolving Loans to
pay such amounts. Each Borrower agrees that all such Swing Loans and Revolving
Loans so made shall be deemed to have been requested by it (irrespective of the
satisfaction of the conditions in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit), which conditions the Lenders irrevocably waive) and
directs that all proceeds thereof shall be used to pay such amounts.
SECTION 2.14 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE
LOANS
(a) Determination of Interest Rate
The Eurodollar Rate for each Interest Period for Eurodollar
Rate Loans shall be determined by the Administrative Agent pursuant to the
procedures set forth in the definition of "Eurodollar Rate." The Administrative
Agent's determination shall be presumed to be correct absent manifest error and
shall be binding on the Borrowers.
(b) Interest Rate Unascertainable, Inadequate or Unfair
In the event that: (i) the Administrative Agent determines
that adequate and fair means do not exist for ascertaining the applicable
interest rates by reference to which the Eurodollar Rate then being determined
is to be fixed or (ii) the Requisite Lenders notify the Administrative Agent
that the Eurodollar Rate for any Interest Period will not adequately reflect the
cost to the Lenders of making or maintaining such Loans for such Interest
Period, the Administrative Agent shall forthwith so notify the Company and the
Lenders, whereupon each Eurodollar Loan shall automatically, on the last day of
the current Interest Period for such Loan, convert into a Base Rate Loan and the
obligations of the Lenders to make Eurodollar Rate Loans or to convert Base Rate
Loans into Eurodollar Rate Loans shall be suspended until the Administrative
Agent shall notify the Company that the Requisite Lenders have determined that
the circumstances causing such suspension no longer exist.
(c) Increased Costs
If at any time any Lender shall determine that, after the
Initial Closing Date, because of the introduction of or any change in or in the
interpretation of any law, treaty or governmental rule, regulation or order
(other than any change by way of imposition or increase of reserve requirements
included in determining the Eurodollar Rate) or the compliance by such Lender
with any guideline, request or directive promulgated or given after the Initial
Closing Date by or on behalf of any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
Eurodollar Rate Loans, then the Borrowers shall from time to time, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), pay,
jointly and severally, to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that no Borrower shall be liable for
increased costs relating to periods up to but excluding the date 180 days before
the initial demand is made hereunder by such Lender with respect to the change
that would otherwise justify such liability. If any Lender becomes entitled to
claim any additional amount pursuant to this clause (c), it shall promptly
notify the Company (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled. A certificate as to the amount of
such increased cost, submitted to the Company and the Administrative Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
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(d) Illegality
Notwithstanding any other provision of this Agreement, if any
Lender determines that the introduction of or any change in or in the
interpretation of any law, treaty or governmental rule, regulation or order
after the date of this Agreement shall make it unlawful, or any central bank or
other Governmental Authority shall assert that it is unlawful, for any Lender or
its Eurodollar Lending Office to make Eurodollar Rate Loans or to continue to
fund or maintain Eurodollar Rate Loans, then, on notice thereof and demand
therefor by such Lender to the Company through the Administrative Agent, (i) the
obligation of such Lender to make or to continue Eurodollar Rate Loans and to
convert Base Rate Loans into Eurodollar Rate Loans shall be suspended, and each
such Lender shall make a Base Rate Loan as part of any requested Borrowing of
Eurodollar Rate Loans and (ii) if the affected Eurodollar Rate Loans are then
outstanding, the applicable Borrower shall immediately convert each such Loan
into a Base Rate Loan. If at any time after a Lender gives notice under this
clause (d) such Lender determines that it may lawfully make Eurodollar Rate
Loans, such Lender shall promptly give notice of that determination to the
Company and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrowers' right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans
shall thereupon be restored.
(e) Breakage Costs
In addition to all amounts required to be paid by any Borrower
pursuant to Section 2.10 (Interest), each Borrower shall compensate each Lender,
upon demand, for all losses, expenses and liabilities (including any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such Lender's Eurodollar
Rate Loans to such Borrower but excluding any loss of the Applicable Margin on
the relevant Loans) that such Lender may sustain (i) if for any reason a
proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans
does not occur on a date specified therefor in a Notice of Borrowing or a Notice
of Conversion or Continuation given by such Borrower or in a telephonic request
by it for borrowing or conversion or continuation or a successive Interest
Period does not commence after notice therefor is given pursuant to Section 2.11
(Conversion/Continuation Option), (ii) if for any reason any Eurodollar Rate
Loan is prepaid (including mandatorily pursuant to Section 2.9 (Mandatory
Prepayments)) on a date that is not the last day of the applicable Interest
Period, (iii) as a consequence of a required conversion of a Eurodollar Rate
Loan to a Base Rate Loan as a result of any of the events indicated in clause
(d) above or (iv) as a consequence of any failure by such Borrower to repay
Eurodollar Rate Loans when required by the terms hereof. The Lender making
demand for such compensation shall deliver to the Company concurrently with such
demand a written statement as to such losses, expenses and liabilities, and this
statement shall be conclusive as to the amount of compensation due to that
Lender, absent manifest error.
SECTION 2.15 CAPITAL ADEQUACY
If at any time any Lender determines that (a) the adoption of
or any change in or in the interpretation of any law, treaty or governmental
rule, regulation or order after the date of this Agreement regarding capital
adequacy, (b) compliance with any such law, treaty, rule, regulation or order or
(c) compliance with any guideline or request or directive from any central bank
or other Governmental Authority (whether or not having the force of law) shall
have the effect of reducing the rate of return on such Lender's (or any
corporation controlling such Lender's) capital as a consequence of its
obligations hereunder or under or in respect of any
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AMENDED AND RESTATED CREDIT AGREEMENT
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Letter of Credit to a level below the level that such Lender or such corporation
could have achieved but for such adoption, change, compliance or interpretation,
then, upon demand from time to time by such Lender (with a copy of such demand
to the Administrative Agent), the Borrowers, jointly and severally, agree that
they shall pay to the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such reduction; provided, however, that no Borrower
shall be liable for reductions in rates of return relating to periods up to but
excluding the date 180 days before the initial demand is made hereunder by such
Lender with respect to the event in clauses (a), (b) or (c) above relating to
such reduction. A certificate as to such amounts submitted to the Company and
the Administrative Agent by such Lender shall be conclusive and binding for all
purposes absent manifest error.
SECTION 2.16 TAXES
(a) Any and all payments by any Borrower under each Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding (i) in the case of each
Lender and the Administrative Agent (A) taxes measured by its net income
(including branch profits tax, alternative minimum tax and other taxes imposed
in lieu of net income tax), and franchise taxes imposed on it, by the
jurisdiction (or any political subdivision thereof) under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or in which
it is engaged in business and (B) any United States withholding taxes payable
with respect to payments under the Loan Documents under laws (including any
statute, treaty or regulation) in effect on the Initial Closing Date (or, in the
case of an Eligible Assignee, the date of the Assignment and Acceptance)
applicable to such Lender or the Administrative Agent, as the case may be, but
not excluding any United States withholding payable as a result of any change in
such laws occurring after the Initial Closing Date (or the date of such
Assignment and Acceptance) and (C) Taxes resulting from the failure of any
Non-U.S. Lender to comply with clause (f) of this Section 2.16 and (ii) in the
case of each Lender, taxes measured by its net income (including branch profits
tax, alternative minimum tax and other taxes imposed in lieu of net income tax),
and franchise taxes imposed on it, by the jurisdiction in which such Lender's
Applicable Lending Office is located or in which it is engaged in business (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If any Taxes shall be
required by law to be deducted from or in respect of any sum payable under any
Loan Document to any Lender or the Administrative Agent (w) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.16) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (x) the relevant Borrower shall make such deductions, (y)
the Borrowers shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law and (z) the
Borrowers shall deliver to the Administrative Agent evidence of such payment.
(b) In addition, the Borrowers hereby, jointly and severally,
agree to pay any present or future stamp or documentary taxes or any other
excise taxes, charges or similar levies of the United States or any political
subdivision thereof or any applicable foreign jurisdiction, and all liabilities
with respect thereto, arising from any payment made under any Loan Document or
from the execution, delivery or registration of, or otherwise with respect to,
any Loan Document (collectively, "Other Taxes").
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(c) The Borrowers hereby, jointly and severally, agree to
indemnify each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction
on amounts payable under this Section 2.16) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including for
penalties, interest and expenses) arising therefrom or with respect thereto
other than any such liabilities attributable to any gross negligence of such
Lender or, as the case may be, the Administrative Agent. This indemnification
shall be made within 30 days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes, the Borrowers shall furnish to the Administrative Agent, at its
address referred to in Section 11.8 (Notices, Etc.), the original or a certified
copy of a receipt evidencing payment thereof (or, if such original or certified
copy is not available, any other proof of payment reasonably satisfactory to the
Administrative Agent).
(e) Without prejudice to the survival of any other agreement
of any Borrower hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.16 shall survive the payment in full of the
Obligations.
(f) Prior to the Effective Date in the case of each Non-U.S.
Lender that is a signatory hereto, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Non-U.S. Lender and from time to time thereafter if requested by the Company or
the Administrative Agent, each Non-U.S. Lender that is entitled at such time to
an exemption from United States withholding tax, or that is subject to such tax
at a reduced rate under an applicable tax treaty, shall provide the
Administrative Agent and the Company with two completed copies of (i) Form
W-8ECI (claiming exemption from withholding because the income is effectively
connected with a U.S. trade or business) or any successor form, (ii) Form W-8BEN
(claiming exemption from, or a reduction of, withholding tax under an income tax
treaty) or any successor form, (iii) in the case of a Non-U.S. Lender claiming
exemption under Sections 871(h) or 881(c) of the Code, a Form W-8BEN (claiming
exemption from withholding under the portfolio interest exemption) or any
successor form, together with a certificate satisfactory to the Borrower and the
Administrative Agent executed by such Non-U.S. Lender stating that it meets all
conditions for the portfolio interest exemption, including the statement as to
its non-bank status or (iv) or any other applicable form, certificate or
document prescribed by the IRS certifying as to such Non-U.S. Lender's
entitlement to such exemption from United States withholding tax or reduced rate
with respect to all payments to be made to such Non-U.S. Lender under the Loan
Documents. Unless the Company and the Administrative Agent have received forms
or other documents satisfactory to them indicating that payments under any Loan
Document to or for a Non-U.S. Lender are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrowers or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.16 shall use its reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that would be payable or may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender.
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(h) If any Lender receives a refund or credit against its tax
that, in the reasonable judgment of the Lender, is attributable to the
additional amount paid by the Borrower under this Section 2.16, such Lender
shall promptly pay to the Borrower the amount of such refund or credit.
(i) Each Lender selling participations relating to the Loan
Document shall be responsible for complying with any registration requirement
and withholding requirement (including the receipt of any applicable forms,
certificates and documents) as they relate to such participations, pursuant to
the Code and the regulations thereunder.
SECTION 2.17 SUBSTITUTION OF LENDERS
In the event that (a) (i) any Lender makes a claim under
Section 2.14(c) (Increased Costs) or Section 2.15 (Capital Adequacy), (ii) it
becomes illegal for any Lender to continue to fund or make any Eurodollar Rate
Loan and such Lender notifies the Company pursuant to Section 2.14(d)
(Illegality) or Section 2.15 (Capital Adequacy) or (iii) any Borrower is
required to make any payment pursuant to Section 2.16 (Taxes), that is
attributable to any Lender, or any Lender is a Non-Funding Lender, (b) in the
case of subclause (a)(i) above, as a consequence of increased costs in respect
of which such claim is made, the effective rate of interest payable to such
Lender under this Agreement with respect to its Loans materially exceeds the
effective average annual rate of interest payable to the Requisite Lenders under
this Agreement and (c) Lenders holding at least 75% of the Revolving Credit
Commitments are not subject to such increased costs or illegality, payment or
proceedings (any such Lender, an "Affected Lender"), the Company may substitute
another financial institution for such Affected Lender hereunder, upon
reasonable prior written notice (which written notice must be given within 90
days following the occurrence of any of the events described in subclauses
(a)(i), (ii), (iii) or (iv) above) by the Company to the Administrative Agent
and the Affected Lender that the Company intends to make such substitution,
which substitute financial institution must be an Eligible Assignee and, if not
a Lender, reasonably acceptable to the Administrative Agent; provided, however,
that if more than one Lender claims increased costs, illegality or right to
payment arising from the same act or condition and such claims are received by
the Company within 30 days of each other then the Company may substitute all,
but not (except to the extent the Company has already substituted one of such
Affected Lenders before the Company's receipt of the other Affected Lenders'
claim) less than all, Lenders making such claims. In the event that the proposed
substitute financial institution or other entity is reasonably acceptable to the
Administrative Agent and the written notice was properly issued under this
Section 2.17, the Affected Lender shall sell and the substitute financial
institution or other entity shall purchase, pursuant to an Assignment and
Acceptance, all rights and claims of such Affected Lender under the Loan
Documents and the substitute financial institution or other entity shall assume
and the Affected Lender shall be relieved of its Revolving Credit Commitments
and all other prior unperformed obligations of the Affected Lender under the
Loan Documents (other than in respect of any damages (other than exemplary or
punitive damages, to the extent permitted by applicable law) in respect of any
such unperformed obligations). Upon the effectiveness of such sale, purchase and
assumption (that, in any event, shall be conditioned upon the payment in full by
the Borrowers to the Affected Lender in cash of all fees, unreimbursed costs and
expenses and indemnities accrued and unpaid through such effective date), the
substitute financial institution or other entity shall become a "Lender"
hereunder for all purposes of this Agreement having a Revolving Credit
Commitment in the amount of such Affected Lender's Revolving Credit Commitment
assumed by it and such Revolving Credit Commitment of the Affected Lender shall
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be terminated, provided, however, that all indemnities under the Loan Documents
shall continue in favor of such Affected Lender.
ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT
This Agreement, including the obligation of each Lender to
make the Loans requested to be made by it on the Effective Date and the
obligation of each Issuer to issue Letters of Credit on the Effective Date,
shall not become effective until the date (the "Effective Date") that all of the
following conditions precedent are satisfied:
(a) Certain Documents. The Administrative Agent shall have
received on the Effective Date each of the following, each dated the Effective
Date unless otherwise indicated or agreed to by the Administrative Agent, in
form and substance satisfactory to the Administrative Agent and in sufficient
copies for each Lender:
(i) this Agreement, duly executed and delivered
by each Borrower signatory hereto;
(ii) the Pledge and Security Agreement, in
substantially the form of Exhibit G (Form of Pledge and Security
Agreement), duly executed by the Company, each Borrower and each
Subsidiary Guarantor;
(iii) the Guaranty, in substantially the form of
Exhibit F (Form of Guaranty), duly executed by the Company, each
Borrower, K*TEC Holdings and each Subsidiary Guarantor;
(iv) a favorable opinion of counsel to the Loan
Parties covering matters of New York, Delaware, Texas, Oregon and New
Hampshire law, in each case addressed to the Administrative Agent and
the Lenders and addressing such matters as any Lender through the
Administrative Agent may reasonably request;
(v) a certificate of a Responsible Officer of
the Company certifying that all of the documents required to be filed
with any Governmental Authority to effectuate the Corporate
Restructuring have been filed with such Governmental Authority and a
copy of all documents in respect of such Corporate Restructuring as may
be reasonably requested by the Administrative Agent, each certified as
being true, correct and complete copies by a Responsible Officer of the
Company or the applicable Loan Party;
(vi) a copy of the articles or certificate of
incorporation (or equivalent organizational documents) of each Loan
Party, certified as of a recent date by the Secretary of State of the
state of incorporation of such Loan Party, together with certificates
of such official attesting to the good standing of each such Loan
Party;
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(vii) a certificate of the Secretary or an
Assistant Secretary or other authorized signatory of each Loan Party
certifying (A) the names and true signatures of each officer or
authorized signatory of such Loan Party who has been authorized to
execute and deliver any Loan Document or other document required
hereunder to be executed and delivered by or on behalf of such Loan
Party, (B) the by-laws (or equivalent Constituent Document) of such
Loan Party as in effect on the date of such certification (or that
there was no change thereto since the by-laws last delivered to
Administrative Agent in connection with the Existing Credit Agreement),
(C) the resolutions of such Loan Party's Board of Directors (or
equivalent governing body) approving and authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents
to which it is a party and (D) that there have been no changes in the
certificate of incorporation (or equivalent Constituent Document) of
such Loan Party from the certificate of incorporation (or equivalent
Constituent Document) delivered pursuant to clause (vi) above; and
(viii) such other certificates, documents,
agreements and information respecting any Loan Party as any Lender
through the Administrative Agent may reasonably request.
(b) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent and the
Lenders, as applicable, all fees due and payable on or before the Effective Date
(including all such fees described in the Fee Letter) and all expenses due and
payable on or before the Effective Date; and
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF
CREDIT
The obligation of each Lender on any date (including the
Effective Date) to make any Loan and of each Issuer on any date (including the
Effective Date) to issue any Letter of Credit is subject to the satisfaction of
all of the following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit.
With respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing (or, in the case of Swing Loans, a duly executed
Swing Loan Request), and, with respect to any Letter of Credit, the
Administrative Agent and the Issuer shall have received a duly executed Letter
of Credit Request.
(b) Representations and Warranties; No Defaults. The following
statements shall be true on the date of such Loan or issuance, both before and
after giving effect thereto and, in the case of such Loan, to the application of
the proceeds therefrom:
(i) The representations and warranties set forth
in Article IV (Representations and Warranties) and in the other Loan
Documents shall be true and correct on and as of the Effective Date and
shall be true and correct in all material respects on and as of any
such date after the Effective Date with the same effect as though made
on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date; and
(ii) no Default or Event of Default shall have
occurred and be continuing.
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AMENDED AND RESTATED CREDIT AGREEMENT
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(c) Borrowing Base. The Borrowers shall have delivered the
Borrowing Base Certificate required to be delivered by Section 6.12(a)
(Borrowing Base Determination). After giving effect to the Loans or Letters of
Credit requested to be made or issued on any such date and the use of proceeds
thereof, (i) the aggregate Revolving Credit Outstandings shall not exceed the
Maximum Credit at such time and (ii) for each Borrower, the aggregate Revolving
Credit Outstandings owing by such Borrower shall not exceed such Borrower's
Borrowing Base at such time.
(d) No Legal Impediments. The making of the Loans or the
issuance of such Letter of Credit on such date does not violate any Requirement
of Law on the date of or immediately following such Loan or issuance and is not
enjoined, temporarily, preliminarily or permanently.
(e) Additional Matters. The Administrative Agent shall have
received such additional documents, information and materials as any Lender,
through the Administrative Agent, may reasonably request.
Each submission by any Borrower to the Administrative Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by such Borrower of the
proceeds of each Loan requested therein, and each submission by any Borrower to
an Issuer of a Letter of Credit Request, and the issuance of each Letter of
Credit requested therein, shall be deemed to constitute a representation and
warranty by the Borrowers as to the matters specified in clause (b) above on the
date of the making of such Loan or the issuance of such Letter of Credit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative
Agent to enter into this Agreement, each of the Company and each Borrower
represents and warrants to the Lenders, the Issuers and the Administrative Agent
that, (x) on and as of the Effective Date and (y) on and as of each date as
required by subclause (i) of clause (b) of Section 3.2 (Conditions Precedent to
Each Loan and Letter of Credit):
SECTION 4.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW
Each of the Company and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where such
qualification is necessary, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect, (c) has all requisite
power and authority and the legal right to own, pledge, mortgage and operate its
properties, to lease the property it operates under lease and to conduct its
business as now or currently proposed to be conducted, (d) is in compliance with
its Constituent Documents, (e) is in compliance with all applicable Requirements
of Law except where the failure to be in compliance would not, in the aggregate,
have a Material Adverse Effect and (f) has all necessary licenses, permits,
consents or approvals from or by, has made all necessary filings with, and has
given all necessary notices to, each Governmental Authority having jurisdiction,
to the extent required for such ownership, operation and conduct, except for
licenses, permits, consents, approvals or filings that can be obtained or made
by the taking of
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AMENDED AND RESTATED CREDIT AGREEMENT
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ministerial action to secure the grant or transfer thereof or the failure to
obtain or make would not, in the aggregate, have a Material Adverse Effect.
SECTION 4.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS
(a) The execution, delivery and performance by each Loan Party
of the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby:
(i) are within such Loan Party's corporate,
limited liability company, partnership or other powers;
(ii) have been or, at the time of delivery
thereof pursuant to Article III (Conditions To Loans And Letters Of
Credit) will have been, duly authorized by all necessary corporate
action, including the consent of shareholders where required;
(iii) do not and will not (A) contravene any Loan
Party's or any of its Subsidiaries' respective Constituent Documents,
(B) violate any other Requirement of Law applicable to any Loan Party
(including Regulations T, U and X of the Federal Reserve Board), or any
order or decree of any Governmental Authority or arbitrator applicable
to any Loan Party, (C) conflict with or result in the breach of, or
constitute a default under, or result in or permit the termination or
acceleration of, any Contractual Obligation of any Loan Party or any of
its Subsidiaries or (D) result in the creation or imposition of any
Lien upon any of the property of any Loan Party or any of its
Subsidiaries, other than those in favor of the Secured Parties pursuant
to the Collateral Documents; and
(iv) do not require the consent of, authorization
by, approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those listed on
Schedule 4.2 (Consents) and that have been or will be, prior to the
Effective Date, obtained or made, copies of which have been or will be
delivered to the Administrative Agent pursuant to Section 3.1
(Conditions Precedent to the Effectiveness of this Agreement), and each
of which on the Effective Date will be in full force and effect and,
with respect to the Collateral, filings required to perfect the Liens
created by the Collateral Documents.
(b) This Agreement has been, and each of the other Loan
Documents will have been upon delivery thereof pursuant to the terms of this
Agreement, duly executed and delivered by each Loan Party party thereto. This
Agreement is, and the other Loan Documents are or, as the case may be will be
when delivered hereunder, the legal, valid and binding obligation of each Loan
Party party thereto, enforceable against such Loan Party in accordance with its
terms.
SECTION 4.3 OWNERSHIP OF SUBSIDIARIES
Set forth on Schedule 4.3 (Ownership of Subsidiaries) hereto
is a complete and accurate list showing, as of the Effective Date, all
Subsidiaries of the Company and, as to each such Subsidiary, the jurisdiction of
its incorporation, the number of shares of each class of Stock authorized (if
applicable), the number outstanding on the Effective Date and the number and
percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Company. All of the outstanding Stock of each Subsidiary of
the Company has been validly issued, is fully paid and non-assessable and (x) in
the case of the Borrowers, is owned by the
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Company directly and (y) otherwise, is owned by a Borrower or a Wholly-Owned
Subsidiary of a Borrower, in each case, free and clear of all Liens (other than
the Lien in favor of the Secured Parties created pursuant to the Pledge and
Security Agreement). No Stock of any Subsidiary of the Company is subject to any
option, warrant, right of conversion or purchase or any similar right. There are
no agreements or understandings to which the Company is a party with respect to
the voting, sale or transfer of any shares of Stock of any Borrower. The Company
has no direct Subsidiaries other than the Borrowers and owns no other Stock
other than that of the Borrowers. No Subsidiary of the Company is a party to, or
has knowledge of, any agreement restricting the transfer or hypothecation of any
share of Stock of any such Subsidiary, other than the Loan Documents. Neither
the Company nor any of its Subsidiaries owns or holds, directly or indirectly,
any Stock of any Person other than such Subsidiaries and Investments permitted
by Section 8.3 (Investments).
SECTION 4.4 FINANCIAL STATEMENTS
(a) The consolidated balance sheets of the Borrowers and their
Subsidiaries as at December 31, 2001, and the related consolidated statements of
income, retained earnings and cash flows of the Borrowers and their Subsidiaries
for the fiscal year then ended, certified by the Company's Accountants, copies
of which have been furnished to each Lender, fairly present the consolidated
financial condition of the Borrowers and their Subsidiaries as at such dates and
the consolidated results of the operations of the Borrowers and their
Subsidiaries for the period ended on such dates, all in conformity with GAAP.
The consolidated balance sheet of the Company and its Subsidiaries as at
September 30, 2002, and the related consolidated statements of income, retained
earnings and cash flows of the Company and its Subsidiaries for the nine months
then ended, copies of which have been furnished to each Lender, fairly present,
subject to the absence of footnote disclosure and normal recurring year-end
audit adjustments, the consolidated financial condition of the Company and its
Subsidiaries as at such date and the consolidated results of the operations of
the Company and its Subsidiaries for the period ended on such date, all in
conformity with GAAP.
(b) Neither the Borrower nor any of its Subsidiaries has any
material obligation, contingent liability or liability for taxes, long-term
leases or unusual forward or long-term commitment that is not reflected in the
Financial Statements referred to in clause (a) above or in the notes thereto and
not otherwise permitted by this Agreement.
(c) The Business Plan has been prepared by the Company in
light of the past operations of its business, and reflects the Company's
business plan for the three year period beginning on January 1, 2003 on a month
by month basis for the first year, on a quarter by quarter basis for the second
year and on a year by year basis thereafter. The Business Plan is based upon
estimates and assumptions stated therein, all of which each of the Company and
each Borrower believes to be reasonable and fair in light of current conditions
and current facts known to it as of the date of the Business Plan.
SECTION 4.5 MATERIAL ADVERSE CHANGE
Since December 31, 2001, there has been no Material Adverse
Change and there have been no events or developments that, in the aggregate,
have had a Material Adverse Effect except as reflected on the unaudited
Financial Statements delivered to the Administrative Agent prior to the
Effective Date pursuant to clauses (b) and (c) of Section 6.1 (Financial
Statements) in
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respect of the first three Fiscal Quarters in Fiscal Year 2002, the applicable
fiscal months in the Fiscal Year 2002 and January and February in the Fiscal
Year 2003.
SECTION 4.6 SOLVENCY
Both before and after giving effect to (a) the Loans and
Letter of Credit Obligations to be made or extended on the Effective Date
(together with any Loans and Letter of Credit Obligations made or extended under
the Existing Credit Agreement) or such other date as Loans and Letter of Credit
Obligations requested hereunder are made or extended, (b) the disbursement of
the proceeds of such Loans pursuant to the instructions of any Borrower, (c) the
consummation of the transactions contemplated hereby and (d) the payment and
accrual of all transaction costs in connection with the foregoing, each Loan
Party is Solvent.
SECTION 4.7 LITIGATION
There are no pending or, to the knowledge of the Company and
the Borrowers, threatened actions, investigations or proceedings affecting the
Company or any of its Subsidiaries before any court, Governmental Authority or
arbitrator other than those that, in the aggregate, would not have a Material
Adverse Effect. The performance of any action by any Loan Party required or
contemplated by any of the Loan Documents or the Related Documents is not
restrained or enjoined (either temporarily, preliminarily or permanently).
Schedule 4.7 (Litigation) lists all litigation pending against any Loan Party at
the date hereof that, if adversely determined, would have a Material Adverse
Effect.
SECTION 4.8 TAXES
(a) All federal, state, local and foreign income and franchise
and other material tax returns, reports and statements (collectively, the "Tax
Returns") required to be filed by the Company or any of its Tax Affiliates have
been filed with the appropriate Governmental Authorities in all jurisdictions in
which such Tax Returns are required to be filed, all such Tax Returns are true
and correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid prior
to the date on which any fine, penalty, interest, late charge or loss may be
added thereto for non-payment thereof except where contested in good faith and
by appropriate proceedings if adequate reserves therefor have been established
on the books of the Company or such Tax Affiliate in conformity with GAAP. No
Tax Return is under audit or examination by any Governmental Authority and no
notice of such an audit or examination or any assertion of any claim for Taxes
has been given or made by any Governmental Authority. Proper and accurate
amounts have been withheld by the Company and each of its Tax Affiliates from
their respective employees for all periods in full and complete compliance with
the tax, social security and unemployment withholding provisions of applicable
Requirements of Law and such withholdings have been timely paid to the
respective Governmental Authorities.
(b) Neither the Company or any of its Tax Affiliates has (i)
executed or filed with the IRS or any other Governmental Authority any agreement
or other document extending, or having the effect of extending, the period for
the filing of any Tax Return or the assessment or collection of any charges,
(ii) incurred any obligation under any tax sharing agreement or arrangement
other than those of which the Administrative Agent has received a copy prior to
the Effective Date or (iii) been a member of an affiliated, combined or unitary
group other than the group of which the Company (or, as the case may be, its Tax
Affiliate) is the common parent.
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SECTION 4.9 FULL DISCLOSURE
The information prepared or furnished by or on behalf of the
Company or any Borrower in connection with this Agreement, the Related Documents
or the consummation of the transactions contemplated hereunder and thereunder
taken as a whole does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements contained therein
or herein not misleading.
SECTION 4.10 MARGIN REGULATIONS
No Borrower is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of the Federal Reserve Board), and no proceeds of any Borrowing
will be used to purchase or carry any margin stock or to extend credit to others
for the purpose of purchasing or carrying any margin stock in contravention of
Regulation T, U or X of the Federal Reserve Board.
SECTION 4.11 NO BURDENSOME RESTRICTIONS; NO DEFAULTS
(a) Neither the Company nor any of its Subsidiaries (i) is a
party to any Contractual Obligation the compliance with which would have a
Material Adverse Effect or the performance of which by any thereof, either
unconditionally or upon the happening of an event, would result in the creation
of a Lien (other than a Lien permitted under Section 8.2 (Liens, Etc.)) on the
property or assets of any thereof or (ii) is subject to any charter or corporate
restriction that would have a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation owed by it and, to
the knowledge of the Company and the Borrowers, no other party is in default
under or with respect to any Contractual Obligation owed to any Loan Party or to
any Subsidiary of a Loan Party, other than, in either case, those defaults that,
in the aggregate, would not have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is
continuing.
(d) To the best knowledge of the Company and the Borrowers,
there is no Requirement of Law applicable to any Loan Party the compliance with
which by such Loan Party would have a Material Adverse Effect.
SECTION 4.12 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT
Neither the Company nor any of its Subsidiaries is (a) an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended or (b) a "holding company," or an
"affiliate" or a "holding company" or a "subsidiary company" of a "holding
company," as each such term is defined and used in the Public Utility Holding
Act of 1935, as amended.
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AMENDED AND RESTATED CREDIT AGREEMENT
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SECTION 4.13 USE OF PROCEEDS
The proceeds of the Loans and the Letters of Credit have been,
are and will be used by each Borrower solely (a) to refinance existing
Indebtedness of K*TEC and its Subsidiaries related to the Acquisition and for
the payment of related transaction costs, fees and expenses, (b) to make any
Restricted Payment described in Section 8.5(b)(Restricted Payments) and, prior
to the Effective Date, to make the Restricted Payments permitted under the
Existing Credit Agreement and (c) for working capital and general corporate
purposes.
SECTION 4.14 INSURANCE
All policies of insurance of any kind or nature of the Company
or any of its Subsidiaries, including policies of life, fire, theft, product
liability, public liability, property damage, other casualty, employee fidelity,
workers' compensation and employee health and welfare insurance, are in full
force and effect and are of a nature and provide such coverage as is sufficient
and as is customarily carried by businesses of the size and character of such
Person. None of the Company or any of its Subsidiaries has been refused
insurance for any material coverage for which it had applied or had any policy
of insurance terminated (other than at its request).
SECTION 4.15 LABOR MATTERS
(a) There are no strikes, work stoppages, slowdowns or
lockouts pending or threatened against or involving the Company or any of its
Subsidiaries, other than those that, in the aggregate, would not have a Material
Adverse Effect.
(b) There are no unfair labor practices, grievances or
complaints pending, or, to the Company's and the Borrowers' knowledge,
threatened, against or involving the Company or any of it Subsidiaries, nor is
there any arbitration or grievance threatened involving the Company or any of
its Subsidiaries, other than those that, in the aggregate, would not have a
Material Adverse Effect.
(c) Except as set forth on Schedule 4.15 (Labor Matters), as
of the Effective Date, there is no collective bargaining agreement covering any
of the employees of the Company or its Subsidiaries.
(d) Schedule 4.15 (Labor Matters) sets forth, as of the
Effective Date, all material consulting agreements, executive employment
agreements, executive compensation plans, deferred compensation agreements,
employee stock purchase and stock option plans and severance plans of the
Company and any of its Subsidiaries.
SECTION 4.16 ERISA
(a) Schedule 4.16 (List of Plans) separately identifies as of
the Effective Date all Title IV Plans, all Multiemployer Plans and all of the
employee benefit plans within the meaning of Section 3(3) of ERISA to which the
Company or any of its Subsidiaries has any obligation or liability, contingent
or otherwise.
(b) Each employee benefit plan of the Company or any of its
Subsidiaries that is intended to qualify under Section 401 of the Code does so
qualify, and any trust created
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AMENDED AND RESTATED CREDIT AGREEMENT
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thereunder is exempt from tax under the provisions of Section 501 of the Code,
except where such failures, in the aggregate, would not have a Material Adverse
Effect.
(c) Each Title IV Plan is in compliance in all material
respects with applicable provisions of ERISA, the Code and other Requirements of
Law except for non-compliances that, in the aggregate, would not have a Material
Adverse Effect.
(d) There has been no, nor is there reasonably expected to
occur, any ERISA Event that would have a Material Adverse Effect.
(e) Except to the extent set forth on Schedule 4.16 (List of
Plans), none of the Company, any of the Company's Subsidiaries or any ERISA
Affiliate would have any Withdrawal Liability as a result of a complete
withdrawal as of the date hereof from any Multiemployer Plan.
SECTION 4.17 ENVIRONMENTAL MATTERS
(a) The operations of the Company and each of its Subsidiaries
have been and are in compliance with all Environmental Laws, including obtaining
and complying with all required environmental, health and safety Permits, other
than non-compliances that, in the aggregate, would not have a reasonable
likelihood of the Company and its Subsidiaries incurring Environmental
Liabilities and Costs after the date hereof in excess of $2,000,000.
(b) None of the Company or any of its Subsidiaries or any Real
Property currently or, to the knowledge of the Company and the Borrowers,
previously owned, operated or leased by or for the Company or any of its
Subsidiaries is subject to any pending or, to the knowledge of the Company and
the Borrowers, threatened, claim, order, agreement, notice of violation, notice
of potential liability or is the subject of any pending or threatened proceeding
or governmental investigation under or pursuant to Environmental Laws other than
those that, in the aggregate, are not reasonably likely to result in the Company
and its Subsidiaries incurring Environmental Liabilities and Costs in excess of
$1,000,000.
(c) Except as disclosed on Schedule 4.17 (Environmental
Matters), none of the Company or any of its Subsidiaries is a treatment, storage
or disposal facility requiring a permit under the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et seq., the regulations thereunder or any
state analog.
(d) To the knowledge of the Company and the Borrowers and each
of their respective Subsidiaries after due inquiry, there are no facts,
circumstances or conditions arising out of or relating to the operations or
ownership of the Company or any of its Subsidiaries or of real property owned,
operated or leased by the Company or any of its Subsidiaries that are not
specifically disclosed in the information furnished to the Administrative Agent
or the Lenders other than those that, in the aggregate, would not have a
reasonable likelihood of the Company and its Subsidiaries incurring
Environmental Liabilities and Costs in excess of $2,000,000.
(e) As of the Effective Date, (i) no Environmental Lien has
attached to any property of the Company or any of its Subsidiaries and (ii) to
the knowledge of the Company and the Borrowers, no facts, circumstance or
conditions exist that could reasonably be expected to result in any such Lien
attaching to any such property.
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AMENDED AND RESTATED CREDIT AGREEMENT
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(f) The Company and each of its Subsidiaries has provided the
Administrative Agent with copies of all environmental, health or safety audits,
studies, assessments, inspections, investigations or other environmental health
and safety reports relating to the operations of the Company or any of its
Subsidiaries or any of their real property that were completed in the last five
years and are in the possession, custody or control of the Company or any of its
Subsidiaries.
SECTION 4.18 INTELLECTUAL PROPERTY
Each of the Company and each Borrower and each of their
respective Subsidiaries owns or licenses or otherwise has the right to use all
licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights (including all
"Intellectual Property," as defined in the Pledge and Security Agreement) that
are necessary for the operations of its businesses, without infringement upon or
conflict with the rights of any other Person with respect thereto, including all
trade names associated with any private label brands of the Company or any of
its Subsidiaries. To the Company's and each Borrowers' knowledge, no slogan or
other advertising device, product, process, method, substance, part or
component, or other material now employed, or now contemplated to be employed,
by the Company or any of its Subsidiaries infringes upon or conflicts with any
rights owned by any other Person except where such infringement or conflict
would not have a Material Adverse Effect, and no claim or litigation regarding
any of the foregoing is pending or threatened that would have a Material Adverse
Effect.
SECTION 4.19 TITLE; REAL PROPERTY
(a) Each of the Company and its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all Real Property and good
title to all personal property purported to be owned by it, including those
reflected on the most recent Financial Statements delivered by the Company, and
none of such properties and assets is subject to any Lien, except Liens
permitted under Section 8.2 (Liens, Etc.). The Company and its Subsidiaries have
received all deeds, assignments, waivers, consents, non-disturbance and
recognition or similar agreements, bills of sale and other documents and have
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect the Company's and its Subsidiaries' right, title and
interest in and to all such property.
(b) Set forth on Schedule 4.19 (Real Property) hereto is a
complete and accurate list of all Real Property owned by each Loan Party and its
Subsidiaries as of the Effective Date, showing the street address, county or
other relevant jurisdiction, state and record owner.
(c) As of the Effective Date, no Loan Party nor any of its
Subsidiaries owns or holds, or is obligated under or a party to, any lease,
option, right of first refusal or other contractual right to purchase, acquire,
sell, assign or dispose of any real property owned or leased by such Loan Party
or any of its Subsidiaries.
(d) All components of all improvements included within the
Real Property owned or leased by any Loan Party or any of its Subsidiaries
(collectively, "Improvements"), including the roofs and structural elements
thereof and the heating, ventilation, air conditioning, plumbing, electrical,
mechanical, sewer, waste water, storm water, paving and parking equipment,
systems and facilities included therein, are in all material respects in good
working order and repair. All water, gas, electrical, steam, compressed air,
telecommunication, sanitary
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AMENDED AND RESTATED CREDIT AGREEMENT
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and storm sewage lines and systems and other similar systems serving the real
property owned or leased by any Loan Party or any of its Subsidiaries are
installed and operating and are sufficient to enable the Real Property owned or
leased by such Loan Party or Subsidiary of any Loan Party to continue to be used
and operated in the manner currently being used and operated, and no Loan Party
nor any of its Subsidiaries has any knowledge of any factor or condition that
could result in the termination or material impairment of the furnishing
thereof. No Improvement or portion thereof is dependent for its access or the
operation of the business conducted thereon on any land, building or other
Improvement not included in the Real Property owned or leased by any Loan Party
or any of its Subsidiaries.
(e) As of the Effective Date, no portion of any Real Property
owned or leased by any Loan Party or any of its Subsidiaries has suffered any
material damage by fire or other casualty loss that has not heretofore been
completely repaired and restored to its original condition. No portion of any
Real Property owned or leased by any Loan Party or any of its Subsidiaries and
subject to a Mortgage is located in a special flood hazard area as designated by
any federal Governmental Authority, unless all required or appropriate flood
insurance has been maintained.
(f) All Permits required to have been issued or appropriate to
enable all real property owned or leased by the Company or any of its
Subsidiaries to be lawfully occupied and used for all of the purposes for which
they are currently occupied and used have been lawfully issued and are in full
force and effect, other than those that, in the aggregate, would not have a
Material Adverse Effect.
(g) As of the Effective Date, none of the Company or any of
its Subsidiaries has received any notice, or has any knowledge, of any pending,
threatened or contemplated condemnation proceeding affecting any Real Property
owned or leased by the Company or any of its Subsidiaries or any part thereof,
except those that, in the aggregate, would not have a Material Adverse Effect.
SECTION 4.20 RELATED DOCUMENTS
(a) The execution, delivery and performance by each Loan Party
of the Related Documents to which it is a party and the consummation of the
transactions contemplated thereby by such Loan Party:
(i) are within such Loan Party's respective
corporate, limited liability company, partnership or other powers;
(ii) have been duly authorized by all necessary
corporate or other action, including the consent of stockholders where
required;
(iii) do not and will not (A) contravene or
violate any Loan Party's or any of its Subsidiaries' respective
Constituent Documents, (B) violate any other Requirement of Law
applicable to any Loan Party or any order or decree of any Governmental
Authority or arbitrator, (C) conflict with or result in the breach of,
constitute a default under, or result in or permit the termination or
acceleration of, any Contractual Obligation of any Loan Party or any of
its Subsidiaries, except for those that, in the aggregate, would not
have a Material Adverse Effect or (D) result in the creation or
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AMENDED AND RESTATED CREDIT AGREEMENT
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imposition of any Lien upon any of the property of any Loan Party or
any of its Subsidiaries; and
(iv) do not require the consent of, authorization
by, approval of, notice to, or filing or registration with, any
Governmental Authority or any other Person, other than those that have
been obtained, each of is in full force and effect on the Effective
Date and none of which will, on the Effective Date, impose materially
adverse conditions upon the exercise of control by the Company over any
Borrower or any Borrower over any of its Subsidiaries or those that, in
the aggregate, if not obtained, would not have a Material Adverse
Effect.
(b) Each of the Related Documents has been duly executed and
delivered by each Loan Party party thereto and is the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan Party
in accordance with its terms.
(c) As of the Effective Date, none of the Related Documents
has been amended or modified in any respect and no provision therein has been
waived, except, in each case, to the extent permitted by Section 8.13
(Modification of Related Documents) and, as of each of the date of the closing
of the Acquisition and of the consummation of the EFTC Merger, (i) each of the
representations and warranties therein were true and correct in all material
respects (and, if made by the Seller in respect of the Acquisition Agreement, to
the best of the knowledge of K*TEC and its Subsidiaries) and (ii) no default or
event that, with the giving of notice or lapse of time or both, would be a
default had occurred thereunder.
SECTION 4.21 BANK ACCOUNTS
Schedule 4.21 (Bank Accounts) contains a complete and accurate
list, as of the Effective Date, of each bank account of each Loan Party
specifying the nature of such account and whether any proceeds of Collateral are
deposited therein.
SECTION 4.22 REGULATION H
No Mortgage encumbers improved Real Property that is located
in an area that has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which flood insurance
has been made available under the National Flood Insurance Act of 1968.
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AMENDED AND RESTATED CREDIT AGREEMENT
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ARTICLE V
FINANCIAL COVENANTS
As long as any of the Obligations (other than indemnities not
then due) or the Revolving Credit Commitments remain outstanding, unless the
Requisite Lenders otherwise consent in writing, each of the Company and each
Borrower agrees with the Lenders, the Issuers and the Administrative Agent that:
SECTION 5.1 MINIMUM EBITDA(1)
(a) The Company shall have EBITDA of not less than
($6,000,000) for the Fiscal Quarter ending on or about June 30, 2003;
(b) The Company shall have EBITDA of not less than
($9,000,000) for the last two Fiscal Quarters ending on or about September 30,
2003;
(c) The Company shall have EBITDA of not less than
($9,000,000) for the last three Fiscal Quarters ending on or about December 31,
2003; and
(d) The Company shall have, as of the last day of each Fiscal
Quarter set forth below, EBITDA for the four Fiscal Quarters ending on such day
of not less than the amount set forth opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MINIMUM EBITDA
ON OR ABOUT
---------------------------------------------------
March 31, 2004 ($ 8,000,000)
---------------------------------------------------
June 30, 2004 $ 0
---------------------------------------------------
September 30, 2004 $ 6,000,000
---------------------------------------------------
December 31, 2004 $10,000,000
---------------------------------------------------
SECTION 5.2 MAINTENANCE OF TANGIBLE NET WORTH
On each day during each Fiscal Quarter set forth below, the
Company shall maintain a Tangible Net Worth of not less than the amount set
forth opposite such Fiscal Quarter:
FISCAL QUARTER ENDING MINIMUM TANGIBLE
ON OR ABOUT NET WORTH
-----------------------------------------------------
June 30, 2003 $64,700,000
-----------------------------------------------------
September 30, 2003 $57,200,000
-----------------------------------------------------
December 31, 2003 $52,800,000
-----------------------------------------------------
March 31, 2004 $48,800,000
-----------------------------------------------------
June 30, 2004 $45,800,000
-----------------------------------------------------
September 30, 2004 $43,800,000
-----------------------------------------------------
December 31, 2004 $42,800,000
-----------------------------------------------------
-----------------------------
(1) Parentheses indicate a negative EBITDA.
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AMENDED AND RESTATED CREDIT AGREEMENT
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SECTION 5.3 MAXIMUM CAPITAL EXPENDITURES
During each of the periods set forth below, neither the
Company nor any Borrower shall make or incur, nor shall they permit any of their
respective Subsidiaries to make or incur, Capital Expenditures (in the
aggregate, together with any Capital Expenditures made or incurred prior to the
Effective Date in such period) in excess of the maximum amount set forth below
for such period:
MAXIMUM CAPITAL
PERIOD EXPENDITURES
------------------------------------------------------------------------
Fiscal Year ending on or about December 31, 2003 $ 5,000,000
------------------------------------------------------------------------
Fiscal Year ending on or about December 31, 2004 $10,000,000
------------------------------------------------------------------------
From January 1, 2005 through the Scheduled
Termination Date $ 3,000,000
------------------------------------------------------------------------
provided, however, that to the extent that actual Capital Expenditures for any
such period (whether made before or after the Effective Date) shall be less than
the maximum amount set forth above for such period (without giving effect to the
carryover permitted by this proviso), the difference between said stated maximum
amount and such actual Capital Expenditures shall, in addition, be available for
Capital Expenditures in the next succeeding period.
ARTICLE VI
REPORTING COVENANTS
As long as any of the Obligations (other than indemnities not
then due) or the Revolving Credit Commitments remain outstanding, unless the
Requisite Lenders otherwise consent in writing, each of the Company and each
Borrower agrees with the Lenders, the Issuers and the Administrative Agent that:
SECTION 6.1 FINANCIAL STATEMENTS
The Company shall furnish to the Administrative Agent (with
sufficient copies for each of the Lenders) the following:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month in each Fiscal Year (other than any fiscal month ending on the last
day of any of the first three Fiscal Quarters in any Fiscal Year), financial
information regarding the Company and its Subsidiaries consisting of
consolidated and consolidating unaudited balance sheets as of the close of such
month and the related statements of income and cash flow for such month and that
portion of the current Fiscal Year ending as of the close of such month,
together with an analysis thereof by the management of the Company and setting
forth in comparative form the figures for the corresponding period in the prior
year (if applicable) and the figures contained in the business plan provided
pursuant to clause (e) of Section 6.1 (Financial Statements) for the current
Fiscal Year, in each case certified by a Responsible Officer of the Company as
fairly presenting the
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AMENDED AND RESTATED CREDIT AGREEMENT
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consolidated and consolidating financial position of the Company and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in accordance with GAAP (subject to the
absence of footnote disclosure and normal year-end audit adjustments).
(b) Quarterly Reports. Within 45 days after the end of each of
the first three Fiscal Quarters of each Fiscal Year, financial information
regarding the Company and its Subsidiaries consisting of consolidated and
consolidating unaudited balance sheets as of the close of such Fiscal Quarter
and the related statements of income and cash flow for such Fiscal Quarter and
that portion of the Fiscal Year ending as of the close of such Fiscal Quarter,
together with an analysis thereof by the management of the Company and setting
forth in comparative form the figures for the corresponding period in the prior
Fiscal Year (if available) and the figures contained in the business plan
provided pursuant to clause (e) of Section 6.1 (Financial Statements) for the
current Fiscal Year, in each case certified by a Responsible Officer of the
Company as fairly presenting the consolidated and consolidating financial
position of the Company and its Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and normal
year-end audit adjustments).
(c) Annual Reports. Within 90 days after the end of each
Fiscal Year (or, in the case of Fiscal Year 2002, by April 15, 2003), financial
information regarding the Company and its Subsidiaries consisting of
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as of the end of such year and related statements of income and
cash flows of the Company and its Subsidiaries for such Fiscal Year, all
prepared in conformity with GAAP, together with an analysis thereof by the
management of the Company and setting forth in comparative form the figures for
the corresponding period in the prior Fiscal Year (if available) and the figures
contained in the business plan provided pursuant to clause (e) of Section 6.1
(Financial Statements) for such Fiscal Year, and certified, in the case of such
consolidated financial statements, without qualification as to the scope of the
audit or as to the Company or any of its Subsidiaries being a going concern by
the Company's Accountants, together with the report of such accounting firm
stating that (i) such financial statements fairly present the consolidated
financial position of the Company and its Subsidiaries as at the dates indicated
and the results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes with which such Company's Accountants shall concur and that shall have
been disclosed in the notes to the financial statements) and (ii) the
examination by such Company's Accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards, and accompanied by a certificate stating that in the course
of the regular audit of the business of the Company and its Subsidiaries such
accounting firm has obtained no knowledge that a Default or Event of Default has
occurred and is continuing under the financial or debt covenants, or, if such
accounting firm has knowledge that any such Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof.
(d) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clause (b) or (c) above, a certificate of a
Responsible Officer of the Company (each, a "Compliance Certificate") (i)
demonstrating compliance with each of the financial covenants contained in
Article V (Financial Covenants) that is tested on a quarterly basis and (ii)
stating that no Default or Event of Default has occurred and is continuing or,
if a
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
Default or an Event of Default has occurred and is continuing, stating the
nature thereof and the action the Company proposes to take with respect thereto.
(e) Business Plan. Not later than 30 days after the end of
each Fiscal Year, and containing substantially the types of financial
information contained in the Business Plan, the annual business plan of the
Company and its Subsidiaries for the next succeeding Fiscal Year approved by the
Board of Directors of the Company, which shall include (i) forecasts prepared by
management of the Company for each fiscal month in the next succeeding Fiscal
Year and (ii) forecasts prepared by management of the Company for each of the
succeeding Fiscal Years through the Fiscal Year in which the Scheduled
Termination Date is scheduled to occur, including, in each instance described in
clauses (i) and (ii) above, (A) a projected year-end consolidated balance sheet
and income statement and statement of cash flows and (B) a statement of all of
the material assumptions on which such forecasts are based.
(f) Management Letters, Etc. Within five Business Days after
receipt thereof by any Loan Party, copies of each management letter, exception
report or similar letter or report received by such Loan Party from the
Company's Accountants or any other certified public accountants;
(g) Intercompany Loan Balances. Together with each delivery of
any financial statement pursuant to clause (a) above, a summary of the
outstanding balance of all intercompany Indebtedness as of the last day of the
fiscal month covered by such financial statement, certified by a Responsible
Officer.
(h) Corporate Chart and Other Collateral Updates. Together
with each delivery of any Financial Statement pursuant to clause (b) or (c)
above, (i) a certificate of a Responsible Officer of each Borrower certifying
that the Corporate Chart attached thereto (or the last Corporate Chart delivered
pursuant to this clause (h)) is true, correct, complete and current as of the
date of such Financial Statement and (ii) a certificate of a Responsible Officer
of the Borrower in form and substance reasonably satisfactory to the
Administrative Agent that, to the best of the knowledge of the Company and each
Borrower, all certificates, statements, updates and other documents (including
updated schedules) required to be delivered pursuant to the Pledge and Security
Agreement by any Loan Party in the preceding Fiscal Quarter have been delivered
thereunder (or such delivery requirement was otherwise duly waived or extended).
The reporting requirements set forth in this clause (h) are in addition to, and
are not intended to and shall not replace or otherwise modify, any obligation of
any Loan Party under any Loan Document (including other notice or reporting
requirements). Compliance with the reporting obligations in this clause (h)
shall only provide notice to the Administrative Agent and shall not, by itself,
modify any obligation of any Loan Party under any Loan Document, update any
Schedule to this Agreement or any schedule to any other Loan Document or cure,
or otherwise modify in any way, any failure to comply with any covenant, or any
breach of any representation or warranty, contained in any Loan Document or any
other Default or Event of Default.
SECTION 6.2 DEFAULT NOTICES
As soon as practicable, and in any event within five Business
Days after a Responsible Officer of any Loan Party has actual knowledge of the
existence of any Default, Event of Default or other event having had a Material
Adverse Effect, the Company shall give the Administrative Agent notice
specifying the nature of such Default or Event of Default or other
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AMENDED AND RESTATED CREDIT AGREEMENT
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event, including the anticipated effect thereof, which notice, if given by
telephone, shall be promptly confirmed in writing on the next Business Day.
SECTION 6.3 LITIGATION
Promptly after the commencement thereof, the Company shall
give the Administrative Agent written notice of the commencement of all actions,
suits and proceedings before any domestic or foreign Governmental Authority or
arbitrator affecting the Company or any of its Subsidiaries and that, in the
reasonable judgment of the Company or such Subsidiary, expose the Company or
such Subsidiary to liability in an amount aggregating $500,000 or more or that,
if adversely determined, would have a Material Adverse Effect.
SECTION 6.4 ASSET SALES
Prior to any Asset Sale anticipated to generate in excess of
$2,000,000 in Net Cash Proceeds, the Company shall send the Administrative Agent
a notice (a) describing such Asset Sale or the nature and material terms and
conditions of such transaction and (b) stating the estimated Net Cash Proceeds
anticipated to be received by the Company or any of its Subsidiaries.
SECTION 6.5 NOTICES UNDER RELATED DOCUMENTS
Promptly after the sending or filing thereof, the Company
shall send the Administrative Agent copies of all material notices, certificates
or reports delivered pursuant to any Related Document.
SECTION 6.6 SEC FILINGS; PRESS RELEASES
Promptly after the sending or filing thereof, the Company
shall send the Administrative Agent copies of (a) all reports that the Company
sends to its security holders generally, (b) all reports and registration
statements, if any, that the Company or any of its Subsidiaries (if they are
public companies) files with the Securities and Exchange Commission or any
national or foreign securities exchange or the National Association of
Securities Dealers, Inc., (c) all press releases and (d) all other statements
concerning material changes or developments in the business of such Loan Party
made available by any Loan Party to the public.
SECTION 6.7 LABOR RELATIONS
Promptly after becoming aware of the same, the Company shall
give the Administrative Agent written notice of (a) any material labor dispute
to which the Company or any of its Subsidiaries is or may become a party,
including any strikes, lockouts or other disputes relating to any of such
Person's plants and other facilities and (b) any Worker Adjustment and
Retraining Notification Act or related liability incurred with respect to the
closing of any plant or other facility of any of such Person.
SECTION 6.8 TAX RETURNS
Upon the request of any Lender, through the Administrative
Agent, the Company shall provide copies of all federal, state and local tax
returns and reports filed by the Company or
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any of its Subsidiaries in respect of taxes measured by income (excluding sales,
use and like taxes).
SECTION 6.9 INSURANCE
As soon as is practicable and in any event within 90 days
after the end of each Fiscal Year, the Company shall furnish the Administrative
Agent (in sufficient copies for each of the Lenders) with (a) a report in form
and substance satisfactory to the Administrative Agent and the Lenders outlining
all material insurance coverage maintained as of the date of such report by the
Company and its Subsidiaries and the duration of such coverage and (b) an
insurance broker's statement that all premiums then due and payable with respect
to such coverage have been paid and confirming that the Administrative Agent has
been named as loss payee or additional insured, as applicable.
SECTION 6.10 ERISA MATTERS
The Company shall furnish the Administrative Agent (with
sufficient copies for each of the Lenders):
(a) promptly and in any event within 30 days after the
Company, any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, written notice describing such event;
(b) promptly and in any event within 10 days after the
Company, any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that a request for a minimum funding waiver under Section 412 of the Code
has been filed with respect to any Title IV Plan or Multiemployer Plan, a
written statement of a Responsible Officer of the Company describing such ERISA
Event or waiver request and the action, if any, the Company, its Subsidiaries
and ERISA Affiliates propose to take with respect thereto and a copy of any
notice filed with the PBGC or the IRS pertaining thereto; and
(c) simultaneously with the date that the Company, any of its
Subsidiaries or any ERISA Affiliate files a notice of intent to terminate any
Title IV Plan, if such termination would require material additional
contributions in order to be considered a standard termination within the
meaning of Section 4041(b) of ERISA, a copy of each notice.
SECTION 6.11 ENVIRONMENTAL MATTERS
The Company shall provide the Administrative Agent promptly
and in any event within 10 days of the Company or any Subsidiary learning of any
of the following, written notice of any of the following:
(a) that any Loan Party is or may be liable to any Person as a
result of a Release or threatened Release that could reasonably be expected to
subject such Loan Party to Environmental Liabilities and Costs of $1,000,000 or
more;
(b) the receipt by any Loan Party of notification that any
real or personal property of such Loan Party is or is reasonably likely to be
subject to any Environmental Lien;
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(c) the receipt by any Loan Party of any notice of violation
of or potential liability under, or knowledge by such Loan Party that there
exists a condition that could reasonably be expected to result in a violation of
or liability under, any Environmental Law, except for violations and liabilities
the consequence of which, in the aggregate, would not be reasonably likely to
subject the Loan Parties collectively to Environmental Liabilities and Costs of
$1,000,000 or more;
(d) the commencement of any judicial or administrative
proceeding or investigation alleging a violation of or liability under any
Environmental Law, that, in the aggregate, if adversely determined, would have a
reasonable likelihood of subjecting the Loan Parties collectively to
Environmental Liabilities and Costs of $1,000,000 or more;
(e) any proposed acquisition of stock, assets or real estate,
any proposed leasing of property or any other action by any Loan Party or any of
its Subsidiaries other than those the consequences of which would, in the
aggregate, have reasonable likelihood of subjecting the Loan Parties
collectively to Environmental Liabilities and Costs of less than $1,000,000;
(f) any proposed action by any Loan Party or any of its
Subsidiaries or any change in Environmental Laws that, in the aggregate, have a
reasonable likelihood of requiring the Loan Parties to obtain additional
environmental, health or safety Permits or make additional capital improvements
to obtain compliance with Environmental Laws that, in the aggregate, would cost
$1,000,000 or more or subject the Loan Parties to additional Environmental
Liabilities and Costs of $1,000,000 or more; and
(g) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report delivered pursuant to this Agreement (whether or not
delivered before the Effective Date).
SECTION 6.12 BORROWING BASE DETERMINATION
(a) The Borrowers shall deliver, within three (3) Business
Days after the Effective Date and, thereafter, no later than the Wednesday of
each of the following weeks, a Borrowing Base Certificate setting forth the
Borrowing Base of each Borrower and its Eligible Subsidiaries and the Aggregate
Borrowing Base as of the end of the previous week executed by a Responsible
Officer of each Borrower.
(b) Each Borrower shall conduct, or shall cause to be
conducted, at its expense and upon request of the Administrative Agent, and
present to the Administrative Agent for approval, such appraisals,
investigations and reviews as the Administrative Agent shall request for the
purpose of determining the Borrowing Base of such Borrower and its Eligible
Subsidiaries, all upon notice and at such times during normal business hours and
as often as may be reasonably requested. Each Borrower shall furnish to the
Administrative Agent any information that the Administrative Agent may
reasonably request regarding the determination and calculation of the Borrowing
Base of such Borrower and its Eligible Subsidiaries, including correct and
complete copies of any invoices, underlying agreements, instruments or other
documents and the identity of all Account Debtors in respect of Accounts
referred to therein.
(c) Each Borrower shall promptly notify the Administrative
Agent in writing in the event that at any time such Borrower receives or
otherwise gains knowledge that (i) the
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Borrowing Base of such Borrower and its Eligible Subsidiaries is less than 90%
of the Borrowing Base of such Borrower and its Eligible Subsidiaries reflected
in the most recent Borrowing Base Certificate for such Borrower delivered
pursuant to clause (a) above or (ii) the outstanding Revolving Credit
Outstandings owing by such Borrower exceed the Borrowing Base for such Borrower
and its Eligible Subsidiaries as a result of a decrease therein, in which case
such notice shall also include, without limitation, the amount of such excess.
(d) The Administrative Agent may, at the Borrowers' sole cost
and expense, make test verifications of the Accounts and physical verifications
of the Inventory in any manner and through any medium that the Administrative
Agent considers advisable, and each Borrower shall furnish all such assistance
and information as the Administrative Agent may require in connection therewith.
(e) For the purposes of determining values of Eligible
Equipment and Eligible Real Property on the Effective Date, (i) the orderly
liquidation value of the Borrowers' and their Eligible Subsidiaries' Eligible
Equipment shall be determined using the valuations set forth in the appraisal
dated as of April 1, 2003, by Emerald Technology Valuations, LLC and (ii) the
Fair Market Value of K*TEC and its Eligible Subsidiaries' Eligible Real Property
shall be determined using the valuations set forth in the appraisal dated
February 13, 2002 by CB Xxxxxxx Xxxxx, Inc., as reflected in the Borrowing Base
Certificate delivered to the Administrative Agent prior to the Initial Closing
Date.
(f) The values determined in clause (e) above shall be updated
after the Effective Date (i) in the case of Eligible Equipment, on or about each
anniversary of the Effective Date, based on new appraisals obtained by the
Borrowers at their own expense in form and substance and from an appraiser
reasonably acceptable to the Administrative Agent, (ii) in the case of Eligible
Real Property, at least annually, based on new appraisals obtained by the
Borrowers at their own expense in form and substance and from an appraiser
reasonably acceptable to the Administrative Agent. If any Eligible Equipment is
sold by any Borrower or Eligible Subsidiary thereof in accordance with clause
(b) of Section 8.4 (Sale of Assets), then, the orderly liquidation value of the
remaining Eligible Equipment shall be determined (until the next appraisal,
investigation, "desktop review" or other review conducted in accordance with
this Agreement in respect of such Eligible Equipment) by subtracting from the
orderly liquidation value of the Eligible Equipment of such Borrower or Eligible
Subsidiary prior to such sale the Net Cash Proceeds of such sale used to prepay
the Loans in accordance with clause (a) of Section 2.9 (Mandatory Prepayments).
(g) In addition, the Administrative Agent may conduct (or ask
the Borrowers to conduct at their own expense and with a third-party appraiser
reasonably acceptable to the Administrative Agent) "desktop reviews" and
appraisals of Eligible Inventory, which, disregarding such reviews and
appraisals conducted during the continuance of a Default or Event of Default,
shall be conducted no more than twice in each calendar year.
SECTION 6.13 CUSTOMER CONTRACTS
If any material Contractual Obligation of the Company or any
of its Subsidiaries with any of its customers or other customer arrangement is
cancelled terminated or lost, the Company shall, promptly after the Company or
any Borrower becoming aware of the same, give the Administrative Agent notice of
the same.
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SECTION 6.14 OTHER INFORMATION
Each of the Company and each Borrower shall, and shall cause
each of their respective Subsidiaries to, provide the Administrative Agent or
any Lender with such other information respecting the business, properties,
condition, financial or otherwise, or operations of the Company or any of its
Subsidiaries as any Lender through the Administrative Agent may from time to
time reasonably request.
ARTICLE VII
AFFIRMATIVE COVENANTS
As long as the Obligations (other than indemnities not then
due) or the Revolving Credit Commitments remain outstanding, unless the
Requisite Lenders otherwise consent in writing, each of the Company and each
Borrower agrees with the Lenders, the Issuers and the Administrative Agent that:
SECTION 7.1 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Each of the Company and each Borrower shall, and shall cause
each of its Subsidiaries to, preserve and maintain its corporate existence,
rights (charter and statutory) and franchises, except as permitted by Section
8.3 (Investments), Section 8.4 (Sale of Assets) and Section 8.7 (Restriction on
Fundamental Changes; Permitted Acquisitions).
SECTION 7.2 COMPLIANCE WITH LAWS, ETC.
Each of the Company and each Borrower shall, and shall cause
each of its Subsidiaries to, comply with all applicable Requirements of Law,
Contractual Obligations and Permits, except where the failure so to comply would
not, in the aggregate, have a Material Adverse Effect.
SECTION 7.3 CONDUCT OF BUSINESS
(a) Each of the Company and each Borrower shall, and shall
cause each of its Subsidiaries to, (i) conduct its business in the ordinary
course consistent with past practice and (ii) use its reasonable efforts, in the
ordinary course and consistent with past practice, to preserve its business and
the goodwill and business of the customers, advertisers, suppliers and others
having business relations with the Company or such Borrower or any of its
Subsidiaries, except in each case where the failure to comply with the covenants
in each of clauses (i) and (ii) above would not, in the aggregate, have a
Material Adverse Effect.
(b) Neither RodniC LLC nor CathiO LLC shall conduct any
business other than holding a general partnership interest and limited
partnership interest respectively in Suntron GCO. The Company shall not conduct
any business other than holding the Stock of the Borrowers. For purposes of this
clause (b), "conduct business" shall include holding any asset and incurring any
liability (other than tax liabilities incurred in the ordinary course of
business).
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SECTION 7.4 PAYMENT OF TAXES, ETC.
Each of the Company and each Borrower shall, and shall cause
each of its Subsidiaries to, pay and discharge before the same shall become
delinquent, all lawful governmental claims, taxes, assessments, charges and
levies, except where contested in good faith, by proper proceedings and adequate
reserves therefor have been established on the books of such Borrower or the
appropriate Subsidiary in conformity with GAAP.
SECTION 7.5 MAINTENANCE OF INSURANCE
Each of the Company and each Borrower shall (i) maintain, and
cause to be maintained for each of its Subsidiaries, insurance with responsible
and reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Company, such
Borrower or such Subsidiary operates, and such other insurance as may be
reasonably requested by the Requisite Lenders, and, in any event, all insurance
required by any Collateral Documents and (ii) cause all such insurance to name
the Administrative Agent on behalf of the Secured Parties as additional insured
or loss payee, as appropriate, and to provide that no cancellation, material
addition in amount or material change in coverage shall be effective until after
30 days' written notice thereof to the Administrative Agent.
SECTION 7.6 ACCESS
Each of the Company and each Borrower shall, or shall cause
each of its Subsidiaries to, from time to time permit the Administrative Agent
and the Lenders, or any agents or representatives thereof, on the next Business
Day after notification of the same, whether orally or in writing (except that
during the continuance of an Event of Default, no such notice shall be
required), to (a) examine and make copies of and abstracts from the records and
books of account of the Company or such Borrower and, in each case, each of
their respective Subsidiaries, (b) visit the properties of the Company or such
Borrower and, in each case, each of their respective Subsidiaries, (c) discuss
the affairs, finances and accounts of the Company or such Borrower and, in each
case, each of their respective Subsidiaries with any of their respective
officers or directors and (d) communicate directly with the Company's
Accountants and any other certified public accountants of the Company or such
Borrower. Each of the Company and each Borrower shall authorize its certified
public accountants (including the Company's Accountants) to disclose to the
Administrative Agent or any Lender any and all financial statements and other
information of any kind, as the Administrative Agent or any Lender reasonably
requests from the Company and that such accountants may have with respect to the
business, financial condition, results of operations or other affairs of the
Company or any of its Subsidiaries.
SECTION 7.7 KEEPING OF BOOKS
Each of the Company and each Borrower shall, and shall cause
each of its Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made in conformity with GAAP of all financial
transactions and the assets and business of such Borrower and each such
Subsidiary.
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SECTION 7.8 MAINTENANCE OF PROPERTIES, ETC.
Each of the Company and each Borrower shall, and shall cause
each of its Subsidiaries to, maintain and preserve, (a) all of those of its
properties necessary in the conduct of its business in good working order and
condition, (b) all rights, permits, licenses, approvals and privileges
(including all Permits) used or useful or necessary in the conduct of its
business and (c) all registered patents, trademarks, trade names, copyrights and
service marks with respect to its business; except where failure to so maintain
and preserve the items set forth in clauses (a) through (c) above would not, in
the aggregate, have a Material Adverse Effect.
SECTION 7.9 APPLICATION OF PROCEEDS
The Borrowers shall use the entire amount of the proceeds of
the Loans as provided in Section 4.13 (Use of Proceeds).
SECTION 7.10 ENVIRONMENTAL
Each of the Company and each Borrower shall, and shall cause
each of its Subsidiaries to, comply in all material respects with Environmental
Laws and, without limiting the foregoing, each of the Company and each Borrower
shall, and shall cause of its Subsidiaries to, in each case at the sole cost and
expense of the Company, such Borrower or such Subsidiary, upon receipt of any
notification or otherwise obtaining knowledge of any Release or other event that
has any reasonable likelihood of the Company or its Subsidiaries incurring
Environmental Liabilities and Costs in excess of $1,000,000, (a) conduct, pay
for consultants to conduct or ensure that a responsible party conducts, tests or
assessments of environmental conditions at such operations or properties,
including the investigation and testing of subsurface conditions and (b) take
such Remedial Action and undertake such investigation or other action (or, to
the extent applicable, ensure that a responsible party take such Remedial
Action, investigation or other action) as required by Environmental Laws or any
Governmental Authority or as is reasonable and prudent to address the Release or
event and otherwise ensure compliance with Environmental Laws.
SECTION 7.11 ADDITIONAL COLLATERAL AND GUARANTIES
To the extent any of the following documents shall not have
been delivered to the Administrative Agent or any of the following actions shall
not have been taken on or before the Effective Date (regardless of whether such
documents could not have been delivered or such actions could not have been
taken as of the Effective Date), each of the Company and each Borrower agrees to
do promptly all of the following:
(a) execute and deliver to the Administrative Agent such
amendments to the Collateral Documents as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Secured Parties, a perfected first priority security interest in
the Stock and Stock Equivalents and other debt Securities of the Borrowers or
any Material Subsidiary that are owned by the Company, any Borrower or any of
their respective Subsidiaries and requested to be pledged by the Administrative
Agent; provided, however, that in no event shall the Company, the Borrowers or
any of their respective Subsidiaries be required to pledge in excess of 65% of
the outstanding Stock of any Material Subsidiary that is not a Domestic
Subsidiary or any of the Stock of any Subsidiary of any such Material
Subsidiary;
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(b) deliver to the Administrative Agent the certificates (if
any) representing such Stock and Stock Equivalents and other debt Securities,
together with (i) in the case of such certificated Stock and Stock Equivalents,
undated stock powers endorsed in blank and (ii) in the case of such certificated
debt Securities, endorsed in blank, in each case executed and delivered by a
Responsible Officer of the Company, such Borrower or such Subsidiary, as the
case may be;
(c) in the case of the Company, any Borrower or in the case of
any such Material Subsidiary that is a Domestic Subsidiary cause such Person (i)
to become a party to the Guaranty and the applicable Collateral Documents and
(ii) to take such actions necessary or advisable to grant to the Administrative
Agent for the benefit of the Secured Parties a perfected security interest in
the Collateral described in the Collateral Documents with respect to such
Person, including the filing of Uniform Commercial Code financing statements in
such jurisdictions as may be required by the Collateral Documents or by law or
as may be reasonably requested by the Administrative Agent; and
(d) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Agent.
SECTION 7.12 REAL PROPERTY
(a) Each of the Company and each Borrower shall, and shall
cause each of its Subsidiaries to, (i) comply in all material respects with of
its obligations under all of its Leases now or hereafter held by it with respect
to Real Property, including the Leases identified on Schedule 4.19 (Real
Property) as held by it, (ii) not modify, amend, cancel, extend or otherwise
change in any materially adverse manner any of the terms, covenants or
conditions of any such Lease, (iii) not assign or sublet any other Lease if such
assignment or sublet would have a Material Adverse Effect and (iv) provide the
Administrative Agent with a copy of each notice of material default under any
Lease received by the Company or any Subsidiary thereof immediately upon receipt
thereof and deliver to the Administrative Agent a copy of each notice of default
sent by any Borrower or any Subsidiary thereof under any Lease simultaneously
with its delivery of such notice under such Lease.
(b) At least 15 Business Days prior to (i) entering into any
Lease (other than a renewal of an existing Lease) for the principal place of
business and chief executive office of the Company any Borrower or any
Subsidiary Guarantor or any other Lease (including any renewal) in which the
annual rental payments are anticipated to equal or exceed $1,000,000 or (ii)
acquiring of any material owned Real Property, the Company or such Borrower
shall, or shall cause such Subsidiary Guarantor to, provide the Administrative
Agent written notice thereof. Upon written request of the Administrative Agent,
the Company or such Borrower shall, or shall cause such Subsidiary Guarantor to,
(x) provide Phase I environmental reports showing no condition that could give
rise to material Environmental Costs and Liabilities and (y) execute and deliver
to the Administrative Agent, for the benefit of the Secured Parties, immediately
upon the acquisition of any such Lease or owned Real Property, a mortgage, deed
of trust, assignment or other appropriate instrument evidencing a Lien upon any
such Lease or Real Property, together with such title policies, certified
surveys and local counsel opinions with respect thereto and such other
agreements, documents and instruments as the Administrative Agent deems
necessary or desirable, the same to be in form and substance satisfactory to the
Administrative Agent and to be subject only to (A) Liens permitted under Section
8.2 (Liens, Etc.) and (B) such other Liens as the Administrative Agent may
reasonably approve.
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SECTION 7.13 ACCOUNT DEBTORS
Each Borrower shall instruct each Account Debtor or other
Person obligated to make a payment to any Loan Party to make payment or to
continue to make payment to a Blocked Account. Each Borrower shall deposit in a
Blocked Account immediately upon receipt all proceeds of Collateral received by
it or any of its Subsidiaries that are Subsidiary Guarantors from any other
Person.
ARTICLE VIII
NEGATIVE COVENANTS
As long as any of the Obligations (other than indemnities not
then due) or the Revolving Credit Commitments remain outstanding, without the
written consent of the Requisite Lenders, each of the Company and each Borrower
agrees with the Lenders, the Issuers and the Administrative Agent that:
SECTION 8.1 INDEBTEDNESS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness except:
(a) the Secured Obligations;
(b) Indebtedness existing on the Effective Date and disclosed
on Schedule 8.1 (Existing Indebtedness);
(c) Guaranty Obligations incurred by any Borrower or any
Subsidiary Guarantor in respect of any obligation of any Borrower or any
Subsidiary Guarantor otherwise permitted by this Section 8.1;
(d) Capital Lease Obligations and purchase money Indebtedness
incurred by any Borrower or any Subsidiary of any Borrower to finance the
acquisition of fixed assets in an aggregate outstanding principal amount not to
exceed $15,000,000 at any time; provided, however, that the Capital Expenditure
related thereto is otherwise permitted by Section 5.3 (Maximum Capital
Expenditures);
(e) Renewals, extensions, refinancings and refundings of
Indebtedness permitted by clause (b) or (d) above; provided, however, that any
such renewal extension, refinancing or refunding is in an aggregate principal
amount not greater than the principal amount of, and is on terms no less
favorable to any Borrower or any Subsidiary of any Borrower, including as to
weighted average maturity (which maturity shall be deemed to be on terms not
less favorable to any Borrower or any Subsidiary of any Borrower so long as such
maturity shall exceed six years), than the Indebtedness being renewed, extended,
refinanced or refunded;
(f) Indebtedness arising from intercompany loans from any
Borrower to any Wholly-Owned Subsidiary of the Company that is a Borrower or a
Subsidiary Guarantor; provided, however, that (i) the Investment in the
intercompany loan to such Subsidiary is
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permitted under Section 8.3(e) (Investments) and (ii) such Indebtedness is
expressly subordinate and junior in right of payment to the prior payment in
full in cash of such Wholly-Owned Subsidiary's obligations under the Guaranty;
(g) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business;
(h) unsecured Indebtedness not otherwise permitted under this
Section 8.1 in an aggregate outstanding principal amount not to exceed
$1,000,000 at any time; and
(i) Subordinated Debt of the Company; provided, however, that
the aggregate principal amount of all such Subordinated Debt shall not exceed
$25,000,000.
SECTION 8.2 LIENS, ETC.
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, create or suffer to exist, any
Lien upon or with respect to any of its properties or assets, whether now owned
or hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, except for:
(a) Liens created pursuant to the Loan Documents (including
Liens in favor of any Blocked Account Bank provided for in any Blocked Account
Letter);
(b) Liens existing on the Effective Date and disclosed on
Schedule 8.2 (Existing Liens);
(c) Customary Permitted Liens;
(d) purchase money Liens granted by any Borrower or any
Subsidiary of any Borrower (including the interest of a lessor under a Capital
Lease and Liens to which any property is subject at the time of such Borrower's
or such Subsidiary's acquisition thereof) securing Indebtedness permitted under
Section 8.1(d) (Indebtedness) and limited in each case to the property purchased
with the proceeds of such purchase money Indebtedness or subject to such Capital
Lease;
(e) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clause (b) or (d)
above without any change in the assets subject to such Lien;
(f) Liens in favor of lessors securing operating leases; and
(g) Liens not otherwise permitted by the foregoing clauses of
this Section 8.2 securing obligations or other liabilities (other than
Indebtedness) of any Loan Party; provided, however, that the aggregate
outstanding amount of such obligations and liabilities secured by such Liens
shall not exceed $500,000 at any time.
SECTION 8.3 INVESTMENTS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, directly or indirectly make or
maintain any Investment except:
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(a) Investments existing on the Effective Date and disclosed
on Schedule 8.3 (Existing Investments);
(b) Investments in cash and Cash Equivalents held in a Cash
Collateral Account or a Control Account with respect to which the Administrative
Agent for the benefit of the Secured Parties has a first priority perfected Lien
or in the accounts permitted to be maintained pursuant to the Pledge and
Security Agreement;
(c) Investments by any Borrower or any Subsidiary of any
Borrower in accounts, contract rights and chattel paper (each as defined in the
Uniform Commercial Code), notes receivable and similar items arising or acquired
in the ordinary course of business consistent with the past practice of the
Company and its Subsidiaries;
(d) Investments received in settlement of amounts due to any
Borrower or any Subsidiary of any Borrower effected in the ordinary course of
business;
(e) Investments by (i) the Company in the Borrowers, (ii) any
Borrower or Subsidiary Guarantor in any other Borrower or Subsidiary Guarantor,
(iii) any Borrower or any Wholly-Owned Subsidiary of any Borrower in connection
with a Permitted Acquisition, (iv) any Subsidiary of any Borrower that is not a
Loan Party in any Borrower or any Subsidiary of any Borrower and (v) any
Borrower or any Subsidiary Guarantor in any Subsidiary of any Borrower that is
not a Loan Party; provided, however, that the aggregate outstanding amount of
such Investments pursuant to this clause (iv) shall not exceed $5,000,000 at any
time;
(f) loans or advances to employees, officers or directors of
the Company or any of its Subsidiaries in the ordinary course of business as
presently conducted other than any loans or advances that would be in violation
of Section 402 of the Xxxxxxxx-Xxxxx Act, which loans and advances shall not
exceed the aggregate outstanding principal amount of $1,500,000 at any time;
(g) Investments constituting Guaranty Obligations permitted by
Section 8.1 (Indebtedness);
(h) Investments constituting Restricted Payments permitted by
Section 8.5 (Restricted Payments); and
(i) Investments not otherwise permitted hereby in an aggregate
outstanding amount (reduced by amounts received as a return or recovery of any
such Investment) not to exceed $250,000 at any time.
SECTION 8.4 SALE OF ASSETS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, sell, convey, transfer, lease or
otherwise dispose of, any of its assets or any interest therein (including the
sale or factoring at maturity or collection of any accounts) to any Person, or
permit or suffer any other Person to acquire any interest in any of its assets
or, in the case of any Subsidiary of the Company, issue or sell any shares of
such Subsidiary's Stock or Stock Equivalent (any such disposition being an
"Asset Sale"), except:
(a) the sale or disposition of inventory in the ordinary
course of business;
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(b) as long as no Default or Event of Default is continuing or
would result therefrom, the sale or disposition of equipment of any Borrower or
any Subsidiary of any Borrower that has become obsolete or is replaced in the
ordinary course of business; provided, however, that the aggregate Fair Market
Value of all such equipment shall not exceed (i) $10,000,000 in Fiscal Year 2002
(including sales and dispositions made prior to the Effective Date) and (ii)
$5,000,000 in any Fiscal Year thereafter; and provided, further, that the Net
Cash Proceeds of any such Asset Sale are used to prepay the Loans as provided in
clause (a) of Section 2.9 (Mandatory Prepayments).
(c) the lease or sublease of real property by any Borrower or
any Subsidiary of any Borrower not constituting a sale and leaseback, to the
extent not otherwise prohibited by this Agreement;
(d) assignments and licenses of intellectual property of the
Company and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale by any Borrower or any Subsidiary of any
Borrower to any Borrower or any Subsidiary Guarantor; and
(f) as long as no Default or Event of Default is continuing or
would result therefrom, any other Asset Sale for Fair Market Value, payable in
cash upon such sale; provided, however, that with respect to all Asset Sales
pursuant to this clause (f), (i) the aggregate consideration received for all
such Asset Sales (and portions thereof) occurring during any Fiscal Year
(whether or not such Asset Sales occurring prior to the Effective Date) shall
not exceed $250,000, (ii) all Net Cash Proceeds of such Asset Sale are applied
to the prepayment of the Obligations to the extent required by Section 2.9
(Mandatory Prepayments).
SECTION 8.5 RESTRICTED PAYMENTS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, directly or indirectly, declare,
order, pay, make or set apart any sum for any Restricted Payment except:
(a) Restricted Payments by any Subsidiary of any Borrower to
such Borrower or a Wholly-Owned Subsidiary of any Borrower;
(b) cash dividends on the Stock of the Borrowers to the
Company (if applicable) paid and declared solely for the purpose of funding the
following:
(i) ordinary operating expenses of the Company
not in excess of $2,000,000 in any Fiscal Year (whether or not such
expenses are made prior to the Effective Date);
(ii) payments by the Company in respect of
foreign, federal, state or local taxes owing by the Company in respect
of the Company and its Subsidiaries; or
(iii) payments of interest when due in cash on
other Subordinated Debt of the Company permitted to be incurred or
maintained by Section 8.1(i) (Indebtedness) to the extent (1) the
proceeds of such Subordinated Debt were invested as
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a capital contribution in any Borrower and (2) such interest is
permitted to be paid under the terms of such Subordinated Debt;
(c) Restricted Payments in respect of any adjustment to the
exercise price of any warrants or options; and
(d) Restricted Payments in respect of the repurchase of Stock
or Stock Equivalents of the Company from employees or directors pursuant to the
terms of any operative shareholder agreement to which the Company is a party;
provided, however, that (i) the cash consideration payable in respect of all
such repurchases shall not exceed $1,000,000 in any Fiscal Year (including
amounts paid under the promissory notes referred to in clause (ii) below) and
(ii) the balance of the consideration payable in respect of all such repurchases
shall be in the form of promissory notes of the Company subordinate and junior
in right of payment to the Obligations and otherwise in form and substance
satisfactory to the Administrative Agent;
provided, however, that the Restricted Payments described in clauses (b) and (d)
above shall not be permitted if (A) a Default or Event of Default shall have
occurred and be continuing at the date of declaration or payment thereof or
would result therefrom, (B) such Restricted Payment is prohibited under the
terms of any Indebtedness (other than the Obligations) of the Company or any of
its Subsidiaries or (C) in respect of any Restricted Payment described in
subclause (b) of clause (iii) above, the Minimum Liquidity Condition shall be
satisfied both before and after giving effect to such Restricted Payment; and
provided, further, that a Restricted Payment may be made pursuant to clause
(b)(i) above to pay the management fees authorized under clause (ii) of Section
8.9 (Transactions with Affiliates), irrespective of whether any Default or Event
of Default shall have occurred solely by reason of a breach of Article VI
(Reporting Covenants) or Article VII (Affirmative Covenants) (but such
Restricted Payment shall not be made if any Default or Events of Default shall
have occurred and be continuing as a result of a breach of any other provision
of the Credit Agreement or would occur as a result of such Restricted Payment).
SECTION 8.6 PREPAYMENT OF LONG-TERM INDEBTEDNESS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, make any optional prepayment of
principal, premium (if any), interest, fees (including fees to obtain any waiver
or consent in connection with any Security) or other charges on, or optional
redemption, purchase, retirement, defeasance, sinking fund or similar payment
with respect to, any long-term Indebtedness of any Borrower or any of their
respective Subsidiaries or any other Loan Party other than Indebtedness
permitted under clause (e), (f) or (h) of Section 8.1 (Indebtedness).
SECTION 8.7 RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED
ACQUISITIONS
Except, in respect of clauses (a) through (d) below, in
connection with a Permitted Acquisition, neither the Company nor any Borrower
shall, nor shall they permit any of their respective Subsidiaries to, (a) merge
with any Person, (b) consolidate with any Person, (c) acquire all or
substantially all of the Stock or Stock Equivalents of any Person, (d) acquire
all or substantially all of the assets of any Person or all or substantially all
of the assets constituting the business of a division, branch or other unit
operation of any Person, (e) enter into any joint venture or partnership with
any Person or (f) acquire or create any Subsidiary unless, after giving effect
thereto, such Subsidiary is a Wholly-Owned Subsidiary of any Borrower, the
Company is
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in compliance with Section 7.11 (Additional Collateral and Guaranties) and the
Investment in such Subsidiary is permitted under Section 8.3(c) (Investments).
SECTION 8.8 CHANGE IN NATURE OF BUSINESS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, make any material change in the
nature or conduct of its business as carried on at the Initial Closing Date,
whether in connection with a Permitted Acquisition or otherwise.
SECTION 8.9 TRANSACTIONS WITH AFFILIATES
Except as set forth on Schedule 8.9 (Transactions with
Affiliates), neither the Company nor any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, except as otherwise expressly permitted
herein, do any of the following: (a) make any Investment in an Affiliate of any
Borrower that is not a Subsidiary of any Borrower, (b) transfer, sell, lease,
assign or otherwise dispose of any asset to any Affiliate of any Borrower that
is not a Subsidiary of any Borrower, (c) merge into or consolidate with or
purchase or acquire assets from any Affiliate of any Borrower that is not a
Subsidiary of the Company, (d) repay any Indebtedness to any Affiliate of any
Borrower that is not a Subsidiary of any Borrower or (e) enter into any other
transaction directly or indirectly with or for the benefit of any Affiliate of
any Borrower that is not a Subsidiary Guarantor (including guaranties and
assumptions of obligations of any such Affiliate), except for (i) transactions
in the ordinary course of business on a basis no less favorable to such Borrower
or such Subsidiary Guarantor as would be obtained in a comparable arm's length
transaction with a Person not an Affiliate and (ii) management fees, salaries
and other director or employee compensation to officers or directors of the
Company or any of its Subsidiaries commensurate with current compensation levels
and, in the case of the Company and in the case of management fees, not to
exceed $750,000 per annum in the aggregate in any event plus any expense
reimbursements.
SECTION 8.10 RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS; NO NEW
NEGATIVE PLEDGE
Other than pursuant to the Loan Documents and any agreements
governing any purchase money Indebtedness or Capital Lease Obligations permitted
by clause (b), (d) or (e) of Section 8.1 (Indebtedness) (in which latter case,
any prohibition or limitation shall only be effective against the assets
financed thereby), neither the Company nor any Borrower shall, and neither the
Company nor any Borrower shall permit any of its Subsidiaries to, (a) agree to
enter into or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of such Subsidiary to pay dividends or
make any other distribution or transfer of funds or assets or make loans or
advances to or other Investments in, or pay any Indebtedness owed to, any
Borrower or any other Subsidiary thereof or (b) enter into or suffer to exist or
become effective any agreement prohibiting or limiting the ability of any
Borrower or any Subsidiary thereof to create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, to secure the Obligations, including any agreement requiring
other Indebtedness or Contractual Obligation to be equally and ratably secured
with the Obligations.
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SECTION 8.11 MODIFICATION OF CONSTITUENT DOCUMENTS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, change its capital structure
(including in the terms of its outstanding Stock) or otherwise amend its
Constituent Documents, except for changes and amendments that do not materially
affect the rights and privileges of any Borrower, or any of their respective
Subsidiaries, or the interests of the Administrative Agent, the Lenders and the
Issuers under the Loan Documents or in the Collateral.
SECTION 8.12 MODIFICATION OF SUBORDINATED DEBT AGREEMENTS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, change or amend the terms of any
Subordinated Debt (or any indenture or agreement or other material document
entered into in connection therewith) if the effect of such amendment is to (a)
increase the interest rate on such Subordinated Debt, (b) change the dates upon
which payments of principal or interest are due on such Subordinated Debt other
than to extend such dates, (c) change any default or event of default other than
to delete or make less restrictive any default provision therein, or add any
covenant with respect to such Subordinated Debt, (d) change the redemption or
prepayment provisions of such Subordinated Debt other than to extend the dates
therefor or to reduce the premiums payable in connection therewith or (e) change
or amend any other term if such change or amendment would materially increase
the obligations of the obligor or confer additional material rights to the
holder of such Subordinated Debt in a manner adverse to the Company, any
Borrower, any of their respective Subsidiaries or the Administrative Agent or
any Lender.
SECTION 8.13 MODIFICATION OF RELATED DOCUMENTS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, (a) alter, rescind, terminate,
amend, supplement, waive or otherwise modify any provision of any Related
Document, except for modifications which do not materially affect the rights and
privileges of any Borrower or any of its Subsidiaries under such Related
Document or the interests of the Secured Parties under the Loan Documents or in
the Collateral, (b) permit any Borrower or any of its Subsidiaries to breach or
default under any Related Document or take or fail to take any action
thereunder, if to permit such breach or default or to take or fail to take any
such action would have a Material Adverse Effect or (c) permit any breach or
default to exist under any Related Document (to the extent within the control of
any Borrower or any of its Subsidiaries) if to permit such breach or default
would have a Material Adverse Effect.
SECTION 8.14 ACCOUNTING CHANGES; FISCAL YEAR
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, change its (a) accounting
treatment and reporting practices or tax reporting treatment, except as required
or permitted by GAAP or any Requirement of Law and disclosed to the Lenders and
the Administrative Agent or (b) Fiscal Year.
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SECTION 8.15 MARGIN REGULATIONS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, use all or any portion of the
proceeds of any credit extended hereunder to purchase or carry margin stock.
SECTION 8.16 SALE/LEASEBACKS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, enter into any sale and
leaseback transaction covering any property with a total Fair Market Value for
such transaction in excess of $1,000,000.
SECTION 8.17 CANCELLATION OF INDEBTEDNESS OWED TO IT
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, cancel any claim or Indebtedness
owed to it except in the ordinary course of business consistent with past
practice.
SECTION 8.18 NO SPECULATIVE TRANSACTIONS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, engage in any speculative
transaction or in any transaction involving Hedging Contracts except for the
sole purpose of hedging in the normal course of business and consistent with
industry practices.
SECTION 8.19 COMPLIANCE WITH ERISA
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries or ERISA Affiliates to cause or
permit to occur, (a) an event that could result in the imposition of a Lien
under Section 412 of the Code or Section 302 or 4068 of ERISA in an amount
exceeding $1,000,000 or (b) an ERISA Event that would have a Material Adverse
Effect.
SECTION 8.20 ENVIRONMENTAL
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries to, allow a Release of any
Contaminant in violation of any Environmental Law; provided, however, that
neither the Company nor any Borrower shall be deemed in violation of this
Section 8.20 if, as the consequence of all such Releases, neither the Company
nor any Borrower shall and shall not permit any of their respective Subsidiaries
to collectively incur Environmental Liabilities and Costs after the Initial
Closing Date in excess of $2,000,000 in the aggregate.
SECTION 8.21 COMPLIANCE WITH BLOCKED ACCOUNT PROVISIONS
Neither the Company nor any Borrower shall, nor shall they
permit any of their respective Subsidiaries (to the extent bound thereby) to,
fail to comply with Section 4.5 (Control Accounts; Blocked Accounts) of the
Pledge and Security Agreement or any amendment thereto or successor or
replacement provision thereof.
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SECTION 8.22 POST CLOSING DELIVERIES
Unless otherwise agreed by the Administrative Agent, the
Administrative Agent shall have received each item set forth on Schedule 8.22
(Post Closing Deliveries) on or before the date set forth opposite such item on
such Schedule, each in form and substance reasonably satisfactory to the
Administrative Agent and with sufficient copies for each Lender.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 EVENTS OF DEFAULT
Each of the following events shall be an Event of Default:
(a) any Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when the same becomes due and payable; or
(b) any Borrower shall fail to pay any interest on any Loan,
any fee under any of the Loan Documents or any other Obligation (other than one
referred to in clause (a) above) and such non-payment continues for a period of
three Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any
term, covenant or agreement contained in Article V (Financial Covenants),
Section 6.1 (Financial Statements), Section 6.2 (Default Notices), Section 7.1
(Preservation of Corporate Existence, Etc.), Section 7.6 (Access), Section 7.11
(Additional Collateral and Guaranties), Section 7.13 (Account Debtors) or
Article VIII (Negative Covenants) or (ii) any other term, covenant or agreement
contained in this Agreement or in any other Loan Document if such failure under
this clause (ii) shall remain unremedied for 30 days after the earlier of the
date on which (A) a Responsible Officer of any Loan Party acknowledges such
failure in writing or (B) written notice thereof shall have been given to any
Loan Party by the Administrative Agent or any Lender; or
(e) (i) any Loan Party or any Subsidiary of any Loan Party
shall fail to make any payment on any Indebtedness (other than the Obligations)
of such Loan Party or any such Subsidiary (or any Guaranty Obligation in respect
of Indebtedness of any other Person) having a principal amount of $1,000,000 or
more, when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), (ii) any other event
shall occur or condition shall exist under any agreement or instrument relating
to any such Indebtedness, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Indebtedness
(after giving effect to any grace period therefor in such agreement or
instrument) or (iii) any such Indebtedness shall become or be declared to be due
and payable, or required to be prepaid or repurchased (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or
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(f) (i) any Loan Party or any Subsidiary of any Loan Party
shall generally not pay its debts as such debts become due, shall admit in
writing its inability to pay its debts generally or shall make a general
assignment for the benefit of creditors, (ii) any proceeding shall be instituted
by or against any Loan Party or any Subsidiary of any Loan Party seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts, under any Requirement of Law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a custodian, receiver, trustee or other similar official
for it or for any substantial part of its property; provided, however, that, in
the case of any such proceedings instituted against any Loan Party or any of its
Subsidiaries (but not instituted by such Loan Party or any of its Subsidiaries),
either such proceedings shall remain undismissed or unstayed for a period of 30
days or more or any of the actions sought in such proceedings shall occur or
(iii) any Loan Party or any Subsidiary of any Loan Party shall take any
corporate action to authorize any of the actions set forth in clause (i) and
(ii) above; or
(g) one or more judgments or orders (or other similar process)
involving, in any single case or in the aggregate, an amount in excess of
$500,000 in the case of a money judgment, to the extent not covered by
insurance, shall be rendered against one or more of any Loan Party and its
Subsidiaries and shall remain unpaid and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 20 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) an ERISA Event shall occur and the amount of all
liabilities and deficiencies resulting therefrom, whether or not assessed,
exceeds $500,000 in the aggregate; or
(i) any material provision of any Collateral Document, the
Guaranty or any other Loan Document after delivery thereof pursuant to this
Agreement or any other Loan Document shall for any reason cease to be valid and
binding, or enforceable against, any Loan Party party thereto, or any Loan Party
shall so state in writing; or
(j) any Collateral Document shall for any reason cease to
create a valid Lien on any material Collateral or any material portion of the
Collateral purported to be covered thereby or except as permitted by the Loan
Documents, such Lien shall cease to be a perfected and first priority Lien on
any material Collateral or any material portion of the Collateral or any Loan
Party shall so state in writing; or
(k) there shall occur any Change of Control; or
(l) there shall have occurred a Material Adverse Change or any
event or circumstances that would have a Material Adverse Effect and the
Administrative Agent shall have given notice thereof to the Company or any
Borrower; or
(m) one or more of the Loan Parties and their respective
Subsidiaries shall have entered into one or more consent or settlement decrees
or agreements or similar arrangements with a Governmental Authority or one or
more judgments, orders, decrees or similar actions shall have been entered
against one or more of the Loan Parties and their respective Subsidiaries based
on or arising from the violation of or pursuant to any Environmental Law, or the
generation, storage, transportation, treatment, disposal or Release of any
Contaminant and, in connection with all the foregoing, any Loan Party or any of
its Subsidiaries are likely to incur Environmental
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Liabilities and Costs in excess of $1,000,000 in the aggregate that were not
reflected in the Business Plan or the Financial Statements delivered pursuant to
Section 4.4 (Financial Statements).
SECTION 9.2 REMEDIES
During the continuance of any Event of Default, the
Administrative Agent (a) may, and, at the request of the Requisite Lenders,
shall, by notice to any Borrower declare that all of the Revolving Credit
Commitments be terminated, whereupon the obligation of each Lender to make any
Loan and each Issuer to issue any Letter of Credit shall immediately terminate
and (b) may and shall at the request of the Requisite Lenders, by notice to any
Borrower, declare the Loans, all interest thereon and all other amounts and
Obligations payable under this Agreement to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by each Borrower; provided, however, that upon the occurrence of the Events of
Default specified in Section 9.1(f) (Events of Default), (A) (i) the Revolving
Credit Commitments of each Lender to make Loans and of each Lender and Issuer to
issue or participate in Letters of Credit shall automatically be terminated and
(ii) the Loans, all such interest and all such amounts and Obligations shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each Borrower. In addition to the remedies set forth above, the Administrative
Agent may exercise any remedies provided for by the Collateral Documents in
accordance with the terms thereof or any other remedies provided by applicable
law.
SECTION 9.3 ACTIONS IN RESPECT OF LETTERS OF CREDIT
Upon the Revolving Credit Termination Date or as required by
clause (b) or (d) of Section 2.9 (Mandatory Prepayments) the Borrowers shall
pay, jointly and severally, to the Administrative Agent in immediately available
funds at the Administrative Agent's office referred to in Section 11.8 (Notices,
Etc.), for deposit in a Cash Collateral Account, an amount equal to 105% of the
sum of all outstanding Letter of Credit Obligations. The Administrative Agent
may, from time to time after funds are deposited in any Cash Collateral Account,
apply funds then held in such Cash Collateral Account to the payment of any
amounts, in accordance with Section 2.13(f) (Payments and Computations), as
shall have become or shall become due and payable by any Borrower to the Issuers
or Lenders in respect of the Letter of Credit Obligations. The Administrative
Agent shall promptly give written notice of any such application; provided,
however, that the failure to give such written notice shall not invalidate any
such application.
SECTION 9.4 RESCISSION
If at any time after termination of the Revolving Credit
Commitments or acceleration of the maturity of the Loans, the Borrowers shall
pay, jointly and severally, all arrears of interest and all payments on account
of principal of the Loans and Reimbursement Obligations that shall have become
due otherwise than by acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates specified herein) and
all Events of Default and Defaults (other than non-payment of principal of and
accrued interest on the Loans due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant Section 11.1 (Amendments, Waivers, Etc.),
then upon the written consent of the Requisite Lenders and written notice to any
Borrower, the termination of the Revolving Credit Commitments or the
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acceleration and their consequences may be rescinded and annulled; but such
action shall not affect any subsequent Event of Default or Default or impair any
right or remedy consequent thereon. The provisions of the preceding sentence are
intended merely to bind the Lenders and the Issuers to a decision that may be
made at the election of the Requisite Lenders; they are not intended to benefit
any Loan Party and do not give any Loan Party the right to require the Lenders
to rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
ARTICLE X
THE ADMINISTRATIVE AGENT; THE AGENTS
SECTION 10.1 AUTHORIZATION AND ACTION
(a) Each Lender and each Issuer hereby appoints CUSA as the
Administrative Agent hereunder and each Lender and each Issuer authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Administrative Agent under such agreements and to exercise such powers as
are reasonably incidental thereto. Without limiting the foregoing, each Lender
and each Issuer hereby authorizes the Administrative Agent to execute and
deliver, and to perform its obligations under, each of the Loan Documents to
which the Administrative Agent is a party and to exercise all rights, powers and
remedies that the Administrative Agent may have under such Loan Documents and
that under the Collateral Documents the Administrative Agent is acting as agent
for the Lenders, Issuers and the other Secured Parties.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including enforcement or collection),
the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders, and such instructions shall be binding
upon all Lenders and each Issuer; provided, however, that the Administrative
Agent shall not be required to take any action that (i) the Administrative Agent
in good faith believes exposes it to personal liability unless the
Administrative Agent receives an indemnification satisfactory to it from the
Lenders and the Issuers with respect to such action or (ii) is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender and each Issuer prompt notice of each notice given to it by any Loan
Party pursuant to the terms of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and under
the other Loan Documents, the Administrative Agent is acting solely on behalf of
the Lenders and the Issuers and its duties are entirely administrative in
nature. The Administrative Agent does not assume and shall not be deemed to have
assumed any obligation other than as expressly set forth herein and in the other
Loan Documents or any other relationship as the agent, fiduciary or trustee of
or for any Lender, Issuer or holder of any other Obligation. The Administrative
Agent may perform any of its duties under any of the Loan Documents by or
through its agents or employees.
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SECTION 10.2 ADMINISTRATIVE AGENT'S RELIANCE, ETC.
Neither the Administrative Agent nor any of its Affiliates or
any of the respective directors, officers, agents or employees of the
Administrative Agent or any such Affiliate shall be liable for any action taken
or omitted to be taken by it, him, her or them under or in connection with this
Agreement or the other Loan Documents, except for its, his, her or their own
gross negligence or willful misconduct. Without limiting the foregoing, the
Administrative Agent (a) may treat the payee of any Revolving Credit Note as its
holder until such Revolving Credit Note has been assigned in accordance with
Section 11.2 (Assignments and Participations), (b) may rely on the Register to
the extent set forth in Section 11.2(c) (Assignments and Participations), (c)
may consult with legal counsel (including counsel to the Company or any other
Loan Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, (d)
makes no warranty or representation to any Lender or Issuer and shall not be
responsible to any Lender or Issuer for any statements, warranties or
representations made by or on behalf of any Borrower or any Subsidiary thereof
in or in connection with this Agreement or any of the other Loan Documents, (e)
shall not have any duty to ascertain or to inquire either as to the performance
or observance of any of the terms, covenants or conditions of this Agreement or
any of the other Loan Documents or the financial condition of any Loan Party, or
the existence or possible existence of any Default or Event of Default, (f)
shall not be responsible to any Lender or Issuer for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto and (g) shall incur no liability under or in respect of this Agreement
or any of the other Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which writing may be a telecopy or
electronic mail) or any telephone message believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 10.3 POSTING OF APPROVED ELECTRONIC COMMUNICATIONS
(a) Each of the Lenders, the Issuers and the Company and each
Borrower agrees, and the Company and each Borrower shall cause each Subsidiary
Guarantor to agree, that the Administrative Agent may, but shall not be
obligated to, make the Approved Electronic Communications available to the
Lenders and Issuers by posting such Approved Electronic Communications on
"e-Disclosure", the Administrative Agent's internet delivery system that is part
of SSB Direct, Global Fixed Income's primary web portal, or successor electronic
platform chosen by the Administrative Agent to be its internet delivery system
(the "Approved Electronic Platform").
(b) Although the primary web portal is secured with a dual
firewall and a User ID/Password Authorization System and the Approved Electronic
Platform is secured through a single-user-per-deal authorization method whereby
each user may access the Approved Electronic Platform only on a deal-by-deal
basis, each of the Lenders, the Issuers, the Company and each Borrower
acknowledges and agrees, that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution. In consideration for the convenience
and other benefits afforded by such distribution and for the other consideration
provided hereunder, the receipt and sufficiency of which is hereby acknowledged,
each of the Lenders, the Issuers, the Company and each Borrower hereby approves,
distribution of the Approved Electronic Communications
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through the Approved Electronic Platform and understands and assumes, and the
Borrower shall cause each Subsidiary Guarantor to understand and assume, the
risks of such distribution.
(c) The Approved Electronic Communications and the Approved
Electronic Platform are provided "as is" and "as available". None of the
Administrative Agent or any of its Affiliates or any of their respective
officers, directors, employees, agents, advisors or representatives (the "Agent
Affiliates") warrants the accuracy, adequacy or completeness of the Approved
Electronic Communications and the Approved Electronic Platform and each of them
expressly disclaims liability for errors or omissions in the Approved Electronic
Communications and the Approved Electronic Communications. No warranty of any
kind, express, implied or statutory (including any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects) is made by the Agent Affiliates in
connection with the Approved Electronic Communications.
SECTION 10.4 THE ADMINISTRATIVE AGENT INDIVIDUALLY
With respect to its Ratable Portion, CUSA shall have and may
exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms "Lenders", "Requisite Lenders" and "Supermajority Lenders" and
any similar terms shall, unless the context clearly otherwise indicates,
include, without limitation, the Administrative Agent in its individual capacity
as a Lender or as one of the Requisite Lenders. CUSA and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with, any Loan Party as if CUSA were not acting
as the Administrative Agent.
SECTION 10.5 LENDER CREDIT DECISION
Each Lender and each Issuer acknowledges that it shall,
independently and without reliance upon the Administrative Agent or any other
Lender conduct its own independent investigation of the financial condition and
affairs of each Borrower and each other Loan Party in connection with the making
and continuance of the Loans and with the issuance of the Letters of Credit.
Each Lender and each Issuer also acknowledges that it shall, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and other Loan Documents.
SECTION 10.6 INDEMNIFICATION
Each Lender agrees to indemnify the Administrative Agent and
each of its Affiliates, and each of their respective directors, officers,
employees, agents and advisors (to the extent not reimbursed by any Borrower),
from and against such Lender's aggregate Ratable Portion of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements (including fees and disbursements of legal
counsel) of any kind or nature whatsoever that may be imposed on, incurred by,
or asserted against, the Administrative Agent or any of its Affiliates,
directors, officers, employees, agents and advisors in any way relating to or
arising out of this Agreement or the other Loan Documents or any action taken or
omitted by the Administrative Agent under this Agreement or the other Loan
Documents; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's or such Affiliate's gross negligence or
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willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including fees and disbursements of legal counsel)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of its rights or responsibilities under, this Agreement or the
other Loan Documents, to the extent that the Administrative Agent is not
reimbursed for such expenses by any Borrower or any other Loan Party.
SECTION 10.7 SUCCESSOR ADMINISTRATIVE AGENT
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Requisite Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, selected from among the
Lenders. In either case, such appointment shall be subject to the prior written
approval of the Company (which approval may not be unreasonably withheld and
shall not be required upon the occurrence and during the continuance of an Event
of Default). Upon the acceptance of any appointment as Administrative Agent by a
successor Administrative Agent, such successor Administrative Agent shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. Prior to any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the retiring Administrative Agent shall take
such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan
Documents. After such resignation, the retiring Administrative Agent shall
continue to have the benefit of this Article X as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Loan Documents.
SECTION 10.8 CONCERNING THE COLLATERAL AND THE COLLATERAL
DOCUMENTS
(a) Each Lender and each Issuer agrees that any action taken
by the Administrative Agent, the Requisite Lenders (or, where required by the
express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or of the other Loan Documents,
and the exercise by the Administrative Agent, the Requisite Lenders (or, where
so required, such greater proportion) of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders, Issuers and other Secured
Parties. Without limiting the generality of the foregoing, the Administrative
Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders and the Issuers with respect to
all payments and collections arising in connection herewith and with the
Collateral Documents, (ii) execute and deliver each Collateral Document and
accept delivery of each such agreement delivered by the Borrowers or any of
their Subsidiaries, (iii) act as collateral agent for the Lenders, the Issuers
and the other Secured Parties for purposes of the perfection of all security
interests and Liens created by such agreements and all other purposes stated
therein, provided, however, that the Administrative Agent hereby appoints,
authorizes and directs each Lender and Issuer to act as collateral sub-agent for
the Administrative Agent, the
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Lenders and the Issuers for purposes of the perfection of all security interests
and Liens with respect to the Borrowers' and their Subsidiaries' respective
deposit accounts maintained with, and cash and Cash Equivalents held by, such
Lender or such Issuer, (iv) manage, supervise and otherwise deal with the
Collateral, (v) take such action as is necessary or desirable to maintain the
perfection and priority of the security interests and Liens created or purported
to be created by the Collateral Documents and (vi) except as may be otherwise
specifically restricted by the terms hereof or of any other Loan Document,
exercise all remedies given to the Administrative Agent, the Lenders, the
Issuers and the other Secured Parties with respect to the Collateral under the
Loan Documents relating thereto, applicable law or otherwise.
(b) Each of the Lenders and the Issuers hereby directs, in
accordance with the terms hereof, the Administrative Agent to release (or, in
the case of clause (ii) below, release or subordinate), and the Administrative
Agent hereby agrees to release, any Lien held by the Administrative Agent for
the benefit of the Lenders and the Issuers:
(i) against all of the Collateral, upon
termination of the Revolving Credit Commitments and payment and
satisfaction in full of all Loans, Reimbursement Obligations and all
other mature Obligations that the Administrative Agent has been
notified in writing are then due and payable (and, in respect of
contingent Letter of Credit Obligations, with respect to which cash
collateral has been deposited or a back-up letter of credit has been
issued, in either case on terms satisfactory to the Administrative
Agent and the applicable Issuers);
(ii) against any assets that are subject to a
Lien permitted by clause (d) or (e) of Section 8.2 (Liens, Etc.); and
(iii) (A) against any part of the Collateral sold
or disposed of by a Loan Party if such sale or disposition is permitted
by this Agreement (or permitted pursuant to a waiver or consent of a
transaction otherwise prohibited by this Agreement), (B) if not
pursuant to such sale or disposition, against Collateral with a book
value of up to $1,000,000, if such release is consented to by the
Administrative Agent, (C) otherwise, against any part of the Collateral
with a book value in excess of $1,000,000 but not in excess of
$5,000,000, if such release is consented to by the Requisite Lenders or
(D) against any part of the Collateral in excess of $5,000,000, other
than Collateral that is sold or otherwise disposed of in a transaction
permitted hereby or consented to by the Requisite Lenders, if such
release is consented to by all the Lenders.
Each of the Lenders and the Issuers hereby directs the Administrative Agent, and
the Administrative Agent hereby agrees, to execute and deliver or file such
termination and partial release statements and do such other things as are
necessary to release Liens to be released pursuant to this Section 10.8.
SECTION 10.9 COLLATERAL MATTERS RELATING TO RELATED
OBLIGATIONS
The benefit of the Loan Documents and of the provisions of
this Agreement relating to the Collateral shall extend to and be available in
respect of any Secured Obligation arising under any Hedging Contract (unless the
parties to such Hedging Contract expressly specify in writing that none of the
obligations thereunder shall be considered "Obligations" hereunder), any
agreement for cash management services entered into in connection with this
Agreement (unless the parties to such agreement expressly specify in writing
that none of the
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obligations thereunder shall be considered "Obligations" hereunder) or that is
otherwise owed to Persons other than the Administrative Agent, the Lenders and
the Issuers (collectively, "Related Obligations") solely on the condition and
understanding, as among the Administrative Agent and all Secured Parties, that
(i) the Related Obligations shall be entitled to the benefit of the Loan
Documents and the Collateral to the extent expressly set forth in this Agreement
and the other Loan Documents and to such extent the Administrative Agent shall
hold, and have the right and power to act with respect to, the Guaranty and the
Collateral on behalf of and as agent for the holders of the Related Obligations,
but the Administrative Agent is otherwise acting solely as agent for the Lenders
and the Issuers and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related
Obligations, (ii) all matters, acts and omissions relating in any manner to the
Guaranty, the Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions
of this Agreement and the other Loan Documents and no separate Lien, right,
power or remedy shall arise or exist in favor of any Secured Party under any
separate instrument or agreement or in respect of any Related Obligation, (iii)
each Secured Party shall be bound by all actions taken or omitted, in accordance
with the provisions of this Agreement and the other Loan Documents, by the
Administrative Agent, the Requisite Lenders and the Supermajority Lenders, each
of whom shall be entitled to act at its sole discretion and exclusively in its
own interest given its own Revolving Credit Commitments and its own interest in
the Loans, Letter of Credit Obligations and other Obligations to it arising
under this Agreement or the other Loan Documents, without any duty or liability
to any other Secured Party or as to any Related Obligation and without regard to
whether any Related Obligation remains outstanding or is deprived of the benefit
of the Collateral or becomes unsecured or is otherwise affected or put in
jeopardy thereby, (iv) no holder of Related Obligations and no other Secured
Party (except the Administrative Agent, the Lenders and the Issuers, to the
extent set forth in this Agreement) shall have any right to be notified of, or
to direct, require or be heard with respect to, any action taken or omitted in
respect of the Collateral or under this Agreement or the Loan Documents and (v)
no holder of any Related Obligation shall exercise any right of setoff, banker's
lien or similar right except as expressly provided in Section 11.6 (Right of
Set-off).
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 AMENDMENTS, WAIVERS, ETC.
(a) No amendment or waiver of any provision of this Agreement
or any other Loan Document nor consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Requisite Lenders or the Supermajority Lenders; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by the Supermajority Lenders, increase the Borrowing Base or otherwise
increase any of the advance rates above the percentages set forth in the
definition of "Advance Rate" herein, for Eligible Receivables, Eligible
Equipment, Eligible Real Property or any class of Eligible Inventory; provided,
further, that no amendment, waiver or consent shall, unless in writing and
signed by each Lender directly affected thereby, in addition to the Requisite
Lenders or the Supermajority Lenders and, in the case of any amendment, the
Borrowers, do any of the following:
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(i) waive any of the conditions specified in
Section 3.1 (Conditions Precedent to the Effectiveness of this
Agreement) or Section 3.2 (Conditions Precedent to Each Loan and Letter
of Credit) except with respect to a condition based upon another
provision hereof, the waiver of which requires only the concurrence of
the Requisite Lenders;
(ii) increase the Revolving Credit Commitment of
such Lender or subject such Lender to any additional obligations;
(iii) extend the scheduled final maturity of any
Loan due to such Lender, or waive, reduce or postpone any scheduled
date fixed for the payment or reduction of principal on such Loan (it
being understood that Section 2.9 (Mandatory Prepayments) does not
provide for scheduled dates fixed for payment) or of the Revolving
Credit Commitments;
(iv) reduce the principal amount of any Loan or
Reimbursement Obligation due to such Lender (other than by the payment
or prepayment thereof);
(v) reduce the rate of interest on any Loan or
Reimbursement Obligations outstanding to such Lender or any fee payable
hereunder to such Lender;
(vi) postpone any scheduled date fixed for
payment of such interest or fees due to such Lender;
(vii) change the aggregate Ratable Portions of
Lenders required for any or all Lenders to take any action hereunder;
(viii) except as provided in Section 10.8(b)
(Concerning the Collateral and the Collateral Documents), release
substantially all of the Collateral or release any Borrower or
Guarantor from its obligations under the Guaranty except in connection
with sale or other disposition permitted by this Agreement (or
permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement); or
(ix) amend Section 10.8(b) (Concerning the
Collateral and the Collateral Documents) or this Section 11.1 or the
definition of the terms "Requisite Lenders" or "Ratable Portion";
provided, further, that (a) amendments shall not be valid unless signed by the
Borrowers, (b) any amendment, waiver or consent of any provision of this
Agreement or any other Loan Document shall be effective only in the specific
instance and for the specific purpose for which given and (c) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or the other
Loan Documents.
(b) The Administrative Agent may, but shall have no obligation
to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on the Company or the
Borrowers in any case shall entitle any Borrower to any other or further notice
or demand in similar or other circumstances.
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(c) If, in connection with any proposed amendment,
modification, waiver or termination (a "Proposed Change") requiring the consent
of all affected Lenders, the consent of Requisite Lenders is obtained but the
consent of other Lenders whose consent is required is not obtained (any such
Lender whose consent is not obtained as described in this Section 11.1 being
referred to as a "Non-Consenting Lender"), then, as long as the Lender acting as
the Administrative Agent is not a Non-Consenting Lender, at the Company's
request, the Administrative Agent or an Eligible Assignee acceptable to the
Administrative Agent shall have the right with the Administrative Agent's
consent and in the Administrative Agent's sole discretion (but shall have no
obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting
Lender agrees that it shall, upon the Administrative Agent's request, sell and
assign to the Lender acting as the Administrative Agent or such Eligible
Assignee, all of the Revolving Credit Commitments, and Revolving Credit
Outstandings of such Non-Consenting Lender for an amount equal to the principal
balance of all Loans held by the Non-Consenting Lender and all accrued and
unpaid interest and fees with respect thereto through the date of sale;
provided, however, that such purchase and sale shall not be effective until (x)
the Administrative Agent shall have received from such Eligible Assignee an
agreement in form and substance satisfactory to the Administrative Agent and the
Company whereby such Eligible Assignee shall agree to be bound by the terms
hereof and (y) such Non-Consenting Lender shall have received payments of all
Loans held by it and all accrued and unpaid interest and fees with respect
thereto through the date of the sale. Each Lender agrees that, if it becomes a
Non-Consenting Lender, it shall execute and deliver to the Administrative Agent
an Assignment an Acceptance to evidence such sale and purchase and shall deliver
to the Administrative Agent any Note (if the assigning Lender's Loans are
evidenced by a Note) subject to such Assignment and Acceptance; provided,
however, that the failure of any Non-Consenting Lender to execute an Assignment
and Acceptance shall not render such sale and purchase (and the corresponding
assignment) invalid.
SECTION 11.2 ASSIGNMENTS AND PARTICIPATIONS
(a) Each Lender may sell, transfer, negotiate or assign to one
or more Eligible Assignees all or a portion of its rights and obligations
hereunder (including all of its rights and obligations with respect to the
Revolving Loans, the Swing Loans and the Letters of Credit); provided, however,
that (i) if any such assignment shall be of the assigning Lender's Revolving
Credit Outstandings and Revolving Credit Commitment, such assignment shall cover
the same percentage of such Lender's Revolving Credit Outstandings and Revolving
Credit Commitment, (ii) the aggregate amount being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event (if less than the Assignor's
entire interest) be less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof, except, in either case, (A) with the consent of the Company
and the Administrative Agent or (B) if such assignment is being made to a Lender
or an Affiliate or Approved Fund of such Lender and (iii) if such Eligible
Assignee is not, prior to the date of such assignment, a Lender or an Affiliate
or Approved Fund of a Lender, such assignment shall be subject to the prior
consent of the Administrative Agent and the Company (which consent shall not be
unreasonably withheld or delayed); and provided, further, that, notwithstanding
any other provision of this Section 11.2, the consent of the Company shall not
be required for any assignment that occurs when any Event of Default shall have
occurred and be continuing.
(b) The parties to each assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording, an Assignment and
Acceptance, together with any Note (if the assigning Lender's Loans are
evidenced by a Note) subject to such
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assignment. Upon such execution, delivery, acceptance and recording and the
receipt by the Administrative Agent from the assignee of an assignment fee in
the amount of $3,500 from and after the effective date specified in such
Assignment and Acceptance, (i) the assignee thereunder shall become a party
hereto and, to the extent that rights and obligations under the Loan Documents
have been assigned to such assignee pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender and, if such Lender were an Issuer,
of such Issuer hereunder and thereunder and (ii) the assignor thereunder shall,
to the extent that rights and obligations under this Agreement have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except those that survive the payment in full of the Obligations) and be
released from its obligations under the Loan Documents, other than those
relating to events or circumstances occurring prior to such assignment (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address
referred to in Section 11.8 (Notices, Etc.) a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recording of
the names and addresses of the Lenders and the Revolving Credit Commitments of
and principal amount of the Loans and Letter of Credit Obligations owing to each
Lender from time to time (the "Register"). Any assignment pursuant to this
Section 11.2 shall not be effective until such assignment is recorded in the
Register. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Loan Parties, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender for all purposes of this Agreement. The entries in the Register
applicable to any Lender shall be available for inspection by the Company, the
Administrative Agent or such Lender at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company. Within five Business Days after
its receipt of such notice, the Borrowers, at their own expense, shall, if
requested by such assignee, execute and deliver to the Administrative Agent, new
Notes to the order of such assignee in an amount equal to the Revolving Credit
Commitments assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has surrendered any Note for exchange in connection with the
assignment and has retained Revolving Credit Commitments hereunder, new Notes to
the order of the assigning Lender in an amount equal to the Revolving Credit
Commitments retained by it hereunder. Such new Notes shall be dated the same
date as the surrendered Notes and be in substantially the form of Exhibit B
(Form of Revolving Credit Note).
(e) In addition to the other assignment rights provided in
this Section 11.2, each Lender may assign, as collateral or otherwise, any of
its rights under this Agreement (including rights to payments of principal or
interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A
of the Federal Reserve Board without notice to or consent of the Borrowers or
the Administrative Agent and (ii) any trustee for the benefit of the holders of
such Lender's Securities; provided, however, that no such assignment shall
release the assigning Lender from any of its obligations hereunder.
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(f) Each Lender may sell participations to one or more Persons
in or to all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Revolving Loans
and Letters of Credit). The terms of such participation shall not, in any event,
require the participant's consent to any amendments, waivers or other
modifications of any provision of any Loan Documents, the consent to any
departure by any Loan Party therefrom, or to the exercising or refraining from
exercising any powers or rights such Lender may have under or in respect of the
Loan Documents (including the right to enforce the obligations of the Loan
Parties), except if any such amendment, waiver or other modification or consent
would (i) reduce the amount, or postpone any date fixed for, any amount (whether
of principal, interest or fees) payable to such participant under the Loan
Documents, to which such participant would otherwise be entitled under such
participation or (ii) result in the release of all or substantially all of the
Collateral other than in accordance with Section 10.8(b) (Concerning the
Collateral and the Collateral Documents). In the event of the sale of any
participation by any Lender, (A) such Lender's obligations under the Loan
Documents shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties for the performance of such obligations, (C)
such Lender shall remain the holder of such Obligations for all purposes of this
Agreement and (D) the Borrowers, 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. Each participant
shall be entitled to the benefits of Section 2.14(d) (Illegality), Section 2.15
(Capital Adequacy) and Section 2.16 (Taxes) as if it were a Lender; provided,
however, that anything herein to the contrary notwithstanding, no Borrower
shall, at any time, be obligated to make under Section 2.14(d) (Illegality),
Section 2.15 (Capital Adequacy) or Section 2.16 (Taxes) to the participants in
the rights and obligations of any Lender (together with such Lender) any payment
in excess of the amount such Borrower would have been obligated to pay to such
Lender in respect of such interest had such participation not been sold.
(g) Any Issuer may at any time assign its rights and
obligations hereunder to any other Lender by an instrument in form and substance
satisfactory to the Company, the Administrative Agent, such Issuer and such
Lender. If any Issuer ceases to be a Lender hereunder by virtue of any
assignment made pursuant to this Section 11.2, then, as of the effective date of
such cessation, such Issuer's obligations to issue Letters of Credit pursuant to
Section 2.4 (Letters of Credit) shall terminate and such Issuer shall be an
Issuer hereunder only with respect to outstanding Letters of Credit issued prior
to such date.
SECTION 11.3 COSTS AND EXPENSES
(a) Each Borrower hereby agrees to pay, jointly and severally,
or reimburse upon demand the Administrative Agent for, all of the Administrative
Agent's reasonable internal and external audit, legal, appraisal, valuation,
filing, document duplication and reproduction and investigation expenses and for
all other reasonable out-of-pocket costs and expenses of every type and nature
(including, without limitation, the reasonable fees, expenses and disbursements
of the Administrative Agent's counsel, Weil, Gotshal & Xxxxxx LLP, local legal
counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisers and other consultants and agents) incurred by the
Administrative Agent in connection with (i) the Administrative Agent's audit and
investigation of the Borrowers and their Subsidiaries in connection with the
preparation, negotiation and execution of the Loan Documents and the
Administrative Agent's periodic audits of the Borrowers and their Subsidiaries,
as the case may be, (ii) the preparation, negotiation, execution and
interpretation of this Agreement (including the satisfaction or attempted
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satisfaction of any of the conditions set forth in Article III (Conditions To
Loans And Letters Of Credit) of this Agreement and the Existing Credit
Agreement), the Loan Documents and any proposal letter or commitment letter
issued in connection therewith and the making of the Loans hereunder, (iii) the
creation, perfection or protection of the Liens under the Loan Documents
(including, without limitation, any reasonable fees and expenses for local
counsel in various jurisdictions), (iv) the ongoing administration of this
Agreement and the Loans, including consultation with attorneys in connection
therewith and with respect to the Administrative Agent's rights and
responsibilities hereunder and under the other Loan Documents; (v) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents, (vi) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, any
Loan Party, any of the Borrowers' Subsidiaries, the Acquisition, the Related
Documents, this Agreement or any of the other Loan Documents, (vii) the response
to, and preparation for, any subpoena or request for document production with
which the Administrative Agent is served or deposition or other proceeding in
which the Administrative Agent is called to testify, in each case, relating in
any way to the Obligations, any Loan Party, any of the Borrowers' Subsidiaries,
the Acquisition, the Related Documents, this Agreement or any of the other Loan
Documents and (viii) any amendments, consents, waivers, assignments,
restatements, or supplements to any of the Loan Documents and the preparation,
negotiation, and execution of the same.
(b) Each Borrower further agrees to pay or reimburse, jointly
and severally, the Administrative Agent and the Lenders and Issuers upon demand
for all reasonable out-of-pocket costs and expenses, including, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement), incurred by the Administrative Agent or such Lenders and Issuers
(i) in enforcing any Loan Document or Obligation or any security therefor or
exercising or enforcing any other right or remedy available by reason of an
Event of Default, (ii) in connection with any refinancing or restructuring of
the credit arrangements provided hereunder in the nature of a "work-out" or in
any insolvency or bankruptcy proceeding, (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, any Loan
Party, any of the Borrowers' Subsidiaries and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents or the
Related Documents and (iv) in taking any other action in or with respect to any
suit or proceeding (bankruptcy or otherwise) described in clauses (i) through
(iii) above.
SECTION 11.4 INDEMNITEES
(a) The Borrowers shall, jointly and severally, indemnify and
hold harmless the Administrative Agent, the Arranger, each Lender, each Issuer
and each of their respective Affiliates, and each of the respective officers,
directors, employees, agents, advisors, attorneys and representatives of each of
the foregoing (each an "Indemnitee") from and against any and all claims,
damages, losses, liabilities and expenses (including reasonable fees and
disbursements of counsel), joint or several, that may be incurred by or asserted
or awarded against any such Indemnitee (including in connection with or relating
to any investigation, litigation or proceeding or the preparation of any defense
in connection therewith), in each case arising out of or in connection with or
by reason of this Agreement, any other Loan Document, any Obligation, any Letter
of Credit, any Related Document, or any of the transactions contemplated hereby
or thereby or any actual or proposed used of the proceeds of the Loans or
Letters of Credit (collectively, the "Indemnified Matters"), except to the
extent such claim, damage, loss, liability
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AMENDED AND RESTATED CREDIT AGREEMENT
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or expense is found, in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnitee's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 11.4 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Borrower, any of its directors, security holders or creditors, an
Indemnitee or any other Person, or an Indemnitee is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated. Without
limiting the foregoing, "Indemnified Matters" shall include, without limitation,
(i) all Environmental Liabilities and Costs arising from or connected with the
past, present or future operations of any Borrower or any Subsidiary thereof
involving any property subject to a Collateral Document, or damage to real or
personal property or natural resources or harm or injury alleged to have
resulted from any Release of Contaminants on, upon or into such property or any
contiguous real estate; (ii) any costs or liabilities incurred in connection
with any Remedial Action concerning any Borrower or any Subsidiary thereof;
(iii) any costs or liabilities incurred in connection with any Environmental
Lien; (iv) any costs or liabilities incurred in connection with any other matter
under any Environmental Law, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 49 U.S.C. xx.xx. 9601 et seq. and
applicable state property transfer laws, whether, with respect to any of such
matters, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a
mortgagee in possession, the successor in interest to any Borrower or any
Subsidiary thereof, or the owner, lessee or operator of any property of any
Borrower or any Subsidiary thereof by virtue of foreclosure, except, with
respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above,
to the extent (A) incurred following foreclosure (or transfer of title to in
lieu of foreclosure) by the Administrative Agent, any Lender or any Issuer, or
the Administrative Agent, any Lender or any Issuer having become the successor
in interest to any Borrower or any Subsidiary thereof and (B) attributable
solely to acts of the Administrative Agent, such Lender or such Issuer or any
agent on behalf of the Administrative Agent or such Lender.
(b) The Borrowers shall, jointly and severally, indemnify the
Administrative Agent, the Lenders and each Issuer for, and hold the
Administrative Agent, the Lenders and each Issuer harmless from and against, any
and all claims for brokerage commissions, fees and other compensation made
against the Administrative Agent, the Lenders and the Issuers for any broker,
finder or consultant with respect to any agreement, arrangement or understanding
made by or on behalf of any Loan Party or any of its Subsidiaries in connection
with the transactions contemplated by this Agreement.
(c) The Administrative Agent, each Lender and each Issuer
agree that in the event that any such investigation, litigation or proceeding
set forth in clause (b) above is asserted or threatened in writing or instituted
against it or any other Indemnitee, or any Remedial Action, is requested of it
or any of its officers, directors, agents and employees, for which any
Indemnitee may desire indemnity or defense hereunder, such Indemnitee shall
promptly notify the Company in writing.
(d) Each Borrower, at the request of any Indemnitee, shall
have the obligation to defend against such investigation, litigation or
proceeding or requested Remedial Action and such Borrower, in any event, may
participate in the defense thereof with legal counsel of such Borrower's choice.
In the event that such Indemnitee requests any Borrower to defend against such
investigation, litigation or proceeding or requested Remedial Action, such
Borrower shall promptly do so and such Indemnitee shall have the right to have
legal counsel of its choice participate in such defense. No action taken by
legal counsel chosen by such Indemnitee in
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AMENDED AND RESTATED CREDIT AGREEMENT
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defending against any such investigation, litigation or proceeding or requested
Remedial Action, shall vitiate or in any way impair the Borrowers' obligation
and duty hereunder to indemnify and hold harmless such Indemnitee.
(e) Each Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including
pursuant to this Section 11.4) or any other Loan Document shall (i) survive
payment in full of the Obligations and (ii) inure to the benefit of any Person
who was at any time an Indemnitee under this Agreement or any other Loan
Document.
SECTION 11.5 LIMITATION OF LIABILITY
(a) Each Borrower agrees that no Indemnitee shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any
Borrower or any of its security holders or creditors for or in connection with
the transactions contemplated hereby, except for direct damages (as opposed to
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings)) determined in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnitee's breach of contract, gross negligence or willful
misconduct.
(b) In no event shall any Agent Affiliate have any liability
to any Loan Party, Lender, Issuer or any other Person for damages of any kind,
including direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort or contract or otherwise) arising out of any
Loan Party or any Agent Affiliate's transmission of Approved Electronic
Communications through the Internet or any use of the Approved Electronic
Platform, except to the extent such liability of any Agent Affiliate is found in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Agent Affiliate's gross negligence or willful misconduct.
SECTION 11.6 RIGHT OF SET-OFF
Upon the occurrence and during the continuance of any Event of
Default each Lender and each Affiliate of a Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or its Affiliates to or for the credit or the account of any Borrower
against any and all of the Obligations now or hereafter existing whether or not
owing by such Borrower and whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such Obligations
may be unmatured. Each Lender agrees promptly to notify the Company after any
such set-off and application made by such Lender or its Affiliates; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this Section 11.6
are in addition to the other rights and remedies (including other rights of
set-off) that such Lender may have.
SECTION 11.7 SHARING OF PAYMENTS, ETC.
(a) If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off or otherwise) of the
Loans owing to it, any interest thereon, fees in respect thereof or amounts due
pursuant to Section 11.3 (Costs and Expenses) or Section 11.4 (Indemnitees)
(other than payments pursuant to Section 2.14 (Special Provisions
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AMENDED AND RESTATED CREDIT AGREEMENT
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Governing Eurodollar Rate Loans), Section 2.15 (Capital Adequacy) and Section
2.16 (Taxes)) in excess of its Ratable Portion of all payments of such
Obligations obtained by all the Lenders, such Lender (a "Purchasing Lender")
shall forthwith purchase from the other Lenders (each, a "Selling Lender") such
participations in their Loans or other Obligations as shall be necessary to
cause such Purchasing Lender to share the excess payment ratably with each of
them.
(b) If all or any portion of any payment received by a
Purchasing Lender is thereafter recovered from such Purchasing Lender, such
purchase from each Selling Lender shall be rescinded and such Selling Lender
shall repay to the Purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Selling Lender's ratable share
(according to the proportion of (i) the amount of such Selling Lender's required
repayment to (ii) the total amount so recovered from the Purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered.
(c) Each Borrower agrees that any Purchasing Lender so
purchasing a participation from a Selling Lender pursuant to this Section 11.7
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of any Borrower in the amount of such
participation.
SECTION 11.8 NOTICES, ETC.
(a) Addresses for Notices. All notices, demands, requests and
other communications provided for in this Agreement shall be given in writing,
or by any telecommunication device capable of creating a written record
(including electronic mail), and addressed to the party to be notified as
follows:
(i) if to the Company, any Borrower or any
Subsidiary of any of them:
Suntron Corporation
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telecopy no: (000) 000-0000
Electronic Mail Address: xxxxx.xxxx@xxxxxxxxxxx.xxx
with a copy to:
Xxxxxx Equity Investors IV, L.P.
c/x Xxxxxx Capital Partners
0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. XxXxxxxxx
Telecopy no: (000) 000-0000
Electronic Mail Address: xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with a copy to:
RCBA Strategic Partners, L.P.
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy no: (000) 000-0000
Electronic Mail Address: xxxxxxx@xxxxxxxxxxx.xxx
with a copy to:
Xxxxxxxxx Xxxxxxx, LLP
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (Fax)
Electronic Mail Address: xxxxxxx@xxxxx.xxx;
(ii) if to any Lender, at its Domestic Lending
Office specified opposite its name on Schedule II (Applicable Lending
Offices and Addresses for Notices) or on the signature page of any
applicable Assignment and Acceptance;
(iii) if to any Issuer, at the address set forth
under its name on Schedule II (Applicable Lending Offices and Addresses
for Notices); and
(iv) if to the Administrative Agent:
CITICORP USA, INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy no: (000) 000-0000
Electronic Mail Address: xxxxx.x.xxxxxxx@xxxxxxxxx.xxx
with a copy to:
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy no: (000) 000-0000
Electronic Mail Address: xxxxxx.xxxxx@xxxx.xxx
or at such other address as shall be notified in writing (i) in the case of the
Company and the Administrative Agent, to the other parties and (ii) in the case
of all other parties, to the Company and the Administrative Agent. All such
notices and communications shall be effective upon personal delivery (if
delivered by hand, including any overnight courier service), when deposited in
the mails (if sent by mail), or when properly transmitted (if sent by a
telecommunications device or through the Internet); provided, however, that
notices and communications to the
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AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRON CORPORATION
Administrative Agent pursuant to Article II (The Facility) or Article X (The
Administrative Agent; the agents) shall not be effective until received by the
Administrative Agent.
(b) Use of Electronic Platform. Notwithstanding clause (a)
above (unless the Administrative Agent requests that the provisions of clause
(a) above be followed) and any other provision in this Agreement or any other
Loan Document providing for the delivery of, any Approved Electronic
Communication by any other means, the Loan Parties shall deliver all Approved
Electronic Communications to the Administrative Agent by transmitting such
Approved Electronic Communications electronically (in a format reasonably
acceptable to the Administrative Agent) to xxxxxxxxxxxxxxx@xxxx.xxx or such
other electronic mail address (or similar means of electronic delivery) as the
Administrative Agent may notify the Company. Nothing in this clause (b) shall
prejudice the right of the Administrative Agent or any Lender or Issuer to
deliver any Approved Electronic Communication to any Loan Party in any manner
prescribed in this Agreement.
SECTION 11.9 NO WAIVER; REMEDIES
No failure on the part of any Lender, Issuer or the
Administrative Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 11.10 AMENDMENT AND RESTATEMENT; BINDING EFFECT
(a) This Agreement shall become effective on the Effective
Date after it shall have been executed by the Company, each Borrower and the
Administrative Agent and after the Administrative Agent shall have been notified
by each Lender and Issuer that such Lender or Issuer has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and Issuer and, in each case, their
respective successors and assigns; provided, however, that neither the Company
nor any Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
(b) On the Effective Date and for so long as the Borrower
shall comply with the items set forth in Section 1of Schedule 8.22 (Post Closing
Deliveries) (or such non-compliance shall be and remain duly waived hereunder),
the Existing Credit Agreement shall be amended and restated in its entirety by
this Agreement and the Existing Credit Agreement shall thereafter be of no
further force and effect except to evidence (i) the incurrence by any Borrower
of the "Obligations" under and as defined therein (whether or not such
"Obligations" are contingent as of the Effective Date), (ii) the representations
and warranties made by any Borrower prior to the Effective Date and (iii) any
action or omission performed or required to be performed pursuant to such
Existing Credit Agreement prior to the Effective Date (including any failure,
prior to the Effective Date, to comply with the covenants (other than the
covenants set forth in Section 6.12(e) (Borrowing Base Determination)) contained
in such Existing Credit Agreement). The amendments and restatements set forth
herein (including deletion of financial covenants applicable to previous Fiscal
Quarters) shall not cure any breach thereof or any "Default" or "Event of
Default" under and as defined in the Existing Credit Agreement existing prior to
the date hereof or after any failure to comply with the items set forth in
Section 1of Schedule 8.22 (Post Closing Deliveries). This Agreement is not in
any way intended to constitute a novation of
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AMENDED AND RESTATED CREDIT AGREEMENT
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the obligations and liabilities existing under the Existing Credit Agreement or
evidence payment of all or any portion of such obligations and liabilities.
(c) The terms and conditions of this Agreement and the
Administrative Agent's, the Lenders' and the Issuers' rights and remedies under
this Agreement and the other Loan Documents, shall apply to all of the
Obligations incurred under the Existing Credit Agreement and the Notes issued
thereunder.
(d) The Borrower reaffirms the Liens granted pursuant to the
Collateral Documents to the Administrative Agent for the benefit of the Lenders
and the Issuers, which Liens shall continue in full force and effect during the
term of this Agreement and any renewals or extensions thereof and shall continue
to secure the Obligations.
(e) On and after the Effective Date and for so long as the
Borrower shall deliver the items set forth in Section 1of Schedule 8.22 (Post
Closing Deliveries) in compliance with such Section (or such non-compliance
shall be and remain duly waived hereunder), (i) all references to the Existing
Credit Agreement (or to any amendment, supplement, modification or amendment and
restatement thereof) in the Loan Documents (other than this Agreement) shall be
deemed to refer to the Existing Credit Agreement as amended and restated hereby,
(ii) all references to any section (or subsection) of the Existing Credit
Agreement in any Loan Document (but not herein) shall be amended to become,
mutatis mutandis, references to the corresponding provisions of this Agreement
and (iii) except as the context otherwise provides, on or after the Effective
Date, all references to this Agreement herein (including for purposes of
indemnification and reimbursement of fees) shall be deemed to be reference to
the Existing Credit Agreement as amended and restated hereby.
(f) This amendment and restatement is limited as written and
is not a consent to any other amendment, restatement, waiver or other
modification, whether or not similar, and, except as expressly provided herein
or in any other Loan Document, all terms and conditions of the Loan Documents
remain in full force and effect unless otherwise specifically amended by this
Agreement or any other Loan Document.
SECTION 11.11 GOVERNING LAW
This Agreement and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
SECTION 11.12 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of the State
of New York or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Agreement, each Borrower hereby
accept for itself and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, that any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each Borrower hereby irrevocably designates, appoints and
empowers CT Corporation System (telephone no: (000) 000-0000) (telecopy no:
(000) 000-0000) (electronic
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AMENDED AND RESTATED CREDIT AGREEMENT
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mail address: xxxx@xxxxxxxxxxx.xxx) (the "Process Agent"), in the case of any
suit, action or proceeding brought in the State of New York as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
and in respect of its property, service of any and all legal process, summons,
notices and documents that may be served in any action or proceeding arising out
of or in connection with this Agreement or any Loan Document. Such service may
be made by mailing (by registered or certified mail, postage prepaid) or
delivering a copy of such process to such Borrower in care of the Process Agent
at the Process Agent's above address, and each Borrower hereby irrevocably
authorizes and directs the Process Agent to accept such service on its behalf.
As an alternative method of service, each Borrower irrevocably consents to the
service of any and all process in any such action or proceeding by the mailing
(by registered or certified mail, postage prepaid) of copies of such process to
the Process Agent or such Borrower at its address specified in Section 11.8
(Notices, Etc.). Each Borrower agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Nothing contained in this Section 11.12 shall affect the
right of the Administrative Agent or any Lender to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against any Borrower or any other Loan Party in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
SECTION 11.13 WAIVER OF JURY TRIAL
EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUERS AND
EACH BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 11.14 MARSHALING; PAYMENTS SET ASIDE
None of the Administrative Agent, any Lender or any Issuer
shall be under any obligation to marshal any assets in favor of any Borrower or
any other party or against or in payment of any or all of the Obligations. To
the extent that any Borrower makes a payment or payments to the Administrative
Agent, the Lenders or the Issuers or any of such Persons receives payment from
the proceeds of the Collateral or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, receiver or any other party,
then to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
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AMENDED AND RESTATED CREDIT AGREEMENT
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SECTION 11.15 SECTION TITLES
The section titles contained in this Agreement are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto, except when used to reference
such section. If a numbered reference to a clause, subclause or subsection
hereof is immediately followed by a reference in parenthesis to the title of a
section hereof containing such clause, subclause or subsection, the reference is
only to such clause, subclause or subsection and not to the section generally.
If a numbered reference to a section hereof is immediately followed by a
reference in parenthesis to a section hereof, the title reference shall govern
in case of direct conflict.
SECTION 11.16 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts
and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are attached to the same document. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all parties shall be lodged with the Company and the
Administrative Agent.
SECTION 11.17 ENTIRE AGREEMENT
This Agreement, together with all of the other Loan Documents
and all certificates and documents delivered hereunder or thereunder, embodies
the entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. In the event of any
conflict between the terms of this Agreement and any other Loan Document, the
terms of this Agreement shall govern.
SECTION 11.18 CONFIDENTIALITY
Each Lender and the Administrative Agent agree to keep
information obtained by it pursuant hereto and the other Loan Documents
confidential in accordance with such Lender's or the Administrative Agent's, as
the case may be, customary practices and agrees that it shall only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's or the
Administrative Agent's, as the case may be, employees, representatives and
agents who are or are expected to be involved in the evaluation of such
information in connection with the transactions contemplated by this Agreement
and who are advised of the confidential nature of such information, (b) to the
extent such information presently is or hereafter becomes available to such
Lender or the Administrative Agent, as the case may be, on a non-confidential
basis from a source other than the Borrowers, (c) to the extent disclosure is
required by law, regulation or judicial order or requested or required by bank
regulators or auditors, in each case and to the extent such assignees,
participants, grantees or counterparties agree to be bound by, and to cause
their advisors to comply with, the provisions of this Section 11.18.
Notwithstanding any other provision in this Agreement, the Company, each
Borrower, each Lender and the Administrative Agent hereby agree that each of the
Lenders and the Administrative Agent (and each of their respective officers,
directors, employees, accountants, attorneys and other advisors) may disclose to
any and all Persons, without limitation of any kind, the U.S. tax treatment and
U.S. tax
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AMENDED AND RESTATED CREDIT AGREEMENT
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structure of the transaction and all materials of any kind (including opinions
and other tax analyses) that are provided to each of them relating to such U.S.
tax treatment and U.S. tax structure.
[SIGNATURE PAGES FOLLOW]
111
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SUNTRON CORPORATION
as the Company
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
K*TEC OPERATING CORP.,
as Borrower
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
EFTC OPERATING CORP.,
as Borrower
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
CITICORP USA, INC.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CITIBANK, N.A.,
as Issuer
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CITICORP USA, INC.
as Lender
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ACCEPTED AND AGREED
as of the date first written above:
K*TEC ELECTRONICS HOLDING CORPORATION
as Borrower
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: CFO
