EXHIBIT 10.1
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of June 3, 2005
among
AMERICAN STATES WATER COMPANY,
as Borrower,
THE LENDERS NAMED HEREIN
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Lead Arranger
TABLE OF CONTENTS
Page
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Article 1. DEFINITIONS AND ACCOUNTING TERMS .......................................... 1
1.1 Defined Terms ............................................................. 1
1.2 Use of Defined Terms ...................................................... 27
1.3 Accounting Terms; Covenant Calculations ................................... 27
1.4 Rounding .................................................................. 27
1.5 Exhibits and Schedules .................................................... 28
1.6 References to "Borrower and its Subsidiaries" ............................. 28
1.7 Miscellaneous Terms ....................................................... 28
Article 2. ADVANCES AND LETTERS OF CREDIT ............................................ 29
2.1 Advances-General .......................................................... 29
2.2 Alternate Base Rate Advances .............................................. 30
2.3 Eurodollar Rate Advances .................................................. 30
2.4 Conversion and Continuation of Advances ................................... 31
2.5 Letters of Credit ......................................................... 32
2.6 Termination or Reduction of the Commitments ............................... 36
2.7 Administrative Agent's Right to Assume Funds Available for Advances ....... 37
2.8 Swing Line ................................................................ 37
2.9 Adjusting Purchase Payments ............................................... 39
Article 3. PAYMENTS AND FEES ......................................................... 41
3.1 Principal and Interest .................................................... 41
3.2 Unused Revolving Facility Commitment Fee .................................. 42
3.3 Closing Fees; Arrangement Fee; Agency Fee etc ............................. 42
3.4 Letter of Credit Fees ..................................................... 43
3.5 Increased Commitment Costs ................................................ 43
3.6 Eurodollar Costs and Related Matters ...................................... 44
3.7 Late Payments and Default Rate ............................................ 47
3.8 Computation of Interest and Fees .......................................... 47
3.9 Non-Banking Days .......................................................... 48
3.10 Manner and Treatment of Payments .......................................... 48
3.11 Funding Sources ........................................................... 49
3.12 Failure to Charge Not Subsequent Waiver ................................... 49
3.13 Administrative Agent's Right to Assume Payments Will be Made .............. 49
3.14 Fee Determination Detail .................................................. 50
3.15 Survivability ............................................................. 50
Article 4. REPRESENTATIONS AND WARRANTIES ............................................ 51
4.1 Existence and Qualification; Power; Compliance With Laws .................. 51
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4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations .................................................... 51
4.3 No Governmental Approvals Required ........................................ 52
4.4 Subsidiaries .............................................................. 52
4.5 Financial Statements ...................................................... 53
4.6 No Other Liabilities; No Material Adverse Changes ......................... 53
4.7 Title to and Location of Property ......................................... 53
4.8 Intangible Assets ......................................................... 53
4.9 Litigation ................................................................ 54
4.10 Binding Obligations ....................................................... 54
4.11 No Default ................................................................ 54
4.12 ERISA ..................................................................... 54
4.13 Regulation U; Investment Company Act ...................................... 55
4.14 Disclosure ................................................................ 55
4.15 Tax Liability ............................................................. 55
4.16 Projections ............................................................... 55
4.17 Hazardous Materials ....................................................... 55
4.18 Employee Matters .......................................................... 56
4.19 Fiscal Year ............................................................... 56
4.20 Solvency .................................................................. 56
Article 5. AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS) ...................................................... 57
5.1 Payment of Taxes and Other Potential Liens ................................ 57
5.2 Preservation of Existence ................................................. 57
5.3 Maintenance of Properties ................................................. 57
5.4 Maintenance of Insurance .................................................. 57
5.5 Compliance With Laws ...................................................... 57
5.6 Inspection Rights ......................................................... 58
5.7 Keeping of Records and Books of Account ................................... 58
5.8 Compliance With Agreements ................................................ 58
5.9 Use of Proceeds ........................................................... 58
5.10 Hazardous Materials Laws .................................................. 58
5.11 Minimum Debt Rating ....................................................... 59
5.12 Syndication Process ....................................................... 59
Article 6. NEGATIVE COVENANTS ........................................................ 60
6.1 Prepayment of Indebtedness ................................................ 60
6.2 Prepayment of Subordinated Obligations .................................... 60
6.3 Disposition of Property ................................................... 60
6.4 Mergers ................................................................... 60
6.5 Hostile Tender Offers ..................................................... 61
6.6 Distributions ............................................................. 61
6.7 ERISA ..................................................................... 61
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6.8 Change in Nature of Business .............................................. 61
6.9 Liens and Negative Pledges ................................................ 61
6.10 Indebtedness and Guaranty Obligations ..................................... 62
6.11 Transactions with Affiliates .............................................. 62
6.12 Total Funded Debt Ratio ................................................... 63
6.13 Interest Coverage Ratio ................................................... 63
6.14 Investments and Acquisitions .............................................. 63
6.15 Operating Leases .......................................................... 64
6.16 Amendments ................................................................ 64
6.17 Use of Lender's Name ...................................................... 64
6.18 Change of Fiscal Periods .................................................. 64
Article 7. INFORMATION AND REPORTING REQUIREMENTS .................................... 65
7.1 Financial and Business Information ........................................ 65
7.2 Compliance Certificates ................................................... 67
Article 8. CONDITIONS ................................................................ 69
8.1 Closing Date Advances ..................................................... 69
8.2 Any Advance ............................................................... 70
Article 9. EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT ...................... 72
9.1 Events of Default ......................................................... 72
9.2 Remedies Upon Event of Default ............................................ 74
Article 10. THE ADMINISTRATIVE AGENT ................................................. 77
10.1 Appointment and Authorization ............................................. 77
10.2 Administrative Agent and Affiliates ....................................... 77
10.3 Proportionate Interest in any Collateral .................................. 77
10.4 Lenders' Credit Decisions ................................................. 77
10.5 Action by Administrative Agent ............................................ 78
10.6 Liability of Administrative Agent ......................................... 79
10.7 Indemnification ........................................................... 80
10.8 Successor Administrative Agent ............................................ 80
10.9 No Obligations of Borrower ................................................ 81
Article 11. MISCELLANEOUS ............................................................ 82
11.1 Cumulative Remedies; No Waiver ............................................ 82
11.2 Amendments; Consents ...................................................... 82
11.3 Costs and Expenses ........................................................ 83
11.4 Nature of Lenders' Obligations ............................................ 84
11.5 Survival of Representations and Warranties ................................ 84
11.6 Notices ................................................................... 84
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11.7 Execution of Loan Documents ............................................... 85
11.8 Binding Effect; Assignment ................................................ 85
11.9 Right of Setoff ........................................................... 88
11.10 Sharing of Setoffs ........................................................ 88
11.11 Indemnity by Borrower ..................................................... 89
11.12 Nonliability of the Lenders ............................................... 90
11.13 No Third Parties Benefited ................................................ 91
11.14 Confidentiality ........................................................... 91
11.15 Further Assurances ........................................................ 92
11.16 Integration ............................................................... 92
11.17 Governing Law ............................................................. 92
11.18 Severability of Provisions ................................................ 92
11.19 Headings .................................................................. 92
11.20 Time of the Essence ....................................................... 93
11.21 Foreign Lenders and Participants .......................................... 93
11.22 Waiver of Right to Trial by Jury .......................................... 93
11.23 Purported Oral Amendments ................................................. 94
11.24 Replacement of Lender ..................................................... 94
11.25 USA Patriot Act Notice .................................................... 94
EXHIBITS
A - Assignment and Acceptance
B - Compliance Certificate
C - Letter of Credit Agreement
D - Note
E - Opinion of Counsel
F - Request for Borrowing
G - Request for Continuation/Conversion
H - Request for Letter of Credit
I - Adjusting Purchase Payments
SCHEDULES
1.1 Lender Commitments/Pro Rata Shares
1.3 Material Contracts
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Intangible Assets
4.9 Material Litigation
4.17 Hazardous Materials Matters
6.14 Existing Investments
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 3, 2005
This AMENDED AND RESTATED CREDIT AGREEMENT (as amended, supplemented
or otherwise modified from time to time, this "Agreement") is entered into by
and among AMERICAN STATES WATER COMPANY, a California corporation ("Borrower"),
each lender whose name is set forth on the signature pages of this Agreement and
each lender that may hereafter become a party to this Agreement pursuant to
Section 11.8 (each a "Lender" and collectively, "Lenders"), and ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lead Arranger.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquired Person" means (a) any Person that is the subject of an
Acquisition after the Closing Date and (b) any assets constituting a
discrete business or operation unit that is the subject of an Acquisition
after the Closing Date.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the Closing Date, by which Borrower or any
of its Subsidiaries directly or indirectly (a) acquires any ongoing
business or all or substantially all of the assets of any firm,
partnership, joint venture, limited liability company, corporation or
division thereof, whether through purchase of assets, merger or otherwise,
(b) acquires in one transaction or as the most recent transaction in a
series of transactions control of Securities of a Person engaged in an
ongoing business representing more than 50% of the ordinary voting power
for the election of directors or other governing position if the business
affairs of such Person are managed by a board of directors or other
governing body or (c) acquires control of more than 50% of the ownership
interest in any partnership, joint venture, limited liability company,
business trust or other Person that is not managed by a board of directors
or other governing body.
"Administrative Agent" means ▇▇▇▇▇ Fargo when acting in its capacity
as the Administrative Agent under any of the Loan Documents, or any
successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
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"Advance" means any advance made or to be made by any Lender to
Borrower as provided in Section 2.1 (a).
"Advances for Construction" means funds advanced by any person in
connection with the addition of utility plant which funds are subject to
refund and, in accordance with GAAP as in effect on the date hereof, are
reflected as "Other Credits" in the financial statements of Borrower and
its Subsidiaries, until refunded.
"Aerojet Write-Off" means any write-off of regulatory assets that
may be required as a result of the failure of the California Public
Utilities Commission to approve all, or in part, the request of SCW to
amortize the remainder of the costs in the memorandum account established
by SCW to record the costs incurred in connection with prosecuting the
water contamination lawsuits filed by SCW against the State of California
and Aerojet General Corporation.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (and the
correlative terms, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
Securities or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns, directly or
indirectly, 10% or more of the Securities having ordinary voting power for
the election of directors or other governing body of a corporation that
has more than 100 record holders of such Securities, or 10% or more of the
partnership or other ownership interests of any other Person that has more
than 100 record holders of such interests, will be deemed to be an
Affiliate of such corporation, partnership or other Person.
"Aggregate Effective Amount" means, as of any date of determination
and with respect to all Letters of Credit then outstanding, the sum of (a)
the aggregate effective face amounts of all such Letters of Credit not
then paid by Issuing Lender plus (b) the aggregate amounts paid by Issuing
Lender under such Letters of Credit not then reimbursed to Issuing Lender
by Borrower pursuant to Section 2.5(d) and not the subject of one or more
Advances made pursuant to Section 2.5(e) or (f).
"Alternate Base Rate" means, as of any date of determination, the
rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%)
equal to the higher of (a) the Prime Rate in effect on such date and (b)
the Federal Funds Rate in effect on such date plus 1/2 of 1% (50 basis
points).
"Alternate Base Rate Advance" means an Advance that bears interest
in relation to the Alternate Base Rate as provided in Section 3.1(b).
"Applicable Alternate Base Rate Margin" means, with respect to any
Alternate Base Rate Advance, for each Pricing Period, the interest rate
margin set forth below
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(expressed in basis points per annum) opposite the Applicable Pricing
Level for that Pricing Period:
Applicable
Pricing
Level Margin
---------- ------
I 0
II 0
III 0
IV 0
V 0
"Applicable Commitment Fee Margin" means, for each Pricing Period,
the margin set forth below (expressed in basis points per annum) opposite
the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing
Level Margin
---------- ------
I 7.5
II 10.0
III 12.5
IV 15.0
V 17.5
"Applicable Eurodollar Rate Margin" means, with respect to any
Eurodollar Rate Advance, for each Pricing Period, the interest rate margin
set forth below (expressed in basis points per annum) opposite the
Applicable Pricing Level for that Pricing Period:
Applicable
Pricing
Level Margin
---------- ------
I 50.0
II 62.5
III 75.0
IV 87.5
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V 100.0
"Applicable Letter of Credit Fee Rate" means, as of any date of
determination, the then effective Applicable Eurodollar Rate Margin.
"Applicable Pricing Level" means, for each Pricing Period the
pricing level set forth below opposite the Debt Rating achieved by
Borrower as of the first day of that Pricing Period:
Pricing Level Debt Rating
------------- -----------
I Greater than or equal to A1 / A+
II Less than Al / A+ but greater than or
equal to A2 / A
III Less than A2 / A but greater than or
equal to A3 / A-
IV Less than A3 / A- but greater than or
equal to Baa2/BBB
V Less than Baa2/BBB
provided that in the event that the then prevailing Debt Ratings are
"split ratings", Borrower will receive the benefit of the higher Debt
Rating, unless the split is a "double split rating" (in which case the
pricing level applicable to the middle Debt Rating will apply) or a
"triple split rating" (in which case the pricing level applicable to the
Debt Rating above the Debt Rating applicable to the lowest pricing level
will apply). For purposes hereof, a Debt Rating is only a "split rating"
if the Debt Rating applies to a different pricing level.
"Assignment and Acceptance" means an assignment and acceptance
agreement substantially in the form of Exhibit A.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be
closed in California or New York.
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same type.
"Capital Expenditure" means any expenditure that is treated as a
capital expenditure under GAAP, including any expenditure that is required
to be capitalized in accordance with GAAP that relates to an asset subject
to a Capital Lease.
"Capital Lease" means, as to any Person, a lease of any Property by
that Person as lessee that is, or should be in accordance with GAAP
(including Financial Accounting Standards Board Statement No. 13, as
amended or superseded from time
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to time), recorded as a "capital lease" on the balance sheet of that
Person prepared in accordance with GAAP.
"Capital Lease Obligations" means all monetary obligations of a
Person under any Capital Lease.
"Cash" means, when used in connection with any Person, all monetary
and non-monetary items owned by that Person that are treated as cash in
accordance with GAAP.
"Cash Equivalents" means, when used in connection with any Person,
that Person's Investments in:
(a) Government Securities due within one year after the date
of the making of the Investment;
(b) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such State
or any public agency or instrumentality thereof given on the date of such
Investment a credit rating of at least Aa by ▇▇▇▇▇'▇ or AA by S&P, in each
case due within one year from the making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
bank incorporated under the Laws of the United States of America, any
State thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, or total assets of at least $5,000,000,000, in each case due
within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital, surplus
and undivided profits of at least $500,000,000, or total assets of at
least $15,000,000,000, in each case due within one year after the date of
the making of the Investment;
(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of the
Investment capital of at least $50,000,000, due within 90 days after the
date of the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of record
ownership of the Government Securities on the books of a "primary dealer"
in such Government Securities or on the books of such registered broker or
dealer, as soon as practicable after the making of the Investment;
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(f) readily marketable commercial paper or other debt
Securities issued by corporations doing business in and incorporated under
the Laws of the United States of America or any State thereof or of any
corporation that is the holding company for a bank described in clause (c)
or (d) above given on the date of such Investment a credit rating of at
least P-1 by ▇▇▇▇▇'▇ or A-1 by S&P, in each case due within one year after
the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any State
thereof (i) given on the date of such Investment a credit rating of at
least Aa by ▇▇▇▇▇'▇ and AA by S&P, in each case having an investment
period not exceeding 50 days or (ii) to the extent that investors therein
have the benefit of a standby letter of credit issued by Lender or a bank
described in clauses (c) or (d) above; provided that (y) the amount of all
such Investments issued by the same issuer does not exceed $5,000,000 and
(z) the aggregate amount of all such Investments does not exceed
$10,000,000;
(h) a readily redeemable "money market mutual fund" sponsored
by a bank described in clause (c) or (d) hereof, or a registered broker or
dealer described in clause (e) hereof, that has and maintains an
investment policy limiting its investments primarily to instruments of the
types described in clauses (a) through (g) hereof and given on the date of
such Investment a credit rating of at least Aa by ▇▇▇▇▇'▇ and AA by S&P;
and
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation incorporated
under the Laws of the United States of America, or a participation
interest therein; provided that (i) commercial paper issued by such
corporation is given on the date of such Investment a credit rating of at
least Aa by ▇▇▇▇▇'▇ and AA by S&P, (ii) the amount of all such Investments
issued by the same issuer does not exceed $5,000,000 and (iii) the
aggregate amount of all such Investments does not exceed $10,000,000.
"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
"Change in Control" means any of the following events: (a) the sale,
lease, transfer or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the assets of Borrower and its Subsidiaries taken as
a whole to any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Securities Exchange Act), (b) Borrower shall fail to
own, directly or indirectly, 100% of the outstanding capital stock or
other equity interests of any Closing Date Subsidiary, (c) any Person or
two or more Persons acting in concert shall have acquired beneficial
ownership, directly or indirectly, of, or shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of, control
over, 20% or more of the capital stock or other equity interests of
Borrower, (d) during any period of up to 24 consecutive months, commencing
after the Closing Date,
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individuals who at the beginning of such 24-month period were directors of
Borrower (together with any new director whose election by Borrower's
board of directors or whose nomination for election by Borrower's
shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the
directors of Borrower then in office or (e) any transaction or series of
related transactions constituting a "change in control" or similar
occurrence under documentation evidencing or governing Indebtedness of
Borrower and/or any of its Subsidiaries of $1,000,000 or more, which gives
the holder(s) of such Indebtedness the right to accelerate or otherwise
require payment of such Indebtedness prior to the maturity date thereof.
As used herein, "beneficial ownership" shall have the meaning provided in
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrower and the Closing Date Lenders of
the date that is the Closing Date.
"Closing Date Lenders" means ▇▇▇▇▇ Fargo, CoBank, ACB, Union Bank of
California, N.A., Comerica Bank, The Northern Trust Company, and any other
lender party to this Agreement as of the Closing Date.
"Closing Date Subsidiaries" means SCW, American States Utility
Services, Inc., a California corporation, Chaparral City Water Company, an
Arizona corporation, California Cities Water Company, Inc., a California
corporation, AWR Merger Company, a California corporation, and Fort Bliss
Water Services Company, a Texas corporation.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Commitment" means with respect to each Lender, the commitment of
such Lender to make Advances (expressed as the maximum aggregate amount of
the Advances to be made by such Lender hereunder), as such commitment may
be (a) reduced from time to time pursuant to Section 2.6 and (b) reduced
or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 11.8. The initial amount of each Lender's
Commitment is set forth on Schedule 1.1 or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $85,000,000.
"Compliance Certificate" means a certificate in the form of Exhibit
B, properly completed and signed by the president or chief financial
officer of Borrower.
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"Continuation," "Continue" and "Continued" each refers to a
continuation of Eurodollar Rate Advances from one Eurodollar Period to the
next Eurodollar Period pursuant to Section 2.4(c).
"Contractual Obligation" means, as to any Person, any provision of
any outstanding Security issued by that Person or of any material
agreement; instrument or undertaking to which that Person is a party or by
which it or any of its Property is bound.
"Conversion," "Convert" and "Converted" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.4(a) or 2.4(b).
"Debtor Relief Laws" means the Bankruptcy Code of the United States
of America, as amended from time to time, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors generally.
"Debt Ratings" means, as of each date of determination, (a) in the
event such a credit rating is issued by either Moody's or S&P, the bank
debt credit rating assigned to the Indebtedness evidenced by this
Agreement by that credit reporting agency, or (b) if no bank debt credit
rating is assigned, the most creditworthy credit rating, actual or
implicit, assigned to senior unsecured Indebtedness of Borrower by that
credit rating agency.
"Default" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Default Rate" means the interest rate prescribed in Section 3.7.
"Designated Deposit Account" means a deposit account to be
maintained by Borrower with ▇▇▇▇▇ Fargo or one of its Affiliates, as from
time to time designated by Borrower by written notification to the
Administrative Agent.
"Designated Eurodollar Market" means, with respect to any Eurodollar
Rate Advance, the London Eurodollar Market.
"Disqualified Stock" means any capital stock, warrants, options or
other rights to acquire capital stock (but excluding any debt Security
which is convertible, or exchangeable, for capital stock), which, by its
terms (or by the terms of any Security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole
or in part, on or prior to the Maturity Date.
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"Disposition" means the sale, transfer or other disposition (each, a
"Transfer") in any single transaction or series of related transactions of
any asset, or group of related assets, of Borrower or any Subsidiary other
than (a) a Transfer of Cash, Cash Equivalents, Investments (other than
Investments in a Subsidiary), Inventory or other assets sold or otherwise
disposed of in the ordinary course of business of Borrower or any
Subsidiary, (b) a Transfer of equipment sold or otherwise disposed of
where substantially similar equipment in replacement thereof has
theretofore been acquired, or thereafter within 90 days is acquired, by
Borrower or any Subsidiary and (c) a Transfer of obsolete assets no longer
useful in the business of Borrower or any Subsidiary whose carrying value
on the books of Borrower or such Subsidiary is less than $1,000,000 and
(d) a Transfer to Borrower or a wholly-owned Subsidiary of Borrower.
"Distribution" means, with respect to any equity interest or
Security issued by a Person, or any warrant or right to acquire any equity
interest or Security of a Person, (a) the retirement, redemption,
purchase, or other acquisition for value by such Person of any such equity
interest or Security, (b) the declaration or (without duplication) payment
by such Person of any dividend in Cash or in Property (other than in
common stock or an equivalent equity interest of such Person) on or with
respect to any such equity interest or Security, (c) any Investment by
such Person in the holder of any such equity interest or Security, and (d)
any other payment by such Person constituting a distribution under
applicable Laws with respect to such equity interest or Security.
"Dollars" or "$" means United States of America dollars.
"EBITDA" means, with respect to any fiscal period, the sum of (a)
Net Income for that period, plus (b) any extraordinary loss reflected in
such Net Income, minus (c) any extraordinary gain reflected in such Net
Income, plus (d) Interest Expense of Borrower and its Subsidiaries for
that period, plus (e) the aggregate amount of federal and state taxes on
or measured by income of Borrower and its Subsidiaries for that period
(whether or not payable during that period), plus (f) depreciation and
amortization expense of Borrower and its Subsidiaries for that period,
plus (g) (i) the actual amount of the Aerojet Write-Off taken during such
period (provided that for purposes of this calculation, such amount shall
not exceed $16,000,000) and (ii) all other non-cash, extraordinary
expenses of Borrower and its Subsidiaries for that period acceptable, in
the case of clause (ii), to the Requisite Lenders, in each case as
determined in accordance with GAAP, consistently applied and, in the case
of items (d), (e), (f), and (g) only to the extent reflected in the
determination of Net Income for that period.
"Eligible Assignee" means (a) another Lender, (b) with respect to
any Lender, any Affiliate of that Lender, (c) any commercial bank having
total assets of $250,000,000 or more, (d) any (i) savings bank, savings
and loan association, finance company or similar financial institution or
entity or (ii) insurance company engaged in the business of writing
insurance which, in either case (A) has total assets of $250,000,000 or
more, (B) is engaged in the business of lending money and extending
-9-
credit under credit facilities similar to those extended under this
Agreement and (C) is operationally and procedurally able to meet the
obligations of a Lender hereunder to the same degree as a commercial bank
(as reasonably determined by the assigning Lender) and (e) any other
financial institution (including a mutual fund or other fund) having total
assets of $250,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (d) above; provided that each Eligible
Assignee must either (x) be organized under the Laws of the United States
of America, any State thereof or the District of Columbia or (y) be
organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, and (1) act hereunder through a
branch, agency or funding office located in the United States of America
and (2) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations issued pursuant thereto, as amended or replaced and as
in effect from time to time.
"ERISA Affiliate" means, with respect to any Person, any Person (or
any trade or business, whether or not incorporated) that is under common
control with that Person within the meaning of Section 414 of the Code.
"Eurodollar Banking Day" means any Banking Day on which dealings in
Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"Eurodollar Base Rate" means with respect to any Eurodollar Rate
Advance comprising part of the same Borrowing, the interest rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) at which
deposits in Dollars are offered by the Eurodollar Reference Lender to
prime banks in the Designated Eurodollar Market at or about 10:00 a.m.
local time in the Designated Eurodollar Market, two (2) Eurodollar Banking
Days before the first day of the applicable Eurodollar Period in an
aggregate amount approximately equal to the amount of the Advance to be
made by the Eurodollar Reference Lender comprising part of such Borrowing
and for a period of time comparable to the number of days in the
applicable Eurodollar Period. The determination of the Eurodollar Base
Rate by the Administrative Agent shall be conclusive in the absence of
manifest error.
"Eurodollar Lending Office" means, as to each Lender, its office or
branch so designated by written notice to Borrower and the Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending Office is
designated by a Lender, its Eurodollar Lending Office shall be its office
at its address for purposes of notices hereunder.
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"Eurodollar Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as defined
in Regulation D or any comparable regulation of any Governmental Agency
having jurisdiction over any Lender.
"Eurodollar Period" means, as to each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date
specified by Borrower pursuant to Section 2.1(b) and ending 1, 2, 3 or 6
months (or, if available to all Lenders, 9 or 12 months) thereafter, as
specified by Borrower in the applicable Request for Borrowing or Request
for Continuation/Conversion provided that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the immediately
succeeding Eurodollar Banking Day unless such Eurodollar Banking Day falls
in another calendar month, in which case such Eurodollar Period shall end
on the immediately preceding Eurodollar Banking Day; and
(c) No Eurodollar Period for any Eurodollar Rate Advance shall
extend beyond the Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate Advance
comprising part of the same Borrowing, an interest rate per annum (rounded
upward, if necessary, to the nearest 1/100th of one percent) determined
pursuant to the following formula:
Eurodollar Eurodollar Base Rate
-----------------------------------------------
Rate = 1.00-Eurodollar Reserve
Percentage
"Eurodollar Rate Advance" means an Advance that bears interest in
relation to the Eurodollar Rate as provided in Section 3.1(c).
"Eurodollar Reference Lender" means ▇▇▇▇▇ Fargo or the
Administrative Agent if ▇▇▇▇▇ Fargo is no longer the Administrative Agent.
"Eurodollar Reserve Percentage" means, with respect to any
Eurodollar Rate Advance comprising part of the same Borrowing, the maximum
reserve percentage (expressed as a decimal, rounded upward, if necessary,
to the nearest 1/100th of one percent) in effect on the date the
Eurodollar Base Rate for the Borrowing of which such Eurodollar Rate
Advance is a part is determined (whether or not such reserve percentage is
applicable to any Lender) under regulations issued from time to time by
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the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred to
as "eurocurrency liabilities") having a term comparable to the Eurodollar
Period for such Eurodollar Rate Advance. The determination by the
Administrative Agent of any applicable Eurodollar Reserve Percentage shall
be conclusive in the absence of manifest error.
"Event of Default" shall have the meaning provided in Section 9.1.
"Federal Funds Rate" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such date opposite the
caption "Federal Funds (Effective)". If for any relevant date such rate is
not yet published in H.15(519), the rate for such date will be the rate
set forth in the daily statistical release designated as the Composite
3:30p.m. Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, the "Composite 3:30 p.m. Quotation") for such date
under the caption "Federal Funds Effective Rate". If on any relevant date
the appropriate rate for such date is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such date
will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time)
on that date by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent. For
purposes of this Agreement, any change in the Alternate Base Rate due to a
change in the Federal Funds Rate shall be effective as of the opening of
business on the effective date of such change.
"Fiscal Quarter" means any fiscal quarter of Borrower and its
Subsidiaries ending on each March 31, June 30, September 30 and December
31.
"Fiscal Year" means the fiscal year of Borrower and its Subsidiaries
ending on each December 31.
"GAAP" means, as of any date of determination, accounting principles
(a) set forth as generally accepted in then currently effective Opinions
of the Accounting Principles Board of the American Institute of Certified
Public Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith,
means that the accounting principles applied are consistent in all
material respects with those applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America and (b) obligations of an agency or
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instrumentality of, or corporation owned, controlled or sponsored by, the
United States of America that are generally considered in the securities
industry to be implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof,
(b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body or (c) any
court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee
by that Person of Indebtedness of, or other obligation performable by, any
other Person or (b) assurance given by that Person to an obligee of any
other Person with respect to the performance of an obligation by, or the
financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide
funds (by means of loans, capital contributions or otherwise) to such
other Person, any agreement to support the solvency or level of any
balance sheet item of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of assuring or
holding harmless such obligee against loss with respect to any obligation
of such other Person; provided, however, that the term Guaranty Obligation
shall not include endorsements of instruments for deposit or collection or
similar arrangements in the ordinary course of business. The amount of any
Guaranty Obligation in respect of Indebtedness shall be deemed to be an
amount equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty Obligation is limited by its terms to a
lesser amount, in which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith. The amount of
any other Guaranty Obligation shall be deemed to be zero unless and until
the amount thereof has been (or in accordance with Financial Accounting
Standards Board Statement No. 5 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes thereto) of
Borrower and its Subsidiaries.
"Hazardous Materials" means oil or petrochemical products,
poly-chlorinated biphenyls, asbestos, urea formaldehyde, flammable
explosives, radioactive materials, hazardous wastes, toxic substances or
related materials, including any substances considered "hazardous
substances," "hazardous wastes," "hazardous materials," "infectious
wastes", "pollutant substances", "solid waste" or "toxic substances" under
any Hazardous Materials Laws.
"Hazardous Materials Laws" means all Laws pertaining to the
treatment, transportation or disposal of Hazardous Materials on or about
any Real Property owned or leased by Borrower or any Subsidiary thereof,
or any portion thereof, including without limitation the following: the
Federal Water Pollution Control Act (33 U.S.C. Section 1251, et seq.), the
Federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901, et seq.), the Comprehensive Environmental Response,
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Compensation and Liability Act of 1980, as amended (42 U.S.C. Section
9601, et seq.) and the Superfund Amendments and. Reauthorization Act of
1986, the Hazardous Materials Transportation Act, as amended (44 U.S.C.
Section 1801, et seq.), the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq., the California Health and Safety Code (Section
25100, et seq.), the California Water Code and the California
Administrative Code, in each case as such Laws are amended from time to
time.
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable in
the ordinary course of business in accordance with ordinary trade terms),
including any Guaranty Obligation for any such indebtedness, (b)
indebtedness of such Person of the nature described in clause (a) that is
non-recourse to the credit of such Person but is secured by assets of such
Person, to the extent of the fair market value of such assets as
determined in good faith by such Person, (c) Capital Lease Obligations of
such Person, (d) indebtedness of such Person arising under bankers'
acceptance facilities or under facilities for the discount of accounts
receivable of such Person, (e) any direct or contingent obligations of
such Person under letters of credit issued for the account of such Person
and (f) any net obligations of such Person under Interest Rate Protection
Agreements. For the avoidance of doubt, (i) Advances for Construction of
any Subsidiary of the Borrower in the ordinary course of business, and
(ii) the purchase price obligation in connection with a Military Utility
Privatization, to the extent that such obligation is recorded as a
liability offset by a receivable in the same amount on the financial
statements of Borrower, will not constitute Indebtedness hereunder.
"Intangible Assets" means assets that are considered intangible
assets under GAAP, including customer lists, goodwill, covenants not to
compete, copyrights, trade names, trademarks and patents.
"Interest Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) EBITDA for the Rolling Period ending on that
date, to (b) Interest Expense of Borrower and its Subsidiaries for such
Rolling Period.
"Interest Expense" means, with respect to any Person and as of the
last day of any fiscal period, the sum of (a) all interest, fees, charges
and related expenses (in each case as such expenses are calculated
according to GAAP) paid or payable (without duplication) for that fiscal
period by that Person to a lender in connection with borrowed money
(including any obligations for fees, charges and related expenses payable
to the issuer of any letter of credit) or the deferred purchase price of
assets that are considered "interest expense" under GAAP plus (b) the
portion of rent paid or payable (without duplication) for that fiscal
period by that Person under Capital Lease Obligations that should be
treated as interest in accordance with Financial Accounting Standards
Board Statement No. 13.
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"Interest Rate Protection Agreement" means a written agreement
between Borrower and one or more financial institutions providing for
"swap", "cap", "collar" or other interest rate protection with respect to
any Indebtedness.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other Securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership, limited liability company and joint venture
interests of such Person. The amount of any Investment shall be the amount
actually invested (minus any return of capital with respect to such
Investment which has actually been received in Cash or has been converted
into Cash), without adjustment for subsequent increases or decreases in
the value of such Investment.
"Issuing Lender" means ▇▇▇▇▇ Fargo, when acting in its capacity as
Issuing Lender under any of the Loan Documents (including such other
Persons that may act as agent for and on behalf of ▇▇▇▇▇ Fargo) or any
successor Issuing Lender.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes
and administrative or judicial precedents.
"Lead Arranger" means ▇▇▇▇▇ Fargo Bank, National Association.
"Lender" means each Closing Date Lender and each lender that may
hereafter become a party to this Agreement pursuant to Section 11.8.
"Letter of Credit" means any of the standby letters of credit issued
by the Issuing Lender under the Revolving Facility pursuant to Section
2.5, either as originally issued or as the same may be supplemented,
modified, amended, extended, restated or supplanted.
"Letter of Credit Agreement" means the standby letter of credit
agreement executed by Borrower in connection with the Original Credit
Agreement and attached hereto in the form of Exhibit C, either as
originally executed or as it may from time to time be supplemented,
modified, amended, extended, restated or supplanted.
"Letter of Credit Collateral Account" means a deposit account to be
maintained at ▇▇▇▇▇ Fargo in the name of the Administrative Agent, for the
benefit of the Lenders, which account shall be held as collateral for any
and all Obligations incurred by Borrower or its Subsidiaries in connection
with any Letter of Credit outstanding subsequent to the Maturity Date.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge of
any kind, whether voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any conditional sale or other
title retention agreement, any lease in
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the nature of a security interest, and/or the filing of any financing
statement (other than a precautionary financing statement with respect to
a lease that is not in the nature of a security interest) under the UCC or
comparable Law of any jurisdiction with respect to any Property.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Letter of Credit Agreement, any Request for Borrowing, any Request for
Letter of Credit (and any corresponding application and/or reimbursement
agreement with respect to any Letter of Credit), any Compliance
Certificate, and any other agreements of any type or nature hereafter
executed and delivered by Borrower or any other Party to the
Administrative Agent or to any Lender in any way relating to or in
furtherance of this Agreement, in each case either as originally executed
or as the same may from time to time be supplemented, modified, amended,
restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means any set of circumstances or events
which (a) has had or would reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of any Loan
Document, (b) has been or would reasonably be expected to be material and
adverse to the business, condition (financial or otherwise), prospects or
operations of Borrower and its Subsidiaries, taken as a whole, (c) has
materially impaired or would reasonably be expected to materially impair
the ability of Borrower to perform the Obligations, or (d) has materially
impaired or would reasonably be expected to materially impair the ability
of Borrower to perform its Obligations under the Loan Documents.
"Material Contracts" means, collectively, (a) the agreements
identified on Schedule 1.3 attached hereto and (b) any other agreement
that would, if terminated, materially affect the business, condition
(financial or otherwise), prospects or operations of Borrower and its
Subsidiaries, taken as a whole.
"Maturity Date" means the earlier of (a) June 3, 2010 and (b) the
termination or cancellation of the Revolving Facility (and all of the
Commitments pertaining thereto) pursuant to the terms of this Agreement.
"Maximum Revolving Credit Amount" means $85,000,000.00.
"Military Utility Privatization" means the acquisition of a water or
wastewater system or systems from the U.S. Government pursuant to 10 USC
Section 2688 in connection with a contract to provide utility services. It
is understood that, in accordance with GAAP as in effect on the date
hereof, the water and wastewater systems acquired are not reflected as
fixed assets on the financial statements of the Borrower and the purchase
price obligation is recorded as a liability offset by a receivable in the
same amount, thereby having no effect on the financial position of the
Borrower.
"Monthly Payment Date" means the last Banking Day of each calendar
month.
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"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc. and its successors.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001 (a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contributes, is obligated to contribute or has had an
obligation to contribute.
"Negative Pledge" means a Contractual Obligation which contains a
covenant binding on Borrower or any Subsidiary that prohibits Liens on any
of its Property, other than (a) any such covenant contained in a
Contractual Obligation granting or relating to a particular Lien which
affects only the Property that is the subject of such Lien and (b) any
such covenant that does not apply to Liens securing the Obligations.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for that period,
determined in accordance with GAAP, consistently applied.
"Note" means any of the promissory notes made by Borrower to a
Lender evidencing Advances under that Lender's Commitment, substantially
in the form of Exhibit D, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended or
supplanted.
"Obligations" means all present and future obligations of every kind
or nature of Borrower at any time and from time to time owed to the
Lenders, the Administrative Agent and/or the Issuing Lender, under any one
or more of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment,
and including interest that accrues after the commencement of any
proceeding under any Debtor Relief Law by or against Borrower.
"Opinion of Counsel" means the favorable written legal opinion of
O'Melveny & ▇▇▇▇▇ LLP, special counsel to Borrower, substantially in the
form of Exhibit E.
"Original Administrative Agent" means ▇▇▇▇▇ Fargo Bank, National
Association, in its capacity as administrative agent under the Original
Credit Agreement.
"Original Credit Agreement" means the Credit Agreement, dated as of
June 6, 2002 by and among Borrower, each of the Original Lenders from time
to time parties thereto, and the Original Administrative Agent, as
amended, supplemented or otherwise modified from time to time prior to the
date hereof.
"Original Lenders" means each of the Lenders from time to time
parties to the Original Credit Agreement.
"Party" means any Person other than Lenders and/or Administrative
Agent, which now or hereafter is a party to any of the Loan Documents.
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"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"Pension Plan" means any "pension plan" (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, which is
maintained by Borrower or to which Borrower contributes or has or has had
an obligation to contribute.
"Permitted Acquisition" means an Acquisition by Borrower or any
wholly-owned Subsidiary of Borrower of all or substantially all of the
assets of, or all of the capital stock or other equity interests of, an
Acquired Person engaged in similar or related line(s) of business as
Borrower or any of its Subsidiaries, provided, that:
(a) if such Acquisition is of all of the capital stock or
other equity interests of the Acquired Person, such Acquired Person is
merged with and into Borrower or such Subsidiary substantially
simultaneously with such party's acquisition of such capital stock or
other equity interests or becomes a wholly-owned Subsidiary of Borrower or
such Subsidiary;
(b) in the case of the Acquisition of the capital stock or
other equity interest of an Acquired Person, the board of directors (or
comparable governing body) of such Acquired Person shall have duly
approved such Acquisition;
(c) Borrower shall have delivered a pro-forma Compliance
Certificate for the most recently completed Rolling Period, demonstrating
that, upon giving effect to the proposed Acquisition as of the last day of
such Rolling Period, Borrower and its Subsidiaries shall be in compliance
with the covenants set forth in Sections 6.12 and 6.13;
(d) such Acquired Person shall have had a positive "EBITDA"
for the twelve-month fiscal period immediately preceding the date of such
Acquisition (with EBITDA calculated for such Acquired Person in a manner
consistent with the calculation of EBITDA for Borrower and its
Subsidiaries specified herein);
(e) at the time of such Acquisition, each of the
representations and warranties contained in the Loan Documents shall be
true and correct in all material respects (except to the extent such
representations and warranties expressly relate to an earlier date), no
Default or Event of Default shall have occurred and remain in effect and
after giving effect to such Acquisition, on a pro forma combined basis,
(i) no Default of Event of Default would have occurred at any time during
the twelve-month fiscal period immediately preceding the date of such
Acquisition assuming that such Acquisition had occurred on the first day
of such period and (ii) Borrower and its Subsidiaries, on a projected
basis, will be in compliance with Section 6.12 and 6.13, as of each of the
four Fiscal Quarters ending after the date of the Acquisition, as
reflected in updated projections provided by Borrower to the
Administrative Agent and the Lenders prior to the effective date of such
Acquisition;
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(f) if such Acquisition involves the purchase of an interest
in a partnership between Borrower (or a Subsidiary of Borrower) as a
general partner and entities unaffiliated with Borrower or such Subsidiary
as the other partners, such transaction shall be effected by having such
equity interest acquired by a corporate holding company directly or
indirectly wholly-owned by Borrower newly formed for the sole purpose of
effecting such transaction;
(g) the Indebtedness assumed or consideration paid or payable
in cash in connection with such Acquisition shall not exceed the lesser of
(x) $15,000,000 and (y) the fair market value thereof; and
(h) the Indebtedness assumed or consideration paid or payable
in cash in connection with such Acquisition, when taken together with each
other Permitted Acquisitions consummated since the Closing Date shall not
exceed $25,000,000 in the aggregate.
"Permitted Acquisition Indebtedness" means Indebtedness in existence
at the time of, and assumed by Borrower or its Subsidiaries in connection
with, a Permitted Acquisition provided that (a) such Indebtedness was not
created in contemplation of such Permitted Acquisition and (b) the
aggregate amount of all such Indebtedness does not at any time exceed
$10,000,000.
"Permitted Capital Asset Indebtedness" means Indebtedness of
Borrower and its Subsidiaries consisting of Capital Lease Obligations, or
otherwise incurred to finance the purchase or construction of capital
assets (which shall be deemed to exist if the Indebtedness is incurred at
or within 90 days before or after the purchase or construction of the
capital asset), or to refinance any such Indebtedness; provided that the
aggregate principal amount of such Indebtedness shall not exceed
$10,000,000 at any one time outstanding (as determined in accordance with
GAAP consistently applied).
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction on or maintenance
of Property; or Liens incident to construction on or maintenance of
Property now or hereafter filed of record for which adequate reserves have
been set aside (or deposits made pursuant to applicable Law) and which are
being contested in good faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of nonpayment of the
obligations secured by such Liens, no such Property is subject to an
impending risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not
yet past due; or Liens for taxes and assessments on Property for which
adequate reserves have been set aside and are being contested in good
faith by appropriate proceedings and have not proceeded to judgment,
provided that, by reason of nonpayment of the
-19-
obligations secured by such Liens, no such Property is subject to an
impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property which
in the aggregate do not materially impair the fair market value or use of
the Property for the purposes for which it is or may reasonably be
expected to be held;
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting Property which in the aggregate do not materially burden or
impair the fair market value or use of such Property for the purposes for
which it is or may reasonably be expected to be held;
(e) easements, exceptions, reservations, or other agreements
for the purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting Property which
in the aggregate do not materially burden or impair the fair market value
or use of such Property for the purposes for which it is or may reasonably
be expected to be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, any right, power, franchise, grant, license, or permit;
(h) present or future zoning laws and ordinances or other laws
and ordinances restricting the occupancy, use, or enjoyment of Property;
(i) statutory Liens, other than those described in clauses (a)
or (b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good faith,
provided that, if delinquent, adequate reserves have been set aside with
respect thereto and, by reason of nonpayment, no Property is subject to an
impending risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use
of Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is or
may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of the
Person owning such Property;
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(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary' course of business, provided the aggregate value of all such
pledges and deposits (excluding the property subject to such lease) in
connection with any such lease does not at any time exceed 10% of the
annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure bids
made with respect to, or performance of, contracts (other than contracts
creating or evidencing an extension of credit to the depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary course
of business so long as such bank deposit accounts are not established or
maintained for the purpose of providing such right of offset or bankers'
lien;
(p) any (i) interest or title of a lessor or sublessor under
any lease not prohibited by this Agreement, but only to the extent such
interest or title pertains solely to the property leased, (ii) Lien or
restriction that the interest or title of such lessor or sublessor may be
subject to, or (iii) subordination of the interest of the lessee or
sublessee under such lease to any Lien or restriction referred to in the
preceding clause (ii), so long as the holder of such Lien or restriction
agrees to recognize the rights of such lessee or sublessee under such
lease;
(q) Liens consisting of deposits of Property to secure
statutory obligations of Borrower; and
(r) Liens consisting of deposits of Property to secure (or in
lieu of) surety, appeal or customs bonds.
"Permitted Right of Others" means a Right of Others consisting of
(a) an interest (other than a legal or equitable co-ownership interest, an
option or right to acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease), that does not
materially impair the fair market value or use of Property for the
purposes for which it is or may reasonably be expected to be held, (b) an
option or right to acquire a Lien that would be a Permitted Encumbrance or
other encumbrance permitted pursuant to Section 6.9, (c) the subordination
of a lease or sublease in favor of a financing entity and (d) a license,
or similar right, of or to Intangible Assets or other similar Property
granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
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"Platform" means an electronic delivery system (which may be
provided by Administrative Agent, an Affiliate of Administrative Agent or
any Person that is not an Affiliate of Administrative Agent), such as
IntraLinks or a substantially similar electronic system.
"Pricing Occurrence" means with respect to any change in the Debt
Rating which results in a change in the Applicable Pricing Level, the date
which is five(5) Banking Days after the Administrative Agent has received
evidence reasonably satisfactory to it of such change.
"Pricing Period" means (a) the period commencing on the Closing Date
and ending on the first Pricing Occurrence to occur thereafter and (b)
each subsequent period commencing on the date of a Pricing Occurrence and
ending on the next Pricing Occurrence to occur.
"Prime Rate" means the rate of interest most recently announced
within ▇▇▇▇▇ Fargo, at its principal office in San Francisco, California,
as its "prime rate." The "prime rate" is one of several base rates used by
▇▇▇▇▇ Fargo and serves as the basis upon which effective rates of interest
are calculated for loans and other credits making reference thereto. The
"prime rate" is evidenced by the recording thereof after its announcement
in such internal publication or publications as ▇▇▇▇▇ Fargo may designate.
Any change in the Prime Rate shall take effect on the day the change is
announced within ▇▇▇▇▇ Fargo.
"Projections" means the financial projections of Borrower and its
Subsidiaries heretofore and hereafter distributed by or on behalf of
Borrower to the Administrative Agent.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of (a) a fraction the numerator of which is the
amount of such Lender's Commitment (or, if such Commitment shall have
expired or been terminated, the amount of such Lender's Advances), and the
denominator of which is the aggregate Commitments or Advances, as the case
may be, at such time, multiplied by (b) such amount. Schedule 1.1 sets
forth the Pro Rata Shares of the Closing Date Lenders as of the Closing
Date.
"Quarterly Payment Date" means each March 31, June 30, September 30
and December 31.
"Real Property" means, as of any date of determination, all real
property then or theretofore owned, leased or occupied by Borrower or any
Subsidiary.
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"Regulation D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other regulation
in substance substituted therefor.
"Request for Borrowing" means a written request for a Borrowing
substantially in the form of Exhibit F, signed by a Responsible Official
of Borrower, and properly completed to provide all information required to
be included therein.
"Request for Continuation/Conversion" means a written request to
Continue or Convert a Borrowing substantially in the form of Exhibit G,
signed by a Responsible Official of Borrower, and properly completed to
provide all information required to be included therein.
"Request for Letter of Credit" means a written request for a Letter
of Credit substantially in the form of Exhibit H, signed by a Responsible
Official of Borrower, and properly completed to provide all information
required to be included therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Lenders" means, (a) as of any date of determination if
the Commitments are then in effect, Lenders having in the aggregate more
than 50% of such aggregate Commitments, and (b) as of any date of
determination if the Commitments have then been terminated and there is
then any outstanding Indebtedness evidenced by the Notes, the Swing Line
Documents and/or Letters of Credit, Lenders owed or holding in the
aggregate more than 50% of then applicable Revolving Credit Facility
Usage.
"Responsible Official" means, as to any Person, (a) when used with
reference to a Person other than an individual, a corporate officer of
such Person, general partner of such Person, corporate officer of a
corporate general partner of such Person, corporate officer of a corporate
general partner of a partnership that is a general partner of such Person,
manager or managing member (in the case of a Person that is a limited
liability company), or any other responsible official thereof duly acting
on behalf thereof, and (b) when used with reference to a Person who is an
individual, such Person. The Lenders shall be entitled to conclusively
rely upon any document or certificate that is signed or executed by a
Responsible Official of Borrower or any Subsidiary as having been
authorized by all necessary corporate, partnership, limited liability
company and/or other action on the part of Borrower or such Subsidiary.
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"Revolving Credit Facility Usage" means, as of any date of
determination, the sum of (a) the aggregate principal amount of funded
Indebtedness then outstanding under the Notes plus (b) the Aggregate
Effective Amount under all outstanding Letters of Credit plus (c) the
Swing Line Outstandings.
"Revolving Facility" means the revolving credit facility provided
hereunder in respect of the aggregate Commitments.
"Right of Others" means, as to any Property in which a Person has an
interest, any legal or equitable right, title or other interest (other
than a Lien) held by any other Person in that Property, and any option or
right held by any other Person to acquire any such right, title or other
interest in that Property, including any option or right to acquire a
Lien; provided, however, that (a) no covenant restricting the use or
disposition of Property of such Person contained in any Contractual
Obligation of such Person and (b) no provision contained in a contract
creating a right of payment or performance in favor of a Person that
conditions, limits, restricts, diminishes, transfers or terminates such
right shall be deemed to constitute a Right of Others.
"Rolling Period" means any period of four consecutive Fiscal
Quarters of Borrower and its Subsidiaries.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc. and its successors.
"Sale and Leaseback" means, with respect to any Person, the sale of
Property owned by that Person (the "Seller") to another Person (the
"Buyer"), together with the substantially concurrent leasing of such
Property by the Buyer to the Seller.
"SCW" means Southern California Water Company, a California
corporation and wholly-owned Subsidiary of Borrower.
"Security" means any capital stock, share, voting trust certificate,
bond, debenture, note or other evidence of Indebtedness, limited
partnership interest, member interest, or any warrant, option or other
right to purchase or acquire any of the foregoing.
"Senior Officer" means (a) the chief executive officer, (b) the
president, (c) any executive vice president, (d) the chief financial
officer, (e) the treasurer, or (f) any assistant treasurer, in each case
of any Person.
"Solvent" means, as of any date of determination, and as to any
Person, that on such date: (a) the fair valuation of the assets of such
Person is greater than the fair valuation of such Person's probable
liability in respect of existing debts; (b) such Person does not intend
to, and does not believe that it will, incur debts beyond such Person's
ability to pay as such debts mature; (c) such Person is not engaged in a
business or transaction, and is not about to engage in a business or
transaction, which would leave such Person with assets remaining which
would constitute unreasonably
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small capital after giving effect to the nature of the particular business
or transaction (including, in the case of Borrower, the transactions
occurring on the Closing Date); and (d) such Person is generally paying
its debts as they become due. For purposes of the foregoing (1) the "fair
valuation" of any assets means the amount realizable within a reasonable
time, either through collection or sale, of such assets at their regular
market value, which is the amount obtainable by a capable and diligent
businessman from an interested buyer willing to purchase such assets
within a reasonable time under ordinary circumstances; and (2) the term
"debts" includes any legal liability whether matured or unmatured,
liquidated or unliquidated, absolute, fixed, or contingent.
"Special Eurodollar Circumstance" means the application or adoption
after the Closing Date of any Law or interpretation, or any change therein
or thereof, or any change in the interpretation or administration thereof
by any Governmental Agency, central bank or comparable authority charged
with the interpretation or administration thereof, or compliance by any
Lender or its Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental Agency,
central bank or comparable authority.
"Stockholders' Equity" means, as of any date of determination and
with respect to Borrower and its Subsidiaries, the consolidated
stockholders' equity of Borrower and its Subsidiaries as of that date
determined in accordance with GAAP; provided that there shall be excluded
from Stockholders' Equity (i) any amount attributable to Disqualified
Stock and (ii) any actual reduction attributable to the Aerojet Write-Off
in an amount not to exceed $16,000,000.
"Swing Line" means the revolving line of credit established by the
Swing Line Lender in favor of Borrower pursuant to Section 2.8.
"Swing Line Documents" means the promissory note and any other
documents executed by Borrower in favor of the Swing Line Lender in
connection with the Swing Line.
"Swing Line Lender" means ▇▇▇▇▇ Fargo.
"Swing Line Loans" means loans made by the Swing Line Lender to
Borrower pursuant to Section 2.8.
"Swing Line Outstandings" means, as of any date of determination,
the aggregate principal Indebtedness of Borrower on all Swing Line Loans
then outstanding.
"Subordinated Obligations" means, as of any date of determination
(without duplication), any Indebtedness of Borrower or any Subsidiary on
that date which has been subordinated in right of payment to the
Obligations in a manner reasonably satisfactory to the Administrative
Agent and the Requisite Lenders and contains such
-25-
other protective terms with respect to senior debt (such as payment
blockage) as the Administrative Agent and the Requisite Lenders may
reasonably require.
"Subsidiary" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in any case, characterized as such or as a "joint
venture"), whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or limited liability company, of which a
majority of the Securities having ordinary voting power for the election
of directors or other governing body (other than Securities having such
power only by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority of the
partnership or other ownership interests are at the time beneficially
owned by such Person and/or one or more of its Subsidiaries. Any reference
to a "Subsidiary" or "Subsidiaries" shall, unless otherwise provided, be
deemed to be a reference to a Subsidiary (or Subsidiaries, as the case may
be) of Borrower.
"Termination Date" means the date on which the Advances and all
other Obligations under this Agreement and the other Loan Documents
(including, without limitation, Obligations with respect to any Letters of
Credit which remain outstanding subsequent to the Maturity Date pursuant
to Section 2.5(a)) are indefeasibly paid in full, in Cash, and Borrower
shall have no further right to borrow any moneys or obtain other credit
extensions or financial accommodations under this Agreement or any of the
other Loan Documents.
"to the best knowledge of means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Official of that
Person) making the representation, warranty or other statement, or with
the exercise of reasonable due diligence under the circumstances (in
accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or, in
the case of a Person other than a natural Person, would have been known by
a Responsible Official of that Person).
"Total Funded Debt" means, as of any date of determination, without
duplication, the sum of (a) all principal Indebtedness of Borrower and its
Subsidiaries for borrowed money (including Subordinated Obligations and
any other subordinated indebtedness, debt Securities issued by Borrower
and any of its Subsidiaries, the aggregate principal Indebtedness
outstanding under the Notes and the Aggregate Effective Amount of all
outstanding Letters of Credit) on that date plus (b) the aggregate amount
of the principal portion of all Capital Lease Obligations of Borrower and
its Subsidiaries plus (c) any Guaranty Obligations of Borrower and its
Subsidiaries with respect to the Indebtedness of others of the types
referred to in (a) and (b) above.
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"Total Funded Debt Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) Total Funded Debt as of such date to (b) the sum
of (i) Total Funded Debt as of such date plus Stockholders' Equity as of
such date.
"Type" refers to the distinction between Advances bearing interest
at the Alternate Base Rate and Advances bearing interest at the Eurodollar
Rate.
"UCC" means the Uniform Commercial Code as the same may from time to
time be enacted and in effect in the State of California; provided that,
in the event by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the Administrative Agent's or any
Lender's Lien on any collateral is governed by the Uniform Commercial Code
as enacted and in effect in a jurisdiction other than the State of
California, the term "UCC" shall mean the Uniform Commercial Code as
enacted and in effect in such other jurisdiction solely for purposes of
the provisions hereof relating to such attachment, perfection or priority
and for purposes of definitions related to such provisions.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association.
1.2 Use of Defined Terms. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms; Covenant Calculations. All accounting terms
not specifically defined in this Agreement shall be construed in conformity
with, and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, except as
otherwise specifically prescribed herein. In the event that GAAP changes during
the term of this Agreement such that the covenants contained in Sections 6.12
and 6.13 would then be calculated in a different manner or with different
components, (i) Borrower and the Lenders agree to amend this Agreement in such
respects as are necessary to conform those covenants as criteria for evaluating
Borrower's financial condition to substantially the same criteria as were
effective prior to such change in GAAP and (ii) Borrower shall be deemed to be
in compliance with the covenants contained in the aforesaid Sections if and to
the extent that Borrower would have been in compliance therewith under GAAP as
in effect immediately prior to such change, but shall have the obligation to
deliver each of the materials described in Article 7 to the Administrative Agent
and the Lenders, on the dates therein specified, with Financial data presented
in a manner which conforms with GAAP as in effect immediately prior to such
change.
1.4 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
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1.5 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any reference
herein to "Borrower and its Subsidiaries" or the like shall refer solely to
Borrower during such times, if any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2.
ADVANCES AND LETTERS OF CREDIT
2.1 Advances-General.
(a) Subject to the terms and conditions set forth in this
Agreement, from time to time on any Banking Day during the period from the
Closing Date to but not including the Maturity Date, each Lender severally
agrees to make Advances ("Advances") to Borrower under the Revolving
Facility in such amounts as Borrower may request provided that, after
giving effect to such Advances, (i) Revolving Credit Facility Usage does
not exceed the Maximum Revolving Credit Amount and (ii) as to each Lender,
such Lender's Pro Rata Share of Revolving Credit Facility Usage does not
exceed such Lender's Commitment. All Advances shall be made by the Lenders
ratably according to their respective Commitments. Within the limits of
each Lender's Commitment in effect from time to time and subject to the
foregoing, Borrower may borrow under this Section 2.1 (a), prepay Advances
pursuant to Section 3.1 and reborrow under this Section 2.1 (a).
(b) Subject to the next sentence, each Borrowing shall be made
pursuant to a Request for Borrowing which shall specify (i) the date of
such requested Borrowing, (ii) the Type of Advances comprising such
Borrowing, (iii) the amount of such Borrowing, and (iv) in the case of a
Borrowing consisting of Eurodollar Rate Advances, the Eurodollar Period
therefor. Unless the Administrative Agent has notified, in its sole and
absolute discretion, Borrower to the contrary not less than three (3) days
prior to the date of any Borrowing, a Borrowing may be requested by
telephone by a Responsible Official of Borrower, in which case Borrower
shall confirm such request by promptly delivering a Request for Borrowing
(conforming to the preceding sentence) in person or by telecopier to the
Administrative Agent. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request for a Borrowing
purportedly made by a Responsible Official of Borrower, and Borrower
hereby agrees to indemnify the Administrative Agent from any loss, cost,
expense or liability as a result of so acting.
(c) Promptly following receipt of a Request for Borrowing, the
Administrative Agent shall notify each Lender by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier) of the date of the
requested Borrowing, the Type of Advances comprising such Borrowing, the
Eurodollar Period (if applicable), and the amount corresponding to that
Lender's ratable share of the Borrowing. Not later than 1:00 p.m.,
California time, on the date specified for any Borrowing (which must be a
Banking Day), each Lender shall make its ratable share of the Borrowing in
immediately available funds available to the Administrative Agent at the
Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 8, all Advances shall be
credited on that date in immediately available funds to the Designated
Deposit Account.
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(d) Anything in paragraph (b) above to the contrary
notwithstanding, Borrower may not (a) request Alternate Base Rate
Advances for any Borrowing if the aggregate amount of such Borrowing is
less than $500,000 (and any such Borrowing exceeding such minimum amount
shall be in an integral multiple of $100,000), provided that the foregoing
minimum amount shall not apply to an Alternate Base Rate Advance that
causes the aggregate amount borrowed under the Revolving Facility to equal
the full amount available for Advances hereunder or Advances pursuant to
Section 2.5, or (b) elect Eurodollar Rate Advances for any Borrowing (i)
if the aggregate amount of such Borrowing is less than $1,000,000 (and any
such Borrowing exceeding such minimum amount shall be in an integral
multiple of $500,000) or (ii) if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.4,
3.5 or 3.6.
(e) The Advances made by each Lender under its Commitment
shall be evidenced by that Lender's Note.
(f) A Request for Borrowing shall be irrevocable upon the
Administrative Agent's first notification thereof.
(g) The Administrative Agent, on behalf of the Lenders, is
hereby authorized to make Borrowings available to Borrower upon
fulfillment of the applicable conditions set forth in Article 8. Upon
fulfillment of such applicable conditions, the proceeds of Borrowings
shall either be credited in immediately available funds to the Designated
Deposit Account or remitted directly to one or more third parties, as
directed by Borrower and approved by the Administrative Agent. The
proceeds of any Borrowing consisting of Eurodollar Rate Advances shall be
so credited or remitted on the first day of the applicable Eurodollar
Period for such Borrowings.
2.2 Alternate Base Rate Advances. Each request by Borrower for a
Borrowing comprised of Alternate Base Rate Advances shall be made pursuant to a
Request for Borrowing (or telephonic or other request for Borrowing referred to
in the second sentence of Section 2.1(b), if applicable) received by the
Administrative Agent, at the Administrative Agent's Office, not later than 11:00
a.m. California time, at least one (1) Banking Day before the requested
Borrowing. All Advances shall constitute Alternate Base Rate Advances unless
properly designated as a Eurodollar Rate Advance pursuant to Section 2.3 or 2.4.
2.3 Eurodollar Rate Advances.
(a) Each request by Borrower for a Borrowing comprised of
Eurodollar Rate Advances shall be made pursuant to a Request for Borrowing
(or telephonic or other request for Borrowing referred to in the second
sentence of Section 2.1(b), if applicable) received by the Administrative
Agent, at the Administrative Agent's Office, not later than 9:00 a.m.,
California time, at least three (3) Eurodollar Banking Days before the
first day of the applicable Eurodollar Period.
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(b) On the date which is two (2) Eurodollar Banking Days
before the first day of the applicable Eurodollar Period, the
Administrative Agent shall confirm its determination of the applicable
Eurodollar Rate (which determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same to Borrower and
the Lenders by telephone or telecopier (and if by telephone, promptly
confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, Eurodollar Rate Advances may not be outstanding under
more than five (5) separate Eurodollar Periods at any one time.
(d) No Borrowing comprised of Eurodollar Rate Advances may be
requested during the continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund
any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Conversion and Continuation of Advances.
(a) Optional Conversion. Borrower may on any Banking Day, upon
notice given to the Administrative Agent not later than 9:00 a.m.
(California time) on the third Eurodollar Banking Day prior to the date of
a proposed Conversion if the Conversion is into Eurodollar Rate Advances,
or one Banking Day prior to the date of a proposed Conversion if the
Conversion is into Alternate Base Rate Advances, and subject to the
provisions of Sections 3.5 and 3.6, Convert all or any portion of the
Advances of one Type outstanding under the Revolving Facility (and, in the
case of Eurodollar Rate Advances, having the same Eurodollar Period) into
Advances of the other Type under the Revolving Facility; provided that any
Conversion of Eurodollar Rate Advances into Alternate Base Rate Advances
on other than the last day of a Eurodollar Period for such Eurodollar Rate
Advances shall be subject to Section 3.6(e), any Conversion of Alternate
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not
less than $1,000,000 or integral multiples of $500,000 in excess thereof
and no Conversion of any Advances shall result in more than five (5)
separate Eurodollar Periods being outstanding under the Revolving
Facility. Each such notice of Conversion shall be made pursuant to a
Request for Continuation/Conversion and shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the
aggregate amount and Type of the Advances (and, in the case of Eurodollar
Rate Advances, the Eurodollar Period therefor) to be Converted and (iii)
if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Eurodollar Period for such Advances. Each request for Conversion
shall be irrevocable and binding on Borrower.
(b) Certain Mandatory Conversions.
(i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be
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reduced, by payment or prepayment or otherwise, to less than
$1,000,000 such Advances shall automatically Convert into Alternate
Base Rate Advances.
(ii) If Borrower shall fail to select the duration of
any Eurodollar Period for any outstanding Eurodollar Rate Advances
in accordance with the provisions contained in Section 2.1(b) and in
clause (a) or (c) of this Section 2.4, each such Eurodollar Rate
Advance will automatically, on the last day of the then existing
Eurodollar Period therefor, Convert into an Alternate Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of
any Event of Default and upon notice from the Administrative Agent
to Borrower at the request of the Requisite Lenders, (x) each
Eurodollar Rate Advance will automatically, on the last day of the
then existing Eurodollar Period therefor, Convert into an Alternate
Base Rate Advance and (y) the obligation of the Lenders to make, or
to Convert Advances into, or to Continue, Eurodollar Rate Advances
shall be suspended.
(c) Continuations. Borrower may, on any Eurodollar Banking
Day, upon notice given to the Administrative Agent not later than 9:00
a.m. (California time) on the third Eurodollar Banking Day prior to the
date of the proposed Continuation and subject to the provisions of
Sections 3.5. and 3.6, Continue all or any portion of the Eurodollar Rate
Advances outstanding under a Facility having the same Eurodollar Period;
provided that any such Continuation shall be made only on the last day of
a Eurodollar Period for such Eurodollar Rate Advances, no Continuation of
Eurodollar Rate Advances shall be in an amount less than $1,000,000 and no
Continuation of any Eurodollar Rate Advances shall result in more than
five (5) separate Eurodollar Periods being outstanding under the Revolving
Facility. Each such notice of Continuation shall be made pursuant to a
Request for Continuation/Conversion and shall, within the restrictions
specified above, specify (i) the date of such Continuation, (ii) the
aggregate amount and category of, and the Eurodollar Period for, the
Advances being Continued and (iii) the duration of the initial Eurodollar
Period for the Eurodollar Rate Advances subject to such Continuation. Each
notice of Continuation shall be irrevocable and binding on Borrower.
2.5 Letters of Credit.
(a) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date to but not including the
Maturity Date, the Issuing Lender shall issue such Letters of Credit under
the Revolving Facility for the benefit of Borrower and/or its wholly-owned
Subsidiaries as Borrower may request by a Request for Letter of Credit;
provided that giving effect to all such Letters of Credit, (i) Revolving
Credit Facility Usage does not exceed the Maximum Revolving Credit Amount
and (ii) the Aggregate Effective Amount under all outstanding Letters of
Credit shall not exceed $20,000,000. Each Letter of Credit shall be in a
form
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reasonably acceptable to the Issuing Lender. Unless the Issuing Lender
and the Requisite Lenders otherwise consent, the term of any Letter of
Credit shall not exceed three years. Unless all the Lenders otherwise
consent in a writing delivered to the Administrative Agent, the term of
any Letter of Credit shall not extend beyond the date that is one year
after the Maturity Date; provided, however, that no Letter of Credit shall
extend beyond the Maturity Date unless, on or prior to the Maturity Date,
Borrower shall have (a) deposited into the Letter of Credit Collateral
Account an amount equal to one hundred five percent (105%) of the
Aggregate Effective Amount of all Letters of Credit outstanding on the
Maturity Date and (b) executed and delivered to the Administrative Agent
such security agreements or other similar agreement as shall be reasonably
required to provide the Administrative Agent, for the benefit of the
Lenders, with a first priority perfected security interest in such Letter
of Credit Collateral Account. Notwithstanding such deposit into the Letter
of Credit Collateral Account, in the event that any Letter of Credit
remains outstanding subsequent to the Maturity Date, (a) the Termination
Date shall be extended until such time as all Obligations in connection
with such Letters of Credit shall have been fully performed and paid in
full and (b) each of the Lenders agrees to continue to comply with the
provisions of this Section 2.5 until the Termination Date, as so extended.
A Request for Letter of Credit shall be irrevocable absent the consent of
the Issuing Lender.
(b) Each Request for Letter of Credit shall be submitted to
the Issuing Lender, with a copy to the Administrative Agent, at least
three (3) Banking Days prior to the date upon which the related Letter of
Credit is proposed to be issued. The Administrative Agent shall promptly
notify the Issuing Lender whether such request, and the issuance of a
Letter of Credit pursuant thereto, conforms to the requirements of this
Agreement. Upon issuance of a Letter of Credit, the Issuing Lender shall
promptly notify the Administrative Agent of the amount and terms thereof.
Unless the Issuing Lender has notified, in its sole and absolute
discretion, Borrower to the contrary not less than three (3) days prior to
the date of any Request for Letter of Credit, a Request for Letter of
Credit may be delivered to the Issuing Lender by facsimile by a
Responsible Official of Borrower, in which case Borrower shall confirm
such request by promptly delivering a Request for Letter of Credit
(conforming to the preceding sentence) in person to the Issuing Lender.
The Issuing Lender shall incur no liability whatsoever hereunder in acting
upon any Request for Letter of Credit received by facsimile purportedly
made by a Responsible Official of Borrower, and Borrower hereby agrees to
indemnify the Issuing Lender from any loss, cost, expense or liability as
a result of so acting.
(c) Upon issuance of a Letter of Credit, each Lender shall be
deemed to have purchased a pro rata participation in such Letter of Credit
from the Issuing Lender in proportion to that Lender's Pro Rata Share of
the Revolving Facility. Without limiting the scope and nature of each
Lender's participation in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed by Borrower for any payment
required to be made by the Issuing Lender under any Letter of Credit, each
Lender shall, pro rata according to its Pro Rata Share of the Revolving
Facility,
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reimburse the Issuing Lender through the Administrative Agent promptly
upon demand for the amount of such payment. The obligation of each Lender
to so reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of Borrower to reimburse the Issuing
Lender for the amount of any payment made by the Issuing Lender under any
Letter of Credit together with interest as hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the Issuing
Lender with respect to each Letter of Credit within one (l) Banking Day
after demand made by the Issuing Lender therefor, together with interest
on such amount from the date of any payment made by the Issuing Lender at
the rate applicable to Alternate Base Rate Advances under the Revolving
Facility for the period commencing on the date of any such payment and
continuing through the first Banking Day following such demand and
thereafter at the Default Rate. The principal amount of any such payment
shall be used to reimburse the Issuing Lender for the payment made by it
under the Letter of Credit. Each Lender that has reimbursed the Issuing
Lender pursuant to Section 2.5(c) for its Pro Rata Share of any payment
made by the Issuing Lender under a Letter of Credit shall thereupon
acquire a pro rata participation, to the extent of such reimbursement, in
the claim of the Issuing Lender against Borrower under this Section 2.5(d)
and shall share, in accordance with that pro rata participation, in any
payment made by Borrower with respect to such claim. Upon receipt of any
such reimbursement from Borrower, the Issuing Lender shall pay to the
Administrative Agent, for the ratable benefit of those Lenders that had
reimbursed the Issuing Lender pursuant to Section 2.5(c) for their
respective Pro Rata Shares of any payment made by the Issuing Lender under
a Letter of Credit to which such reimbursement applies, the amount of such
reimbursement.
(e) Borrower may, pursuant to a Request for Borrowing, request
that Advances be made pursuant to Section 2.1 (a) to provide funds for the
payment required by Section 2.5(d). The proceeds of such Advances shall be
paid directly to the Issuing Lender to reimburse it for the payment made
by it under the Letter of Credit.
(f) If Borrower fails to make the payment required by Section
2.5(d) within the time period therein set forth, in lieu of the
reimbursement to the Issuing Lender under Section 2.5(c) the Issuing
Lender may (but is not required to), without notice to or the consent of
Borrower, instruct the Administrative Agent to cause Advances to be made
by the Lenders under the Revolving Facility in an aggregate amount equal
to the amount paid by the Issuing Lender with respect to that Letter of
Credit and, for this purpose, the conditions precedent set forth in
Article 8 shall not apply. The proceeds of such Advances shall be paid to
the Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
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(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in
all respects the same as the issuance of a new Letter of Credit.
(h) The obligation of Borrower to pay to the Issuing Lender
the amount of any payment made by the Issuing Lender under any Letter of
Credit shall be absolute, unconditional, and irrevocable, subject only to
performance by the Issuing Lender of its obligations to Borrower under
Section 5108 of the UCC. Without limiting the foregoing, Borrower's
obligations shall not be affected by any of the following circumstances:
(i) any lack of validity or enforceability of the Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, with the written consent
of Borrower executed by a Responsible Official of Borrower;
(iii) the existence of any claim, setoff, defense, or
other rights that Borrower may have at any time against the Issuing
Lender, the Administrative Agent or any Lender, any beneficiary of
the Letter of Credit (or any Persons for whom any such beneficiary
may be acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever so long
as any such document reasonably appeared to comply with the terms of
the Letter of Credit;
(v) payment by the Issuing Lender in good faith under
the Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the terms
of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported to
be represented by documents presented in connection with any Letter
of Credit or for any difference between any such Property and the
character, quality, quantity, condition, or value of such Property
as described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the existence,
nature and extent of any insurance relative thereto;
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(viii) the solvency or financial responsibility of any
party issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing Lender, or
any delay or interruption in any such message;
(xi) any error, neglect or default of any correspondent
of the Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the Issuing Lender;
and
(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears to comply with the
terms of the Letter of Credit, the form, accuracy, genuineness or
legal effect of any contract or document referred to in any document
submitted to the Issuing Lender in connection with a Letter of
Credit.
Notwithstanding anything to the contrary contained in this Section
2.5(h), Borrower shall retain any and all rights it may have against
the Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of the Issuing Lender, as
determined by a final judgment of a court of competent jurisdiction.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 10.6 (subject to
the standards set forth therein), mutatis mutandis.
(j) The Uniform Customs and Practice for Documentary Credits,
as published in its most current version by the International Chamber of
Commerce, shall be deemed a part of this Section and shall apply to all
Letters of Credit to the extent not inconsistent with applicable Law.
2.6 Termination or Reduction of the Commitments.
(a) Optional. Borrower may at any time or from time to time,
upon not less than three (3) Banking Days' notice to the Administrative
Agent, terminate in whole or reduce in part the Commitments, provided that
each partial reduction of the Commitments shall be in an aggregate amount
of $1,000,000 or an integral multiple of $500,000 in excess thereof.
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(b) Mandatory. The Commitments shall be automatically and
permanently reduced to zero on the Maturity Date.
(c) Reduction Pro Rata; No Reinstatements. Each reduction of
the Commitments shall be applied to the respective Commitments of the
Lenders according to their respective Pro Rata Shares. Commitments once
terminated or reduced may not be reinstated.
2.7 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any
relevant Lender no later than 10:00 a.m., California time, on the Banking Day of
the proposed funding by the Administrative Agent of any Borrowing that such
Lender does not intend to make available to the Administrative Agent such
Lender's portion of the total amount of such Borrowing, the Administrative Agent
may assume that such Lender has made such amount available to the Administrative
Agent on the date of the Borrowing and the Administrative Agent may, in reliance
upon such assumption, make available to Borrower a corresponding amount. If the
Administrative Agent has made funds available to Borrower based on such
assumption and such corresponding amount is not in fact made available to the
Administrative Agent by such Lender, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent promptly shall notify Borrower and
Borrower shall pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such Lender interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to Borrower
to the date such corresponding amount is recovered by the Administrative Agent,
at a rate per annum equal to the daily Federal Funds Rate. Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill its Commitments
or to prejudice any rights which the Administrative Agent or Borrower may have
against any Lender as a result of any default by such Lender hereunder.
2.8 Swing Line.
(a) The Swing Line Lender shall from time to time from the
Closing Date through the day prior to the Maturity Date make Swing Line
Loans to Borrower in such amounts as Borrower may request, provided that
(a) after giving effect to such Swing Line Loan, Revolving Credit Facility
Usage does not exceed the Maximum Revolving Credit Amount, (b) after
giving effect to such Swing Line Loan, the Swing Line Outstandings do not
exceed $10,000,000 and/or, (c) without the consent of all of the Lenders,
no Swing Line Loan may be made during the continuation of an Event of
Default if written notice of such Event of Default shall have been
provided to Swing Line Lender by the Administrative Agent or a Lender
sufficiently in advance of the making of such Swing Line Loan. Borrower
may borrow, repay and reborrow under this Section. Borrowings under the
Swing Line may be made in amounts which are integral multiples of $100,000
(or the remaining availability under the Swing Line) upon telephonic
request by a Responsible Official
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of Borrower made to the Administrative Agent not later than 2:00 p.m.,
California time, on the Banking Day of the requested borrowing (which
telephonic request shall be promptly confirmed in writing by telecopier or
electronic mail). Promptly after receipt of such a request for borrowing,
the Administrative Agent shall provide telephonic verification to the
Swing Line Lender that, after giving effect to such request, availability
for Loans will exist under Section 2.1 (a) (and such verification shall be
promptly confirmed in writing by telecopier or electronic mail). Each
repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $100,000 (or the Swing Line Outstandings). Borrower shall
notify the Swing Line Lender of its intention to make a repayment of a
Swing Line Loan not later than 1:00 p.m. California time on the date of
repayment. If Borrower instructs the Swing Line Lender to debit its demand
deposit account at the Swing Line Lender in the amount of any payment with
respect to a Swing Line Loan, or the Swing Line Lender otherwise receives
repayment, after 3:00 p.m., California time, on a Banking Day, such
payment shall be deemed received on the next Banking Day. The Swing Line
Lender shall promptly notify the Administrative Agent of the Swing Loan
Outstandings each time there is a change therein.
(b) Swing Line Loans shall bear interest at a fluctuating rate
per annum equal to the Alternate Base Rate plus the Applicable Alternate
Base Rate Margin. Interest shall be payable on such dates, not more
frequent than monthly, as may be specified by the Swing Line Lender and in
any event on the Maturity Date. The Swing Line Lender shall be responsible
for invoicing Borrower for such interest. The interest payable on Swing
Line Loans is solely for the account of the Swing Line Lender (subject to
clause (d) below).
(c) Subject to subsection (e) below, the principal amount of
all Swing Line Loans shall be due and payable on the earlier of (i) the
maturity date agreed to by the Swing Line Lender and Borrower with respect
to such loan (which maturity date shall not be a date more than ten (10)
consecutive Banking Days from the date of advance thereof) or (ii) the
Maturity Date.
(d) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from the Swing Line Lender a participation
therein in an amount equal to that Lender's Pro Rata Share of the
Revolving Facility times the amount of the Swing Line Loan. Upon demand
made by the Swing Line Lender, each Lender shall, according to its Pro
Rata Share of the Revolving Facility, promptly provide to the Swing Line
Lender its purchase price therefor in an amount equal to its participation
therein. The obligation of each Lender to so provide its purchase price to
the Swing Line Lender shall be absolute and unconditional (except only
demand made by the Swing Line Lender) and shall not be affected by the
occurrence of a Default or Event of Default; provided that no Lender shall
be obligated to purchase its Pro Rata Share of (i) Swing Line Loans to the
extent that, after giving effect to such Swing Line Loan, Revolving Credit
Facility Usage exceeds the Maximum Revolving Credit Amount, (ii) Swing
Line Loans to the extent that, after giving effect to such Swing Line
Loan, Swing Line Outstandings exceed $5,000,000 and (iii) any Swing Line
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Loan made (absent the consent of all of the Lenders) during the
continuation of an Event of Default if written notice of such Event of
Default shall have been provided to Swing Line Lender by the
Administrative Agent or a Lender sufficiently in advance of the making of
such Swing Line Loan. Each Lender that has provided to the Swing Line
Lender the purchase price due for its participation in Swing Line Loans
shall thereupon acquire a pro rata participation, to the extent of such
payment, in the claim of the Swing Line Lender against Borrower for
principal and interest and shall share, in accordance with that pro rata
participation, in any principal payment made by Borrower with respect to
such claim and in any interest payment made by Borrower (but only with
respect to periods subsequent to the date such Lender paid the Swing Line
Lender its purchase price) with respect to such claim.
(e) In the event that any Swing Line Loan remains outstanding
for ten (10) consecutive Banking Days, then on the next Banking Day
(unless Borrower has made other arrangements acceptable to the Swing Line
Lender to repay such Swing Line Loan, in full), Borrower shall request a
Loan pursuant to Section 2.1 (a) sufficient to repay the aggregate
principal amount of such Swing Line Loan together with any and all accrued
and unpaid interest with respect thereto. In addition, the Swing Line
Lender may, at any time, in its sole discretion, by written notice to
Borrower and the Lenders, demand payment of the Swing Line Loans by way of
a Advance in the full amount or any portion of the Swing Line
Outstandings. In each case, the Administrative Agent shall automatically
provide the responsive Advances made by each Lender to the Swing Line
Lender (which the Swing Line Lender shall then apply to the Swing Line
Outstandings). In the event that Borrower fails to request a Loan within
the time specified by Section 2.2 on any such date, the Administrative
Agent may, but is not required to, without notice to or the consent of
Borrower, cause Alternate Base Rate Advances to be made by the Lenders
under the Revolving Facility in amounts which are sufficient to reduce the
Swing Line Outstandings as required above. The proceeds of such Advances
shall be paid directly to the Swing Line Lender for application to the
Swing Line Outstandings.
2.9 Adjusting Purchase Payments. Principal amounts outstanding under
the Commitment (as defined in the Original Credit Agreement) on the Closing Date
(the "Carryover Principal Balance"), shall remain outstanding hereunder.
Concurrently with the effectiveness of this Agreement, the Lenders agree to
purchase and sell undivided interests in the Carryover Principal Balance by
making or receiving adjusting purchase payments as specified in Exhibit I
hereto (the "Adjusting Purchase Payment(s)") so that the Carryover Principal
Balance will be properly allocated and owing to the Lenders under the Notes in
accordance with the Pro Rata Shares specified in Schedule 1.1 hereto. Each
Lender making an Adjusting Purchase Payment shall deliver it to the Agent and
the Agent shall forward such Adjusting Purchase Payments to the Lenders entitled
thereto promptly after receipt in accordance with the allocations specified in
Exhibit I. On the Closing Date, in addition to any other Advances that may be
made, each Lender shall be deemed as having an Advance outstanding in the amount
of its Pro Rata Share of the Carryover Principal Balance. As of the Effective
Date, the Lenders shall hold participations in all issued and outstanding
Letters of Credit in accordance with their Pro Rata Shares. As of the Closing
Date, Revolving Credit
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Facility Usage is $60,181,000 which amount consists of (i) $49,000,000 of
outstanding Advances under the Revolving Facility, (ii) issued and outstanding
Letters of Credit with an Aggregate Effective Amount of $11,181,000.00 and (iii)
no outstanding Swing Line Loans.
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Article 3.
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in
full is made and shall accrue and be payable at the rates set forth or
provided for herein before and after Default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue interest
at the Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate Advance shall
be due and payable on each Monthly Payment Date. Except as otherwise
provided in Section 3.7, the unpaid principal amount of any Alternate Base
Rate Advance shall bear interest at a fluctuating rate per annum equal to
the Alternate Base Rate plus the Applicable Alternate Base Rate Margin.
Each change in the interest rate under this Section 3.l(b) due to a change
in the Alternate Base Rate shall take effect simultaneously with the
corresponding change in the Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Advance which is
for a term of three months or less shall be due and payable on the last
day of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Advance shall be due and payable on the date which is
three months after the date such Eurodollar Rate Advance was made (and, in
the event that all of the Lenders have approved a Eurodollar Period of
longer than six months, every three months thereafter through the last day
of the Eurodollar Period) and on the last day of the related Eurodollar
Period. Except as otherwise provided in Section 3.7, the unpaid principal
amount of any Eurodollar Rate Advance shall bear interest at a rate per
annum equal to the Eurodollar Rate for that Eurodollar Rate Advance plus
the Applicable Eurodollar Rate Margin.
(d) If not sooner paid, the principal Indebtedness evidenced
by the Notes shall be payable as follows:
(i) the amount, if any, by which the principal
Indebtedness evidenced by the Notes at any time exceeds the Maximum
Revolving Credit Amount shall be payable immediately; and
(ii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(e) The principal Indebtedness evidenced by the Notes may, at
any time and from time to time, voluntarily be paid or prepaid in whole or
in part without premium or penalty, except that with respect to any
voluntary prepayment under this subsection, (i) any partial prepayment
shall be not less than $1,000,000 and shall be an
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integral multiple of $500,000, except as provided in Section 2.8(a). (ii)
the Administrative Agent shall have received written notice of any
prepayment by 9:00 a.m. California time on the date that is (x) in the
case of a Eurodollar Rate Advance three (3) Banking Days before the date
of prepayment unless the prepayment is of a Eurodollar Rate Advance to be
made at the end of its applicable Eurodollar Period and (y) in the case of
an Alternate Base Rate Advance or a prepayment of a Eurodollar Rate
Advance made at the end of its applicable Eurodollar Period, one (1)
Banking Day before the date of prepayment, which notice shall identify the
date and amount of the prepayment and the Advance(s) being prepaid, (iii)
each prepayment of principal on any Eurodollar Rate Advance shall be
accompanied by payment of interest accrued to the date of payment on the
amount of principal paid, and (iv) any payment or prepayment of all or any
part of any Eurodollar Rate Advance on a day other than the last day of
the applicable Eurodollar Period shall be subject to Section 3.6(e).
3.2 Unused Revolving Facility Commitment Fee. From the Closing Date
to but not including the Maturity Date, Borrower shall pay to the Administrative
Agent, for the ratable accounts of the applicable Lenders in accordance with
their respective Pro Rata Shares, a commitment fee equal to the Applicable
Commitment Fee Margin times the average daily amount by which the Maximum
Revolving Credit Amount exceeds the sum of (a) the aggregate principal amount of
funded Indebtedness then outstanding under the Notes plus (b) the Aggregate
Effective Amount under all outstanding Letters of Credit. The commitment fee
shall be payable quarterly in arrears on each Quarterly Payment Date.
3.3 Closing Fees; Arrangement Fee; Agency Fee etc.
(a) On the Closing Date, Borrower shall pay to the Closing
Date Lenders, through the Administrative Agent, the closing fees in the
amount heretofore agreed upon by letter agreement among Borrower and each
Closing Date Lender. All such fees shall be fully earned when paid and
shall be non-refundable.
(b) On the date of the execution hereof, Borrower shall pay to
the Administrative Agent, for the sole account of the Lead Arranger, an
arrangement fee in the amount heretofore agreed upon by letter agreement
between Borrower and the Lead Arranger. Such arrangement fee is for the
services of the Lead Arranger in arranging the credit facility under this
Agreement, is fully earned as of the date hereof and is nonrefundable.
(c) Borrower shall pay to the Administrative Agent an annual
agency fee in such amounts and at such times as heretofore agreed upon by
letter agreement between Borrower and the Administrative Agent. The agency
fee is for the services to be performed by the Administrative Agent in
acting as Administrative Agent and is fully earned on the date paid. The
agency fee paid to the Administrative Agent is solely for its own account
and is nonrefundable.
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3.4 Letter of Credit Fees. With respect to each Letter of Credit,
Borrower shall pay the following fees:
(a) concurrently with the issuance of each Letter of Credit
and on each Quarterly Payment Date thereafter so long as such Letter of
Credit shall remain outstanding, to the Administrative Agent for the
ratable accounts of the Lenders in accordance with their respective Pro
Rata Shares, a standby letter of credit fee in an amount equal to the
product of the then Applicable Letter of Credit Fee Rate times the then
outstanding undrawn amount of such Letter of Credit, for the period
commencing on such payment date and ending on the next succeeding
Quarterly Payment Date or for the remaining term of such Letter of Credit,
whichever is shorter; provided, however, that the applicable standby
letter of credit fee payable in connection with the original issuance of
any Letter of Credit (and on each anniversary date thereof if such Letter
of Credit is renewed or extended) shall be no less than $410; and
(b) concurrently with the issuance of each Letter of Credit,
and on each Quarterly Payment Date thereafter so long as such Letter of
Credit shall remain outstanding, to the Issuing Lender for its own
account, a fronting fee equal to 0.125% (12.5 basis points) per annum on
the daily average stated amount of such Letter of Credit.
In addition to the foregoing, in connection with a Letter of Credit and activity
relating thereto, Borrower also shall pay amendment, transfer, issuance,
negotiation and such other fees as the Issuing Lender normally charges, in the
amounts set forth from time to time as the Issuing Lender's published scheduled
fees for such services. Each of the fees payable with respect to Letters of
Credit under this Section is earned when due and is nonrefundable.
3.5 Increased Commitment Costs. If any Lender shall determine in
good faith that the introduction after the Closing Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar Lending
Office) or any corporation controlling such Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority not imposed as a result of such
Lender's or such corporation's failure to comply with any other Laws, affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines in good faith that the
amount of such capital is increased, or the rate of return on capital is
reduced, as a consequence of its obligations under this Agreement, then, within
five (5) days after demand of such Lender, Borrower shall pay to such Lender,
from time to time as specified in good faith by such Lender, additional amounts
sufficient to compensate such Lender in light of such circumstances, to the
extent reasonably allocable to such obligations under this Agreement, provided
that Borrower shall not be obligated to pay any such amount which arose prior to
the date which is 180 days preceding the date of such demand or is attributable
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to periods prior to the date which is 180 days preceding the date of such
demand. Each Lender's determination of such amounts shall be conclusive in the
absence of manifest error.
3.6 Eurodollar Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (including any emergency,
supplemental or other reserve) with respect to the Eurodollar Obligations
of that Lender, other than the Eurodollar Reserve Percentage, Borrower
shall pay that Lender within five (5) days after demand all amounts
necessary to compensate such Lender (determined as though such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advances
in the Designated Eurodollar Market) in respect of the imposition of such
reserve requirements (provided that Borrower shall not be obligated to pay
any such amount which arose prior to the date which is 180 days preceding
the date of such demand or is attributable to periods prior to the date
which is 180 days preceding the date of such demand). Any Lender's
determination of such amount shall be conclusive in the absence of
manifest error.
(b) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance:
(i) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate
Advances or its obligation to make Eurodollar Rate Advances, or
shall change the basis of taxation of payments to any Lender
attributable to the principal of or interest on any Eurodollar Rate
Advance or any other amounts due under this Agreement in respect of
any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar
Rate Advances or its obligation to make Eurodollar Rate Advances,
excluding (A) taxes imposed on or measured, in whole or in part by
its overall net income by (1) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or Eurodollar Lending Office or (2) any
jurisdiction (or political subdivision thereof) in which it is
"doing business" and (B) any withholding taxes or other taxes based
on gross income imposed by the United States of America for any
period with respect to which it has failed to provide Borrower with
the appropriate form or forms required by Section 11.21, to the
extent such forms are then required by applicable Laws;
(ii) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof (including
any reserve imposed by the Board of Governors of the Federal Reserve
System (other than the Eurodollar Reserve Percentage), special
deposit, capital or similar requirements against assets of, deposits
with or for the account of, or credit extended by, any Lender or its
Eurodollar Lending Office); or
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(iii) shall impose on any Lender or its Eurodollar
Lending Office or the Designated Eurodollar Market any other
condition affecting any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Advances, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar Lending
Office of making or maintaining any Eurodollar Rate Advance or in respect
of any Eurodollar Rate Advance, any of its Notes evidencing Eurodollar
Rate Advances or its obligation to make Eurodollar Rate Advances or
reduces the amount of any sum received or receivable by such Lender or its
Eurodollar Lending Office with respect to any Eurodollar Rate Advance, any
of its Notes evidencing Eurodollar Rate Advances or its obligation to make
Eurodollar Rate Advances (assuming such Lender's Eurodollar Lending Office
had funded 100% of its Eurodollar Rate Advances in the Designated
Eurodollar Market), then, within five (5) Banking Days after demand by
such Lender (with a copy to the Administrative Agent), Borrower shall pay
to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction (determined as though such
Lender's Eurodollar Lending Office had funded 100% of its Eurodollar Rate
Advances in the Designated Eurodollar Market); provided that Borrower
shall not be obligated to pay any such amount which arose prior to the
date which is 180 days preceding the date of such demand or is
attributable to periods prior to the date which is 180 days preceding the
date of such demand. A statement of any Lender claiming compensation under
this subsection shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of
any Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Borrowing consisting of Eurodollar Rate Advances, or materially restrict
the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the Designated Eurodollar Market, or to determine or charge
interest rates based upon the Eurodollar Rate, then such Lender's
obligation to make Eurodollar Rate Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative Agent
forthwith shall give notice thereof to the other Lenders and Borrower.
Upon receipt of such notice, the outstanding principal amount of such
Lender's affected Eurodollar Rate Advances, together with accrued interest
thereon, automatically shall be converted to Alternate Base Rate Advances
on either (i) the last day of the Eurodollar Period(s) applicable to such
Eurodollar Rate Advances if such Lender may lawfully continue to maintain
and fund such Eurodollar Rate Advances to such day(s) or (ii) immediately
if such Lender may not lawfully continue to fund and maintain such
Eurodollar Rate Advances to such day(s). Each Lender agrees to endeavor
promptly to notify Borrower of any event of which it has actual knowledge,
occurring after the Closing Date, which will cause such Lender to notify
Borrower as set forth in the first sentence of this Section, and agrees to
designate a different Eurodollar Lending Office if such designation will
avoid the need
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for such notice and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender. In the event that
any Lender is unable, for the reasons set forth above, to make, maintain
or fund any Eurodollar Rate Advance, such Lender shall fund such
Eurodollar Dollar Rate Advance as an Alternate Base Rate Advance for the
same period of time, and such amount shall be treated in all respects as
an Alternate Base Rate Advance. In the event that any Lender's obligation
to make Eurodollar Rate Advances has been suspended under this Section,
such Lender shall promptly notify the Administrative Agent and Borrower of
the cessation of the Special Eurodollar Circumstance which gave rise to
such suspension.
(d) If, with respect to any proposed Borrowing comprised of
Eurodollar Rate Advances:
(i) the Administrative Agent reasonably determines that,
by reason of circumstances affecting the Designated Eurodollar
Market generally that are beyond the reasonable control of the
Lenders, deposits in Dollars (in the applicable amounts) are not
being offered to any Lender in the Designated Eurodollar Market for
the applicable Eurodollar Period; or
(ii) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the Administrative
Agent (A) does not represent the effective pricing to such Lenders
for deposits in Dollars in the Designated Eurodollar Market in the
relevant amount for the applicable Eurodollar Period, or (B) will
not adequately and fairly reflect the cost to such Lenders of making
the applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of the Lenders to make any future Eurodollar
Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate Advance
on a day other than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower (for a reason other than the
breach by a Lender of its obligation pursuant to Section 2.1 (a)) to
borrow on the date or in the amount specified for a Borrowing comprised of
Eurodollar Rate Advances in any Request for Borrowing, Borrower shall pay
to the appropriate Lender within five (5) Banking Days after demand a
prepayment fee or failure to borrow fee, as the case may be (determined as
though 100% of the Eurodollar Rate Advance had been funded in the
Designated Eurodollar Market) equal to the sum of:
(1) the amount, if any, by which (i) the additional
interest would have accrued on the amount prepaid or not borrowed at
the Eurodollar Rate plus the Applicable Eurodollar Rate Margin if
that amount had remained or been outstanding through the last day of
the applicable Eurodollar Period
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exceeds (ii) the interest that such Lender could recover by placing
such amount on deposit in the Designated Eurodollar Market for a
period beginning on the date of the prepayment or failure to borrow
and ending on the last day of the applicable Eurodollar Period (or,
if no deposit rate quotation is available for such period, for the
most comparable period for which a deposit rate quotation may be
obtained); plus
(2) all out-of-pocket expenses incurred by such Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee
payable under this Section shall be conclusive in the absence of
manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower
of any event of which it has actual knowledge, occurring after the Closing
Date, which will entitle such Lender to compensation pursuant to clause
(a) or clause (b) of this Section, and agrees to designate a different,
Eurodollar Lending Office if such designation will avoid the need for or
reduce the amount of such compensation and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender. Any request for compensation by a Lender under this Section shall
set forth the basis upon which it has been determined that such an amount
is due from Borrower, a calculation of the amount due, and a certification
that the corresponding costs have been incurred by such Lender.
3.7 Late Payments and Default Rate. If any installment of principal
or interest or any fee or cost or other amount payable under any Loan Document
to the Administrative Agent or any Lender is not paid when due, it shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the sum of the interest rate otherwise applicable thereto hereunder
(or, if no interest rate is otherwise applicable thereto hereunder, the
Alternate Base Rate) plus 2.00% (the "Default Rate"), to the fullest extent
permitted by applicable Laws. While any Event of Default exists or after
acceleration, at the option of the Requisite Lenders, Borrower shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by Law) on the principal amount of all outstanding Obligations, at the
Default Rate, to the fullest extent permitted by Law. Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws.
3.8 Computation of Interest and Fees. Computation of interest on
Alternate Base Rate Advances calculated with reference to the Prime Rate shall
be calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed; computation of interest on Alternate Base
Rate Advances calculated by reference to the Federal Funds Rate, and on
Eurodollar Rate Advances and all fees under this Agreement shall be calculated
on the basis of a year of 360 days and the actual number of days elapsed.
Borrower acknowledges that such latter calculation method will result in a
higher yield to the Lenders than a method based on a year of 365 or 366 days.
Interest shall accrue on each
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Advance for the day on which the Advance is made; interest shall not accrue on
an Advance, or any portion thereof, for the day on which the Advance or such
portion is paid. Any Advance that is repaid on the same day on which it is made
shall bear interest for one day. Notwithstanding anything in this Agreement to
the contrary, interest in excess of the maximum amount permitted by applicable
Laws shall not accrue or be payable hereunder or under the Notes, and any amount
paid as interest hereunder or under the Notes which would otherwise be in excess
of such maximum permitted amount shall instead be treated as a payment of
principal.
3.9 Non-Banking Days. If any payment to be made by Borrower or any
other Party under any Loan Document shall come due on a day other than a Banking
Day, payment shall instead be considered due on the next succeeding Banking Day
and the extension of time shall be reflected in computing interest and fees.
3.10 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to
Sections 3.4, 3.5, 11.3, 11.11 and 11.21) or on the Notes or under any
other Loan Document shall be made to the Administrative Agent at the
Administrative Agent's Office, in immediately available funds not later
than 11:00 a.m. California time, on the day of payment (which must be a
Banking Day). All payments received after such time, on any Banking Day,
shall be deemed received on the next succeeding Banking Day. The amount of
all payments received by the Administrative Agent for the account of each
Lender shall be immediately paid by the Administrative Agent to the
applicable Lender in immediately available funds and, if such payment was
received by the Administrative Agent by 11:00 a.m., California time, on a
Banking Day and not so made available to the account of a Lender on that
Banking Day, the Administrative Agent shall reimburse that Lender for the
cost to such Lender of funding the amount of such payment at the Federal
Funds Rate. All payments shall be made in lawful money of the United
States of America.
(b) Borrower hereby authorizes the Administrative Agent to
debit the Designated Deposit Account to effect any payment due to the
Lenders or the Administrative Agent pursuant to this Agreement. Any
resulting overdraft in the Designated Deposit Account shall be payable by
Borrower to the Administrative Agent on the next following Banking Day.
(c) Each payment or prepayment on account of any Borrowing
shall be applied pro rata according to the outstanding Advances made by
each Lender comprising such Borrowing.
(d) Each Lender shall use its best efforts to keep a record
(in writing or by an electronic data entry system) of Advances made by it
and payments received by it with respect to its Note and, subject to
Section 10.6(g), such record shall, as against Borrower, be presumptive
evidence of the amounts owing.
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Notwithstanding the foregoing sentence, the failure by any Lender to keep
such a record shall not affect Borrower's obligation to pay the
Obligations.
(e) Each payment of any amount payable by Borrower
or any other Party to any Lender under this Agreement or any other
Loan Document shall be made free and clear of, and without reduction
by reason of, any taxes, assessments or other charges imposed by any
Governmental Agency, central bank or comparable authority, excluding
(i) taxes imposed on or measured in whole or in part by its overall
net income and franchise taxes imposed in lieu of net income taxes by
(A) any jurisdiction (or political subdivision thereof) in which it
is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business" and (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide
Borrower with the appropriate form or forms required by Section
11.21, to the extent such forms are then required by applicable Laws
(all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrower is
obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this
Agreement, Borrower shall (1) make such deduction or withholding and
pay the same to the relevant Governmental Agency and (2) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Tax amount equal to the amount to
which that Lender would have been entitled under this Agreement
absent such deduction or withholding. If and when receipt of such
payment results in an excess payment or credit to that Lender on
account of such Taxes, that Lender shall promptly refund such excess
to Borrower.
3.11 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Advance in any particular place
or manner or to constitute a representation by any Lender that it has obtained
or will obtain the funds for any Advance in any particular place or manner.
3.12 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.7), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.7), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion, except as provided in Sections 3.5 and 3.6.
3.13 Administrative Agent's Right to Assume Payments Will be Made
Unless the Administrative Agent shall have been notified by Borrower prior to
the date on which any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payment (or otherwise cause sufficient
funds to be available in the Designated Deposit Account for debit pursuant to
Section 3.10(b)), the Administrative Agent may, in its
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discretion, assume that Borrower has remitted such payment (or caused funds
sufficient to make such payment to be available) when so due and the
Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Lender on such payment date, an amount equal
to such Lender's share of such assumed payment. If Borrower has not in fact
remitted such payment (or caused funds sufficient to make such payment to be
available) to the Administrative Agent, each Lender shall forthwith on demand
repay to the Administrative Agent the amount of such assumed payment made
available to such Lender, together with interest thereon in respect of each day
from and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the Administrative
Agent at the Federal Funds Rate.
3.14 Fee Determination Detail. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under Article 3 has been determined, concurrently with demand for
such payment.
3.15 Survivability. All of Borrower's obligations under Sections 3.4
and 3.5 shall survive for the one year period following the Termination Date,
and Borrower shall remain obligated thereunder for all claims under such
Sections made by any Lender to Borrower prior to the expiration of such period.
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Article 4.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Administrative Agent and
each of the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws.
Borrower is a corporation duly formed, validly existing and in good standing
under the Laws of the State of California. Borrower is duly qualified or
registered to transact business and is in good standing in the State of
California, and each other jurisdiction in which the conduct of its business or
the ownership or leasing of its Properties makes such qualification or
registration necessary, except where the failure so to qualify or register and
to be in good standing could not reasonably be expected to have a Material
Adverse Effect. Borrower has all requisite power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform its Obligations. The chief
executive offices of Borrower are located in San Dimas, California. All
outstanding capital stock of Borrower is duly authorized, validly issued, fully
paid and non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities or other Laws.
Borrower is in compliance with all Laws and other legal requirements applicable
to its business, has obtained all authorizations, consents, approvals, orders,
licenses and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure so to comply with Laws and other legal requirements
applicable to its business, obtain authorizations, etc., file, register, qualify
or obtain exemptions could not reasonably be expected to have a Material Adverse
Effect.
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations. The execution and delivery by Borrower of the Loan
Documents to which it is a Party and payment of the Obligations have been duly
authorized by all necessary corporate or company action, as applicable, and do
not and will not:
(a) Require any consent or approval not heretofore obtained of
any partner, director, stockholder, member, security holder or creditor of
Borrower;
(b) Violate or conflict with any provision of Borrower's
charter, certificate of incorporation, bylaws, or other organizational
documents, as applicable;
(c) Result in or require the creation or imposition of any
Lien (other than pursuant to the Loan Documents) or Right of Others upon
or with respect to any Property now owned or leased or hereafter acquired
by Borrower;
(d) Violate any Requirement of Law applicable to Borrower;
(e) Result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit
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agreement or any other Contractual Obligation to which Borrower is a party
or by which Borrower or any of its Property is bound or affected;
and Borrower is not in violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit agreement described in
Section 4.2(c), in any respect that could reasonably be expected to have a
Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as previously
obtained or made, no authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any Governmental Agency is
or will be required to authorize or permit under applicable Laws the execution
and delivery by Borrower of the Loan Documents to which it is a Party and
payment of the Obligations.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth, as of the
Closing Date, the names, form of legal entity, number of shares of capital
stock or membership or other equity interests, as applicable, issued and
outstanding, number of shares of capital stock or membership or other
equity interests, as applicable, owned by Borrower or any Subsidiary of
Borrower (specifying such owner) and jurisdictions of organization of all
Subsidiaries of Borrower. Except as described in Schedule 4.4, as of the
Closing Date, Borrower does not own any capital stock, membership
interest, other equity interest or debt Security which is convertible, or
exchangeable, for capital stock, membership interests or other equity
interests in any Person. Unless otherwise indicated in Schedule 4.4, as of
the Closing Date, all of the outstanding shares of capital stock, all of
the outstanding membership interests or all of the units of other equity
interest, as the case may be, of each Subsidiary are owned of record and
beneficially by Borrower, there are no outstanding options, warrants or
other rights to purchase capital stock of any such Subsidiary, and all
such shares, membership interests or other equity interests so owned are
duly authorized, validly issued, fully paid and non-assessable, and were
issued in compliance with all applicable state and federal securities and
other Laws, and are free and clear of all Liens, except for Permitted
Encumbrances and other encumbrances permitted pursuant to Section 6.9.
(b) As of the Closing Date, each Subsidiary is a legal entity
of the type described in Schedule 4.4 duly formed, validly existing and,
if such concept is legally recognized in such Subsidiary's jurisdiction of
organization, in "good standing" under the Laws of its jurisdiction of
organization, is duly qualified to do business as a foreign organization
and, if such concept is legally recognized in any applicable jurisdiction,
is in "good standing" as such in each jurisdiction in which the conduct of
its business or the ownership or leasing of its Properties makes such
qualification necessary (except where the failure to be so duly qualified
and in good standing could not reasonably be expected to have a Material
Adverse Effect), and has all requisite power and authority to conduct its
business and to own and lease its Properties.
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(c) Each Subsidiary is in compliance with all Laws
and other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from,
and each such Subsidiary has accomplished all filings, registrations, and
qualifications with, or obtained exemptions from any of the foregoing
from, any Governmental Agency that are necessary for the transaction of
its business, except where the failure to be in such compliance, obtain
such authorizations, consents, approvals, orders, licenses, and permits,
accomplish such filings, registrations, and qualifications, or obtain such
exemptions, could not reasonably be expected to have a Material Adverse
Effect.
4.5 Financial Statements. Borrower has furnished to the Lenders (a)
the audited consolidated financial statements of Borrower and its Subsidiaries
for the Fiscal Year ended December 31, 2004 and (b) the consolidating and
consolidated financial statements of Borrower and its Subsidiaries for the
Fiscal Quarter ended March 31, 2005. Such financial statements fairly present in
all material respects the financial condition, results of operations and changes
in financial position as of such dates and for such periods in conformity with
GAAP consistently applied.
4.6 No Other Liabilities; No Material Adverse Changes. As of the
Closing Date, Borrower and its Subsidiaries do not have any material liability
or material contingent liability required under GAAP to be reflected or
disclosed, and not reflected or disclosed, in the financial statements described
in Section 4.5, other than liabilities and contingent liabilities arising in the
ordinary course of business since the date of such financial statements. As of
the Closing Date, no circumstance or event has occurred that could reasonably be
expected to have a Material Adverse Effect since December 31, 2004.
4.7 Title to and Location of Property. As of the Closing Date,
except as set forth in Schedule 4.7, Borrower and its Subsidiaries have valid
title to the Property (other than assets which are the subject of a Capital
Lease Obligation) reflected in the financial statements described in Section
4.5, other than items of Property or exceptions to title which are in each case
immaterial and Property subsequently sold or disposed of in the ordinary course
of business. Such Property is free and clear of all Liens and Rights of Others,
other than Liens or Rights of Others described in Schedule 4.7 and Permitted
Encumbrances, other encumbrances permitted pursuant to Section 6.9, and
Permitted Rights of Others.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or possess
the right to use to the extent necessary in their respective businesses, all
material trademarks, trade names, copyrights, patents, patent rights, computer
software, licenses and other Intangible Assets that are used in the conduct of
their businesses as now operated, and no such Intangible Asset, to the best
knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to the
extent that such conflict could reasonably be expected to have a Material
Adverse Effect. Schedule 4.8 sets forth all patents, patent applications,
trademarks, trade names and trade styles used by Borrower or any of its
Subsidiaries at any time within the five (5) year period ending on the Closing
Date.
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4.9 Litigation. Except for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Borrower or any of its Subsidiaries
of less than $250,000, (c) matters of an administrative nature not involving a
claim or charge against Borrower or any Subsidiary of Borrower and (d) matters
set forth in Schedule 4.9, there are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower threatened
against or affecting Borrower or any of its Subsidiaries or any Property of any
of them before any Governmental Agency. None of Borrower, its Subsidiaries, or,
to the best knowledge of Borrower, any executive officer of any such Persons has
been indicted or convicted in connection with or is engaging in any criminal
conduct which constitutes a felony, or is currently subject to any lawsuit or
proceeding or, to the best of Borrower's knowledge, under investigation in
connection with any anti-racketeering or criminal conduct or activity which
constitutes a felony.
4.10 Binding Obligations. Each of the Loan Documents to which
Borrower is a Party will, when executed and delivered by Borrower, constitute
the legal, valid and binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except as enforcement may be limited by
Debtor Relief Laws or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial discretion.
4.11 No Default. No event has occurred and is continuing that is a
Default or Event of Default.
4.12 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that
could reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043
of ERISA, but excluding such events as to which the PBGC has by
regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) has
occurred that could reasonably be expected to have a Material
Adverse Effect; and
(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) that could reasonably be expected to
have a Material Adverse Effect.
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(b) Neither Borrower nor any of its Subsidiaries has incurred
or expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
4.13 Regulation U; Investment Company Act. No part of the proceeds
of any Advance hereunder Will be used to purchase or carry, or to extend credit
to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulation U. Neither Borrower nor any of its Subsidiaries is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
4.14 Disclosure. No written statement made by a Senior Officer of
Borrower to the Administrative Agent or any Lender pursuant to this Agreement,
or in connection with any Advance, as of the date thereof contained any untrue
statement of a material fact or omitted a material fact necessary to make the
statement made not misleading in light of all the circumstances existing at the
date the statement was made.
4.15 Tax Liability. Borrower and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
any of its Subsidiaries, except (a) such taxes, if any, as are being contested
in good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
Property of Borrower or any Subsidiary is at impending risk of being seized,
levied upon or forfeited.
4.16 Projections. As of the Closing Date, to the best knowledge of
Borrower the assumptions set forth in the Projections most recently delivered to
the Administrative Agent are reasonable and consistent with each other and with
all facts known to Borrower, and the Projections are reasonably based on such
assumptions. Nothing in this Section 4.16 shall be construed as a representation
or covenant that the Projections in fact will be achieved.
4.17 Hazardous Materials. Except as described in Schedule 4.17, or
as may subsequently be disclosed by Borrower in writing to the Administrative
Agent, (a) neither Borrower nor any of its Subsidiaries at any time has disposed
of, discharged, released or threatened the release of any Hazardous Materials
on, from or under the Real Property in violation of any Hazardous Materials Law
that would individually or in the aggregate constitute a Material Adverse
Effect, (b) no condition exists that violates any Hazardous Material Law
affecting any Real Property except for such violations that would not
individually or in the aggregate constitute a Material Adverse Effect, (c) no
Real Property or any portion thereof is or has been utilized by Borrower or any
Subsidiary as a site for the manufacture of any Hazardous Materials and (d) to
the extent that any Hazardous Materials are used, generated or stored by
Borrower or any Subsidiary on any Real Property, or transported to or from such
Real Property by Borrower, or any Subsidiary, such use, generation, storage and
transportation are in compliance in all material respects with all Hazardous
Materials Laws.
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4.18 Employee Matters. There is no strike, work stoppage or labor
dispute with any union or group of employees pending or, to the best knowledge
of Borrower overtly threatened involving Borrower or any Subsidiary that
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
4.19 Fiscal Year. Borrower and its Subsidiaries each operate on a
fiscal year ending on December 31.
4.20 Solvency. After giving effect to this Agreement and the other
Loan Documents (including after giving effect to Advances under this Agreement
as of the Closing Date), Borrower shall be Solvent.
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Article 5.
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of any of the Commitments remains in force,
Borrower shall, and shall cause each of the Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that Borrower and its
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material Property of Borrower or any Subsidiary
is at impending risk of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
respective existences (except as permitted by Section 6.4) in their respective
jurisdictions of formation and all material authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits, or registrations
from any Governmental Agency that are necessary for the transaction of their
respective business and qualify and remain qualified to transact business in
each jurisdiction in which such qualification is necessary in view of their
respective business or the ownership or leasing of their respective Properties
except where the failure to so qualify or remain qualified could not reasonably
be expected to have a Material Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect all of
their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, except (a) that the failure to maintain, preserve and
protect a particular item of Property that is at the end of its useful life or
that is not of significant value, either intrinsically or to the operations of
Borrower and Subsidiaries, taken as a whole, shall not constitute a violation of
this covenant, and (b) this covenant shall not be construed to prohibit any
Disposition otherwise permitted pursuant to Section 6.3.
5.4 Maintenance of Insurance. Maintain, or cause to be maintained,
liability, casualty and other insurance (subject to customary deductibles and
retentions) with responsible insurance companies in such amounts and against
such risks as is carried by responsible companies engaged in similar businesses
and owning similar assets.
5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which could reasonably be expected to have a Material Adverse
Effect,
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except that Borrower and its Subsidiaries need not comply with a Requirement of
Law then being contested by any of them in good faith by appropriate
proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time during
regular business hours and, as requested by the Administrative Agent (but not so
as to materially interfere with the business of Borrower or any of the
Subsidiaries) permit the Administrative Agent, or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies and
abstracts from the records and books of account of (including any software or CD
Rom files relating thereto), and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, key employees or
accountants and, upon request, furnish promptly to the Administrative Agent or
any Lender true copies of all financial information made available to the board
of directors or audit committee of the board of directors of Borrower. If any of
the Properties, books or records of Borrower or any of the Subsidiaries are in
the possession of a third party, Borrower authorizes that third party to permit
the Administrative Agent or any Lender or any agents thereof to have access to
perform inspections or audits and to respond to the Administrative Agent's or
any Lender's request for information concerning such Properties, books and
records. Notwithstanding the foregoing, no prior notice of any such examination,
audit, visit, inspection or discussion shall be required if an Event of Default
has occurred and remains in effect.
5.7 Keeping of Records and Books of Account. Keep adequate records
and books of account reflecting all financial transactions in conformity with
GAAP, consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over
Borrower and its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good faith by appropriate
proceedings or (c) if the failure to comply could not reasonably be expected to
have a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of all Advances to (a)
refinance certain Indebtedness of Borrower and its Subsidiaries (including SCW),
(ii) finance certain acquisitions and (c) provide for the working capital and
general corporate purpose need of Borrower and its Subsidiaries.
5.10 Hazardous Materials Laws. Keep and maintain all Real Property
and each portion thereof in compliance with all applicable Hazardous Materials
Laws, except to the extent that would not individually or in the aggregate
constitute a Material Adverse Effect, and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written material) of (a) any
and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing by a
Governmental Agency pursuant to any applicable Hazardous Materials Laws, (b) any
and all material claims made or threatened in writing by any Person against
Borrower or any Subsidiary relating to damage, contribution, cost recovery,
compensation, loss or injury
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resulting from any Hazardous Materials and (c) discovery by any Senior Officer
of Borrower of any material occurrence or condition on any real property
adjoining or in the vicinity of such Real Property that could reasonably be
expected to cause such Real Property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such Real
Property under any applicable Hazardous Materials Laws.
5.11 Minimum Debt Rating. Maintain at all times a Debt Rating (in
the case of Borrower only) equal to (or better than) Baa3 or BBB-. For purposes
of this Section 5.11, if the prevailing Debt Ratings as of any date of
determination are "split ratings", the lower/lowest Debt Rating shall apply.
5.12 Syndication Process. Cooperate in such respects as may be
reasonably requested by the Lead Arranger in connection with the syndication of
the credit facility under this Agreement, including the provision of information
(in form and substance acceptable to the Lead Arranger) for inclusion in written
materials furnished to prospective syndicate members and the participation by
Senior Officers of Borrower and its Subsidiaries in meetings with prospective
syndicate members.
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Article 6.
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of any of the Commitments remains in force,
Borrower shall not, and shall not permit any of its Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, all of the Lenders) otherwise consents:
6.1 Prepayment of Indebtedness. Prepay any principal or interest on
any Indebtedness of Borrower or any Subsidiary prior to the date when due, or
make any payment or deposit with any Person that has the effect of providing for
the satisfaction of any Indebtedness of Borrower or any Subsidiary prior to the
date when due, except (a) Indebtedness to the Administrative Agent and the
Lenders under this Agreement and the other Loan Documents, (b) the prepayment or
refunding of Indebtedness solely through the issuance of additional Indebtedness
that is permitted under this Agreement; provided that such additional
Indebtedness has either (i) a longer weighted average life than the Borrowings
hereunder, or (ii) a weighted average life that is equal to or longer than the
Indebtedness being refunded and (c) Indebtedness to other Persons the prepayment
of which is approved in advance by the Requisite Lenders in writing.
6.2 Prepayment of Subordinated Obligations. Pay any (a) principal
(including sinking fund payments) or any other amount (other than scheduled
interest payments) with respect to any Subordinated Obligation, or purchase or
redeem any Subordinated Obligation or deposit any monies, Securities or other
Property with any trustee or other Person to provide assurance that the
principal or any portion thereof of any Subordinated Obligation will be paid
when due or otherwise to provide for the defeasance of any Subordinated
Obligation or (b) scheduled interest on any Subordinated Obligation if the
payment thereof is then prohibited under the terms of the subordination
provisions governing such Subordinated Obligations.
6.3 Disposition of Property. Make any Disposition of its Property,
whether now owned or hereafter acquired, except (a) Dispositions of obsolete
Property or Property with no material remaining useful life, (b) Dispositions in
an aggregate amount not to exceed $2,000,000 in any Fiscal Year ending after the
Closing Date or $8,000,000 in the aggregate from and after the Closing Date to
the Termination Date; provided that (i) at the time of any such Disposition
pursuant to clause (b) only, no Default or Event of Default shall exist or shall
result from such Disposition and (ii) the sales price relating to a Disposition
(pursuant to clause (a) or (b)) shall be paid in Cash and/or Indebtedness or
other evidence of an Investment permitted pursuant to Section 6.14(h), and (c)
Dispositions pursuant to any order of any Governmental Agency in an eminent
domain proceeding and any settlement of any such proceeding.
6.4 Mergers. Merge or consolidate with or into any Person, except
mergers and consolidations of a Subsidiary into Borrower (with Borrower as the
surviving entity), mergers of Subsidiaries with each other or mergers entered
into in connection with Permitted
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Acquisitions, provided that (a) no Default or Event of Default would result
therefrom and (b) any such "surviving" entity shall have executed such
amendments to the Loan Documents, if any, as the Administrative Agent may
reasonably determine are appropriate as a result of such merger.
6.5 Hostile Tender Offers. Make any offer to purchase or acquire, or
consummate a purchase or acquisition of, five percent (5%) or more of the voting
interest in any corporation or other business entity if the board of directors
or management of such corporation or business entity has notified Borrower that
it opposes such offer or purchase and such notice has not been withdrawn or
superseded.
6.6 Distributions. Declare or pay or make any form of Distribution,
whether from capital, income or otherwise, and whether in Cash or other
Property, except:
(a) Distributions by any Subsidiary to Borrower or to any
wholly-owned Subsidiary of Borrower;
(b) Distributions consisting of dividends payable solely in
capital stock or rights to purchase capital stock so long as no Default or
Event of Default then exists; and
(c) Distributions consisting of (i) repurchases of preferred
stock of Borrower in an amount not to exceed $2,500,000 in the aggregate
from and after the Closing Date and (ii) dividends paid in Cash in a
manner reasonably consistent with Borrower's past practices made in any
Fiscal Year if, in any such case, no Default or Event of Default then
exists and, giving effect thereto on a pro-forma estimated basis, Borrower
would be in compliance with Section 6.12 as of the end of the then current
Fiscal Quarter.
6.7 ERISA. (a) At any time, permit any Pension Plan to: (i) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.8 Change in Nature of Business. Make any change in the nature of
the business of Borrower and its Subsidiaries, taken as a whole, as at present
conducted; provided that a Permitted Acquisition shall not be deemed such a
change.
6.9 Liens and Negative Pledges. Create, incur, assume or suffer to
exist any Lien or Negative Pledge of any nature upon or with respect to any of
their respective Properties, or engage in any Sale and Leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, except:
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(a) Liens and Negative Pledges existing on the Closing Date
and disclosed in Schedule 4.7 and any renewals/extensions or amendments
thereof, provided that the obligations secured or benefited thereby are
not increased:
(b) Liens and Negative Pledges under the Loan Documents:
(c) Permitted Encumbrances;
(d) Liens which secure Permitted Acquisition Indebtedness
which were in existence at the time of the Permitted Acquisition and were
not created in contemplation of such Permitted Acquisition;
(e) Liens securing Permitted Capital Asset Indebtedness on and
limited to the capital assets acquired, constructed or financed with the
proceeds of such Permitted Capital Asset Indebtedness or with the proceeds
of any Indebtedness directly or indirectly refinanced by such
Indebtedness; provided that the aggregate principal amount of such
Indebtedness secured by such Liens and incurred by Borrower and/or its
Subsidiaries after the Closing Date shall not exceed $10,000.000 at any
one time outstanding (as determined in accordance with GAAP consistently
applied); and
(f) any Negative Pledge with respect to the rights of a
Subsidiary of Borrower under a Military Utility Privatization entered into
by such Subsidiary.
6.10 Indebtedness and Guaranty Obligations. Create, incur or assume
any Indebtedness or Guaranty Obligation if an Event of Default has occurred and
is continuing or if, after giving effect thereto, Borrower would not be in
compliance with the provisions of Section 6.12 or Section 6.13 or an Event of
Default would otherwise occur. Notwithstanding the foregoing, Borrower shall not
permit any Subsidiary to create, incur, assume or suffer to exist any
Indebtedness or Guaranty Obligation, except (a) Permitted Acquisition
Indebtedness, (b) Permitted Capital Asset Indebtedness, (c) existing
Indebtedness set forth on Schedule 6.10(b), (d) Indebtedness owed to Borrower or
a wholly-owned Subsidiary, (e) unsecured term Indebtedness (i.e., not revolving
credit) that (i) either has a longer weighted average life than the Borrowings
hereunder or satisfies the requirements of Section 6.1. (ii) to the extent that
a Governmental Agency has regulatory jurisdiction over the issuance of such
Indebtedness of such Subsidiary, the issuance of such Indebtedness is permitted
by such regulatory jurisdiction, (iii) is incurred in the ordinary course of
business of such Subsidiary and is substantially consistent with the prior
practices of SCW, and (iv) is provided by any Person or Governmental Agency,
other than a commercial bank under a credit agreement or facility substantially
similar thereto, and (f) other unsecured Indebtedness in the aggregate principal
amount not to exceed $1,000,000.
6.11 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of Borrower other than (without duplication): (a)
salary, bonus, employee stock option and other compensation arrangements with
directors or officers in the ordinary course of business; (b) Investments
permitted pursuant to Section 6.14(d), (c) Distributions
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permitted pursuant to Section 6.6; (d) transactions with wholly-owned
Subsidiaries; and (e) transactions on overall terms at least as favorable to
Borrower or its Subsidiaries as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
6.12 Total Funded Debt Ratio. Permit the Total Funded Debt Ratio, as
of the last day of any Fiscal Quarter, to be greater than 0.65 to 1.00.
6.13 Interest Coverage Ratio. Permit the Interest Coverage Ratio, as
of the last day of any Fiscal Quarter, to be less than 3.25 to 1.00.
6.14 Investments and Acquisitions. Make any Acquisition or enter
into any agreement to make any Acquisition unless approved in advance by the
Administrative Agent and the Requisite Lenders in writing, or make or suffer to
exist any Investment, other than:
(a) Permitted Acquisitions;
(b) Investments in existence on the Closing Date and disclosed
on Schedule 6.14;
(c) Investments consisting of Cash Equivalents;
(d) Investments consisting of loans and advances to officers,
directors and employees of Borrower and its Subsidiaries for travel,
entertainment, relocation, anticipated bonus, exercise of stock options
and analogous ordinary business purposes provided that the aggregate
amount of such Investments does not exceed $1,000,000 at any time
outstanding;
(e) Investments in a Subsidiary that is a wholly-owned
Subsidiary of Borrower;
(f) Investments consisting of the extension of credit to
customers or suppliers of Borrower and its Subsidiaries in the ordinary
course of business and any Investments received in satisfaction or partial
satisfaction thereof;
(g) Investments received in connection with the settlement of
a bona fide dispute with another Person provided that the aggregate amount
of such Investments does not exceed $500,000 at any time outstanding;
(h) Investments representing all or a portion of the sales
price of Property sold or services provided to another Person provided
that the aggregate amount of such Investments does not exceed $500,000 at
any time outstanding; and
(i) Investments consisting of Indebtedness and Guaranty
Obligations owed to Borrower or any of its Subsidiaries.
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6.15 Operating Leases. Incur any obligation to pay rent under an
operating lease in any Fiscal Year if to do so would result in the aggregate
obligation of Borrower and its Subsidiaries to pay rent under all operating
leases in that Fiscal Year to exceed $4,000,000.
6.16 Amendments. Amend or modify any term or provision of (a) any
indenture, agreement or instrument evidencing or governing any Subordinated
Obligation or (b) any material provision of any Material Contract, if in any
such case such amendment or modification in any respect will or may adversely
affect the interest of the Lenders.
6.17 Use of Lender's Name. Use any Lender's name (or the name of any
of any Lender's Affiliates) in connection with any of their business operations
except to identify the existence of the Revolving Facility and the names of the
Lenders in the ordinary course of Borrower's business or to comply with
Borrower's obligations under Law. Nothing contained in this Agreement is
intended to permit or authorize Borrower to make any commitment or contract on
behalf of any Lender or the Administrative Agent.
6.18 Change of Fiscal Periods. Change its Fiscal Year or any other
fiscal period with respect to which it reports financial results hereunder or
otherwise.
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Article 7.
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of any of
the Commitments remains in force, Borrower shall, unless the Administrative
Agent (with the written approval of the Requisite Lenders) otherwise consents,
at Borrower's sole expense, deliver to the Administrative Agent for distribution
by it to the Lenders, a sufficient number of copies for all of the Lenders of
the following:
(a) (i) As soon as practicable, and in any event within fifty
(50) days after the end of each Fiscal Quarter ending March 31, June 30
and September 30 (commencing with the Fiscal Quarter ending June 30,
2005), the consolidating and consolidated balance sheet of Borrower and
its Subsidiaries as at the end of such Fiscal Quarter and the
consolidating and consolidated statements of income, operations and cash
flows for such Fiscal Quarter, and the portion of the Fiscal Year ended
with such Fiscal Quarter, together with a statement of Stockholders'
Equity as of the last day of such Fiscal Quarter, all in reasonable
detail, (ii) such financial statements shall be certified by the president
or chief financial officer of Borrower as fairly presenting the financial
condition, results of operations and cash flows of Borrower and its
Subsidiaries in accordance with GAAP (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject only
to normal year-end accruals and audit adjustments.
(b) (i) As soon as practicable, and in any event within one
hundred (100) days after the end of each Fiscal Year, the consolidating
and consolidated balance sheet of Borrower and its Subsidiaries as at the
end of such Fiscal Year and the consolidating and consolidated statements
of income, operations, stockholders' equity and cash flows, in each case
of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
GAAP, consistently applied, and such consolidated financial statements
shall be accompanied by a report of PricewaterhouseCoopers LLP or other
independent public accountants of recognized standing selected by Borrower
and reasonably satisfactory to the Requisite Lenders, which report shall
be prepared in accordance with generally accepted auditing standards as at
such date, and shall not be subject to any qualifications or exceptions,
and which report shall specifically disclose any changes discovered by
such accountants in Borrower's or its Subsidiaries' applicable process of
management of accounts, (ii) such accountants' report shall be accompanied
by a certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification of
such financial statements and such report, such accountants have obtained
no knowledge of any Default then existing or, if, in the opinion of such
accountants, any such Default shall exist, stating the nature and status
of such Default, and stating that such accountants have reviewed
Borrower's financial calculations as at the end of such Fiscal Year (which
shall accompany such certificate) under Sections 6.12 and 6.13, have read
such Sections (including the definitions of all defined terms used
therein) and that nothing
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has come to the attention of such accountants in the course of such
examination that would cause them to believe that the same were not
calculated by Borrower in the manner prescribed by this Agreement, and
(iii) in addition, Borrower shall deliver to the Administrative Agent a
copy of (A) any "management letter" prepared by such accountants in
conjunction with preparation of the foregoing report and, (B) a separate
report prepared by such accountants in conjunction with preparation of the
foregoing report, pursuant to which separate report such accountants shall
be required to disclose any material changes discovered by such
accountants in the then current account management process (including the
determination of returns and reserves, inventory management practices, and
accounts receivable management practices).
(c) As soon as practicable, and in any event not later than
sixty (60) days subsequent to the commencement of each Fiscal Year, a
budget and projection of Borrower and its Subsidiaries setting forth (i)
by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and
(ii) on an annual basis for each succeeding Fiscal Year thereafter through
the Maturity Date, projected balance sheets, statements of operations and
statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to Borrower (or its board of directors) by
independent accountants in connection with the accounts or books of
Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event
within five (5) Banking Days after filing with the Securities and Exchange
Commission, copies of each annual report, proxy or financial statement or
other report or communication sent to the stockholders of Borrower or any
of its Subsidiaries, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower or any of its
Subsidiaries may file or be required to file with the Securities and
Exchange Commission under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, and not otherwise required to be delivered to the
Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to
confidentiality requirements of any Governmental Agency, copies of any
other report or other document that was filed by Borrower, with any
Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming
aware, and in any event within five (5) Banking Days after becoming aware,
of the occurrence of any (i) "reportable event" (as such term is defined
in Section 4043 of ERISA, but excluding such events as to which the PBGC
has by regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) or (ii)
non-exempt "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) involving any Pension Plan or
any trust created thereunder, telephonic notice specifying the nature
thereof, and, no
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more than two (2) Banking Days after such telephonic notice, written
notice again specifying the nature thereof and specifying what action
Borrower is taking or proposes to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect
thereto; provided that no such notice shall be required pursuant to this
Section 7.1 (g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer of Borrower becomes aware of the
existence of any condition or event which constitutes a Default or Event
of Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than two (2) Banking Days after such
telephonic notice, written notice again specifying the nature and period
of existence thereof and specifying what action Borrower is taking or
proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware
that (i) any Person has commenced a legal proceeding with respect to a
claim against Borrower or any of its Subsidiaries that is $250,000 or more
in excess of the amount thereof that is fully covered by insurance, (ii)
any creditor under a credit agreement involving Indebtedness of $250,000
or more or any lessor under a lease involving aggregate rent of $250,000
or more has asserted a default thereunder on the part of Borrower or any
of its Subsidiaries or, (iii) any Person has commenced a legal proceeding
with respect to a claim against Borrower or any of its Subsidiaries under
a contract that is not a credit agreement or material lease with respect
to a claim of in excess of $250,000 or which otherwise may reasonably be
expected to result in a Material Adverse Effect, a written notice
describing the pertinent facts relating thereto and what action Borrower
and/or its applicable Subsidiaries are taking or propose to take with
respect thereto; and
(j) Such other data and information as from time to time may
be reasonably requested by the Administrative Agent or the Requisite
Lenders.
Information required to be delivered pursuant to this Section 7.1
(to the extent any such documents are included in materials otherwise
filed with the Securities and Exchange Commission) shall be deemed to have
been delivered on the date (a) on which Borrower provides notice to
Lenders that such information has been posted on Borrower's Internet
website at the website address listed on the signature page hereof or at
another website identified in such notice and accessible to Lenders
without charge, or (b) on which documents are posted on Borrower's behalf
on the Platform; provided that (i) Company shall notify the Administrative
Agent and each Lender (by telecopier or electronic mail) of the posting of
any such documents and provide to Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents.
7.2 Compliance Certificates. So long as any Advance remains unpaid,
or any other Obligation remains unpaid or unperformed, or any portion of any of
the
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Commitments remain outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Sections 7.1 (a)
and 7.1 (b), a Compliance Certificate signed by the president or chief financial
officer of Borrower.
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Article 8.
CONDITIONS
8.1 Closing Date Advances. The obligation of each Closing Date
Lender to make Advances on and after the Closing Date, and the obligation of the
Issuing Lender to issue additional Letters of Credit (as applicable), is subject
to the following conditions precedent, each of which shall be satisfied prior to
the making of any further Advances or the issuance of the additional Letters of
Credit (as applicable) (unless all of the Closing Date Lenders, in their sole
and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
(1) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Closing Date Lenders
and Borrower;
(2) Notes executed by Borrower in favor of each Closing
Date Lender, each in a principal amount equal to that Lender's
Commitment;
(3) the Swing Line Documents executed by Borrower;
(4) with respect to Borrower, such documentation as the
Administrative Agent may reasonably require to establish the due
organization, valid existence and good standing of Borrower, its
qualification to engage in business in each material jurisdiction in
which it is engaged in business or required to be so qualified, its
authority to execute, deliver and perform the Loan Documents to
which it is a Party, the identity, authority and capacity of each
Responsible Official thereof authorized to act on its behalf,
including certified copies of articles of incorporation and
amendments thereto, bylaws and amendments thereto, certificates of
good standing and/or qualification to engage in business, tax
clearance certificates, certificates of corporate resolutions or
other applicable authorization documents, incumbency certificates,
Certificates of Responsible Officials, and the like;
(5) the Opinion of Counsel;
(6) one or more Requests for Borrowing, Requests for
Letters of Credit or Requests for Continuation/Conversion, as
applicable;
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(7) a Certificate signed by a Senior Officer of Borrower
certifying that the conditions specified in Sections 8.1(d) and
8.1.(e) have been satisfied; and
(8) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent and/or any Closing
Date Lender reasonably may require.
(b) The fees payable on or before the Closing Date pursuant to
Section 3.3 shall have been paid.
(c) The reasonable costs and expenses of the Administrative
Agent in connection with the preparation of this Agreement and each of the
other Loan Documents prepared in connection therewith payable pursuant to
Section 11.3, and invoiced to Borrower prior to the Closing Date, shall
have been paid.
(d) The representations and warranties of Borrower contained
in Article 4 shall be true and correct in all material respects.
(e) Borrower and any other Parties shall be in compliance with
all the terms and provisions of the Loan Documents, and giving effect to
the any Advances made, or Letters of Credits issued, on the Closing Date,
no Default or Event of Default shall have occurred and be continuing.
(f) All legal matters relating to the Loan Documents shall be
reasonably satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special counsel to Lender.
(g) The Closing Date shall have occurred on or before June 6,
2005.
8.2 Any Advance. The obligation of each Lender to make any Advance,
and the obligation of the Issuing Lender to issue any Letter of Credit, is
subject to the following conditions precedent (unless the Requisite Lenders or,
in any case where the approval of all of the Lenders is required pursuant to
Section 11.2, all of the Lenders, in their sole and absolute discretion, shall
agree otherwise):
(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and correct
as a result of a change which is permitted by this Agreement or (ii) as
disclosed by Borrower and approved in writing by the Requisite Lenders,
the representations and warranties contained in Article 4 (other than
Sections 4.4, 4.6 (first sentence), 4.9 and 4.16) shall be true and
correct in all material respects on and as of the date of the Advance or
the Letter of Credit as though made on that date;
(b) no circumstance or event shall have occurred that
constitutes a Material Adverse Effect since the Closing Date;
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(c) other than matters described in Schedule 4.9 or not
required as of the Closing Date to be therein described, there shall not
be then pending or threatened any action, suit, proceeding or
investigation against or affecting Borrower or any Subsidiary of Borrower
or any Property of any of them before any Governmental Agency that
constitutes a Material Adverse Effect;
(d) the Administrative Agent shall have timely received a
Request for Borrowing (or telephonic or other request for Borrowing
referred to in the second sentence of Section 2.1(b), if applicable), or
the Issuing Lender shall have received a Request for Letter of Credit, as
the case may be, in compliance with Article 2; and
(e) the Administrative Agent shall have received, in form and
substance reasonably satisfactory to the Administrative Agent, such other
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Lenders reasonably may require.
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Article 9.
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the Notes,
or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the Notes, or
any fees under Sections 3.2 or 3.4, or any portion thereof, within five
(5) Banking Days after the date when due; or fails to pay any other fee or
amount payable to the Lenders or the Administrative Agent under any Loan
Document, or any portion thereof, within five (5) Banking Days after
written demand therefor; or
(c) Borrower fails to comply with, or cause or permit any of
its Subsidiaries to fail to comply with, any of the covenants contained in
Article 6; or
(d) (i) Borrower fails to comply with Section 7.1(i) in the
manner stated therein or (ii) Borrower fails to perform any other
reporting requirement set forth in Article 7 within five (5) Banking Days
of the date specified for performance therein; or
(e) Borrower or any other Party fails to perform or observe
any other covenant or agreement (not specified in clause (a), (b), (c) or
(d) above) contained in any Loan Document on its part to be performed or
observed and such default shall continue unremedied for twenty (20) days
after the giving of notice by the Administrative Agent on behalf of the
Requisite Lenders of such Default; or
(f) Any representation or warranty of Borrower or any other
Party made in any Loan Document, or in any certificate or other writing
delivered by Borrower or such other Party pursuant to any Loan Document,
proves to have been incorrect when made or reaffirmed in any material
respect; or
(g) Borrower or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $2,500,000 or more, or any guaranty of present or future
Indebtedness of $2,500,000 or more, on its part to be paid, when due (or
within any stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii) fails
to perform or observe any other term, covenant or agreement on its part to
be performed or observed, or suffers any event of default to occur, in
connection with any present or future Indebtedness of $2,500,000 or more,
or of any guaranty of present or future Indebtedness of $2,500,000 or
more, if as a result of such failure or sufferance any holder or holders
thereof (or an agent or trustee on its or their behalf) has the right to
declare such Indebtedness due before the date on which it otherwise would
become
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due or the right to require Borrower or any such Subsidiary to redeem or
purchase, or offer to redeem or purchase, all or any portion of such
Indebtedness; or
(h) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action (or
omission to act) of the Administrative Agent or satisfaction in full of
all the Obligations, ceases to be in full force and effect or is declared
by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which is materially adverse to the interests
of the Lenders; or any Party thereto denies in writing that it has any or
further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind same; or
(i) A final judgment against Borrower or any of its
Subsidiaries is entered for the payment of money in excess of $2,500,000
(not covered by insurance or for which an insurer has reserved its rights)
and, absent procurement of a stay of execution, such judgment remains
unsatisfied for thirty (30) calendar days after the date of entry of
judgment, or in any event later, than five (5) days prior to the date of
any proposed sale thereunder; or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the Property of Borrower or any of its Subsidiaries and
is not released, vacated or fully bonded within thirty (30) calendar days
after its issue or levy; or
(j) Borrower or any of its Subsidiaries institutes or consents
to the institution of any proceeding under a Debtor Relief Law relating to
it or to all or any material part of its Property, or is unable or admits
in writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any proceeding
under a Debtor Relief Law relating to any such Person or to all or any
part of its Property is instituted without the consent of that Person and
continues undismissed or unstayed for sixty (60) calendar days; or
(k) A Change in Control occurs; or
(l) The dissolution or liquidation of Borrower, any of SCW or
Chapparal City Water Company, or any other Subsidiary that has,
immediately prior to the commencement of such dissolution or liquidation,
assets having a fair market value of more than $20,000,000 or Borrower or
any such Subsidiary, or any of their respective partners, members,
directors or stockholders, as the case may be, shall take action seeking
to effect the dissolution or liquidation of Borrower or such Subsidiary;
or
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(m) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document) under
any other Loan Document; or
(n) Any Pension Plan maintained by Borrower is finally
determined by the PBGC to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess of
an amount equal to 5% of the consolidated total assets of Borrower as of
the most-recently ended Fiscal Quarter; or
(o) Any holder of a Subordinated Obligation asserts in writing
that such Subordinated Obligation is not subordinated to the Obligations
in accordance with its terms and Borrower does not promptly deny in
writing such assertion and contest any attempt by such holder to take
action based on such assertion; or
(p) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their behalf)
the right to declare such Subordinated Obligation due before the date on
which it otherwise would become due, or the right (other than by reason of
a Change in Control) to require the issuer thereof, to redeem or purchase,
or offer to redeem or purchase, all or any portion of any Subordinated
Obligation, or a final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations.
9.2 Remedies Upon Event of Default. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section
9.l(j):
(1) the commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrower and any other Parties under the Loan Documents
shall be suspended without notice to or demand upon Borrower, which
are expressly waived by Borrower except that all of the Lenders or
the Requisite Lenders (as the case may be, in accordance with
Section 11.2) may waive an Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to the Lenders or
Requisite Lenders, as the case may be, to reinstate the Commitments
and such other obligations and rights and make further Advances,
which waiver or determination shall apply equally to, and shall be
binding upon, all the Lenders;
(2) the Issuing Lender may demand immediate payment by
Borrower of an amount equal to the Aggregate Effective Amount of all
outstanding Letters of Credit to be held by the Administrative
Agent, on behalf
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of the Lenders, in an interest-bearing cash collateral account as
collateral for all of the Obligations; and
(3) the Requisite Lenders may request the Administrative
Agent to, and the Administrative Agent thereupon shall, terminate
the Commitments and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon and
all other amounts payable under the Loan Documents to be forthwith
due and payable, whereupon the same shall become and be forthwith
due and payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly
waived by Borrower.
(b) Upon the occurrence of any Event of Default described in
Section 9.1(j):
(1) the Commitments shall terminate without notice to or
demand upon Borrower, which are expressly waived by Borrower, except
that all of the Lenders may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to all
the Lenders, to reinstate the Commitments and make further Advances,
which determination shall apply equally to, and shall be binding
upon, all the Lenders;
(2) an amount equal to the Aggregate Effective Amount of
all outstanding Letters of Credit shall be immediately due and
payable to the Issuing Lender without notice to or demand upon
Borrower, which are expressly waived by Borrower, to be held by the
Administrative Agent, on behalf of the Lenders, in an
interest-bearing cash collateral account as collateral for all of
the Obligations; and
(3) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under the
Loan Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the Lenders
and the Administrative Agent, or any of them, without notice to (except as
expressly provided for in any Loan Document) or demand upon Borrower,
which are expressly waived by Borrower (except as to notices expressly
provided for in any Loan Document), may proceed (but only with the consent
of the Requisite Lenders) to protect, exercise and enforce their rights
and remedies under the Loan Documents against Borrower and any other Party
and such other rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole
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discretion, and all payments received by the Administrative Agent and the
Lenders, or any of them, shall be applied first to the costs and expenses
(including reasonable attorneys' fees and disbursements and the reasonably
allocated costs of attorneys employed by the Administrative Agent or by
any Lender) of the Administrative Agent and of the Lenders, and thereafter
paid pro rata to the Lenders in the same proportions that the aggregate
Obligations owed to each Lender under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Lenders,
without priority or preference among the Lenders. Regardless of how each
Lender may treat payments for the purpose of its own accounting, for the
purpose of computing Borrower's Obligations hereunder and under the Notes,
payments shall be applied first, to the costs and expenses of the
Administrative Agent and the Lenders, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan Documents to
and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each
of the Loan Documents), and third, to the payment of all other amounts
(including principal and fees) then owing to the Administrative Agent or
the Lenders under the Loan Documents. No application of payments will cure
any Event of Default, or prevent acceleration, or continued acceleration,
of amounts payable under the Loan Documents, or prevent the exercise, or
continued exercise, of rights or remedies of the Lenders hereunder or
thereunder or at Law or in equity.
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Article 10.
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Revolving Facility and does not constitute
appointment of the Administrative Agent as trustee for any Lender or as
representative of any Lender for any other purpose and, except as specifically
set forth in the Loan Documents to the contrary, the Administrative Agent shall
take such action and exercise such powers only in an administrative and
ministerial capacity.
10.2 Administrative Agent and Affiliates. ▇▇▇▇▇ Fargo (and each
successor Administrative Agent) has the same rights and powers under the Loan
Documents as any other Lender, and may exercise the same as though it were not
the Administrative Agent, and the term "Lender" or "Lenders" includes ▇▇▇▇▇
Fargo in its individual capacity. ▇▇▇▇▇ Fargo (and each successor Administrative
Agent) and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with Borrower, any
Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary thereof, as
if it were not the Administrative Agent and without any duty to account therefor
to the Lenders. ▇▇▇▇▇ Fargo (and each successor Administrative Agent) need not
account to any other Lender for any monies received by it for reimbursement of
its costs and expenses as Administrative Agent hereunder, or (subject to Section
11.10) for any monies received by it in its capacity as a Lender hereunder. The
Administrative Agent shall not be deemed to hold a fiduciary relationship with
any Lender and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of collateral (if any) or interests therein received or held
by the Administrative Agent. Subject to the Administrative Agent's and the
Lenders' rights to reimbursement for their costs and expenses hereunder
(including reasonable attorneys' fees and disbursements and other professional
services and the reasonably allocated costs of attorneys employed by the
Administrative Agent or a Lender) and subject to the application of payments in
accordance with Section 9.2(d), each Lender shall have an interest in the
Lenders' interest in such collateral or interests therein in the same
proportions that the aggregate Obligations owed such Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrower
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and upon such other information as it has deemed appropriate, made its own
independent credit analysis and decision to enter into this Agreement. Each
Lender also agrees that it shall, independently and without reliance upon the
Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender,
continue to make its own independent credit analyses and decisions in acting or
not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) The Administrative Agent may assume that no Default has
occurred and is continuing, unless the Administrative Agent (or the Lender
that is then the Administrative Agent) has received notice from Borrower
stating the nature of the Default or has received notice from a Lender
stating the nature of the Default and that such Lender considers the
Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under
the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
upon the instructions of the Requisite Lenders (or of all the Lenders, to
the extent required by Section 11.2) and those instructions shall be
binding upon the Administrative Agent and all the Lenders, provided that
the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately give
notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite Lenders (or of all the Lenders, to the
extent required by Section 11.2), provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to
any Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability to
the Administrative Agent, and except that if the Requisite Lenders (or all
the Lenders, if required under Section 11.2) fail, for five (5) Banking
Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its
sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite Lenders
(or all the Lenders, if required under Section 11.2), notwithstanding any
other provision hereof.
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10.6 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent, signed
by the payee, and may treat each Lender as the owner of that Lender's
interest in the Obligations for all purposes of this Agreement until the
Administrative Agent receives notice of the assignment or transfer
thereof, in form satisfactory to the Administrative Agent, signed by that
Lender;
(b) May consult with legal counsel (including in-house legal
counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrower or any
Subsidiary of Borrower and/or any of their Affiliates or the Lenders, and
shall not be liable for any action taken or not taken by it in good faith
in accordance with any advice of such legal counsel, accountants or other
professionals or experts;
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any
notice, certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents;
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower of any of the terms, conditions or covenants of any
of the Loan Documents or to inspect any Property, books or records of
Borrower or any Subsidiary of Borrower;
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith;
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed in good faith by it to be
genuine and signed or sent by the proper party or parties; and
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or paid or payable to or
received or receivable from any Lender under any Loan Document, including
principal, interest, commitment fees, Advances and other amounts; provided
that, promptly upon
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discovery of such an error in computation, the Administrative Agent, the
Lenders and (to the extent applicable) Borrower, shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
10.7 Indemnification. Each Lender shall, ratably in accordance with
its Pro Rata Share of all of the then applicable Commitments (if any of the
Commitments are then in effect) and/or in accordance with its proportion of the
aggregate Indebtedness then evidenced by the Notes (if all of the Commitments
have then been terminated), indemnify and hold the Administrative Agent and its
directors, officers, agents, employees and attorneys harmless against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(including reasonable attorneys' fees and disbursements and allocated costs of
attorneys employed by the Administrative Agent) that may be imposed on, incurred
by or asserted against it or them in any way relating to or arising out of the
Loan Documents (other than losses incurred by reason of the failure of Borrower
to pay the Indebtedness represented by the Notes) or any action taken or not
taken by it as Administrative Agent thereunder, except such as result from its
own gross negligence or willful misconduct. Without limitation on the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for that
Lender's Pro Rata Share of any out-of-pocket cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation, execution,
delivery, amendment, Waiver, restructuring, reorganization (including a
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that Borrower or any other Party are required by
Section 11.3 to pay that cost or expense but fails to do so upon demand.
Nothing in this Section 10.7 shall entitle the Administrative Agent or any
indemnitee referred to above to recover any amount from the Lenders if and to
the extent that such amount has theretofore been recovered from Borrower. To the
extent that the Administrative Agent or any indemnitee referred to above is
later reimbursed such amount by Borrower, it shall return the amounts paid to it
by the Lenders in respect of such amount.
10.8 Successor Administrative Agent. The Administrative Agent may,
and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrower effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrower (and such approval shall not be unreasonably withheld or
delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and
Borrower, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and
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Sections 11.3, 11.11 and 11.21, shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. Notwithstanding the foregoing, if no successor Administrative Agent
has accepted appointment as Administrative Agent by the date which is thirty
(30) days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time if any, as the Requisite Lenders appoint a
successor Administrative Agent as provided for above.
10.9 No Obligations of Borrower. Nothing contained in this Article
10 shall be deemed to impose upon Borrower any obligation in respect of the due
and punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement. In addition, Borrower may rely on a written statement by the
Administrative Agent to the effect that it has obtained the written consent of
the Requisite Lenders or all of the Lenders, as applicable under Section 11.2,
in connection with a waiver, amendment, consent, approval or other action by the
Lenders hereunder, and shall have no obligation to verify or confirm the same.
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Article 11.
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges
and remedies of the Administrative Agent and the Lenders provided herein or in
any Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on the
part of the Administrative Agent or any Lender in exercising any right, power,
privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 8 hereof are inserted for the
sole benefit of the Administrative Agent and the Lenders; the same may be waived
in whole or in part, with or without terms or conditions, in respect of any
Borrowing without prejudicing the Administrative Agent's or the Lenders' rights
to assert them in whole or in part in respect of any other Borrowing.
11.2 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the written
approval of the Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which Borrower is a
Party, signed by Borrower, and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative Agent), and then only in
the specific instance and for the specific purpose given; and, without the
approval in writing of all the Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any
Note, or the amount of the Revolving Facility, or the Pro Rata Share of
any Lender or the amount of any commitment fee payable to any Lender, or
any other fee or amount payable to any Lender (in its capacity as a
Lender) under the Loan Documents or to waive an Event of Default
consisting of the failure of Borrower to pay when due principal, interest
or any fee, or to provide for additional extensions of credit to Borrower
by the Lenders pursuant to the Loan Documents;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on, any Note
or any installment of any fee, or to extend the term of the Revolving
Facility;
(c) To amend the provisions of the definition of "Requisite
Lenders" or "Maturity Date";
(d) To amend or waive Article 8 or this Section 11.2; or
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(e) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
11.3 Costs and Expenses. Borrower agrees to pay within five (5)
Banking Days after demand, accompanied by an invoice therefor, all reasonable,
out-of-pocket expenses (except in the case of the Administrative Agent's
allocated in-house counsel costs described below, which shall not be required to
be "out-of-pocket") of the Administrative Agent (including the reasonable fees
and out-of-pocket expenses of counsel to the Administrative Agent (including
reasonable allocated costs of in-house counsel employed by the Administrative
Agent) and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with:
(a) The negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby (or thereby) are consummated, provided that,
Borrower's maximum liability for fees and expenses of counsel to the
Administrative Agent in connection with the Closing Date shall not exceed
$50,000;
(b) The preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document; and
(c) The preparation of any information or response required
with respect to any investigative request or inquiry, approval, findings
of suitability or any other response or communication involving a
Governmental Agency arising out of this Agreement, any other Loan Document
or any Obligation evidenced by the Loan Documents or the participation in
any public or investigatory hearing or meeting.
Borrower further agrees to pay, and to save the Administrative Agent, the
Issuing Lender and the Lenders harmless from all liability for, any stamp and
similar taxes that may be payable in connection with the execution or delivery
of this Agreement, the credit extensions made hereunder, or the issuance of the
Notes, the Letters of Credit or any other Loan Document. Borrower also agrees to
reimburse the Administrative Agent and, after the occurrence and during the
continuance of an Event of Default, the Issuing Lender and each Lender upon
demand for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses of counsel and fees and expenses of
consultants to the Administrative Agent, the Issuing Lender and the Lenders)
incurred by the Administrative Agent, the Issuing Lender or such Lenders in
connection with (i) the negotiation of any restructuring or "work-out" with
Borrower whether or not consummated, of any Obligations, (ii) the enforcement or
attempted enforcement of any Obligations and any matter related thereto and
(iii) any bankruptcy of
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Borrower or any of its Subsidiaries. Any amount payable to the Administrative
Agent or any Lender under this Section 11.3 shall bear interest from the fifth
Banking Day following the date of demand, if not then paid, for payment at the
Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the
Administrative Agent or the Lenders or any of them pursuant hereto or thereto
may, or may be deemed to, make the Lenders a partnership, an association, a
joint venture or other entity, either among themselves or with Borrower or any
Subsidiary or Affiliate of Borrower. A default by any Lender will not increase
the Commitment of any other Lender or the Pro Rata Share of the Revolving
Facility attributable to any other Lender. Any Lender not in default may, if it
desires, assume (in such proportion as the nondefaulting Lenders agree) the
obligations of any Lender in default, but no Lender is obligated to do so.
11.5 Survival of Representations and Warranties. All representations
and warranties contained herein or in any other Loan Document, or in any
certificate or other writing delivered by or on behalf of any one or more of the
Parties to any Loan Document, will survive the making of the Advances hereunder
and the execution and delivery of the Notes, and have been or will be relied
upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
11.6 Notices. (a) Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telecopied, dispatched by commercial courier or delivered to the
appropriate party at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party to any Loan
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section.
Except as otherwise expressly provided in any Loan Document, if any notice,
request, demand, direction or other communication required or permitted by any
Loan Document is given by mail it will be effective on the earlier of receipt or
the fourth Banking Day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telecopier, when sent; if dispatched by
commercial courier, on the scheduled delivery date; or if given by personal
delivery, when delivered.
(b) Notwithstanding the foregoing, Borrower agrees that
Administrative Agent may make any material delivered by Borrower to
Administrative Agent, as well as any amendments, waivers, consents and other
written information, documents, instruments and other materials relating to
Borrower, any of its Subsidiaries, or any other materials or matters relating to
the Loan Documents or any of the transactions contemplated hereby that
Administrative Agent is required or authorized pursuant to the terms hereof or
of any Loan Document to provide to Lenders (collectively, the "Communications"),
available to Lenders by posting such notices on a Platform. Borrower
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are
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confidentiality and other risks associated with such distribution, (ii) a
Platform is provided "as is" and "as available" and (iii) neither Administrative
Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness,
sufficiency, or sequencing of the Communications posted on a Platform.
Administrative Agent and its Affiliates expressly disclaim with respect to a
Platform any liability for errors in transmission, incorrect or incomplete
downloading, delays in posting or delivery, or problems accessing the
Communications posted on such Platform and any liability for any losses, costs,
expenses or liabilities that may be suffered or incurred in connection with such
Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, 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 Administrative Agent or any of its Affiliates in
connection with any Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) specifying that any Communication has been posted to a Platform shall
for purposes of this Agreement constitute effective delivery to such Lender of
such information, documents or other materials comprising such Communication.
Each Lender agrees (i) to notify, on or before the date such Lender becomes a
party to this Agreement, Administrative Agent in writing of such Lender's e-mail
address to which a notice may be sent (and from time to time thereafter to
ensure that Administrative Agent has on record an effective e-mail address for
such Lender) and (ii) that any notice may be sent to such e-mail address.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrower is a Party will be binding upon and inure to the benefit of
Borrower, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that Borrower may not assign its
rights hereunder or thereunder or any interest herein or therein without
the prior written consent of all the Lenders. Each Lender represents that
it is not acquiring its Note with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (subject to
any requirement that disposition of such Note must be within the control
of such Lender). Any Lender may at any time pledge its Note or any other
instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such
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pledge shall release that Lender from its obligations hereunder or grant
to such Federal Reserve Bank the rights of a Lender hereunder absent
foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its
rights and obligations under this Agreement (including all or a portion of
its Commitment, the Advances owing to it and the Note or Notes held by
it); provided that, subject to subsection (f) below, (i) such Eligible
Assignee, if not then a Lender or an Affiliate of the assigning Lender,
shall be approved by the Administrative Agent and Borrower (neither of
which approvals shall be unreasonably withheld or delayed), (ii) such
assignment shall be evidenced by an Assignment and Acceptance, a copy of
which shall be furnished to the Administrative Agent as hereinbelow
provided, (iii) except in the case of an assignment to an Affiliate of the
assigning Lender, to another Lender or of the entire remaining rights and
obligations of the assigning Lender under this Agreement, the assignment
shall not assign a portion of such assigning Lender's Commitments and/or
Advances owing to such assigning Lender that is equivalent to less than
$3,000,000, and (iv) the effective date of any such assignment shall be as
specified in the Assignment and Acceptance, but not earlier than the date
which is five (5) Banking Days after the date the Administrative Agent has
received the Assignment and Acceptance. Upon the effective date of such
Assignment and Acceptance, the Eligible Assignee named therein shall be a
Lender for all purposes of this Agreement, with the Commitments and/or
Advances therein set forth and, to the extent of such Commitments and/or
Advances, the assigning Lender shall be released from its further
obligations under this Agreement. Borrower agrees that it shall execute
and deliver (against delivery by the assigning Lender to Borrower of such
Lender's Notes) to such assignee Lender, Notes evidencing that assignee
Lender's Commitments and/or Advances, and to the assigning Lender, Notes
evidencing the remaining balance of the Commitments and/or Advances
retained by the assigning Lender.
(c) By executing and delivering an Assignment and Acceptance,
the Eligible Assignee thereunder acknowledges and agrees that: (i) other
than the representation and warranty that it is the legal and beneficial
owner of the rights and obligations hereunder being assigned thereby free
and clear of any adverse claim, the assigning Lender has made no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity, enforceability,
genuineness or sufficiency of this Agreement or any other Loan Document;
(ii) the assigning Lender has made no representation or warranty and
assumes no responsibility with respect to the financial condition of
Borrower or the performance by Borrower of the Obligations; (iii) it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance;
(iv) it will, independently and without reliance upon the Administrative
Agent or any Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
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Agreement; (v) it appoints and authorizes the Administrative Agent to take
such action and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by this Agreement; and (vi) it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") of the names and address
of each of the Lenders and the Pro Rata Share of the Commitments held by
each Lender, giving effect to each Assignment and Acceptance. The Register
shall be available during normal business hours for inspection by Borrower
or any Lender upon reasonable prior notice to the Administrative Agent.
After receipt of a completed Assignment and Acceptance executed by any
Lender and an Eligible Assignee, and receipt of an assignment fee of
$3,500 from such Lender or Eligible Assignee, the Administrative Agent
shall, promptly following the effective date thereof, provide to Borrower
and the Lenders a revised Schedule 1.1 giving effect thereto. Borrower,
the Administrative Agent and the Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the Pro
Rata Shares of the Revolving Facility listed therein for all purposes
hereof, and no assignment or transfer of any Lender's rights and
obligations hereunder shall be effective, in each case unless and until an
Assignment and Acceptance effecting the assignment or transfer thereof
shall have been accepted by the Administrative Agent and recorded in the
Register as provided above. Prior to such recordation, all amounts owed
with respect to the applicable Pro Rata Share of the Revolving Facility
shall be owed to the Lender listed in the Register as the owner thereof,
and any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in the
Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Pro Rata Share of the
Revolving Facility.
(e) Each Lender may from time to time grant participations to
one or more banks or other financial institutions in or to all or a
portion of its rights and/or obligations under this Agreement; provided,
however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii)such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other financial institutions shall not be a Lender
hereunder for any purpose except, if the participation agreement so
provides, for the purposes of Sections 3.5, 3.6, 11.11 and 11.21 but
only to the extent that the cost of such benefits to Borrower does not
exceed the cost which Borrower would have incurred in respect of the
Lender granting such participation absent the participation, (iv)
Borrower, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (v)the participation interest
shall be expressed as a percentage of the granting Lender's Pro Rata Share
of the Revolving Facility as it then exists and shall not restrict an
increase in the Revolving Facility (or the aggregate Commitments
pertaining thereto), or in the granting Lender's rights and
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obligations hereunder, so long as the amount of the participation interest
is not affected thereby and (vi) the consent of the holder of such
participation interest shall not be required for amendments or waivers of
provisions of the Loan Documents other than those which (A) extend any
Amortization Date, any applicable Maturity Date or any other date upon
which any payment of money is due to the Lenders, (B) reduce the rate of
interest on the Notes, any fee or any other monetary amount payable to the
Lenders, (C) reduce the amount of any installment of principal due under
the Notes, or (D) release any Guarantor from its Guaranty.
(f) Borrower agrees that upon the occurrence and during the
continuance of any Event of Default, each Lender shall be entitled to
assign its rights hereunder and under the Loan Documents, or grant
participation interests in its rights under this Agreement and the Loan
Documents, to any Person, in whole or in any part thereof, notwithstanding
any provisions contained herein (including those set forth in subsection
(b) above) or in any other Loan Document to the contrary, except that,
other than (i) assignments by a Lender to an Affiliate of such Lender or
to another Lender or (ii) pledges described in the last sentence of
subsection (a) above, no assignment shall be made without the approval of
the Administrative Agent.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under applicable
Laws and, to the extent permitted by applicable Laws, apply any funds in any
deposit account maintained with it by Borrower and/or any Property of Borrower
in its possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same proportion that existed
prior to the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment; and (b) such other adjustments and purchases of
participations shall be made from time to time as shall be equitable to ensure
that all of the Lenders share any payment obtained in respect of the Obligations
ratably in accordance with each Lender's share of the Obligations immediately
prior to, and without taking into account, the payment; provided that, if all or
any portion of a disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by Borrower or any Person claiming through
or succeeding to the rights of Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Lender that purchases a participation
in the Obligations pursuant to this Section 11.10 shall from and after the
purchase have the
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right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Borrower expressly consents to
the foregoing arrangements and agrees that any Lender holding a participation in
an Obligation so purchased pursuant to this Section 11.10 may exercise any and
all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of the
Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
hold harmless the Administrative Agent and each Lender and their respective
directors, officers, agents, attorneys and employees (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in Section 3.10(e)) if the claim,
demand, action or cause of action arises out of or relates to (i) any act or
omission (or alleged act or omission) of Borrower, any Subsidiary or other
Affiliate of Borrower or any partner, officer, director, stockholder, or other
equity interest holder of Borrower relating to the Revolving Facility, (ii) the
use or contemplated use of proceeds of any Borrowing, (iii) the relationship of
Borrower and the Lenders under this Agreement, or (iv) the Loan Documents or the
Revolving Facility in any other manner or aspect; (b) any administrative or
investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clause (a) above; and
(c) any and all liabilities, losses, reasonable costs or expenses (including
reasonable attorneys' fees and the reasonably allocated costs of attorneys
employed by any Indemnitee and disbursements of such attorneys and other
professional services) that any Indemnitee suffers or incurs as a result of the
assertion of any foregoing claim, demand, action or cause of action; provided
that no Indemnitee shall be entitled to indemnification for any liability, loss,
cost or expense caused by its own gross negligence or willful misconduct or for
any liability, loss, cost or expense asserted against it by another Indemnitee.
If any claim, demand, action or cause of action is asserted against any
Indemnitee, such Indemnitee shall promptly notify Borrower, but the failure to
so promptly notify Borrower shall not affect Borrower's obligations under this
Section unless such failure materially prejudices Borrower's right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
in writing) contest the validity, applicability and amount of such claim,
demand, action or cause of action and shall permit Borrower to participate in
such contest. Any Indemnitee that proposes to settle or compromise any claim or
proceeding for which Borrower may be liable for payment of indemnity hereunder
shall give Borrower written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Borrower's prior consent (which shall not be
unreasonably withheld or delayed). In connection with any claim, demand, action
or cause of action covered by this Section 11.11 against more than one
Indemnitee, all such Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or attorneys employed by an
Indemnitee or a combination of the foregoing) selected by the Indemnitees,
provided, that if such legal counsel determines in good faith that representing
all such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to
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all such Indemnitees, then to the extent reasonably necessary to avoid such a
conflict of interest or to permit unqualified assertion of such a defense or
counterclaim, each affected Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee, with all such legal
counsel using reasonable efforts to avoid unnecessary duplication of effort by
counsel for all Indemnitees; and further provided that the Administrative Agent
(as an Indemnitee) shall at all times be entitled to representation by separate
legal counsel (which may be a law firm or attorneys employed by the
Administrative Agent or a combination of the foregoing). Any obligation or
liability of Borrower to any Indemnitee under this Section 11.11 shall survive
the expiration or termination of this Agreement and the repayment of all
Borrowings and the payment and performance of all other Obligations owed to the
Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and agrees
that:
(a) Any inspections of any Property of Borrower or any
Subsidiary of Borrower made by or through the Administrative Agent or the
Lenders are for purposes of administration of the Revolving Facility only
and Borrower is not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Loan Documents, neither the Administrative Agent
nor the Lenders shall be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the same, or of
any term, provision or condition thereof, and such acceptance or approval
thereof shall not constitute a warranty or representation to anyone with
respect thereto by the Administrative Agent or the Lenders;
(c) The relationship between Borrower and the Administrative
Agent and the Lenders is, and shall at all times remain, solely that of
borrower and lenders; neither the Administrative Agent nor the Lenders
shall under any circumstance be construed to be partners or joint
venturers of Borrower, any Subsidiary of Borrower or any of their
respective Affiliates; neither the Administrative Agent nor the Lenders
shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with Borrower, any
Subsidiary of Borrower or any of their respective Affiliates, or to owe
any fiduciary duty to Borrower, any Subsidiary of Borrower or any of their
respective Affiliates; neither the Administrative Agent nor the Lenders
undertake or assume any responsibility or duty to Borrower, any Subsidiary
of Borrower or any of their respective Affiliates to select, review,
inspect, supervise, pass judgment upon or inform Borrower, any Subsidiary
of Borrower or any of their respective Affiliates of any matter in
connection with their Property or the operations of Borrower, any
Subsidiary of Borrower or any of their respective Affiliates; Borrower,
Subsidiary of Borrower and their respective Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Administrative Agent or the Lenders in
connection with
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such matters is solely for the protection of the Administrative Agent and
the Lenders and neither Borrower nor any other Person is entitled to rely
thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrower, any
Subsidiary of Borrower and/or any of their respective Affiliates and
Borrower hereby indemnifies and holds the Administrative Agent and the
Lenders harmless on the terms set forth in Section 11.11 from any such
loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Administrative Agent and the Lenders in connection with the
Revolving Facility, and is made for the sole benefit of Borrower, the
Administrative Agent and the Lenders, and the Administrative Agent's and the
Lenders' successors and assigns. Except as provided in Sections 11.8 and 11.11,
no other Person shall have any rights of any nature hereunder or by reason
hereof.
11.14 Confidentiality. Each Lender agrees to hold any confidential
information that it may receive from Borrower pursuant to this Agreement in
confidence, except for disclosure: (a) to other Lenders or Affiliates of a
Lender that have agreed to keep such information confidential to the same extent
as if they were a party hereto; (b) to legal counsel and accountants for
Borrower, any Subsidiary of Borrower or any Lender; (c) to other professional
advisors to Borrower or any Subsidiary of Borrower or any Lender, provided that
the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 11.14; (d) to regulatory
officials having jurisdiction over that Lender; (e) as required by Law or legal
process, provided that each Lender agrees to notify Borrower of any such
disclosures unless prohibited by applicable Laws, or in connection with any
legal proceeding to which that Lender and Borrower or any Subsidiary of Borrower
are adverse parties; and (f) to another financial institution in connection with
a disposition or proposed disposition to that financial institution of all or
part of that Lender's interests hereunder or a participation interest in its
Note(s), provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section 11.14. For
purposes of the foregoing, "confidential information" shall mean any information
respecting Borrower or any Subsidiary of Borrower reasonably considered by
Borrower to be confidential, other than (i) information previously filed with
any Governmental Agency and available to the public, (ii) information previously
published in any public medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by Borrower or such
Subsidiary of Borrower to any Person not associated with Borrower or such
Subsidiary of Borrower which does not owe a professional duty of confidentiality
to Borrower or such Subsidiary of Borrower or which has not executed an
appropriate confidentiality agreement with Borrower or such Subsidiary of
Borrower. Nothing in this Section shall be construed to create or give rise to
any fiduciary duty on the part of the Administrative Agent or the Lenders to
Borrower or any Subsidiary of Borrower.
-91-
11.15 Further Assurances. Borrower shall, at its expense and without
expense to the Lenders or the Administrative Agent, do, execute and deliver such
further acts and documents as the Requisite Lenders or the Administrative Agent
from time to time reasonably require for the assuring and confirming unto the
Lenders or the Administrative Agent of the rights hereby created or intended now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
Documents and the letter agreements referred to in Section 3.3, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and supersedes all prior agreements, written or oral, on the subject matter
hereof. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control and govern; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
11.17 Governing Law. EXCEPT TO THE EXTENT OTHERWISE PROVIDED
THEREIN, EACH LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN CALIFORNIA. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS
ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN A
STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA. THE PARTIES EXPRESSLY
SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN ANY SUCH COURT, AND THE PARTIES HEREBY WAIVE ANY OBJECTION THEY MAY
HAVE BASED UPON LACK OF PERSONAL JURISDICTION AND HEREBY CONSENT TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY ANY SUCH COURT.
FURTHERMORE, THE PARTIES HEREBY WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, ANY RIGHT THEY MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR
TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS SECTION 11.16.
11.18 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
-92-
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants. Each Lender, and each holder
of a participation interest herein, that is incorporated or otherwise organized
under the Laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia shall deliver to Borrower (with a copy
to the Administrative Agent), on or before the Closing Date (or on or before
accepting an assignment or receiving a participation interest herein pursuant,
to Section 11.8, if applicable) two duly completed copies, signed by a
Responsible Official, of Form W-8BEN or W-8EC1 (or other equivalent successor
form) satisfactory to Borrower and the Administrative Agent that no withholding
under the federal income tax laws is required with respect to such Person.
Thereafter and from time to time, each such Person shall (a) promptly submit to
Borrower (with a copy to the Administrative Agent), such additional duly
completed and signed copies of such form (or such successor form(s) as shall be
adopted from time to time by the relevant United States taxing authorities) as
may then be available under then current United States laws and regulations to
avoid, or such evidence as is satisfactory to Borrower and the Administrative
Agent of any available exemption from, United States withholding taxes in
respect of all payments to be made to such Person by Borrower pursuant to this
Agreement and (b) take such steps as shall not be materially disadvantageous to
it, in the reasonable judgment of such Person, and as may be reasonably
necessary (including the re-designation of its Eurodollar Lending Office, if
any) to avoid any requirement of applicable Laws that Borrower make any
deduction or withholding for taxes from amounts payable to such Person. In the
event that Borrower or the Administrative Agent becomes aware that a
participation has been granted pursuant to Section 11.8(e) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrower or the Administrative
Agent to the Lender that granted such participation, such Lender shall cause
such participant financial institution to deliver the same documents and
information to Borrower and the Administrative Agent as would be required under
this Section if such financial institution were a Lender.
11.22 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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11.23 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY
LENDER THAT DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT,
MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
11.24 Replacement of Lender. If any Lender does not consent to a
requested waiver or amendment hereof that is consented to by the Requisite
Lenders, then Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.8), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 11.8 (d),
(b) such Lender shall have received payment of an amount equal
to the outstanding principal of its Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of
all other amounts); and
(c) such assignment does not conflict with applicable Laws.
No Lender shall be required to make such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling Borrower to require such assignment and delegation cease
to apply.
11.25 USA Patriot Act Notice. Each Lender that is subject to the
Patriot Act (as hereinafter defined) and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the "Patriot Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Patriot Act.
[THIS SPACE INTENTIONALLY LEFT BLANK -
SIGNATURE PAGES TO FOLLOW]
-94-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
AMERICAN STATES WATER COMPANY,
a California corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President-Finance, Chief
Financial Officer, Treasurer and Corporate
Secretary
Address for Borrower:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Website: ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇
With a copy to:
American States Water Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
as Administrative Agent
By /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
Address for notices to Administrative Agent for
borrowings and payments:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
S-2
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: American States Water Account Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
S-3
COBANK, ACB,
as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
S-4
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address:
Energy Capital Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
S-5
COMERICA BANK,
as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
S-6
THE NORTHERN TRUST COMPANY,
as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
Address:
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇.▇▇▇▇.▇▇▇
S-7
SCHEDULE 1.1
TO
CREDIT AGREEMENT
LENDER COMMITMENTS/PRO RATA SHARES
Amount of
Lender Pro Rata Share Revolving Commitment
------ -------------- --------------------
▇▇▇▇▇ Fargo Bank, National Association 32.941176% $ 28,000,000.00
CoBank, ACB 28.235294% $ 24,000,000.00
Union Bank of California, N.A. 18.823529% $ 16,000,000.00
Comerica Bank 14.117647% $ 12,000,000.00
The Northern Trust Company 5.882353% $ 5,000,000.00
Total 100% $ 85,000,000.00
-1-
AMENDED AND RESTATED SWING LINE NOTE
$10,000,000.00 June 3, ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, upon demand or, if no demand is made, on the
Revolving Credit Facility Maturity Date, AMERICAN STATES WATER COMPANY, a
California corporation ("Borrower"), hereby promises to pay to the order of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION (the "Swing Line Lender") the principal
amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000) or such lesser aggregate
amount of Swing Line Outstandings under the Credit Agreement referred to below,
together with interest at a fluctuating rate per annum equal to the Alternate
Base Rate plus the Applicable Alternate Base Rate Margin, on the principal
amount of each Swing Line Loan made hereunder and remaining unpaid from time to
time from the date of each such Swing Line Loan until the date of payment in
full, payable as hereinafter set forth.
A. General Conditions.
1. Definitions. This Note is delivered with reference to the
Amended and Restated Credit Agreement dated as of June 3, 2005, entered into by
and among Borrower, the Lenders therein named and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent (the "Credit Agreement"). This Note shall
entirely amend, restate and replace that certain Swing Line Note dated June 6,
2002. Terms defined in the Credit Agreement and not otherwise defined herein are
used with the meanings given those terms in the Credit Agreement.
2. Loan Procedures. Advances hereunder shall be made in accordance
with the terms, provisions and procedures set forth in the Credit Agreement
applicable to Swing Line Loans.
3. Payments. Interest on the Swing Line Loans hereunder shall accrue
at the rate applicable to Alternate Base Rate Advances under the Credit
Agreement and shall be due and payable on such dates, not more frequent than
monthly, as may be specified by the Swing Line Lender, and, in any event, all
accrued interest shall be due and payable on the Maturity Date or upon demand,
whichever is earlier. Any principal or interest not paid when due hereunder
shall be subject to the default rate of interest set forth in Section 3.7 of the
Credit Agreement with respect to Swing Line Loans, to the fullest extent
permitted by applicable Law. Each payment hereunder shall be made to the Swing
Line Lender at its office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in immediately available funds not later than 3:00
p.m. (California time) on the day of payment (which must be a Business Day). All
payments received after 3:00 p.m. (California time) shall be deemed received on
the next Business Day. All payments shall be made in lawful money of the United
States of America.
4. Records. The Swing Line Lender shall use its best efforts to keep
a record of each Swing Line Loan made by it and payments of principal received
by it with respect to this Swing Line Note, and such record shall be presumptive
evidence of the amounts owing under this Swing Line Note.
-1-
5. Setting and Notice of Rates. The applicable Alternate Base Rate
shall be determined and notice thereof given in accordance with the Credit
Agreement. Each determination of the applicable Alternate Base Rate shall be
conclusive and binding upon Borrower, in the absence of manifest error.
6. Computation of Interest. Interest shall be computed for the
actual number of days elapsed on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed.
7. Prepayments. This Swing Line Note may be prepaid at any time in
whole or in part without penalty.
B. Default. The "Events of Default" provisions contained in Article 9 of
the Credit Agreement are hereby incorporated by this reference as though fully
set forth herein.
C. Waiver. Borrower hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest and any other notice of formality, to the
fullest extent permitted by applicable Laws.
D. Collection Costs. In the event of the occurrence of an Event of
Default, Borrower agrees to pay all costs of collection, including reasonable
attorney's fees, in addition to and at the time of the payment of such sum of
money and/or the performance of such acts as may be required to cure such
default. In the event legal action is commenced for the collection of any sums
owing hereunder, Borrower agrees that any judgment issued as a consequence of
such action against Borrower shall bear interest at a rate equal to the default
rate provided in Section 3.7 of the Credit Agreement until fully paid.
E. Governing Law. This Swing Line Note has been delivered in the State of
California, and shall be governed by, and construed and enforced in accordance
with, the Laws of California applicable to contracts made and performed in
California.
F. Partial Invalidity. If any provision of this Swing Line Note shall be
prohibited by or invalid under an applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or any other provision of this
Swing Line Note.
IN WITNESS WHEREOF, this Swing Line Note has been executed as of the
date first hereinabove written.
AMERICAN STATES WATER COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-Finance, Chief
Financial Officer, Treasurer and
Corporate Secretary
-2-
SCHEDULE OF SWING LINE LOANS
AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Swing Line Amount of Principal Notation
Date Loan Principal Paid Balance Made By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
-3-
AMENDED AND RESTATED NOTE
$5,000,000.00 June 3, 2005
FOR VALUE RECEIVED, the undersigned, AMERICAN STATES WATER COMPANY,
a California corporation ("Borrower"), promises to pay to the order of THE
NORTHERN TRUST COMPANY (the "Lender"), the principal amount of FIVE MILLION AND
NO/100 DOLLARS ($5,000,000.00) or such lesser aggregate amount of Advances as
may be made pursuant to the Lender's Pro Rata Share of the Revolving Facility
under the Credit Agreement referred to below, payable as hereinafter set forth.
Borrower promises to pay interest on the principal amount hereof remaining
unpaid from time to time from the date hereof until the date of payment in full,
payable as hereinafter set forth.
Reference is made to the Amended and Restated Credit Agreement dated
as of June 3, 2005, by and among Borrower, the Lenders that are parties thereto,
and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent for the
Lenders (as the same may be amended, renewed, extended or otherwise modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Credit Agreement. This is one of the Notes referred to
in the Credit Agreement and shall entirely amend, restate and replace that
certain Note dated June 6, 2002. Any holder hereof is entitled to all of the
rights, remedies, benefits and privileges provided for in the Credit Agreement
as originally executed or as it may from time to time be supplemented, modified
or amended. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Credit Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Advance hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Credit Agreement, both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear interest
at the rate set forth in Section 3.7 of the Credit Agreement, to the fullest
extent permitted by applicable Law.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
time) on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (California time) on any particular Banking Day shall be deemed
received on the next succeeding Banking Day. All payments shall be made in
lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of Advances
made by it and payments of principal received by it with respect to this Note,
and such record shall be presumptive evidence of the amounts owing under this
Note.
-1-
Borrower hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting Borrower's obligations hereunder or in enforcing
or attempting to enforce any of such holder's rights hereunder, including
reasonable attorneys' fees and disbursements (including allocated costs of legal
counsel employed by the Administrative Agent or the holder), whether or not an
action is filed in connection therewith.
Borrower hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE LENDER, OR BY
THE ADMINISTRATIVE AGENT ON ITS BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS THEREOF.
AMERICAN STATES WATER COMPANY, a
California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-Finance, Chief
Financial Officer, Treasurer and
Corporate Secretary
-2-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
-3-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Eurodollar Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
-4-
AMENDED AND RESTATED NOTE
$12,000,000.00 June 3, 2005
FOR VALUE RECEIVED, the undersigned, AMERICAN STATES WATER COMPANY,
a California corporation ("Borrower"), promises to pay to the order of COMERICA
BANK (the "Lender"), the principal amount of TWELVE MILLION AND NO/100 DOLLARS
($ 12,000,000.00) or such lesser aggregate amount of Advances as may be made
pursuant to the Lender's Pro Rata Share of the Revolving Facility under the
Credit Agreement referred to below, payable as hereinafter set forth. Borrower
promises to pay interest on the principal amount hereof remaining unpaid from
time to time from the date hereof until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Amended and Restated Credit Agreement dated
as of June 3, 2005, by and among Borrower, the Lenders that are parties thereto,
and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent for the
Lenders (as the same may be amended, renewed, extended or otherwise modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Credit Agreement. This is one of the Notes referred to
in the Credit Agreement and shall entirely amend, restate and replace that
certain Note dated June 6, 2002. Any holder hereof is entitled to all of the
rights, remedies, benefits and privileges provided for in the Credit Agreement
as originally executed or as it may from time to time be supplemented, modified
or amended. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Credit Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Advance hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Credit Agreement, both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear interest
at the rate set forth in Section 3.7 of the Credit Agreement, to the fullest
extent permitted by applicable Law.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
time) on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (California time) on any particular Banking Day shall be deemed
received on the next succeeding Banking Day. All payments shall be made in
lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of Advances
made by it and payments of principal received by it with respect to this Note,
and such record shall be presumptive evidence of the amounts owing under this
Note.
-1-
Borrower hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting Borrower's obligations hereunder or in enforcing
or attempting to enforce any of such holder's rights hereunder, including
reasonable attorneys' fees and disbursements (including allocated costs of legal
counsel employed by the Administrative Agent or the holder), whether or not an
action is filed in connection therewith.
Borrower hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE LENDER, OR BY
THE ADMINISTRATIVE AGENT ON ITS BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS THEREOF.
AMERICAN STATES WATER COMPANY, a
California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-Finance, Chief
Financial Officer, Treasurer and
Corporate Secretary
-2-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
-3-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Eurodollar Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
-4-
AMENDED AND RESTATED NOTE
$16,000,000.00 June 3, 2005
FOR VALUE RECEIVED, the undersigned, AMERICAN STATES WATER COMPANY,
a California corporation ("Borrower"), promises to pay to the order of UNION
BANK OF CALIFORNIA, N. A. (the "Lender"), the principal amount of SIXTEEN
MILLION AND NO/100 DOLLARS ($16,000,000.00) or such lesser aggregate amount of
Advances as may be made pursuant to the Lender's Pro Rata Share of the Revolving
Facility under the Credit Agreement referred to below, payable as hereinafter
set forth. Borrower promises to pay interest on the principal amount hereof
remaining unpaid from time to time from the date hereof until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Amended and Restated Credit Agreement dated
as of June 3, 2005, by and among Borrower, the Lenders that are parties thereto,
and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent for the
Lenders (as the same may be amended, renewed, extended or otherwise modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Credit Agreement. This is one of the Notes referred to
in the Credit Agreement and shall entirely amend, restate and replace that
certain Note dated June 6, 2002. Any holder hereof is entitled to all of the
rights, remedies, benefits and privileges provided for in the Credit Agreement
as originally executed or as it may from time to time be supplemented, modified
or amended. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Credit Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Advance hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Credit Agreement, both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear interest
at the rate set forth in Section 3.7 of the Credit Agreement, to the fullest
extent permitted by applicable Law.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
time) on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (California time) on any particular Banking Day shall be deemed
received on the next succeeding Banking Day. All payments shall be made in
lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of Advances
made by it and payments of principal received by it with respect to this Note,
and such record shall be presumptive evidence of the amounts owing under this
Note.
-1-
Borrower hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting Borrower's obligations hereunder or in enforcing
or attempting to enforce any of such holder's rights hereunder, including
reasonable attorneys' fees and disbursements (including allocated costs of legal
counsel employed by the Administrative Agent or the holder), whether or not an
action is filed in connection therewith.
Borrower hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE LENDER, OR BY
THE ADMINISTRATIVE AGENT ON ITS BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS THEREOF,
AMERICAN STATES WATER COMPANY, a
California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-Finance, Chief
Financial Officer, Treasurer and
Corporate Secretary
-2-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
-3-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Eurodollar Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
-4-
AMENDED AND RESTATED NOTE
$24,000,000.00 June 3, 2005
FOR VALUE RECEIVED, the undersigned, AMERICAN STATES WATER COMPANY,
a California corporation ("Borrower"), promises to pay to the order of COBANK,
ACB (the "Lender"), the principal amount of TWENTY FOUR MILLION AND NO/100
DOLLARS ($24,000,000.00) or such lesser aggregate amount of Advances as may be
made pursuant to the Lender's Pro Rata Share of the Revolving Facility under the
Credit Agreement referred to below, payable as hereinafter set forth. Borrower
promises to pay interest on the principal amount hereof remaining unpaid from
time to time from the date hereof until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Amended and Restated Credit Agreement dated
as of June 3, 2005, by and among Borrower, the Lenders that are parties thereto,
and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent for the
Lenders (as the same may be amended, renewed, extended or otherwise modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Credit Agreement. This is one of the Notes referred to
in the Credit Agreement and shall entirely amend, restate and replace that
certain Note dated June 6, 2002. Any holder hereof is entitled, to all of the
rights, remedies, benefits and privileges provided for in the Credit Agreement
as originally executed or as it may from time to time be supplemented, modified
or amended. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Credit Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Advance hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Credit Agreement, both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear interest
at the rate set forth in Section 3.7 of the Credit Agreement, to the fullest
extent permitted by applicable Law.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
time) on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (California time) on any particular Banking Day shall be
deemed received on the next succeeding Banking Day. All payments shall be made
in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of Advances
made by it and payments of principal received by it with respect to this Note,
and such record shall be presumptive evidence of the amounts owing under this
Note.
-1-
Borrower hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting Borrower's obligations hereunder or in enforcing
or attempting to enforce any of such holder's rights hereunder, including
reasonable attorneys' fees and disbursements (including allocated costs of legal
counsel employed by the Administrative Agent or the holder), whether or not an
action is filed in connection therewith.
Borrower hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE LENDER, OR BY
THE ADMINISTRATIVE AGENT ON ITS BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS THEREOF.
AMERICAN STATES WATER COMPANY, a
California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-Finance, Chief
Financial Officer, Treasurer and
Corporate Secretary
-2-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
-3-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Eurodollar Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
-4-
AMENDED AND RESTATED NOTE
$28,000,000.00 June 3, 2005
FOR VALUE RECEIVED, the undersigned, AMERICAN STATES WATER COMPANY,
a California corporation ("Borrower"), promises to pay to the order of ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION (the "Lender"), the principal amount of TWENTY
EIGHT MILLION AND NO/100 DOLLARS ($28,000,000.00) or such lesser aggregate
amount of Advances as may be made pursuant to the. Lender's Pro Rata Share of
the Revolving Facility under the Credit Agreement referred to below, payable as
hereinafter set forth. Borrower promises to pay interest on the principal amount
hereof remaining unpaid from time to time from the date hereof until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Amended and Restated Credit Agreement dated
as of June 3, 2005, by and among Borrower, the Lenders that are parties
thereto, and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent for
the Lenders (as the same may be amended, renewed, extended or otherwise modified
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Credit Agreement. This is one of the Notes referred to
in the Credit Agreement and shall entirely amend, restate and replace that
certain Note dated June 6, 2002. Any holder hereof is entitled to all of the
rights, remedies, benefits and privileges provided for in the Credit Agreement
as originally executed or as it may from time to time be supplemented, modified
or amended. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Credit Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Advance hereunder from the date thereof until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the
Credit Agreement, both before and after default and before and after maturity
and judgment, with interest on overdue principal and interest to bear interest
at the rate set forth in Section 3.7 of the Credit Agreement, to the fullest
extent permitted by applicable Law.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
time) on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (California time) on any particular Banking Day shall be deemed
received on the next succeeding Banking Day. All payments shall be made in
lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of Advances
made by it and payments of principal received by it with respect to this Note,
and such record shall be presumptive evidence of the amounts owing under this
Note.
-1-
Borrower hereby promises to pay all costs and expenses of any holder
hereof incurred in collecting Borrower's obligations hereunder or in enforcing
or attempting to enforce any of such holder's rights hereunder, including
reasonable attorneys' fees and disbursements (including allocated costs of legal
counsel employed by the Administrative Agent or the holder), whether or not an
action is filed in connection therewith.
Borrower hereby waives presentment, demand for payment, dishonor,
notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE LENDER, OR BY
THE ADMINISTRATIVE AGENT ON ITS BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS THEREOF.
AMERICAN STATES WATER COMPANY, a
California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President-Finance, Chief
Financial Officer, Treasurer and
Corporate Secretary
-2-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Alternate Base Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
-3-
ADVANCES AND PAYMENTS OF PRINCIPAL
(Eurodollar Rate Advances)
Amount of Amount of Unpaid Principal Notation
Date Advance Principal Paid Balance Made By
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
-4-