EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 21, 2002
AMONG
SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation, as Borrower
SWIFT TRANSPORTATION CO., INC.,
a Nevada corporation, as Holdings
THE LENDERS FROM TIME TO TIME PARTY HERETO
SUNTRUST BANK
as Administrative Agent,
WELLS FARGO BANK, N.A. AND
KEYBANK NATIONAL ASSOCIATION
as Co-Syndication Agents,
and
U.S. BANK NATIONAL ASSOCIATION AND
LASALLE BANK NATIONAL ASSOCIATION
as Co-Documentation Agents
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SUNTRUST ROBINSON HUMPHREY CAPITAL MARKETS,
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS; CONSTRUCTION.....................................1
SECTION 1.1. DEFINITIONS...................................................1
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS......................21
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION...........................21
SECTION 1.4. TERMS GENERALLY..............................................21
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS..........................22
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES............................22
SECTION 2.2. REVOLVING LOANS..............................................22
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS...........................22
SECTION 2.4. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS..................23
SECTION 2.5. SWINGLINE COMMITMENT.........................................24
SECTION 2.6. PROCEDURE FOR SWINGLINE BORROWING; ETC.......................24
SECTION 2.7. FUNDING OF BORROWINGS........................................25
SECTION 2.8. INTEREST ELECTIONS...........................................26
SECTION 2.9. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS............27
SECTION 2.10. REPAYMENT OF LOANS...........................................27
SECTION 2.11. EVIDENCE OF INDEBTEDNESS.....................................28
SECTION 2.12. OPTIONAL PREPAYMENTS.........................................28
SECTION 2.13. INTENTIONALLY OMITTED........................................29
SECTION 2.14. INTEREST ON LOANS............................................29
SECTION 2.15. FEES.........................................................30
SECTION 2.16. COMPUTATION OF INTEREST AND FEES.............................30
SECTION 2.17. INABILITY TO DETERMINE INTEREST RATES........................31
SECTION 2.18. ILLEGALITY...................................................31
SECTION 2.19. INCREASED COSTS..............................................32
SECTION 2.20. FUNDING INDEMNITY............................................33
SECTION 2.21. TAXES........................................................33
SECTION 2.22. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS..35
SECTION 2.23. MITIGATION OF OBLIGATIONS....................................36
SECTION 2.24. LETTERS OF CREDIT............................................36
SECTION 2.25. EXTENSION OF COMMITMENT TERMINATION DATE.....................41
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT..........42
SECTION 3.1. CONDITIONS TO EFFECTIVENESS..................................42
SECTION 3.2. EACH CREDIT EVENT............................................44
SECTION 3.3. DELIVERY OF DOCUMENTS........................................44
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................44
SECTION 4.1. EXISTENCE; POWER.............................................44
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION..........................45
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS.........................45
SECTION 4.4. FINANCIAL STATEMENTS.........................................45
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.........................45
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SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS..........................46
SECTION 4.7. INVESTMENT COMPANY ACT, ETC..................................46
SECTION 4.8. TAXES........................................................46
SECTION 4.9. MARGIN REGULATIONS...........................................46
SECTION 4.10. ERISA........................................................47
SECTION 4.11. OWNERSHIP OF PROPERTY........................................47
SECTION 4.12. DISCLOSURE...................................................47
SECTION 4.13. LABOR RELATIONS..............................................48
SECTION 4.14. SUBSIDIARIES.................................................48
SECTION 4.15. INTENTIONALLY OMITTED........................................48
SECTION 4.16. INSOLVENCY...................................................48
ARTICLE V AFFIRMATIVE COVENANTS........................................48
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION...................48
SECTION 5.2. NOTICES OF MATERIAL EVENTS...................................49
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS...............................50
SECTION 5.4. COMPLIANCE WITH LAWS, ETC....................................50
SECTION 5.5. PAYMENT OF OBLIGATIONS.......................................50
SECTION 5.6. BOOKS AND RECORDS............................................51
SECTION 5.7. VISITATION, INSPECTION, ETC..................................51
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE.........................51
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT........................51
SECTION 5.10. ADDITIONAL SUBSIDIARIES......................................51
ARTICLE VI FINANCIAL COVENANTS..........................................52
SECTION 6.1. LEVERAGE RATIO...............................................53
SECTION 6.2. FIXED CHARGE COVERAGE RATIO..................................53
SECTION 6.3. CONSOLIDATED TANGIBLE NET WORTH..............................53
ARTICLE VII NEGATIVE COVENANTS...........................................53
SECTION 7.1. INDEBTEDNESS AND PREFERRED EQUITY............................53
SECTION 7.2. NEGATIVE PLEDGE..............................................55
SECTION 7.3. FUNDAMENTAL CHANGES..........................................55
SECTION 7.4. INVESTMENTS, LOANS, ETC......................................56
SECTION 7.5. RESTRICTED PAYMENTS..........................................57
SECTION 7.6. SALE OF ASSETS...............................................58
SECTION 7.7. TRANSACTIONS WITH AFFILIATES.................................58
SECTION 7.8. RESTRICTIVE AGREEMENTS.......................................59
SECTION 7.9. INTENTIONALLY OMITTED........................................59
SECTION 7.10. HEDGING TRANSACTIONS.........................................59
SECTION 7.10. HEDGING TRANSACTIONS TC......................................59
SECTION 7.11. ACCOUNTING CHANGES...........................................59
ARTICLE VIII EVENTS OF DEFAULT............................................59
SECTION 8.1. EVENTS OF DEFAULT............................................59
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ARTICLE IX THE ADMINISTRATIVE AGENT.....................................62
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT..........................62
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT.....................62
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.................63
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT...................63
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT.............................64
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY..........64
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT...............................64
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS................65
ARTICLE X MISCELLANEOUS................................................65
SECTION 10.1. NOTICES......................................................65
SECTION 10.2. WAIVER; AMENDMENTS...........................................66
SECTION 10.3. EXPENSES; INDEMNIFICATION....................................67
SECTION 10.4. SUCCESSORS AND ASSIGNS.......................................69
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS...71
SECTION 10.6. WAIVER OF JURY TRIAL.........................................72
SECTION 10.7. RIGHT OF SETOFF..............................................72
SECTION 10.8. COUNTERPARTS; INTEGRATION....................................72
SECTION 10.9. SURVIVAL.....................................................73
SECTION 10.10. SEVERABILITY.................................................73
SECTION 10.11. CONFIDENTIALITY..............................................73
SECTION 10.12. INTEREST RATE LIMITATION.....................................74
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL...........................74
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ANNEX I - Revolving Commitments
SCHEDULES
Schedule I - Applicable Margin and Applicable Percentage
Schedule 1.1 - Existing Letters of Credit
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.6 - Form of Notice of Swingline Borrowing
Exhibit 2.8 - Form of Continuation/Conversion
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made and entered into as
of November 21, 2002, by and among SWIFT TRANSPORTATION CO., INC., an Arizona
corporation (the "BORROWER"), SWIFT TRANSPORTATION CO., INC., a Nevada
corporation ("HOLDINGS"), the several banks and other financial institutions and
lenders from time to time party hereto (the "LENDERS"), SUNTRUST BANK, in its
capacity as Administrative Agent for the Lenders (the "ADMINISTRATIVE AGENT"),
as issuing bank (the "ISSUING BANK") and as swingline lender (the "SWINGLINE
LENDER"), WELLS FARGO BANK, N.A. and KEYBANK NATIONAL ASSOCIATION as
Co-Syndication Agents and U.S. BANK NATIONAL ASSOCIATION and LASALLE BANK
NATIONAL ASSOCIATION as Co-Documentation Agents.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$300,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the Issuing Bank and the Swingline Lender to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, Holdings, the Lenders, the
Administrative Agent, the Issuing Bank and the Swingline Lender agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes of
this definition, "Control" shall mean the power, directly or indirectly, either
to (i) vote 50% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by control or otherwise.
The terms "Controlling", "Controlled by", and "under common Control with" have
the meanings correlative thereto.
"AGGREGATE REVOLVING COMMITMENT AMOUNT" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $255,000,000.
"AGGREGATE REVOLVING COMMITMENTS" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"AGGREGATE SUBSIDIARY THRESHOLD" means an amount equal to ninety
percent (90%) of the total consolidated revenue or assets of Holdings and its
Subsidiaries (excluding all SPE Subsidiaries that are prohibited from
guaranteeing the Obligations under their organizational documents) for the most
recent Fiscal Quarter as shown on the financial statements most recently
delivered or required to be delivered pursuant to SECTION 5.1(A) or (B), as the
case may be.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean, with respect to interest on all
Revolving Loans outstanding on any date or the letter of credit fee, as the case
may be, a percentage per annum designated for Eurodollar loans determined by
reference to the applicable Leverage Ratio from time to time in effect as set
forth on SCHEDULE I; PROVIDED, that a change in the Applicable Margin resulting
from a change in the Leverage Ratio shall be effective on the second Business
Day after which the Borrower delivers the financial statements required by
SECTION 5.1(a) or (b) and the Compliance Certificate required by SECTION 5.1
(c); PROVIDED FURTHER, that if at any time the Borrower shall have failed to
deliver such financial statements and such certificate when so required, the
Applicable Margin shall be at Level IV as set forth on SCHEDULE I until such
time as such financial statements and certificate are delivered, at which time
the Applicable Margin shall be determined as provided above. Notwithstanding the
foregoing, the Applicable Margin from the Closing Date until the financial
statements and Compliance Certificate for the Fiscal Quarter ending December 31,
2002 are required to be delivered shall be at Level II as set forth on SCHEDULE
I.
"APPLICABLE PERCENTAGE" shall mean, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to the
applicable Leverage Ratio in effect on such date as set forth on SCHEDULE I;
PROVIDED, that a change in the Applicable Percentage resulting from a change in
the Leverage Ratio shall be effective on the second Business Day after which the
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Borrower delivers the financial statements required by SECTION 5.1(a) or (b) and
the Compliance Certificate required by SECTION 5.1 (c); PROVIDED, FURTHER, that
if at any time the Borrower shall have failed to deliver such financial
statements and such certificate, the Applicable Percentage shall be at Level IV
as set forth on SCHEDULE I until such time as such financial statements and
certificate are delivered, at which time the Applicable Percentage shall be
determined as provided above. Notwithstanding the foregoing, the Applicable
Percentage for both the commitment fee from the Closing Date until the financial
statements and Compliance Certificate for the Fiscal Quarter ending December 31,
2002 are required to be delivered shall be at Level II as set forth on SCHEDULE
I.
"APPROVED FUND" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (i) a Lender, (ii) an Affiliate
of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by SECTION 10.4(b)) and accepted by the Administrative
Agent, in the form of EXHIBIT C attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning in the introductory paragraph
hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia and New York, New York
are authorized or required by law to close and (ii) if such day relates to a
Borrowing of, a payment or prepayment of principal or interest on, a conversion
of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in Dollars are
carried on in the London interbank market.
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"CAPITAL EXPENDITURES" shall mean for any period, without duplication,
(i) the additions to property, plant and equipment and other capital
expenditures of the Holdings and its Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of Holdings for such period
prepared in accordance with GAAP and (ii) Capital Lease Obligations incurred by
the Holdings and its Subsidiaries during such period.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) of real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CAPITAL STOCK" shall mean any nonredeemable capital stock (or in the
case of a partnership or limited liability company, the partners' or members'
equivalent equity interest) of Holdings or any of its Subsidiaries (to the
extent issued to a Person other than Holdings or the Borrower), whether common
or preferred.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of Holdings to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (ii) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Unrelated
Person of 30% or more of the outstanding shares of the voting stock of Holdings;
or (iii) occupation of a majority of the seats (other than vacant seats) on the
board of directors of Holdings by Persons who were neither (x) nominated by the
current board of directors or (y) appointed by directors so nominated. For
purposes of this definition, "Unrelated Person" means any Person or "group"
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder in effect on the date hereof)
other than: (1) Jerry Moyes and his spouse, lineal descendents and spouses of
his lineal descendents; (2) the estates of Persons described in clause (1); (3)
trusts established for the benefit of any Person or Persons described in clause
(1); (4) corporations, limited liability companies, partnerships or similar
entities 75% owned by any Person or Persons described in clauses (1) through
(3); (5) the Moyes Children's Limited Partnership; and (6) Ronald Moyes, to the
extent he is deemed to beneficially own voting stock of Holdings by virtue of
his position as general partner of the Moyes Children's Limited Partnership. For
purposes of calculating the number of outstanding shares of the voting stock of
Holdings beneficially owned by any "group" (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder in effect on the date hereof), shares beneficially owned by Persons
described in clauses (1) through (6) of the preceding sentence shall be excluded
from such calculation.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of SECTION 2.19(b), by such Lender's or the
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Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in SECTION 3.1 and SECTION 3.2 have been satisfied or waived in
accordance with SECTION 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"COMPLIANCE CERTIFICATE" shall mean a certificate from the principal
executive officer and the principal financial officer of Holdings in the form
of, and containing the certifications set forth in, the certificate attached
hereto as EXHIBIT 5.1.
"CONSENTING LENDER" shall have the meaning set forth in SECTION
2.25(c).
"CONSOLIDATED ADJUSTED TOTAL DEBT" shall mean, as of any date, (i)
Consolidated Total Debt on such date minus (ii) the amount by which cash on hand
of Holdings and its Subsidiaries (measured on a consolidated basis) on such date
exceeds $5,000,000; PROVIDED, that the amount of cash on hand subtracted from
Consolidated Total Debt shall not exceed the lesser of (x) the principal amount
of Swingline Loans outstanding on such date or (y) $20,000,000. "CONSOLIDATED
EBITDA" shall mean, for Holdings and its Subsidiaries for any period, an amount
equal to the sum of (i) Consolidated Net Income for such period plus (ii) to the
extent deducted in determining Consolidated Net Income for such period, (A)
Consolidated Interest Expense, (B) income tax expense determined on a
consolidated basis in accordance with GAAP, (C) depreciation and amortization
determined on a consolidated basis in accordance with GAAP, and (D) all other
non-cash charges acceptable to the Administrative Agent, determined on a
consolidated basis in accordance with GAAP, in each case for such period;
PROVIDED, HOWEVER, that the Consolidated Net Income, Consolidated Interest
Expense, income tax expense, depreciation, amortization and other non-cash
charges of any Person or assets acquired in any Material Acquisition that accrue
prior to the date such Person becomes a Subsidiary or is merged into or
consolidated with Holdings or any Subsidiary, or such assets are acquired by
Holdings or any Subsidiary, shall be included within Consolidated EBITDA, as if
the Material Acquisition has been consummated on the first day of such period.
"CONSOLIDATED EBITDAR" shall mean, for Holdings and its Subsidiaries
for any period, an amount equal to the sum of (i) Consolidated EBITDA for such
period and (ii) Consolidated Lease Expense for such period.
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"CONSOLIDATED FIXED CHARGES" shall mean, for Holdings and its
Subsidiaries for any period, the sum (without duplication) of (i) Consolidated
Interest Expense for such period, (ii) scheduled principal payments made on
Consolidated Total Debt during such period, and (iii) Consolidated Lease Expense
for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for Holdings and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Transactions during such period (whether or not
actually paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for Holdings and its
Subsidiaries for any period, the aggregate amount of fixed and contingent
rentals payable with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for Holdings and its
Subsidiaries for any period, the net income (or loss) of Holdings and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets, and (iii) any equity interest of Holdings or any Subsidiary of
Holdings in the unremitted earnings or losses of any Person that is not a
Subsidiary, other than any equity interest in the unremitted earnings or losses
of Transplace or Trans-Mex and (iv) any income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
Holdings or any Subsidiary on the date that such Person's assets are acquired by
Holdings or any Subsidiary.
"CONSOLIDATED TANGIBLE NET WORTH" shall mean, as of any date, (i) the
total assets of Holdings and its Subsidiaries that would be reflected on the
Holdings' consolidated balance sheet as of such date prepared in accordance with
GAAP, after eliminating all amounts properly attributable to minority interests,
if any, in the stock and surplus of Subsidiaries, MINUS (ii) the sum of (x) the
total liabilities of Holdings and its Subsidiaries that would be reflected on
Holdings' consolidated balance sheet as of such date prepared in accordance with
GAAP, (y) the amount of any write-up in the book value of any assets resulting
from a revaluation thereof or any write-up in excess of the cost of such assets
acquired reflected on the consolidated balance sheet of Holdings as of such date
prepared in accordance with GAAP and (z) the net book amount of all assets of
Holdings and its Subsidiaries that would be classified as intangible assets on a
consolidated balance sheet of Holdings as of such date prepared in accordance
with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date, all Indebtedness
of Holdings and its Subsidiaries that would be reflected on a consolidated
balance sheet of Holdings prepared in accordance with GAAP as of such date, but
excluding Indebtedness of the type described in subsection (xi) of the
definition thereof.
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"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in SECTION
2.14(c).
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a natural Person)
approved by the Administrative Agent, the Issuing Bank, and unless (x) such
Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed).
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of Holdings, the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (i) any actual or
alleged violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (iii)
any actual or alleged exposure to any Hazardous Materials, (iv) the Release or
threatened Release of any Hazardous Materials or (v) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (i) any "reportable event", (as defined in
Section 4043 of ERISA or the regulations issued thereunder), with respect to a
Plan (other than an event for which the 30-day notice period is waived); (ii)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section
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303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (iv) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (vi) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in ARTICLE VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (i) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (ii) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (iii) in the case
of a Foreign Lender, any withholding tax that (x) is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (y) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes and (z) is attributable to such Foreign Lender's failure to
comply with SECTION 2.21(e).
"EXISTING LENDERS" shall mean the lenders party to that certain Credit
Agreement, dated as January 16, 1997, by and among Borrower, Holdings, the banks
from time to time parties thereto, Wells Fargo Bank, N.A., as Administrative
Agent and as Issuing Bank and ABN Amro Bank N.V., as Co-Agent.
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"EXISTING LETTERS OF CREDIT" shall mean, collectively, the letters of
credit issued by SunTrust Bank for the account of the Borrower or any of its
Subsidiaries prior to the Closing Date to the extent listed on SCHEDULE 1.1.
"EXISTING TERMINATION DATE" shall have the meaning set forth in
SECTION 2.13(c).
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"FEE LETTER" shall mean that certain fee letter, dated as of September
12, 2002, executed by SunTrust Robinson Humphrey Capital Markets, Inc. and
SunTrust Bank and accepted by Borrower.
"FISCAL QUARTER" shall mean any fiscal quarter of Holdings.
"FISCAL YEAR" shall mean any fiscal year of Holdings.
"FIXED CHARGE COVERAGE RATIO" shall mean, as of any date, the ratio of
(a) Consolidated EBITDAR to (b) Consolidated Fixed Charges, in each case
measured for the four consecutive Fiscal Quarters ending on or immediately prior
to such date.
"FOREIGN LENDER" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is organized under
the laws of a jurisdiction other than one of the fifty states of the United
States or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of SECTION
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
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indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; PROVIDED, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING OBLIGATIONS" of any Person shall mean any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions and (iii) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions.
"HEDGING TRANSACTION" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by such Person that is a rate swap, basis swap, forward rate transaction,
commodity swap, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"HOLDINGS" shall mean Swift Transportation Co, Inc., a Nevada
corporation.
"HOLDINGS GUARANTY AGREEMENT" shall mean the Holdings Guaranty
Agreement, dated as of the date hereof, made by the Holdings in favor of the
Administrative Agent for the benefit of the Lenders.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
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property or services (other than trade payables incurred in the ordinary course
of business; PROVIDED, that for purposes of SECTION 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations. The Indebtedness
of any Person shall include the Indebtedness of any partnership or joint venture
in which such Person is a general partner or a joint venturer to the extent such
Person is liable therefor as a result of such Person's ownership interest in or
other relationship with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement among the Borrower, Holdings, the
Subsidiary Loan Parties and the Administrative Agent.
"INDEMNITY AND CONTRIBUTION AGREEMENT SUPPLEMENT" shall mean each
supplement substantially in the form of ANNEX I to the Indemnity and
Contribution Agreement executed and delivered by a Subsidiary of the Borrower
pursuant to SECTION 5.10.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated October, 2002, relating to Holdings, the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; PROVIDED, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in
which case such Interest Period would end on the next preceding Business
Day;
(iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall end on
the last Business Day of such calendar month; and
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(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to SECTION 2.24.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed $150,000,000.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender and each Additional Lender that joins this Agreement pursuant to SECTION
2.4.
"LETTER OF CREDIT" shall mean any stand-by letter of credit issued
pursuant to SECTION 2.20 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment, and any Existing Letter of Credit.
"LEVERAGE RATIO" shall mean, as of any date, the ratio of (i)
Consolidated Adjusted Total Debt as of such date to (ii) Consolidated EBITDA for
the four consecutive Fiscal Quarters ending on or immediately prior to such
date.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow Jones Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; PROVIDED,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
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Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loan of the Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes
(if any), the LC Documents, all Notices of Borrowing, the Holdings Guaranty
Agreement, the Subsidiary Guaranty Agreement, the Indemnity and Contribution
Agreement, all Notices of Borrowing, all Notices of Conversion/Continuation and
any and all other instruments, agreements, documents and writings executed in
connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower, Holdings and the Subsidiary
Loan Parties.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"MATERIAL ACQUISITION" shall mean an Acquisition of (i) a Person that,
after giving effect to such Acquisition, would constitute a Material Subsidiary
or (ii) assets that, if such assets were deemed to be acquired by a newly-formed
Subsidiary with no other assets, liabilities or operations, such Subsidiary
would constitute a Material Subsidiary.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets or liabilities of Borrower or
of Holdings and its Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform any of their respective obligations under the Loan Documents,
(iii) the rights and remedies of the Administrative Agent, the Issuing Bank,
Swingline Lender, and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans
and Letters of Credit) and Hedging Obligations, of any one or all of the Loan
Parties and their Subsidiaries, individually or in an aggregate principal amount
exceeding $30,000,000. For purposes of determining the amount of attributed
Indebtedness from Hedging Obligations, the "principal amount" of any Hedging
Obligations at any time shall be the Net Mark-to-Market Exposure of such Hedging
Obligations.
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"MATERIAL SUBSIDIARY" shall mean at any time any direct or indirect
Subsidiary of Holdings having: (a) assets in an amount equal to at least 5% of
the total assets of the Holdings and its Subsidiaries determined on a
consolidated basis as of the last day of the most recent Fiscal Quarter at such
time; or (b) revenues or net income in an amount equal to at least 5% of the
total revenues or net income of Holdings and its Subsidiaries on a consolidated
basis for the 12-month period ending on the last day of the most recent Fiscal
Quarter at such time.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET MARK-TO-MARKET EXPOSURE" of any Person shall mean, as of any date
of determination with respect to any Hedging Obligation, the excess (if any) of
all unrealized losses over all unrealized profits of such Person arising from
such Hedging Obligation. "Unrealized losses" shall mean the fair market value of
the cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the Hedging
Transaction were to be terminated as of that date), and "unrealized profits"
means the fair market value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging Transaction
were to be terminated as of that date).
"NON-CONSENTING LENDER" shall have the meaning set forth in SECTION
2.25(B).
"NOTES" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in SECTION 2.8(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
SECTION 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth in
SECTION 2.6.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and
any Lender (including the Swingline Lender) incurred pursuant to this Agreement
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or any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all Hedging Obligations owing to the Administrative Agent, any
Lender or any of their Affiliates, and all obligations and liabilities incurred
in connection with collecting and enforcing the foregoing, together with all
renewals, extensions, modifications or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions that do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"PARTICIPANT" shall have the meaning set forth in SECTION 10.4(d).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ACQUISITIONS" shall mean an acquisition or purchase of (in
one transaction or a series of transactions) any other Person, all or
substantially all assets of any Person or any assets of any other Person that
constitute a business unit (each, an "Acquisition") so long as (i) the
Acquisition is approved by the board of directors of such Person, (ii) the
entity acquiring the assets is a Loan Party or following such Acquisition would
become a Material Subsidiary, (iii) after giving effect to the Acquisition, no
Default or Event of Default shall have occurred and be continuing and all
representations and warranties contained in ARTICLE IV shall be true and correct
in all material respects.
"PERMITTED ENCUMBRANCES" shall mean:
(i) Liens imposed by law for taxes, governmental assessments or
similar governmental charges not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
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(ii) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen and similar Liens arising by operation of law in the ordinary
course of business for amounts which are not overdue for a period of more
than 60 days or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
PROVIDED, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within
six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above;
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(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i) through (iv) above; and
(vi) subject to the restriction set forth in Section 4.9, equity or
debt securities that are listed on a national securities exchange or Nasdaq
or freely traded in the over-the counter market so long as the amount
invested in such securities does not exceed in the aggregate $5,000,000.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time, a
percentage, the numerator of which shall be such Lender's Revolving Commitment
(or if such Revolving Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's outstanding Revolving
Loans, Swingline Exposure and LC Exposure), and the denominator of which shall
be the sum of such Revolving Commitments of all Lenders (or if such Revolving
Commitments have been terminated or expired or the Loans have been declared to
be due and payable, all outstanding Revolving Loans, Swingline Exposure and LC
Exposure of all Lenders funded under such Commitments).
"RECEIVABLES" shall mean accounts receivable (including, without
limitation, all rights to payment created or arising from the sales of goods,
leases of goods or the rendition of services, no matter how evidenced and
whether or not earned by performance).
"REFINANCED INDEBTEDNESS" shall mean the Indebtedness being refinanced
or replaced with the proceeds of the Loans.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding more than
50% of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding more than 50% of
the aggregate Revolving Loans, Swingline Exposure and LC Exposure of all
Lenders.
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"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in SECTION 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on ANNEX
I, as such annex may be amended pursuant to Section 2.5, or in the case of a
Person becoming a Lender after the Closing Date through an assignment of an
existing Revolving Commitment, the amount of the assigned "Revolving Commitment"
as provided in the Assignment and Acceptance executed by such Person as an
assignee, as the same may be increased or deceased pursuant to terms hereof.
"REVOLVING COMMITMENT TERMINATION DATE" shall mean the earliest of (i)
November 21, 2005, (ii) the date on which the Revolving Commitments are
terminated pursuant to SECTION 2.9 and (iii) the date on which all amounts
outstanding under this Agreement have been declared or have automatically become
due and payable (whether by acceleration or otherwise).
"REVOLVING CREDIT AVAILABILITY PERIOD" shall mean the period from the
Closing Date to the Revolving Commitment Termination Date.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, LC Exposure and Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of EXHIBIT A.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
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"S&P" shall mean Standard & Poor's, a Division of the McGraw-Hill
Companies.
"SECURITIZATION TRANSACTION" shall mean any transfer by the Borrower
or any Subsidiary of Receivables or interests therein and all collateral
securing such Receivables, all contracts and contract rights and all guarantees
or other obligations in respect of such Receivables, all other assets that are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving such Receivables and all proceeds of any of the foregoing (i) to a
trust, partnership, corporation or other entity (other than the Borrower or a
Subsidiary other than a SPE Subsidiary), which transfer is funded in whole or in
part, directly or indirectly, by the incurrence or issuance by the transferee or
any successor transferee of indebtedness or other securities that are to receive
payments from, or that represent interests in, the cash flow derived from such
Receivables or interests in Receivables, or (ii) directly to one or more
investors or other purchasers (other than the Borrower or any Subsidiary). The
"amount" or "principal amount" of any Securitization Transaction shall be deemed
at any time to be (x) in the case of a transaction described in clause (a) of
the preceding sentence, the aggregate principal or stated amount of the
Indebtedness or other securities referred to in such clause or, if there shall
be no such principal or stated amount, the uncollected amount of the Receivables
transferred pursuant to such Securitization Transaction net of any such
Receivables that have been written off as uncollectible, and (y) in the case of
a transaction described in clause (b) of the preceding sentence, the aggregate
outstanding principal amount of the Indebtedness secured by Liens on the subject
Receivables.
"SPE SUBSIDIARY" shall mean any Subsidiary formed solely for the
purpose of, and that engages only in, one or more Securitization Transactions.
"SUBSIDIARY" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references to "Subsidiary" hereunder
shall mean a Subsidiary of Holdings.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the Subsidiary Guaranty
Agreement, dated as of the date hereof, made by the Subsidiary Loan Parties in
favor of the Administrative Agent for the benefit of the Lenders.
"SUBSIDIARY GUARANTY SUPPLEMENT" shall mean each supplement
substantially in the form of ANNEX I to the Subsidiary Guaranty Agreement
executed and delivered by a Subsidiary of the Borrower pursuant to SECTION 5.10.
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"SUBSIDIARY LOAN PARTY" shall mean any Material Subsidiary (other than
any SPE Subsidiary whose organizational documents prohibit it from guaranteeing
the Obligations) and any other Subsidiary that guarantees the Obligations.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $25,000,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with SECTION 2.6, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of EXHIBIT B.
"SWINGLINE TERMINATION DATE" shall mean the date that is one (1)
Business Days prior to the Revolving Commitment Termination Date.
"SYNTHETIC LEASE" means a lease transaction under which the parties
intend that (i) the lease will be treated as an "operating lease" by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
(ii) the lessee will be entitled to various tax and other benefits ordinarily
available to owners (as opposed to lessees) of like property.
"SYNTHETIC LEASE OBLIGATIONS" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TRANS-MEX" shall mean Trans-Mex, Inc. S.A. de C.V., a Mexican
corporation.
"TRANSPLACE" shall mean Transplace.com LLC, a Nevada limited liability
company.
"TRANSPORTATION" shall mean Swift Transportation Corporation, a Nevada
corporation.
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"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan" or "Swingline Loan") or by Type (E.G., a "Eurodollar Loan" or
"Base Rate Loan") or by Class and Type (E.G., "Revolving Eurodollar Loan").
Borrowings also may be classified and referred to by Class (E.G., "Revolving
Borrowing") or by Type (E.G., "Eurodollar Borrowing") or by Class and Type
(E.G., "Revolving Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by Holding's independent public
accountants) with the most recent audited consolidated financial statement of
the Borrower delivered pursuant to SECTION 5.1(a); PROVIDED, that if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend any
covenant in ARTICLE VI to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend ARTICLE VI for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to Atlanta, Georgia time, unless otherwise indicated.
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with SECTION 2.2, (ii) the Issuing
Bank agrees to issue Letters of Credit in accordance with SECTION 2.24, (iii)
the Swingline Lender agrees to make Swingline Loans in accordance with SECTION
2.5, and (iv) each Lender agrees to purchase a participation interest in the
Letters of Credit and the Swingline Loans pursuant to the terms and conditions
hereof; PROVIDED, that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed
at any time the Aggregate Revolving Commitments from time to time in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans, ratably in
proportion to its Pro Rata Share, to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Revolving Commitment or (b) the sum of the aggregate Revolving
Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitment
Amount. During the Availability Period, the Borrower shall be entitled to
borrow, prepay and reborrow Revolving Loans in accordance with the terms and
conditions of this Agreement; PROVIDED, that the Borrower may not borrow or
reborrow should there exist a Default or Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS. The Borrower shall
give the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of
EXHIBIT 2.3 attached hereto (a "NOTICE OF REVOLVING BORROWING") (x) prior to
1:00 p.m. on the requested date of each Base Rate Borrowing and (y) prior to
1:00 p.m. three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall
specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of
such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving
Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing,
the duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of each Eurodollar Borrowing shall be
not less than $4,000,000 or a larger multiple of $1,000,000, and the aggregate
principal amount of each Base Rate Borrowing shall not be less than $1,000,000
or a larger multiple of $100,000; PROVIDED, that Base Rate Loans made pursuant
to SECTION 2.6 or SECTION 2.24(c) may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed twelve. Promptly following the receipt of a Notice of
Revolving Borrowing in accordance herewith, the Administrative Agent shall
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advise each Lender of the details thereof and the amount of such Lender's
Revolving Loan to be made as part of the requested Revolving Borrowing.
SECTION 2.4. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS.
(a) So long as no Event of Default has occurred and is continuing,
from time to time after the Closing Date, Borrower may, upon at least 30 days'
written notice to the Administrative Agent (who shall promptly provide a copy of
such notice to each Lender), who shall promptly notify the Lenders, propose to
increase the Aggregate Revolving Commitment Amount up to an amount not to exceed
$300,000,000 (the amount of any such increase, the "ADDITIONAL COMMITMENT
AMOUNT"). Each Lender shall have the right for a period of 15 days following
receipt of such notice, to elect by written notice to the Borrower and the
Administrative Agent to increase its Revolving Commitment by a principal amount
equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or
any successor thereto) shall have any obligation to increase its Revolving
Commitment or its other obligations under this Agreement and the other Loan
Documents, and any decision by a Lender to increase its Revolving Commitment
shall be made in its sole discretion independently from any other Lender.
(b) If any Lender shall not elect to increase its Revolving Commitment
pursuant to subsection (a) of this Section, the Borrower may designate another
bank or other financial institution (which may be, but need not be, one or more
of the existing Lenders) which at the time agrees to, in the case of any such
Person that is an existing Lender, increase its Revolving Commitment and in the
case of any other such Person (an "ADDITIONAL Lender"), become a party to this
Agreement; PROVIDED, HOWEVER, that any new bank or financial institution must be
acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the Revolving
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Revolving Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Additional Commitment Amount.
(c) An increase in the aggregate amount of the Revolving Commitments
pursuant to this SECTION 2.4 shall become effective upon the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to the
Administrative Agent signed by the Borrower, by each Additional Lender and by
each other Lender whose Revolving Commitment is to be increased, setting forth
the new Revolving Commitments of such Lenders and setting forth the agreement of
each Additional Lender to become a party to this Agreement and to be bound by
all the terms and provisions hereof, together with such evidence of appropriate
corporate authorization on the part of the Borrower with respect to the increase
in the Revolving Commitments and such opinions of counsel for the Borrower with
respect to the increase in the Revolving Commitments as the Administrative Agent
may reasonably request.
(d) Upon the acceptance of any such agreement by the Administrative
Agent, the Aggregate Revolving Commitment Amount shall automatically be
increased by the amount of the Revolving Commitments added through such
agreement and ANNEX I shall automatically be deemed amended to reflect the
Revolving Commitments of all Lenders after giving effect to the addition of such
Revolving Commitments.
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(e) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this SECTION 2.4 that is not pro rata among all Lenders,
(x) within five Business Days, in the case of any Base Rate Loans then
outstanding, and at the end of the then current Interest Period with respect
thereto, in the case of any Eurodollar Loans then outstanding, the Borrower
shall prepay such Loans in their entirety and, to the extent the Borrower elects
to do so and subject to the conditions specified in ARTICLE III, the Borrower
shall reborrow Loans from the Lenders in proportion to their respective
Revolving Commitments after giving effect to such increase, until such time as
all outstanding Loans are held by the Lenders in such proportion and (y)
effective upon such increase, the amount of the participations held by each
Lender in each Letter of Credit then outstanding shall be adjusted such that,
after giving effect to such adjustments, the Lenders shall hold participations
in each such Letter of Credit in the proportion its respective Revolving
Commitment bears to the aggregate Revolving Commitments after giving effect to
such increase.
SECTION 2.5. SWINGLINE COMMITMENT. Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower, from time to time from the Closing Date to the Swingline Termination
Date, in an aggregate principal amount outstanding at any time not to exceed the
lesser of (i) the Swingline Commitment then in effect and (ii) the difference
between the Aggregate Revolving Commitment Amount and the aggregate Revolving
Credit Exposures of all Lenders; PROVIDED, that no Swingline Loan may be made to
refinance an outstanding Swingline Loan, and no Swingline Loan shall be
outstanding for a period that exceeds fourteen (14) days. The Borrower shall be
entitled to borrow and repay Swingline Loans in accordance with the terms and
conditions of this Agreement.
SECTION 2.6. PROCEDURE FOR SWINGLINE BORROWING; ETC.
(a) The Borrower shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of EXHIBIT 2.6 attached hereto ("NOTICE OF SWINGLINE
BORROWING") prior to 10:00 a.m. on the requested date of each Swingline
Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall
specify: (i) the principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Base Rate
or any other interest rate as agreed between the Borrower and the Swingline
Lender and shall have an Interest Period (subject to the definition thereof) as
agreed between the Borrower and the Swingline Lender. The aggregate principal
amount of each Swingline Loan shall be not less than $100,000 or a larger
multiple of $50,000, or such other minimum amounts agreed to by the Swingline
Lender and the Borrower. The Swingline Lender will make the proceeds of each
Swingline Loan available to the Borrower in Dollars in immediately available
funds at the account specified by the Borrower in the applicable Notice of
Swingline Borrowing not later than 1:00 p.m. on the requested date of such
Swingline Loan.
(b) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders
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(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
SECTION 2.7, which will be used solely for the repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
SECTION 2.6(b) or to purchase the participating interests pursuant to SECTION
2.6(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof at (i) the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
SECTION 2.7. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds by 3:00 p.m. to the Administrative Agent at the Payment Office; PROVIDED,
that the Swingline Loans will be made as set forth in SECTION 2.6. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the close of business
on such proposed date, to an account maintained by the Borrower with the
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Administrative Agent or at the Borrower's option, by effecting a wire transfer
of such amounts to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing
in which such Lender is to participate that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate until
the second Business Day after such demand and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Pro Rata Share of any Borrowing hereunder
or to prejudice any rights which the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender shall
be obligated to make its Revolving Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
SECTION 2.8. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall NOT apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
EXHIBIT 2.8 attached hereto (a "NOTICE OF CONVERSION/CONTINUATION") that is to
be converted or continued, as the case may be, (x) prior to 2:00 p.m. one (1)
Business Day prior to the requested date of a conversion into a Base Rate
Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such Notice of
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Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing
to which such Notice of Continuation/Conversion applies and if different options
are being elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be
specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to
be a Eurodollar Borrowing, the Interest Period applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of "Interest Period". If any such Notice of Continuation/Conversion requests a
Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall
be deemed to have selected an Interest Period of one month. The principal amount
of any resulting Borrowing shall satisfy the minimum borrowing amount for
Eurodollar Borrowings and Base Rate Borrowings set forth in SECTION 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.9. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments (including
the LC Commitments) shall terminate on the Revolving Commitment Termination
Date, except that the Swingline Commitment shall terminate on the Swingline
Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; PROVIDED, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this SECTION 2.8 shall be in an amount of at
least $4,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures of
all Lenders. Any such reduction in the Aggregate Revolving Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment and the LC Commitment.
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SECTION 2.10. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued interest thereon) on the earlier of (i) the last
day of the Interest Period applicable to such Borrowing and (ii) the Swingline
Termination Date.
SECTION 2.11. EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Lender from
time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment of
each Lender, (ii) the amount of each Loan made hereunder by each Lender, the
Class and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to SECTION 2.8, (iv) the date of each
conversion of all or a portion thereof to another Type pursuant to Section 2.8,
(v) the date and amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder in respect of
such Loans and (vi) both the date and amount of any sum received by the
Administrative Agent hereunder from the Borrower in respect of the Loans and
each Lender's Pro Rata Share thereof. The entries made in such records shall be
PRIMA FACIE evidence of the existence and amounts of the obligations of the
Borrower therein recorded; PROVIDED, that the failure or delay of any Lender or
the Administrative Agent in maintaining or making entries into any such record
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans (both principal and unpaid accrued interest) of such
Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the case of the Swingline Lender only, a Swingline
Note, payable to the order of such Lender.
SECTION 2.12. OPTIONAL PREPAYMENTS. The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent no later than
(i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. not less
than three (3) Business Days prior to any such prepayment, (ii) in the case of
any prepayment of any Base Rate Borrowing, not less than one Business Day prior
to the date of such prepayment, and (iii) in the case of Swingline Borrowings,
prior to 11:00 a. m. on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Share of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with SECTION 2.14(d); PROVIDED, that if a Eurodollar Borrowing is
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prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to SECTION
2.20. Each partial prepayment of any Loan (other than a Swingline Loan) shall be
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type pursuant to SECTION 2.3 or in the case of a Swingline
Loan pursuant to SECTION 2.6. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
SECTION 2.13. INTENTIONALLY OMITTED.
SECTION 2.14. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base
Rate in effect from time to time and on each Eurodollar Loan at the Adjusted
LIBO Rate for the applicable Interest Period in effect for such Loan, plus, in
the case of a Eurodollar Loan, the Applicable Margin in effect from time to
time.
(b) The Borrower shall pay interest on each Swingline Loan at the Base
Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrower shall pay interest ("DEFAULT
INTEREST") with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period PLUS an additional 2% per annum until the
last day of such Interest Period, and thereafter, and with respect to all Base
Rate Loans (including all Swingline Loans) and all other Obligations hereunder
(other than Loans), at an all-in rate in effect for Base Rate Loans, PLUS an
additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Commitment Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months, on each day which occurs every three months,
after the initial date of such Interest Period, and on the Revolving Commitment
Termination Date. Interest on each Swingline Loan shall be payable on the
maturity date of such Loan, which shall be the last day of the Interest Period
applicable thereto, and on the Swingline Termination Date. Interest on any Loan
which is converted into a Loan of another Type or which is repaid or prepaid
shall be payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof. All Default
Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and the
Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
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SECTION 2.15. FEES.
(a) The Borrower shall pay to the Administrative Agent for its own
account fees in the amounts and at the times previously agreed upon in writing
by the Borrower and the Administrative Agent.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable
Percentage per annum (determined daily in accordance with SCHEDULE I) on the
daily amount of the unused Revolving Commitment of such Lender during the
Availability Period. Accrued commitment fees shall be payable in arrears on the
last day of each March, June, September and December of each year and on the
Revolving Commitment Termination Date, commencing on the first such date after
the Closing Date. For purposes of computing commitment fees with respect to the
Revolving Commitments, the Revolving Commitment of each Lender shall be deemed
used to the extent of the outstanding Revolving Loans and LC Exposure, but not
Swingline Exposure, of such Lender.
(c) The Borrower agrees to pay (i) to the Administrative Agent, for
the account of each Lender, a letter of credit fee with respect to its
participation in each Letter of Credit, which shall accrue at a rate per annum
equal to the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) attributable to such Letter of
Credit during the period from and including the date of issuance of such Letter
of Credit to but excluding the date on which such Letter expires or is drawn in
full (including without limitation any LC Exposure that remains outstanding
after the Revolving Commitment Termination Date) and (ii) to the Issuing Bank
for its own account a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the Availability
Period (or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. For purposes of the foregoing, the Existing Letters of
Credit shall be deemed to have been issued by the Issuing Bank under this
Agreement on the Closing Date, and the Borrower agrees to pay all such letter of
credit fees and fronting fees in respect of such Existing Letters of Credit on
the dates set forth above.
(d) The Borrower shall pay to the Administrative Agent, for the
ratable benefit of each Lender, the upfront closing fees previously agreed upon
by the Borrower and the Administrative Agent, which shall be due and payable on
the Closing Date.
(e) Accrued fees (other than the closing fee referenced in paragraph
(d)) shall be payable quarterly in arrears on the last day of each March, June,
September and December, commencing on December 31, 2002 and on the Revolving
Commitment Termination Date (and if later, the date the Loans and LC Exposure
shall be repaid in their entirety).
SECTION 2.16. COMPUTATION OF INTEREST AND FEES. All computations of
interest and fees hereunder shall be made on the basis of a year of 360 days for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed). Each determination by the
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Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
SECTION 2.17. INABILITY TO DETERMINE INTEREST RATES. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans
for such Interest Period, the Administrative Agent shall give written
notice (or telephonic notice, promptly confirmed in writing) to the
Borrower and to the Lenders as soon as practicable thereafter. In the case
of Eurodollar Loans, until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) the obligations of the Lenders to make Eurodollar
Revolving Loans or to continue or convert outstanding Loans as or into
Eurodollar Loans shall be suspended and (ii) all such affected Loans shall
be converted into Base Rate Loans on the last day of the then current
Interest Period applicable thereto unless the Borrower prepays such Loans
in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any
Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing
has previously been given that it elects not to borrow on such date, then
such Revolving Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.18. ILLEGALITY. If any Change in Law shall make it unlawful
or impossible for any Lender to make, maintain or fund any Eurodollar Loan and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Revolving Loans, or to continue or
convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In
the case of the making of a Eurodollar Revolving Borrowing, such Lender's
Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving
Borrowing for the same Interest Period and if the affected Eurodollar Loan is
then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on
the last day of the then current Interest Period applicable to such Eurodollar
Loan if such Lender may lawfully continue to maintain such Loan to such date or
(ii) immediately if such Lender shall determine that it may not lawfully
continue to maintain such Eurodollar Loan to such date. Notwithstanding the
foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
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SECTION 2.19. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate)
or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this Agreement or
any Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein; and the result of the foregoing is to increase the
cost to such Lender of making, converting into, continuing or maintaining a
Eurodollar Loan or to increase the cost to such Lender or the Issuing Bank
of participating in or issuing any Letter of Credit or to reduce the amount
received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or any other amount), then the Borrower
shall promptly pay, upon written notice from and demand by such Lender on
the Borrower (with a copy of such notice and demand to the Administrative
Agent), to the Administrative Agent for the account of such Lender, within
five Business Days after the date of such notice and demand, additional
amount or amounts sufficient to compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be,
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
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(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation.
SECTION 2.20. FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
SECTION 2.20 submitted to the Borrower by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.21. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; PROVIDED, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, any Lender or the Issuing Bank (as
the case may be) shall receive an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
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legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), OR the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan agreement
entered into in the ordinary course of its trade or business, within the meaning
of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
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SECTION 2.22. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under SECTION 2.19, 2.20 or 2.21, or
otherwise) prior to 1:00 p.m. (New York time), on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to SECTIONS 2.19, 2.20 and 2.21 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion (each a "PURCHASING LENDER") shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements and Swingline Loans;
PROVIDED, that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered or the Purchasing Lender
is otherwise required to return or restore any such payment, such participations
shall be rescinded and each other Lender shall, promptly after request from the
Administrative Agent or the Purchasing Lender, return to the Purchasing Lender
the purchase price for such participation to the extent of such recovery or the
amount otherwise returned or restored by the Purchasing Lender, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
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consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements or Swingline Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to SECTION 2.6(b), 2.24(c) or (d), 2.7(b), 2.22(c) OR (d) or
10.3(D), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.23. MITIGATION OF OBLIGATIONS. If any Lender requests
compensation under SECTION 2.19, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to SECTION 2.21, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under
SECTION 2.19 or SECTION 2.21, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
SECTION 2.24. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in reliance upon
the agreements of the other Lenders pursuant to SECTION 2.24(d), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of the
Borrower on the terms and conditions hereinafter set forth; PROVIDED, that (i)
each Letter of Credit shall expire on the earlier of (A) the date one year after
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the date of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B) the date
that is five (5) Business Days prior to the Revolving Commitment Termination
Date and (ii) the Borrower may not request any Letter of Credit, if, after
giving effect to such issuance (A) the aggregate LC Exposure would exceed the LC
Commitment or (B) the aggregate LC Exposure, PLUS the aggregate outstanding
Revolving Loans and Swingline Loans of all Lenders would exceed the Aggregate
Revolving Commitment Amount. Upon the issuance of each Letter of Credit each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank without recourse a participation in such Letter
of Credit equal to such Lender's Pro Rata Share of the aggregate amount
available to be drawn under such Letter of Credit. Each issuance of a Letter of
Credit shall be deemed to utilize the Revolving Commitment of each Lender by an
amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit , the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. In addition
to the satisfaction of the conditions in ARTICLE III, the issuance of such
Letter of Credit (or any amendment which increases the amount of such Letter of
Credit) will be subject to the further conditions that such Letter of Credit
shall be in such form and contain such terms as the Issuing Bank shall approve
and that the Borrower shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of Credit as
the Issuing Bank shall reasonably require; PROVIDED, that in the event of any
conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in SECTION 2.24(A) or that one or
more conditions specified in ARTICLE III are not then satisfied, then, subject
to the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's usual
and customary business practices. Within five (5) Business Days of issuing such
Letter of Credit in accordance herewith, the Issuing Bank shall advise each
Lender of the issuance and amount of such Letter of Credit.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; PROVIDED, that any failure to
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give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. (New York time) on the Business Day
immediately prior to the date on which such drawing is honored that the Borrower
intends to reimburse the Issuing Bank for the amount of such drawing in funds
other than from the proceeds of Revolving Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; PROVIDED, that
for purposes solely of such Borrowing, the conditions precedents set forth in
SECTION 3.2 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with SECTION 2.3, and each
Lender shall make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing Bank in
accordance with SECTION 2.7. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; PROVIDED, that if such payment is required
to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this SECTION 2.24 on the due
date therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
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is made at a rate per annum equal to the Federal Funds Rate; PROVIDED, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3)
Business Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid fees thereon; PROVIDED, that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (g) or (h) of SECTION 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrower agrees to execute any
documents and/or certificates to effectuate the intent of this paragraph. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest and profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement and the other Loan Documents. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not so applied as aforesaid)
shall be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
(h) The Borrower's obligation to reimburse LC Disbursements hereunder
shall be absolute, unconditional and irrevocable and shall be performed strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may have
at any time against a beneficiary or any transferee of any Letter of Credit
(or any Persons or entities for whom any such beneficiary or transferee may
be acting), any Lender (including the Issuing Bank) or any other Person,
whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
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(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right
of setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
PROVIDED, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any actual direct damages (as
opposed to special, indirect (including claims for lost profits or other
consequential damages), or punitive damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise due care when determining whether drafts or other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised due care in
each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(i) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time, and,
to the extent not inconsistent therewith, the governing law of this Agreement
set forth in Section 10.5.
(j) The parties acknowledge and agree that, for all purposes of this
Agreement and the other Loan Documents, the Existing Letters of Credit shall be
deemed to be Letters of Credit hereunder to the same extent, and with the same
effect, as if such Existing Letters of Credit had been issued as Letters of
Credit pursuant to this Section 2.24 on the Closing Date.
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SECTION 2.25. EXTENSION OF COMMITMENT TERMINATION DATE.
(a) At least 60 but not more than 90 days prior to the first two
anniversarys of the Closing Date, the Borrower, by delivering a written request
to the Administrative Agent (such request being irrevocable), may request that
the Revolving Commitment Termination Date be extended for an additional one-year
period. Upon receipt of such notice, the Administrative Agent shall promptly
communicate such request to the Lenders.
(b) No earlier than 60 days prior, and no later than 45 days prior, to
such anniversary, the Lenders shall indicate to the Administrative Agent whether
the Borrower's request to so extend such Revolving Commitment Termination Date
is acceptable to the Lenders, it being understood that the determination by each
Lender will be in its sole and absolute discretion and that the failure of any
Lender to so respond within such period shall be deemed to constitute a refusal
by such Lender to consent to such request, with the result being that such
request is denied (any Lender refusing or deemed to refuse any such request, a
"NON-CONSENTING LENDER"). The Administrative Agent shall notify the Borrower, in
writing, of the Lenders' decisions no later than 30 days prior to such
anniversary.
(c) Subject to the satisfaction of the conditions set forth in SECTION
3.2, in the event that the sum of the Revolving Commitments of the Lenders that
have consented to the Borrower's request to extend the Revolving Commitment
Termination Date (the "CONSENTING LENDERS") plus the Revolving Commitments of
Non-Consenting Lenders with respect to such request that have been assigned to
Consenting Lenders or Eligible Assignees pursuant to SECTION 10.4(b) shall
constitute at least 80% of the aggregate Revolving Commitments, the Revolving
Commitment Termination Date shall be extended for an additional one-year period;
PROVIDED, HOWEVER, that unless assigned to Consenting Lenders or other Eligible
Assignees pursuant to SECTION 10.4(b), the Revolving Commitments of
Non-Consenting Lenders shall automatically terminate in accordance with SECTION
2.25(d). If any Lender refuses or is deemed to refuse to extend the Revolving
Credit Termination Date for its Revolving Commitment, then the 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 set forth in SECTION 10.4(b))
all its interests, rights and obligations under this Agreement to a Consenting
Lender or to an Eligible Assignee that shall assume such Revolving Commitment;
PROVIDED, that (i) the Borrower shall have received the prior written consent of
the Administrative Agent, which consent shall not be unreasonably withheld, (ii)
such Non-Consenting Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(in the case of such outstanding principal and accrued interest) and from the
Borrower (in the case of all other amounts), (iii) assignments of Revolving
Commitments of Non-Consenting Lenders to Consenting Lenders and Eligible
Assignees shall be made in a manner that allocates all such Revolving
Commitments pro rata among such Consenting Lenders and Eligible Assignees and
(iv) such assignments are completed no later than sixty days after such
anniversary; PROVIDED, FURTHER, that before the Borrower may solicit any
institution other than the Consenting Lenders to purchase any Non-Consenting
Lender's Revolving Commitment pursuant to SECTION 10.4(b), the Consenting
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Lenders shall have the option, exercised in their sole discretion and allocated
pro rata among such Consenting Lenders, to purchase by assignment the Revolving
Commitments of such Non-Consenting Lenders, and each Consenting Lender shall, at
least 15 days before such anniversary, notify the Administrative Agent and the
Borrower of its determination of whether or not to purchase any Revolving
Commitment of the Non-Consenting Lenders.
(d) If the Borrower requests an extension of the then existing
Revolving Credit Termination Date (the "EXISTING TERMINATION DATE") pursuant to
this Section, and there are any Non-Consenting Lenders whose Revolving
Commitments are not assigned to a Consenting Lender or Eligible Assignee
pursuant to this SECTION 2.25, then the Revolving Commitment of each
Non-Consenting Lender shall automatically terminate on such Existing Termination
Date, without any further action by, or notice given to, any party, and the
Borrower shall pay to each such Non-Consenting Lender on such Existing
Termination Date the principal amount of all Revolving Loans made by such
Non-Consenting Lender, together with all interest, fees, breakage costs and
other amounts accrued to such date.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with SECTION 10.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including reimbursement
or payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrower hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Arranger.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of
each party hereto or written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page
of this Agreement) that such party has signed a counterpart of this
Agreement;
(ii) if requested by any Lender, duly executed Revolving Credit
Notes payable to such Lender and the Swingline Note payable to the
Swingline Lender;
(iii) the duly executed Subsidiary Guaranty Agreement, the
Holdings Guaranty Agreement and Indemnity and Contribution Agreement;
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(iv) copies of duly executed payoff letters, in form and
substance satisfactory to Administrative Agent, executed by each of the
Existing Lenders or the agent thereof;
(v) a certificate of the Secretary or Assistant Secretary of
each Loan Party, attaching and certifying copies of its bylaws and of the
resolutions of its boards of directors, or partnership agreement or limited
liability company agreement, or comparable organizational documents and
authorizations, authorizing the execution, delivery and performance of the
Loan Documents to which it is a party and certifying the name, title and
true signature of each officer of such Loan Party executing the Loan
Documents to which it is a party;
(vi) certified copies of the articles or certificate of
incorporation, certificate of organization or limited partnership, or other
registered organizational documents of each Loan Party, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of organization of such Loan Party;
(vii) a favorable written opinion of Snell & Wilmer, L.L.P.,
counsel to the Loan Parties, addressed to the Administrative Agent and each
of the Lenders, and covering such matters relating to the Loan Parties, the
Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of SECTION 3.2;
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement agreement;
(xi) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired; and
(xii) copies of (A) the internally prepared quarterly financial
statements of Holdings and its Subsidiaries on a consolidated basis for the
Fiscal Quarter ended June 30, 2002, and (B) the audited consolidated
financial statements for Holdings and its subsidiaries for the Fiscal Years
ended December 31, 1999, December 31, 2000, and December 31, 2001; and
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(xiii) certificates of insurance issued on behalf of insurers of
the Borrower and all guarantors, describing in reasonable detail the types
and amounts of insurance (property and liability) maintained by the
Borrower and all guarantors.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist;
(b) all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment, extension or
renewal of such Letter of Credit, in each case before and after giving effect
thereto;
(c) since the date of the financial statements of the Borrower
described in SECTION 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of
Borrowing; and
(e) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this SECTION 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
ARTICLE III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent and each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. Each of Holdings, Borrower and its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
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jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification
is required, except where a failure to be so qualified could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member, action. This Agreement has been duly executed and delivered
by the Borrower, and constitutes, and each other Loan Document to which any Loan
Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of the Borrower or such Loan Party (as
the case may be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower and Holdings of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except those as have been obtained or made and
are in full force and effect, (b) will not violate any Requirements of Law
applicable to Holdings, Borrower or any of its Subsidiaries or any judgment,
order or ruling of any Governmental Authority, (c) will not violate or result in
a default under any indenture, material agreement or other material instrument
binding on any Loan Party or any of its Subsidiaries or any of its assets or
give rise to a right thereunder to require any payment to be made by any Loan
Party or any of its Subsidiaries and (d) will not result in the creation or
imposition of any Lien on any asset of any Loan Party or any of its
Subsidiaries, except Liens (if any) created under the Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to each
Lender (i) the audited consolidated balance sheet of Holdings and its
Subsidiaries as of December 31, 2001 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
prepared by KPMG LLP and (ii) the unaudited consolidated balance sheet of
Holdings and its Subsidiaries as of June 30, 2002, and the related unaudited
consolidated statements of income and cash flows for the Fiscal Quarter and
year-to-date period then ending, certified by a Responsible Officer. Such
financial statements fairly present the consolidated financial condition of
Holdings and its Subsidiaries as of such dates and the consolidated results of
operations for such periods in conformity with GAAP consistently applied,
subject to year end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii). Since December 31, 2001, there
have been no changes with respect to Holdings, the Borrower and its Subsidiaries
which have had or could reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS. (a) No litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of Holdings or the Borrower,
threatened against or affecting any Loan Party or any of its Subsidiaries (i) as
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to which there is a reasonable possibility of an adverse determination that
could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or any other Loan Document.
(b) Except for the matters set forth on SCHEDULE 4.5, no Loan Party
nor any of its Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability, where any such event or circumstance described in clauses (i) through
(iv) above could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. Each Loan Party and
each of its Subsidiaries is in compliance with (a) all Requirements of Law and
all judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither any Loan Party nor
any of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other regulatory
scheme limiting its ability to incur debt or requiring any approval or consent
from or registration or filing with, any Governmental Authority in connection
therewith.
SECTION 4.8. TAXES. Each Loan Party and its Subsidiaries and each
other Person for whose taxes any Loan Party or any Subsidiary could become
liable have timely filed or caused to be filed all Federal income tax returns
and all other material tax returns that are required to be filed by them, and
have paid all taxes shown to be due and payable on such returns or on any
assessments made against it or its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority,
except where the same are currently being contested in good faith by appropriate
proceedings and for which Loan Parties or such Subsidiary, as the case may be,
has set aside on its books adequate reserves in accordance with GAAP. The
charges, accruals and reserves on the books of the Loan Parties and their
Subsidiaries in respect of such taxes are adequate, and no tax liabilities that
could be materially in excess of the amount so provided are anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used, directly or indirectly, for
"purchasing" or "carrying" any "margin stock" with the respective meanings of
each of such terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect or for any
purpose that violates the provisions of Regulation U. None of the Loan Parties
or their Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying "margin stock."
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SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$10,000,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $10,000,000 the fair market value of the assets of
all such underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Loan Parties and their Subsidiaries has good title to,
or valid leasehold interests in, all of its real and personal property material
to the operation of its business, including all such material properties
reflected in the most recent audited consolidated balance sheet of the Holdings
referred to in SECTION 4.4 or purported to have been acquired by the Loan
Parties or any Subsidiary after said date (except as sold or otherwise disposed
of in the ordinary course of business), in each case free and clear of Liens
prohibited by this Agreement. All leases that individually or in the aggregate
are material to the business or operations of the Loan Parties and their
Subsidiaries are valid and subsisting and are in full force and effect.
(b) Each of the Loan Parties and their Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks, service
marks, trade names, copyrights and other intellectual property material to its
business, and the use thereof by the Loan Parties and their Subsidiaries does
not infringe on the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not have a Material
Adverse Effect.
(c) The properties of the Loan Parties and their Subsidiaries are
insured with financially sound and reputable insurance companies which are not
Affiliates of Holdings, subject to the self-insurance provisions contained in
SECTION 5.8, in such amounts with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Loan Parties or the applicable
Subsidiary operates.
SECTION 4.12. DISCLOSURE. Holdings and the Borrower has disclosed to
the Lenders all agreements, instruments, and corporate or other restrictions to
which each Loan Party or any of its Subsidiaries is subject, and all other
matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the reports (including without limitation all
reports that Holdings is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of Holdings or the Borrower to the Administrative Agent or any
Lender in connection with the negotiation or syndication of this Agreement or
any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which
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they were made, not misleading; PROVIDED, that with respect to projected
financial information, Holdings and the Borrower represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or other
material labor disputes or grievances against any Loan Party or any of its
Subsidiaries, or, to the knowledge of Holdings or Borrower, threatened against
or affecting any Loan Party or any of its Subsidiaries, and no significant
unfair labor practice, charges or grievances are pending against any Loan Party
or any of its Subsidiaries, or to the knowledge of Holdings or Borrower,
threatened against any of them before any Governmental Authority. All payments
due from any Loan Party or any of its Subsidiaries pursuant to the provisions of
any collective bargaining agreement have been paid or accrued as a liability on
the books of any such Loan Party or any such Subsidiary, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 4.14. SUBSIDIARIES. SCHEDULE 4.14 sets forth the name of, the
ownership interest of Holdings and the Borrower in, the jurisdiction of
incorporation or organization of, and the type of, each Subsidiary and
identifies each Subsidiary that is a Subsidiary Loan Party, in each case as of
the Closing Date.
SECTION 4.15. INTENTIONALLY OMITTED.
SECTION 4.16. INSOLVENCY. After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
and the repayment of the Refinanced Indebtedness, none of the Loan Parties will
be "insolvent," within the meaning of such term as defined in ss. 101 of Title
11 of the United States Code, as amended from time to time, or be unable to pay
its debts generally as such debts become due, or have an unreasonably small
capital to engage in any business or transaction, whether current or
contemplated.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees that so long as
any Lender has a Commitment hereunder or any Obligation remains unpaid or
outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will deliver to the Administrative Agent:
(a) so long as Holdings is required to file periodic reports under
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as
amended, no later than 5 days after Holdings is required to have delivered its
annual financial statements thereunder and otherwise as soon as available and in
any event within 95 days after the end of each Fiscal Year of Holdings, a copy
of the annual audited report for such Fiscal Year for Holdings and its
Subsidiaries, containing a consolidated balance sheet of Holdings and its
Subsidiaries as of the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows (together with all
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footnotes thereto) of Holdings and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous
Fiscal Year, all in reasonable detail and reported on by KPMG LLP or other
independent public accountants of nationally recognized standing (without a
"going concern" or like qualification, exception or explanation and without any
qualification or exception as to scope of such audit) to the effect that such
financial statements present fairly in all material respects the financial
condition and the results of operations of Holdings and its Subsidiaries for
such Fiscal Year on a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
(b) so long as Holdings is required to file periodic reports under
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as
amended, no later than 5 days after Holdings is required to have delivered its
quarterly financial statements thereunder, and otherwise within 50 days after
the end of each Fiscal Quarter of Holdings, an unaudited consolidated balance
sheet of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and
the related unaudited consolidated statements of income and cash flows of
Holdings and its Subsidiaries for such Fiscal Quarter and the then elapsed
portion of such Fiscal Year; (c) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a Compliance Certificate
signed by the principal executive officer and the principal financial officer of
Holdings;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by Holdings to its shareholders generally, as the case
may be; and
(e) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
any Loan Party or any Subsidiary as the Administrative Agent, on behalf of any
Lender, may reasonably request.
So long as Holdings is required to file periodic reports under Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended,
Borrower may satisfy its obligation to deliver the financial statements referred
to in clauses (a) and (b) above by delivering such financial statements by
electronic mail to such e-mail addresses as the Administrative Agent and Lenders
shall have provided to Borrower from time to time.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting any Loan Party or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
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(c) the occurrence of any event or any other development by which any
Loan Party or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of Holdings, the Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000;
(e) the receipt by any Loan Party or any of its Subsidiaries of any
written notice of an alleged default or event of default, in respect of any
Material Indebtedness of any Loan Party or any of its Subsidiaries; and
(f) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
(g) Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and maintain in full force and
effect its legal existence and take all reasonable action to maintain its
respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business
and will continue to engage in the same business as presently conducted or such
other businesses that are reasonably related thereto; PROVIDED, that nothing in
this Section shall prohibit any merger, consolidation, sale, lease, transfer or
other disposition, liquidation or dissolution permitted under SECTIONS 7.3 OR
7.6.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, comply with all laws,
rules, regulations and requirements of any Governmental Authority applicable to
its business and properties, including without limitation, all Environmental
Laws, ERISA and OSHA, except where the failure to do so, either individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, pay and discharge at or before
maturity, all of its material obligations and liabilities (including without
limitation all tax liabilities and claims that could result in a statutory Lien)
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
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proceedings, (b) Holdings, the Borrower or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Holdings in
conformity with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, permit any
representative of the Administrative Agent or any Lender, to visit and inspect
its properties, to examine its books and records and to make copies and take
extracts therefrom, and to discuss its affairs, finances and accounts with any
of its officers and with its independent certified public accountants, all at
such reasonable times and as often as the Administrative Agent or any Lender may
reasonably request after reasonable prior notice to the Borrower.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. Each of Holdings
and the Borrower will, and will cause each of its Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, except for ordinary wear and tear and except where the
failure to do so, either individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, and (b) maintain with
financially sound and reputable insurance companies, insurance with respect to
its properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily insured against by
companies in the same or similar businesses operating in the same or similar
locations; PROVIDED, that Holdings, Borrower and any Subsidiary may self-insure
against any risk required to be insured pursuant to this Section in an aggregate
amount of up to $5,000,000 per occurrence and, PROVIDED, further, that in the
event that Holdings, Borrower or any Subsidiary self-insures against any risks
required to be insured against pursuant to this Section in an aggregate amount
in excess of $5,000,000 per occurrence, such self-insurance shall be in amounts
satisfactory to the Administrative Agent.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower will
use the proceeds of the initial Loans made on the Closing Date to refinance
existing Indebtedness and the proceeds of all other Loans made after the Closing
Date to finance working capital needs, Permitted Acquisitions, and Capital
Expenditures, to pay dividends to Holdings for the purpose of financing the
repurchase of shares of Capital Stock of Holdings and for other general
corporate purposes of the Borrower and its Subsidiaries. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that
would violate any rule or regulation of the Board of Governors of the Federal
Reserve System, including Regulations T, U or X. All Letters of Credit will be
used for general corporate purposes.
SECTION 5.10. ADDITIONAL SUBSIDIARIES. (a) If any Subsidiary becomes a
Material Subsidiary after the Closing Date, or any Material Subsidiary is
acquired or formed after the Closing Date, the Borrower will, within ten (10)
Business Days after any such Subsidiary becomes a Material Subsidiary, or such
Material Subsidiary is acquired or formed, notify the Administrative Agent
thereof and will cause such Material Subsidiary to become a Subsidiary Loan
Party.
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(b) If, at any time, the aggregate revenue or assets (on a
non-consolidated basis) of Holdings, the Borrower and those Subsidiaries that
are then Subsidiary Loan Parties are less than the Aggregate Subsidiary
Threshold, then the Borrower shall cause one or more other Subsidiaries to
become additional Subsidiary Loan Parties, as provided in this SECTION 5.10,
within ten (10) Business Days after such revenues or assets become less than the
Aggregate Subsidiary Threshold so that after including the revenue or assets of
any such additional Subsidiary Loan Parties, the aggregate revenue or assets (on
a non-consolidated basis) of Holdings, the Borrower and all such Subsidiary Loan
Parties would equal or exceed the Aggregate Subsidiary Threshold.
(c) The Borrower may elect at any time to have any Subsidiary become
an additional Subsidiary Loan Party as provided in this SECTION 5.10.
(d) Upon the occurrence and during the continuation of any Event of
Default, if the Required Lenders so direct, the Borrower shall (i) cause all of
its Subsidiaries to become additional Subsidiary Loan Parties, as provided in
this SECTION 5.10, within ten (10) Business Days after the Borrower's receipt of
written confirmation of such direction from the Administrative Agent.
(e) A Subsidiary shall become an additional Subsidiary Loan Party by
executing and delivering to the Administrative Agent a Subsidiary Guaranty
Supplement and an Indemnity and Contribution Agreement Supplement, accompanied
by (i) all other Loan Documents related thereto, (ii) certified copies of
certificates or articles of incorporation or organization, by-laws, membership
operating agreements, and other organizational documents, appropriate
authorizing resolutions of the board of directors of such Subsidiaries, and
opinions of counsel comparable to those delivered pursuant to SECTION 3.1(VII),
and (III) such other documents as the Administrative Agent may reasonably
request. No Subsidiary that becomes a Subsidiary Loan Party shall thereafter
cease to be a Subsidiary Loan Party or be entitled to be released or discharged
from its obligations under the Subsidiary Guaranty Agreement or Indemnity and
Contribution Agreement, except in connection with a sale of such Subsidiary Loan
Party's Capital Stock or assets pursuant to SECTION 7.6, a merger consolidation
or other fundamental change with respect to such Subsidiary Loan Party described
in SECTION 7.3 or otherwise expressly permitted pursuant to SECTIONS 5.3, 7.3 or
7.6 of this Agreement or consented to in writing by all of the Lenders.
SECTION 5.11. POST CLOSING. Within sixty (60) days of the Closing
Date, the Borrower will deliver to the Administrative Agent certificates of good
standing or existence from the Secretary of State of Alabama or Arizona, as the
case may be, for any Loan Party that does business as a foreign corporation in
Alabama or Arizona.
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ARTICLE VI
FINANCIAL COVENANTS
Each of Holdings and the Borrower covenants and agrees that so long as
any Lender has a Commitment hereunder or any Obligation remains unpaid or
outstanding:
SECTION 6.1. LEVERAGE RATIO. Holdings will maintain, as of the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31,
2002, a Leverage Ratio of not greater than (i) 2.75:1.00 for each Fiscal Quarter
through and including December 31, 2003 and (ii) 2.5:1.0 for each Fiscal Quarter
ending thereafter.
SECTION 6.2. FIXED CHARGE COVERAGE RATIO. Holdings will have, as of
the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending
December 31, 2002, a Fixed Charge Coverage Ratio of not less than of (i)
1.50:1.00 for each Fiscal Quarter through and including December 31, 2004 and
(ii) 1.75:1.0 for each Fiscal Quarter thereafter.
SECTION 6.3. CONSOLIDATED TANGIBLE NET WORTH. Holdings will not permit
its Consolidated Tangible Net Worth at any time to be less than $600,000,000,
commencing with the Fiscal Quarter ending December 31, 2002 PLUS 50% of
Consolidated Net Income on a cumulative basis for all preceding Fiscal Quarters,
commencing with the Fiscal Quarter ending December 31, 2002; PROVIDED, that if
Consolidated Net Income is negative in any Fiscal Quarter the amount added for
such Fiscal Quarter shall be zero and such negative Consolidated Net Income
shall not reduce the amount of Consolidated Net Income added from any previous
Fiscal Quarter. The amount of Consolidated Tangible Net Worth set forth above
shall be increased by 100% of the amount by which Holdings "total stockholders'
equity" is increased as a result of any public or private offering of common
stock of Holdings after the Closing Date. Promptly upon the consummation of such
offering, Holdings shall notify the Administrative Agent in writing of the
amount of such increase in "total stockholders' equity".
SECTION 6.4. UNENCUMBERED ASSETS. Holdings will not allow, at any
time, the consolidated assets of Holdings and its Subsidiaries consisting of
cash on hand, real estate at net book value (up to an amount not to exceed
$150,000,000) and rolling stock (including without limitation trucks and
trailers) that are free and clear of any and all Liens to be less than 120% of
the sum of the accounts payable, letter of credit reimbursement obligations
(including without limitation reimbursement obligations with respect to Letters
of Credit), Guarantees and all funded Indebtedness (including without limitation
the Loans) of Holdings and its Subsidiaries measured on a consolidated basis as
reported in the consolidated financial statements of Holdings delivered to the
Lenders pursuant to this Agreement from time to time.
ARTICLE VII
NEGATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees that so long as
any Lender has a Commitment hereunder or any Obligation remains outstanding:
SECTION 7.1. INDEBTEDNESS AND PREFERRED EQUITY. Holdings and the
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Indebtedness, except:
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(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness of Holdings and its Subsidiaries existing on the date
hereof and set forth on SCHEDULE 7.1 and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
(c) Indebtedness of Holdings or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations, and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof; provided, that such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvements or extensions, renewals, and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof
(immediately prior to giving effect to such extension, renewal or replacement)
or shorten the maturity or the weighted average life thereof; provided further,
that the aggregate principal amount of such Indebtedness does not exceed
$100,000,000 at any time outstanding;
(d) Indebtedness of Holdings owing to any Subsidiary and of any
Subsidiary owing to the Borrower or any other Subsidiary; PROVIDED, that any
such Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan
Party shall be subject to SECTION 7.4;
(e) Guarantees by Holdings of Indebtedness of any Subsidiary and by
any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
PROVIDED, that Guarantees by any Loan Party of Indebtedness of any Subsidiary
that is not a Subsidiary Loan Party shall be subject to SECTION 7.4;
(f) Indebtedness of any Person which becomes a Subsidiary after the
date of this Agreement (provided that such Indebtedness exists at the time that
such Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary) or extensions, renewals, and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof;
(g) Indebtedness in respect of any Securitization Transaction
permitted by Section 7.6(e);
(h) Hedging Obligations permitted by SECTION 7.10; and
(i) other secured or unsecured Indebtedness of Holdings or its
Subsidiaries in an aggregate principal amount not to exceed $200,000,000 at any
time outstanding.
Holdings will not, and will not permit any Subsidiary to, issue any preferred
stock or other preferred equity interests that (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may
become redeemable or repurchaseable by Holdings or such Subsidiary at the option
of the holder thereof, in whole or in part, or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
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stock or any other preferred equity interests described in this paragraph, on or
prior to, in the case of clause (i), (ii) or (iii), the first anniversary of the
Revolving Commitment Termination Date.
SECTION 7.2. NEGATIVE PLEDGE. Holdings and Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of Holdings or any Subsidiary
existing on the Closing Date set forth on SCHEDULE 7.2; PROVIDED, that such Lien
shall not apply to any other property or asset of the Borrower or any
Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
PROVIDED, that (i) such Lien secures Indebtedness permitted by SECTION 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of Holdings, (ii) existing on any asset of any
Person at the time such Person is merged with or into the Holdings or any
Subsidiary of Holdings or (iii) existing on any asset prior to the acquisition
thereof by the Holdings or any Subsidiary of Holdings; PROVIDED, that any such
Lien was not created in the contemplation of any of the foregoing and any such
Lien secures only those obligations which it secures on the date that such
Person becomes a Subsidiary or the date of such merger or the date of such
acquisition;
(e) any Lien arising out of any Securitization Transaction permitted
by Section 7.6(e);
(f) Liens on any treasury stock held by Holdings;
(g) any Liens securing Indebtedness permitted by Section 7.1(i); and
(h) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (g) of this Section; PROVIDED, that the principal amount
of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby.
SECTION 7.3. FUNDAMENTAL CHANGES. (a) Holdings and the Borrower will
not, and will not permit any Subsidiary to, merge into or consolidate into any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, or lease, transfer or otherwise dispose of (in a single transaction or
a series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of the
stock of any of its Subsidiaries (in each case, whether now owned or hereafter
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acquired) or liquidate or dissolve; PROVIDED, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing (i) any Subsidiary of Holdings other than the
Borrower may consolidate or merge with or into a Person if the Person formed by
or surviving such consolidation or merger is, or immediately following such
consolidation or merger becomes, a Subsidiary Loan Party, (ii) any Subsidiary
may consolidate or merge with or into another Subsidiary; PROVIDED, that if any
party to such consolidation or merger is a Subsidiary Loan Party, the Person
formed by or surviving such consolidation or merger must be, or immediately
following such consolidation or merger become, a Subsidiary Loan Party, (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to Holdings, the Borrower or to a Subsidiary
Loan Party and (iv) any Subsidiary (other than a Subsidiary Loan Party) may
liquidate or dissolve if Holdings determines in good faith that such liquidation
or dissolution is in the best interests of Holdings and is not materially
disadvantageous to the Lenders; PROVIDED, that any such consolidation or merger
involving a Person that is not a wholly-owned Subsidiary immediately prior to
such consolidation or merger shall not be permitted unless also permitted by
SECTION 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date hereof and businesses reasonably
related thereto.
SECTION 7.4. INVESTMENTS, LOANS, ETC. Holdings and the Borrower will
not, and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person that
constitute a business unit (all of the foregoing being collectively called
"INVESTMENTS"), except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on SCHEDULE 7.4 (including Investments in
Subsidiaries);
(b) extensions of trade credit in the ordinary course of business;
(c) Permitted Investments;
(d) Permitted Acquisitions, and all Investments of any Person acquired
in a Permitted Acquisition;
(e) advances in the ordinary course of business to any independent
contractor performing services for Holdings, any of its Subsidiaries or any of
their agents not to exceed $20,000,000 in the aggregate at any time outstanding
maturing not later than seven (7) years after the incurrence thereof;
(f) Guarantees constituting Indebtedness permitted by SECTION 7.1;
PROVIDED, that the aggregate principal amount of Indebtedness of Subsidiaries
that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party shall
be subject to the limitation set forth in clauses (h) and (i) below;
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(g) Investments made by Holdings or any of its Subsidiaries in any
other Loan Party;
(h) Investments made by any Holdings or any of its Subsidiaries in any
Person other than a Loan Party; PROVIDED, that the aggregate amount of such
Investments by Holdings or any of its Subsidiaries in or to, and Guarantees by
Holdings or any of its Subsidiaries of Indebtedness of any Person that is not a
Loan Party (including all such Investments and Guarantees existing on the
Closing Date, but excluding the Investments permitted in clause (i) below),
shall not exceed $30,000,000 at any time outstanding;
(i) Investments made by Holdings or any of its Subsidiaries in
Transplace or Trans-Mex; PROVIDED, that the aggregate amount of such Investments
in, and Guarantees by Loan Parties of Indebtedness owed by, Transplace or
Trans-Mex (including all such Investments and Guarantees existing on the Closing
Date, shall not exceed $25,000,000 at any time outstanding;
(j) loans or advances to employees, officers or directors of Holdings
or any Subsidiary in the ordinary course of business for travel, relocation and
related expenses; PROVIDED, HOWEVER, that the aggregate amount of all such loans
and advances does not exceed $5,000,000 at any time;
(k) Investments in notes and other securities received in full or
partial satisfaction of overdue debts and accounts payable in the ordinary
course of business and for amounts which, individually or in the aggregate, do
not exceed $10,000,000 at any time outstanding;
(l) Hedging Transactions permitted by SECTION 7.10;
(m) Investments in treasury stock of Holdings; and
(n) other Investments not to exceed $10,000,000 at any time
outstanding.
SECTION 7.5. RESTRICTED PAYMENTS. Holdings and Borrower will not, and
will not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock or Indebtedness subordinated to the Obligations of
the Borrower or any Guarantee thereof or any options, warrants, or other rights
to purchase such common stock or such Indebtedness, whether now or hereafter
outstanding (each, a "RESTRICTED PAYMENT"), except for (i) dividends payable by
Holdings and the Borrower solely in shares of any class of its common stock,
(ii) Restricted Payments made by Holdings or any of its Subsidiaries to another
Loan Party, (iii) so long as no Default or Event of Default has occurred and is
continuing, redemption or repurchase of common stock of Holdings, (iv) cash
dividends and distributions paid on the common stock of Holdings; PROVIDED for
purpose of this clause (iv) that (x) no Default or Event of Default has occurred
and is continuing at the time such dividend or distribution is paid, (y) the
aggregate amount of all such Restricted Payments pursuant to this clause (iv)
made by the Holdings in any Fiscal Year does not exceed 50% of Net Income (if
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greater than $0) earned during the immediately preceding Fiscal Year, and (z) if
Restricted Payments made pursuant to this clause (iv) in any Fiscal Year are
less than permitted in such Fiscal Year, the excess permitted amount for such
Fiscal Year may be carried forward to the next succeeding Fiscal Year.
SECTION 7.6. SALE OF ASSETS. Holdings and the Borrower will not, and
will not permit any of its Subsidiaries to, convey, sell, lease, assign,
transfer or otherwise dispose of, any of its assets, business or property,
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's common stock to any Person other
than the Borrower or a Subsidiary Loan Party (or to qualify directors if
required by applicable law), except:
(a) the sale or other disposition for fair market value of obsolete or
worn out property or other property not necessary for operations disposed of in
the ordinary course of business;
(b) sales and dispositions of trucks, tractors and trailers in the
ordinary course of business, so long as the proceeds from such sale or
disposition, net of commissions and other reasonable and customary transaction
costs, fees and expenses properly attributable to such transaction and payable
in connection therewith to non-Affiliates, are applied either (i) to prepay the
Loans (with a corresponding permanent reduction in the Revolving Commitments if
an Event of Default has occurred and is continuing at the time of such
prepayment) or (ii) to the purchase or lease of replacement trucks, tractors and
trailers for use in the ordinary course of business of Borrower and its
Subsidiaries.
(c) the sale of treasury stock of Holdings;
(d) the sale of inventory and Permitted Investments in the ordinary
course of business;
(e) the sale or other disposition of such assets in connection with
any Securitization Transaction;
(f) the sale or discount without recourse of accounts receivable that
are overdue for more than 60 days in the ordinary course of business in
connection with the compromise or collection thereof;
(g) the sale or other disposition of such assets as permitted by
SECTION 7.3(a); and
(h) in addition to all sales permitted above, the sale or other
disposition of such assets in an aggregate amount not to exceed, in any period
of twelve consecutive months, 10% of consolidated total assets of Holdings and
its Subsidiaries as at the beginning of such twelve-month period.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. Holdings and the Borrower
will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
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business at prices and on terms and conditions not less favorable to Holdings,
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) transactions between or among Holdings, the
Borrower and any Subsidiary Loan Party not involving any other Affiliates, (c)
any Restricted Payment permitted by SECTION 7.5 and (d) other transactions so
long as such transactions are unanimously approved by the independent directors
of Holdings.
SECTION 7.8. RESTRICTIVE AGREEMENTS. Holdings and the Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement that prohibits, restricts or imposes any
condition upon the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to Holdings, the Borrower or any other Subsidiary, to Guarantee
Indebtedness of Holdings, the Borrower or any other Subsidiary or to transfer
any of its property or assets to Holdings, the Borrower or any Subsidiary of the
Borrower; PROVIDED, that (i) the foregoing shall not apply to restrictions or
conditions imposed by law or by this Agreement or any other Loan Document, and
(ii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
sold and such sale is permitted hereunder.
SECTION 7.9. INTENTIONALLY OMITTED.
SECTION 7.10. HEDGING TRANSACTIONS. Holdings and the Borrower will
not, and will not permit any of the Subsidiaries to, enter into any Hedging
Transaction, other than Hedging Transactions entered into in the ordinary course
of business to hedge or mitigate risks to which Holdings, the Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities. Solely for the avoidance of doubt, each of Holdings and the
Borrower acknowledges that a Hedging Transaction entered into for speculative
purposes or of a speculative nature (which shall be deemed to include any
Hedging Transaction under which the Borrower or any of the Subsidiaries is or
may become obliged to make any payment (i) in connection with the purchase by
any third party of any common stock or any Indebtedness or (ii) as a result of
changes in the market value of any common stock or any Indebtedness) is not a
Hedging Transaction entered into in the ordinary course of business to hedge or
mitigate risks.
SECTION 7.11. ACCOUNTING CHANGES. Holdings will not, and will not
permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP or applicable laws
or regulations (including without limitation federal securities laws), or change
the fiscal year of Holdings or of any of its Subsidiaries, except to change the
fiscal year of such Subsidiary to conform its fiscal year to that of Holdings.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events (each
an "EVENT OF DEFAULT") shall occur:
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(a) the Borrower shall fail to pay any principal of any Loan or of any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment or otherwise; or
(b) any Loan Party shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
SECTION 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf
of Holdings, the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules attached thereto)
and any amendments or modifications hereof or waivers hereunder, or in any
certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of
any Loan Party pursuant to or in connection with this Agreement or any other
Loan Document shall prove to be incorrect in any material respect when made or
deemed made or submitted; or
(d) Holdings or the Borrower shall fail to observe or perform any
covenant or agreement contained in SECTION 5.3 (with respect to the existence of
Borrower or Holdings) or ARTICLES VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for 30 days after the earlier of (i) any Responsible Officer
of Holdings or the Borrower becomes aware of such failure, or (ii) notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(f) any Loan Party or any of its Subsidiaries (whether as primary
obligor or as guarantor or other surety) shall fail to pay any principal of,
premium or interest on, any Material Indebtedness that is outstanding, when and
as the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument evidencing or governing such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to such Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof;
(g) Holdings, the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
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appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for Holdings, the Borrower or any such Subsidiary or for
a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of Holdings, the Borrower or any Subsidiary or its debts, or any
substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for Holdings, the Borrower or any Subsidiary or for a substantial part
of its assets, and in any such case, such proceeding or petition shall remain
undismissed or undischarged for a period of 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; or
(i) Holdings, the Borrower or any Subsidiary shall become unable to
pay, shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Holdings,
Borrower and the Subsidiaries in an aggregate amount exceeding $10,000,000; or
(k) any judgment or order for the payment of money in excess of
$50,000,000 in the aggregate, to the extent not covered by a third-party
insurance carrier that has acknowledged coverage, shall be rendered against
Holdings, the Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii)
there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against
Holdings, the Borrower or any Subsidiary that could reasonably be expected to
have a Material Adverse Effect, and there shall be a period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of the Holdings Guaranty Agreement or the Subsidiary
Guaranty Agreement shall for any reason cease to be valid and binding on, or
enforceable against, any Loan Party, or any such Loan Party shall so state in
writing, or any Loan Party shall seek to terminate its Subsidiary Guaranty
Agreement;
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in clause (g) or (h) of this Section) and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
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Borrower, take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of each Lender
shall terminate immediately, (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become, due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by Holdings and the Borrower, (iii) exercise all remedies
contained in any other Loan Document and (iv) exercise any other remedies
available at law or in equity; and that, if an Event of Default specified in
either clause (g) or (h) shall occur, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon, and all fees, and all other Obligations shall automatically
become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by Holdings and the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder or
under the other Loan Documents by or through any one or more sub-agents or
attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent or attorney-in-fact and the Related Parties of the Administrative
Agent, any such sub-agent and any such attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this ARTICLE IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
ARTICLE IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
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exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in SECTION 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in SECTION 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in ARTICLE III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
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refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT. (a) The Administrative
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent, subject to the approval by the
Borrower provided that no Default or Event of Default shall exist at such time.
If no successor Administrative Agent shall have been so appointed, and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of resignation, then the retiring Administrative Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or any state thereof or a bank which maintains
an office in the United States, having a combined capital and surplus of at
least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
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of this ARTICLE IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications to any party herein to be effective shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Swift Transportation Co., Inc.
or Holdings 2200 75th Avenue
Phoenix, AZ 85043
Attention: Mr. Gary Enzor
Telecopy Number: (623) 907-7503
With a copy to: Snell & Wilmer, L.L.P.
One Arizona Center
Phoenix, AZ 85004-2202
Attention: Steven D. Pidgeon, Esq.
Telecopy Number: (602) 382-6070
To the Administrative Agent SunTrust Bank
or Swingline Lender: 201 4th Avenue North
Nashville, TN 37219
Attention: Mr. Bill Crawford
Telecopy Number: (615) 748-5269
With a copy to: SunTrust Bank
Agency Services
303 Peachtree Street, N. E./25th Floor
Atlanta, Georgia 30308
Attention: Ms. Hope Williams
Telecopy Number: (404) 658-4906
and
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King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Carolyn Z. Alford
Telecopy Number: (404) 572-5100
To the Issuing Bank: SunTrust Bank
25 Park Place, N. E./Mail Code 3706
Atlanta, Georgia 30303
Attention: Michael E. Sullivan
Telecopy Number: (404) 588-8129
To the Swingline Lender: SunTrust Bank
Agency Services
303 Peachtree Street, N. E./25th Floor
Atlanta, Georgia 30308
Attention: Ms. Hope Williams
Telecopy Number: (404) 658-4906
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this SECTION 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or any other Loan Document, and no course of dealing between the
Borrower and the Administrative Agent or any Lender, shall operate as a waiver
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thereof, nor shall any single or partial exercise of any such right or power or
any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power hereunder or thereunder. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies provided by law. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Borrower therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a Letter of
Credit shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Administrative Agent, any Lender or the Issuing Bank
may have had notice or knowledge of such Default or Event of Default at the
time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders (and, if the Administrative Agent
executes and delivers any such amendment, waiver or consent which states that it
is being provided by the Administrative Agent in its capacity as such with the
consent of the Required Lenders, the Borrower shall be entitled to rely thereon)
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; PROVIDED, that no amendment or
waiver shall: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change SECTION 2.22 (b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby , without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender; (vii) release all or substantially all
collateral (if any) securing any of the Obligations or agree to subordinate any
Lien in such collateral to any other creditor of the Borrower or any Subsidiary,
without the written consent of each Lender; PROVIDED FURTHER, that no such
agreement shall amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent, the Swingline Bank or the Issuing Bank
without the prior written consent of such Person.
SECTION 10.3. EXPENSES; INDEMNIFICATION. (a) The Borrower shall pay
(i) all reasonable, out-of-pocket costs and expenses of the Administrative Agent
and its Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent and its Affiliates, in connection with the
syndication of the credit facilities provided for herein, the preparation and
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administration of the Loan Documents and any amendments, modifications or
waivers thereof (whether or not the transactions contemplated in this Agreement
or any other Loan Document shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements
of outside counsel and the allocated cost of inside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
any Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing (each, an
"INDEMNITEE") against, and hold each of them harmless from, any and all costs,
losses, liabilities, claims, damages and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, which may be
incurred by or asserted against any Indemnitee arising out of, in connection
with or as a result of (i) the execution or delivery of this Agreement or any
other agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of
any of the transactions contemplated hereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned by the Borrower
or any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; PROVIDED, that the Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and each
of the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent, the Issuing Bank or the Swingline Lender
under clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED, that the unreimbursed expense or indemnified payment, claim, damage,
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liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); PROVIDED that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000, in the case of any assignment of a Revolving Loan
or reimbursement obligation of outstanding Letters of Credit, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loan or the Commitment
assigned, and (iii) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $1,000, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon (i) the execution and delivery of the Assignment and
Acceptance by the assigning Lender and assignee Lender, (ii) acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section, (iii) consent thereof from Borrower to the extent required pursuant to
this clause (b) and (iv) if such assignee Lender is a Foreign Lender, compliance
by such Person with SECTION 2.21(e); from and after the effective date specified
in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a
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party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of SECTIONS 2.19, 2.20, 2.21 and 10.3. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Bank or the Issuing Bank sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
PROVIDED 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 and (iii) the Borrower, the
Administrative Agent, the Swingline Bank, the Issuing Bank 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. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; PROVIDED that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change SECTION 2.22(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby , without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement without the written
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consent of each Lender except to the extent such release is expressly provided
under the terms of the Guaranty Agreement; or (vii) release all or substantially
all collateral (if any) securing any of the Obligations. Subject to paragraph
(e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of SECTIONS 2.19, 2.20, and 2.21 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of SECTION 10.7 as though it were a Lender, provided
such Participant agrees to be subject to SECTION 10.7 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under SECTION 2.19 and SECTION 2.21 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of SECTION 2.21 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with SECTION
2.21(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
District Court of the Southern District of New York, and of any state court of
the State of Supreme Court of the State of New York sitting in New York county
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York state court or, to the
extent permitted by applicable law, such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against the Borrower or its properties
in the courts of any jurisdiction.
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(c) The Borrower irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in SECTION 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Borrower against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any application
made by such Lender and the Issuing Bank, as the case may be; PROVIDED, that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
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the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 10.9. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of SECTIONS 2.19, 2.20, 2.21, and 10.3 and ARTICLE
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
and (ix) subject to provisions substantially similar to this SECTION 10.11, to
any actual or prospective assignee or Participant, or (vi) with the consent of
the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
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care to maintain the confidentiality of such information as such Person would
accord its own confidential information.
SECTION 10.12. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, agrees that this Agreement is delivered
by Borrower under seal and waives any shortening of the statute of limitations
that may result from not affixing the corporate seal to this Agreement or such
other Loan Documents.
(REMAINDER OF PAGE LEFT INTENTIONALLY BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, under seal in the case of Holdings and the Borrower, by their
respective authorized officers as of the day and year first above written.
BORROWER:
SWIFT TRANSPORTATION CO., INC., an
Arizona corporation
By: /s/ William F. Riley III L.S.
-------------------------------
Name: William F. Riley III
Title: Vice President and Secretary
HOLDINGS:
SWIFT TRANSPORTATION CO., INC., a
Nevada corporation
By: /s/ William F. Riley III L.S.
-------------------------------
Name: William F. Riley III
Title: Senior Executive Vice President
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK AS ADMINISTRATIVE AGENT,
AS ISSUING BANK, AS SWINGLINE LENDER AND
AS A LENDER
By: /s/ William H. Crawford
------------------------------------
Name: William H. Crawford
Title: Vice President
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
WELLS FARGO BANK, N.A.
By: /s/ Robert E. Clouse
------------------------------------
Name: Robert E. Clouse
Title: Assistant Vice President
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
KEYBANK NATIONAL ASSOCIATION
By: /s/ Michael J. Vegh
------------------------------------
Name: Michael J. Vegh
Title: Portfolio Manager
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ David J. Thomas
------------------------------------
Name: David J. Thomas
Title: First Vice President
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Scott J. Bell
------------------------------------
Name: Scott J. Bell
Title: Vice President
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
THE NORINCHUKIN BANK, NEW YORK BRANCH
By: /s/ Toshiyuki Futaoka
------------------------------------
Name: Toshiyuki Futaoka
Title: Joint General Manager
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLAND BRANCH
By: /s/ Mark Gleason
------------------------------------
Name: Mark Gleason
Title: Director
By: /s/ Cassandra Droogan
------------------------------------
Name: Cassandra Droogan
Title: Associate
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
Pricing Applicable Margin for Applicable Percentage
Level Leverage Ratio Eurodollar Loans for Commitment Fee
----- -------------- ---------------- ------------------
I Less than 1.50:1.00 0.625% per annum 0.175% per annum
II Less than 2.00:1.00 0.70% per annum 0.20% per annum
but greater than or
equal to 1.50:1.00
III Less than 2.50:1.00 1.0% per annum 0.225% per annum
but greater than or
equal to 2.00:1.00
IV Greater than or 1.375% per annum 0.25% per annum
equal to 2.50:1.00