EXHIBIT (b)(2)
CREDIT AGREEMENT,
dated as of May 10, 2007,
among
SAINT ACQUISITION CORPORATION,
SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation,
and
SWIFT TRANSPORTATION CO., INC.,
a Nevada corporation,
as the Borrowers,
SAINT CORPORATION,
as a Guarantor,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS
FROM TIME TO TIME PARTIES HERETO,
as the Lenders
MORGAN STANLEY SENIOR FUNDING, INC.,
WACHOVIA BANK, NATIONAL ASSOCIATION, and
J.P. MORGAN SECURITIES INC.,
as the Co-Syndication Agents,
LASALLE BANK NATIONAL ASSOCIATION,
as the Documentation Agent,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as the Administrative Agent.
--------------------------
MORGAN STANLEY SENIOR FUNDING, INC.,
WACHOVIA CAPITAL MARKETS, LLC, and
J.P. MORGAN SECURITIES INC.,
as the Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ............................................................... 2
Section 1.1. Defined Terms ...................................................................... 2
Section 1.2. Use of Defined Terms ............................................................... 35
Section 1.3. Cross-References ................................................................... 35
Section 1.4. Accounting and Financial Determinations ............................................ 35
ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT ................... 35
Section 2.1. Commitments ........................................................................ 35
Section 2.2. Reduction of the Commitment Amounts ................................................ 40
Section 2.3. Borrowing Procedures ............................................................... 40
Section 2.4. Continuation and Conversion Elections .............................................. 42
Section 2.5. Funding ............................................................................ 43
Section 2.6. Issuance Procedures ................................................................ 43
Section 2.7. Register; Notes .................................................................... 46
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES ................................................... 47
Section 3.1. Repayments and Prepayments; Application ............................................ 47
Section 3.2. Interest Provisions ................................................................ 51
Section 3.3. Fees ............................................................................... 52
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS ........................................................ 53
Section 4.1. LIBO Rate Lending Unlawful ......................................................... 53
Section 4.2. Deposits Unavailable ............................................................... 54
Section 4.3. Increased LIBO Rate Loan Costs, etc ................................................ 54
Section 4.4. Funding Losses ..................................................................... 54
Section 4.5. Increased Capital Costs ............................................................ 55
Section 4.6. Taxes .............................................................................. 56
Section 4.7. Payments, Computations; Proceeds of Collateral, etc ................................ 59
Section 4.8. Sharing of Payments ................................................................ 60
Section 4.9. Setoff ............................................................................. 60
Section 4.10. Mitigation ........................................................................ 61
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TABLE OF CONTENTS
(continued)
Page
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Section 4.11. Removal of Lenders ................................................................ 61
Section 4.12. Application to Synthetic Participation Fees ....................................... 62
ARTICLE V CONDITIONS TO CREDIT EXTENSIONS ................................................................ 62
Section 5.1. Initial Credit Extension ........................................................... 62
Section 5.2. All Credit Extensions .............................................................. 67
Section 5.3. Subsequent Credit Extensions ....................................................... 68
ARTICLE VI REPRESENTATIONS AND WARRANTIES ................................................................ 68
Section 6.1. Organization, etc ................................................................. 68
Section 6.2. Due Authorization, Non-Contravention, etc ......................................... 68
Section 6.3. Government Approval, Regulation, etc .............................................. 69
Section 6.4. Validity, etc ..................................................................... 69
Section 6.5. Financial Information ............................................................. 69
Section 6.6. No Material Adverse Change ........................................................ 69
Section 6.7. Litigation, Labor Controversies, etc .............................................. 69
Section 6.8. Subsidiaries ...................................................................... 70
Section 6.9. Ownership of Properties ........................................................... 70
Section 6.10. Taxes ............................................................................. 70
Section 6.11. Pension and Welfare Plans ......................................................... 70
Section 6.12. Environmental Warranties .......................................................... 70
Section 6.13. Accuracy of Information ........................................................... 71
Section 6.14. Regulations U and X ............................................................... 72
Section 6.15. Solvency .......................................................................... 72
Section 6.16. Tax Status ........................................................................ 72
ARTICLE VII COVENANTS .................................................................................... 72
Section 7.1. Affirmative Covenants .............................................................. 72
Section 7.2. Negative Covenants ................................................................. 79
ARTICLE VIII EVENTS OF DEFAULT ........................................................................... 93
Section 8.1. Listing of Events of Default ....................................................... 93
Section 8.2. Action if Bankruptcy ............................................................... 95
Section 8.3. Action if Other Event of Default ................................................... 96
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE IX THE ADMINISTRATIVE AGENT ...................................................................... 96
Section 9.1. Actions ............................................................................ 96
Section 9.2. Funding Reliance, etc .............................................................. 97
Section 9.3. Exculpation ........................................................................ 97
Section 9.4. Successor .......................................................................... 97
Section 9.5. Loans by Morgan Stanley ............................................................ 98
Section 9.6. Credit Decisions ................................................................... 98
Section 9.7. Copies, etc ........................................................................ 98
Section 9.8. Reliance by Administrative Agent ................................................... 98
Section 9.9. Defaults ........................................................................... 99
Section 9.10. Lead Arrangers, Other Agents ...................................................... 99
Section 9.11. Posting of Approved Electronic Communications ..................................... 99
ARTICLE X HOLDINGS GUARANTY .............................................................................. 101
Section 10.1. Guaranty .......................................................................... 101
Section 10.2. Reinstatement, etc ................................................................ 101
Section 10.3. Guaranty Absolute, etc ............................................................ 102
Section 10.4. Waiver, etc ....................................................................... 103
Section 10.5. Postponement of Subrogation, etc .................................................. 103
ARTICLE XI MISCELLANEOUS PROVISIONS ...................................................................... 103
Section 11.1. Waivers, Amendments, etc .......................................................... 103
Section 11.2. Notices; Time ..................................................................... 105
Section 11.3. Payment of Costs and Expenses ..................................................... 105
Section 11.4. Indemnification ................................................................... 106
Section 11.5. Survival .......................................................................... 107
Section 11.6. Severability ...................................................................... 107
Section 11.7. Headings .......................................................................... 107
Section 11.8. Execution in Counterparts, Effectiveness, etc ..................................... 107
Section 11.9. Governing Law; Entire Agreement ................................................... 108
Section 11.10. Successors and Assigns ........................................................... 108
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TABLE OF CONTENTS
(continued)
Page
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Section 11.11. Sale and Transfer of Credit Extensions; Participations in Credit
Extensions; Notes ................................................................ 108
Section 11.12. Other Transactions ............................................................... 112
Section 11.13. Forum Selection and Consent to Jurisdiction ...................................... 112
Section 11.14. Waiver of Jury Trial ............................................................. 113
Section 11.15. National Security Laws ........................................................... 113
ARTICLE XII NATURE OF BORROWERS' OBLIGATIONS ............................................................. 114
Section 12.1. Nature of Obligations ............................................................. 114
Section 12.2. Independent Obligation ............................................................ 114
Section 12.3. Authorization ..................................................................... 114
Section 12.4. Reliance .......................................................................... 114
Section 12.5. Contribution; Subrogation ......................................................... 115
Section 12.6. Waiver ............................................................................ 115
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages; LIBOR Office; Domestic Office
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT A-3 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Subsidiary Guaranty
EXHIBIT G - Intercreditor Agreement
EXHIBIT H - Form of Pledge and Security Agreement
EXHIBIT I - Form of Rollover Purchasers Pledge Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 10, 2007, is among SAINT
ACQUISITION CORPORATION, a Nevada corporation ("Acquisition Co."), SWIFT
TRANSPORTATION CO., INC., an Arizona corporation ("Swift Arizona"), SWIFT
TRANSPORTATION CO., INC., a Nevada corporation ("Swift Nevada"), Saint
Corporation, a Nevada corporation ("Holdings"), the various financial
institutions and other Persons (such capitalized term and all other capitalized
terms used in this preamble and the recitals set forth below shall, unless
otherwise defined therein, have the meanings set forth in Section 1.1) from time
to time parties hereto (the "Lenders"), MORGAN STANLEY SENIOR FUNDING, INC.
("Morgan Stanley"), WACHOVIA BANK, NATIONAL ASSOCIATION ("Wachovia Bank"), and
J.P. MORGAN SECURITIES INC. ("J.P. Morgan Securities"), as the co-syndication
agents (in such capacities, the "Co-Syndication Agents"), LASALLE BANK NATIONAL
ASSOCIATION, as the documentation agent (in such capacity, the "Documentation
Agent") and administrative agent (in such capacity, the "Administrative Agent")
and MORGAN STANLEY, WACHOVIA CAPITAL MARKETS, LLC ("Wachovia Securities") and
J.P. MORGAN SECURITIES as the joint lead arrangers and joint bookrunners (in
such capacities, the "Lead Arrangers").
WITNESSETH:
WHEREAS, Mr. Jerry Moyes, an individual ("Mr. Moyes"), and the Additional
Moyes Investors (together with Mr. Moyes, the "Rollover Purchasers") own all of
the Capital Securities of Holdings;
WHEREAS, Holdings owns all of the Capital Securities of Acquisition Co.;
WHEREAS, Holdings intends to acquire (the "Acquisition") all of the issued
and outstanding Capital Securities of Swift Nevada by way of a merger between
Acquisition Co. and Swift Nevada (the "Merger") pursuant to that certain
Agreement and Plan of Merger, among Swift Nevada, Holdings and Acquisition Co.,
dated as of January 19, 2007, (as amended, supplemented, amended and restated or
otherwise modified from time to time as permitted hereunder, the "Merger
Agreement");
WHEREAS, upon the consummation of the Merger, Swift Nevada will be the
surviving corporation;
WHEREAS, prior to the Acquisition and on or prior to the effectiveness of
this Agreement, all Capital Securities of Swift Nevada held directly or
beneficially by the Rollover Purchasers will be contributed to Holdings in
exchange for common equity of Holdings (the "Rollover Equity Investment");
WHEREAS, the Borrowers wish to obtain senior secured credit facilities for
the purpose of (i) financing a portion of the purchase price of the Acquisition;
(ii) refinancing certain Indebtedness of Swift Nevada and its Subsidiaries;
(iii) making a loan from Swift Nevada to the Rollover Purchasers (the
"Shareholder Loan") which will be used by the Rollover Purchasers to refinance
certain debt of the Rollover Purchasers; (iv) paying fees, costs and expenses
incurred in connection with the Acquisition and the Merger and in connection
with the financing
described herein (the "Transaction Costs"); and (v) funding working capital
requirements and other general corporate purposes, including Permitted
Acquisitions;
WHEREAS, in order to consummate the Acquisition and the Merger, to pay the
Transaction Costs and to provide for the ongoing working capital needs and
general corporate purposes of Interstate Equipment Leasing, Inc. ("IEL"), the
Revolving Loan Borrower and its Subsidiaries (the foregoing, including the
Acquisition, the Merger, all transactions related thereto (including the
transactions contemplated by the Loan Documents and the other capital raising
transactions described below in these recitals) and the payment of the
Transaction Costs, being herein referred to as the "Transactions"):
(a) the Rollover Purchasers will make the Rollover Equity
Investment;
(b) Mr. Moyes and Vickie Moyes will contribute (the "IEL Equity
Contribution") 100% of the issued and outstanding Capital Securities of
IEL to Holdings;
(c) the Revolving Loan Lenders will provide a Commitment pursuant to
which Revolving Loans may be made and Letters of Credit may be issued from
time to time prior to the Revolving Loan Commitment Termination Date in an
amount not to exceed the Revolving Loan Commitment Amount;
(d) the Term Loan Lenders will provide a Commitment pursuant to
which Term Loans will be made, in a maximum original principal amount of
up to the Term Loan Commitment Amount, to the Term Loan Borrower in a
single Borrowing on the Closing Date;
(e) the Synthetic Lenders will provide a Synthetic Letter of Credit
Commitment pursuant to which Synthetic Letters of Credit will be issued
from time to time in an amount not to exceed the Synthetic Letter of
Credit Commitment Amount; and
(f) second-priority senior secured floating rate notes (the "Senior
Floating Notes") and second-priority senior secured fixed rate notes (the
"Senior Fixed Notes", and together with the Senior Floating Notes,
collectively, the "Senior Notes") will be issued by the Term Loan Borrower
resulting in aggregate gross proceeds of $835,000,000 on the Closing Date;
and
WHEREAS, the Lenders and the Issuers are willing, on the terms and subject
to the conditions hereinafter set forth, to extend the Commitments and make
Loans to the Borrowers and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context
2
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Acquisition" is defined in the third recital.
"Acquisition Co." is defined in the preamble.
"Additional Moyes Investors" means, collectively, Vickie Moyes, an
individual, Jerry and Vickie Moyes Family Trust Dated 12/11/87, an Illinois
trust, Todd Moyes Trust Dated 4/27/07, an Illinois trust, Hollie Moyes Trust
Dated 4/27/07, an Illinois trust, Chris Moyes Trust Dated 4/27/07, an Illinois
trust, Lyndee Moyes Nester Trust Dated 4/27/07, an Illinois trust, Marti Lyn
Moyes Trust Dated 4/27/07, an Illinois trust, and Michael J. Moyes Trust Dated
4/27/07, an Illinois trust.
"Administrative Agent" is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 9.4.
"Affected Lender" is defined in Section 4.11.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. "Control" of a Person means the power, directly or indirectly, (i) to
vote 10% or more of the Capital Securities (on a fully diluted basis) of such
Person having ordinary voting power for the election of directors, managing
members or general partners (as applicable), or (ii) to direct or cause the
direction of the management and policies of such Person (whether by contract or
otherwise).
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified from time to time and
in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary,
to the next highest 1/16 of 1%) equal to the higher of (i) the rate published in
the Wall Street Journal as the "prime rate" (or equivalent), in each case as in
effect from time to time, and (ii) the Federal Funds Rate in effect on such day
plus -1/2 of 1%. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each change
in the Alternate Base Rate. The Administrative Agent will give notice promptly
to the Borrowers and the Lenders of changes in the Alternate Base Rate; provided
that the failure to give such notice shall not affect the Alternate Base Rate in
effect after such change.
"Applicable Margin" means (i) for the first two full Fiscal Quarters after
the Closing Date, (a) 3.00% in the case of Loans maintained as Eurodollar Loans,
(b) 2.00% in the case of Loans maintained as Base Rate Loans and (c) 3.00% in
the case of Synthetic Participation Fees; and (ii) thereafter, the applicable
percentage set forth below corresponding to the relevant Applicable Rating:
3
\
Applicable Margin
Applicable Margin for Applicable Margin for Synthetic
Pricing Level Applicable Rating Base Rate Loans for LIBO Rate Loans Participation Fees
- ------------- -------------------- --------------------- ------------------- ------------------
I greater than B2 and B 1.75 2.75 2.75
II B2 and B 2.00 3.00 3.00
III less than B2 and B 2.25 3.25 3.25
For purposes of the foregoing, (i) if the Applicable Ratings established
by Moody's and S&P are not equivalent such that (A) one Applicable Rating
results in Pricing Level I and the other Applicable Rating results in Pricing
Level II, then Pricing Level I shall apply; (B) one Applicable Rating results in
Pricing Level II and the other Applicable Rating results in Pricing Level III,
then Pricing Level III shall apply; or (C) one Applicable Rating results in
Pricing Level I and the other Applicable Rating results in Pricing Level III,
then Pricing Level II shall apply; (ii) if only one Applicable Rating is
available as a result of either S&P or Moody's failure to continue to rate
Holdings, then the Pricing Level shall be based on such Applicable Rating that
remains available; and (iii) if both S&P and Moody's withdraw their Applicable
Ratings, then Pricing Level III shall apply until the earlier of (A) such time
as S&P and/or Moody's provides another Applicable Rating or (B) the Required
Lenders have agreed to an alternative pricing grid or other method for
determining Pricing Levels pursuant to an effective amendment to this Agreement.
The Applicable Margin shall be determined and adjusted, if necessary, as
of the date on which any change in an Applicable Rating is announced by the
relevant rating agency (each such adjustment date, a "Rate Determination Date").
Each Applicable Margin shall be effective from a Rate Determination Date
until the next such Rate Determination Date. The Administrative Agent shall
determine the appropriate Applicable Margin in the pricing matrix promptly upon
notice of a ratings change by the Borrowers as required pursuant to Section
7.1.14 and shall promptly notify the Borrowers and the Lenders of any change
thereof. Such determinations by the Administrative Agent shall be conclusive
absent manifest error. Adjustments in the Applicable Margin shall be effective
as to existing Credit Extensions as well as any new Credit Extension made
thereafter.
"Applicable Rating" means as to (i) Moody's, its Corporate Family Rating
(or equivalent) for Holdings and (ii) S&P, its Corporate Rating (or equivalent)
for Holdings.
"Approved Fund" means any Person (other than a natural Person) that (i) is
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business,
and (ii) is administered or managed by a Lender, an Affiliate of a Lender or a
Person or an Affiliate of a Person that administers or manages a Lender.
"Attributable Debt" means, in respect of any Motor Vehicle Financing, and
at any time of determination, the present value of the obligation of the lessee
for net rental payments during the
4
remaining term of the lease associated with such sale and leaseback transaction,
including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP; provided, however, that if such sale and
leaseback transaction results in a Capital Lease Liability, the amount of
Indebtedness represented thereby will be determined in accordance with the
definition of "Capitalized Lease Liabilities."
"Authorized Officer" means, relative to any Obligor, those of its
officers, general partners or managing members (as applicable) whose signatures
and incumbency shall have been certified to the Administrative Agent, the
Lenders and the Issuers pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Benchmark Return" means, with respect to the Synthetic Deposits and any
Investment Period related to such Synthetic Deposits, a per annum rate equal to
the sum of (i) the interest rate that would be earned on such Synthetic Deposits
during such Investment Period if such Synthetic Deposits constituted a LIBO Rate
Loan hereunder which (x) had an outstanding principal amount equal to the
aggregate amount of such Synthetic Deposits, (y) accrued interest at the LIBO
Rate (Reserve Adjusted) and (z) had an Interest Period equal in duration to such
Investment Period plus (ii) the Applicable Margin in effect for Synthetic
Participation Fees during such Investment Period.
"Borrowers" means, collectively, the Term Loan Borrower and the Revolving
Loan Borrower; provided that, following the Closing Date, all actions and
notices (in each case whether required or voluntary) with respect to the Loans
and Commitments shall, unless expressly stated otherwise, be made by or, in the
case of notices, made by or delivered to, Swift Nevada.
"Borrowing" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by all Lenders required to make such
Loans on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.3.
"Borrowing Request" means a Loan request and certificate duly executed by
an Authorized Officer of the applicable Borrower substantially in the form of
Exhibit B-1 hereto.
"Business Day" means (i) any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York, New York, and (ii) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day which is a Business Day described in
clause (i) above and which is also a day on which dealings in Dollars are
carried on in the London interbank eurodollar market.
"Capital Expenditures" means, for any period, the aggregate amount of (i)
all expenditures of Holdings and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified as
capital expenditures; provided that the amount of any such expenditure with
respect to the acquisition or capitalized lease of any Motor Vehicle made in any
period shall be net of any proceeds received from the sale, or the value
5
received from any trade-in, of a Motor Vehicle in connection with such
acquisition or capitalized lease in such period, and (ii) Capitalized Lease
Liabilities incurred by Holdings and its Subsidiaries during such period.
"Capital Securities" means, with respect to any Person, all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital, whether now outstanding or
hereafter issued.
"Capitalized Lease Liabilities" means, with respect to any Person, all
monetary obligations of such Person and its Subsidiaries under any leasing or
similar arrangement which have been (or, in accordance with GAAP, should be)
classified as capitalized leases, and for purposes of each Loan Document the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a premium or a penalty.
"Captive Insurance Company" means Mohave Transportation Insurance Company,
an Arizona corporation.
"Cash Collateralize" means, with respect to a Letter of Credit, the
deposit of immediately available funds into a cash collateral account maintained
with (or on behalf of) the Administrative Agent on terms satisfactory to the
Administrative Agent in an amount equal to the Stated Amount of such Letter of
Credit.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed by) the
United States or a State thereof (or any agency or political subdivision
thereof, to the extent such obligations are supported by the full faith
and credit of the United States or a State thereof) maturing not more than
one year after such time;
(b) commercial paper maturing not more than 270 days from the date
of issue, which is issued by (i) a corporation (other than an Affiliate of
any Obligor) organized under the laws of any State of the United States or
of the District of Columbia and rated A-1 or higher by S&P or P-1 or
higher by Moody's, or (ii) any Lender of the type described in clause
(c)(i) below (or its holding company);
(c) any certificate of deposit, time deposit or bankers acceptance,
maturing not more than one year after its date of issuance, which is
issued or accepted by any bank organized under the laws of the United
States (or any State thereof or the District of Columbia) and which has
(x) a credit rating of A2 or higher from Moody's or A or higher from S&P
and (y) a combined capital and surplus greater than $500,000,000;
(d) any repurchase agreement having a term of 30 days or less
entered into with any Lender or any commercial banking institution
satisfying the criteria set forth in clause (c)(i) which (i) is secured by
a fully perfected security interest in any obligation of the type
described in clause (a), and (ii) has a market value at the time such
repurchase
6
agreement is entered into of not less than 100% of the repurchase
obligation of such commercial banking institution thereunder;
(e) shares of any money market mutual fund that (i) has
substantially all of its assets invested continuously in the types of
investments referred to in clause (a) through (d) above, (ii) has net
assets of not less than $500,000,000, and (iii) has the highest rating
obtainable from either S&P or Moody's; or
(f) so long as the representations and warranties set forth in
Section 6.14 remain true and correct, debt securities (other than of
Holdings or any of its Subsidiaries or Affiliates) that are listed on a
national securities exchange or Nasdaq or freely traded in the over-the
counter market so long as (i) the amount invested in such securities does
not exceed in the aggregate $10,000,000 and (ii) such debt securities have
received a rating of A2 or higher from Moody's and A or higher from S&P.
"Cash Management Obligations" means, with respect to either Borrower or
any Guarantor, any direct or indirect liability, contingent or otherwise, of
such Person in respect of cash management services (including treasury,
depository, overdraft (daylight and temporary), credit or debit card, electronic
funds transfer and other cash management arrangements) provided after the
Closing Date by a Person who is (or was at the time such Cash Management
Obligations were incurred) a Lender or any Affiliate thereof, including
obligations for the payment of fees, interest (including interest accruing
during the pendency of any proceeding of the type described in Section 8.1.9,
whether or not allowed in such proceeding), charges, expenses, attorneys' fees
and disbursements in connection therewith to the extent provided for in the
documents evidencing such cash management services.
"Casualty Event" means the damage, destruction or condemnation of or any
taking under power of eminent domain or by condemnation or similar proceeding
of, any property of any Person or any of its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) at all times after the consummation of the Merger, the failure
of Holdings, at any time after the consummation of the Merger to directly
own beneficially and of record on a fully diluted basis 100% of the
outstanding Capital Securities of Swift Nevada, such Capital Securities to
be held free and clear of all Liens (other than Liens (i) permitted
pursuant to clauses (f), (g), (h), (j) and (k) of Section 7.2.3 or (ii)
granted under a Loan Document or the Senior Note Documents);
(b) the failure of Swift Nevada, at all times after the consummation
of the Merger, to directly own beneficially and of record on a fully
diluted basis 100% of the outstanding Capital Securities of Swift Arizona,
such Capital Securities to be held free
7
and clear of all Liens (other than Liens (i) permitted pursuant to clauses
(f), (g), (h), (j) and (k) of Section 7.2.3 or (ii) granted under a Loan
Document or the Senior Note Documents);
(c) at any time prior to the creation of a Public Market, the
failure of the Rollover Purchasers or their Affiliates to directly or
indirectly own beneficially and of record on a fully diluted basis at
least 90% of the outstanding Capital Securities of Holdings, such Capital
Securities to be held free and clear of all Liens (other than Liens (i)
permitted pursuant to clauses (f), (g), (h), (j) and (k) of Section 7.2.3
or (ii) granted under a Loan Document, the Senior Note Documents or the
Shareholder Loan Documents);
(d) at any time after the creation of a Public Market any person or
group (within the meaning of Sections 13(d) and 14(d) under the Exchange
Act), other than Mr. Moyes and the other Rollover Purchasers, shall become
the ultimate "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of Capital Securities
representing more than 20% of the Capital Securities of Holdings on a
fully diluted basis; or
(e) the occurrence of any "Change of Control" (or similar term)
under (and as defined in) any Senior Note Document.
"Closing Date" means the date of the initial Credit Extension hereunder,
which shall be the date this Agreement becomes effective pursuant to Section
11.8, but in no event shall such date be later than September 30, 2007.
"Closing Date Certificate" means the closing date certificate executed and
delivered by an Authorized Officer of Holdings in form and substance reasonably
satisfactory to the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, the Term Loan Commitment,
Revolving Loan Commitment, Revolving Letter of Credit Commitment, Synthetic
Letter of Credit Commitment or Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount, the Revolving Letter of
Credit Commitment Amount, the Synthetic Letter of Credit Commitment Amount or
the Swing Line Loan Commitment Amount.
"Commitment Termination Date" means, as the context may require, the Term
Loan Commitment Termination Date, the Synthetic Letter of Credit Commitment
Termination Date or the Revolving Loan Commitment Termination Date.
"Commitment Termination Event" means (i) the occurrence of any Event of
Default with respect to any Borrower described in clauses (a) through (d) of
Section 8.1.9, or (ii) the
8
occurrence and continuance of any other Event of Default and either (x) the
declaration of all or any portion of the Loans to be due and payable pursuant to
Section 8.3, or (y) the giving of notice by the Administrative Agent, acting at
the direction of the Required Lenders, to the Borrowers that the Commitments
have been terminated.
"Compliance Certificate" means a certificate duly completed and executed
by an Authorized Officer of Holdings, substantially in the form of Exhibit E
hereto, together with such changes thereto as the Administrative Agent may from
time to time request for the purpose of monitoring Holdings' compliance with the
financial covenants contained herein.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the Indebtedness of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the Capital Securities of any other Person. The amount of any Person's
obligation under any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of any
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Term Loan Borrower,
are treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit C to
the Pledge and Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Co-Syndication Agents" is defined in the preamble.
"Credit Extension" means, as the context may require, (i) the making of a
Loan or a Synthetic Deposit by a Lender, or (ii) the issuance of any Letter of
Credit, or the extension of any Stated Expiry Date of any existing Letter of
Credit, by an Issuer.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Defaulting Lender" means any Lender that (i) refuses (which refusal has
not been retracted prior to an Eligible Assignee agreeing to replace such Lender
as a "Lender" pursuant to Section 11.11) or has failed to make available its
portion of any Borrowing or to fund its portion of any unreimbursed obligation
under Section 2.6.1 or (ii) has notified the Borrowers or the
9
Administrative Agent in writing that such Lender does not intend to comply with
its obligations under Section 2.1.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrowers with the written consent
of the Required Lenders.
"Disregarded Subsidiaries" is defined in clause (a) of Section 7.2.6.
"Disposition" (or similar words such as "Dispose") means any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of Holdings' or
any of its Subsidiaries' assets (including the sale, transfer or other
conveyance of accounts receivable and the sale or issuance of Capital Securities
of Subsidiaries of Holdings other than pursuant to a Public Offering) to any
other Person (other than to a Borrower or a Guarantor) in a single transaction
or series of transactions.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means the office of a Lender designated as its "Domestic
Office" on Schedule II hereto or in a Lender Assignment Agreement, or such other
office within the United States as may be designated from time to time by notice
from such Lender to the Administrative Agent and the Borrowers.
"EBITDA" means, for any applicable period, the sum of
(a) Net Income;
plus
(b) to the extent deducted in determining Net Income, the sum
(without duplication) of (i) amounts attributable to amortization
(including amortization of goodwill, other intangibles, Transaction Costs,
and financing fees and related expenses), (ii) income tax expense, (iii)
Interest Expense, amortization or write off of debt discount and debt
issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness, (iv) depreciation of assets, (v) Transaction
Costs not to exceed $45,000,000, (vi) non-cash impairment charges, (vii)
non-cash expenses resulting from the grant of stock and stock options and
other compensation to management personnel of Holdings and its
Subsidiaries pursuant to a written incentive plan or agreement, and (viii)
other non-cash items that are extraordinary, unusual or otherwise
non-recurring items.
10
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) an Approved Fund; or (iv) any other Person (other than a natural Person,
the Borrowers, any Affiliate of the Borrowers or any other Person taking
direction from, or working in concert with, the Borrowers or any of the
Borrowers' Affiliates).
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to Sections of ERISA also refer to any successor Sections thereto.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess (if any), of
(a) EBITDA for such Fiscal Year;
over
(b) to the extent included in determining EBITDA for such Fiscal
Year, the sum (determined without duplication for such Fiscal Year) of (i)
Interest Expense actually paid in cash by the Term Loan Borrower and its
Subsidiaries, (ii) scheduled principal repayments, to the extent actually
made, of Term Loans pursuant to clause (c) of Section 3.1.1 (exclusive of
(x) repayments made in connection with a refinancing of any portion of
such Indebtedness and (y) voluntary repayments financed with permitted
Indebtedness), scheduled repayments, to the extent actually made, of any
other Indebtedness permitted under Section 7.2.2 and permitted to be
repaid pursuant to Section 7.2.8 (including scheduled lease or other
repayments, in connection with the Motor Vehicle Financing) and voluntary
repayments of Indebtedness permitted under Section 7.2.2 and, if
applicable, permitted to be repaid pursuant to Section 7.2.8 (excluding,
for all purposes of this clause (ii), repayments of Revolving Loans or
Swing Line Loans or similar types of Indebtedness except to the extent the
Revolving Loan Commitments or similar commitments are permanently reduced
in connection with such repayments), (iii) all income Taxes actually paid
in cash by the Term Loan Borrower and its Subsidiaries, (iv) Capital
Expenditures made in cash (exclusive of Capital Expenditures financed with
the proceeds of Indebtedness, equity issuances, casualty proceeds or other
proceeds which are not included in EBITDA), (v) cash consideration
actually paid in respect of Permitted Acquisitions or other capital
Investments permitted under Section 7.2.5 (including in real estate
assets), (vi) Restricted Payments (x) permitted under clauses (a) and (c)
of Section 7.2.6 and which are paid in cash during such period or (y)
estimated in good faith by Swift Nevada to be payable in respect of such
period, (vii) Investments in the Captive Insurance Company permitted under
clause (p) of Section 7.2.5 and (viii) amounts received as a prepayment of
principal on the
11
Shareholder Loan, to the extent such amounts are applied in accordance with
clause (i) of Section 3.1.1 and Section 3.1.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing Credit Agreement" means that certain Second Amended and Restated
Revolving Credit Agreement, dated as of December 16, 2005, between Swift
Arizona, the lenders from time to time party thereto and SunTrust Bank, as
Administrative Agent.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the confidential Amended and Restated Fee Letter, dated
February 8, 2007, among Morgan Stanley, Wachovia Securities, Wachovia Bank, J.P.
Morgan Securities, JP Morgan Chase Bank, N.A., Mr. Moyes and Holdings.
"Filing Agent" is defined in Section 5.1.13.
"Filing Statements" is defined in Section 5.1.13.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months ending
on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (e.g., the "2007 Fiscal Year") refer to the Fiscal Year ending on
December 31 of such calendar year.
"Foreign Subsidiary" means any Subsidiary that is not a U.S. Subsidiary
(including, but not limited to, any Subsidiary organized under the laws of
Puerto Rico).
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
12
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other Person exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantor" means, collectively, Holdings, each Subsidiary Guarantor and
each other Person that has guaranteed the Obligations, including Swift Nevada
with respect to the Obligations of Swift Arizona in its capacity as a Borrower
and Swift Arizona with respect to the Obligations of Swift Nevada in its
capacity as a Borrower.
"Guaranty" means, as the context requires, the guaranty issued by Holdings
pursuant to Article X or the Subsidiary Guaranty.
"Hazardous Material" means (i) any "hazardous substance", as defined by
CERCLA, (ii) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended, or (iii) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance (including any petroleum
product) within the meaning of any other applicable federal, state or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all
as amended.
"Hedging Obligations" means, with respect to any Person, all liabilities of
such Person under currency exchange agreements, interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and all other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.
"Holdings" is defined in the preamble.
"IEL" is defined in the seventh recital.
"IEL Equity Contribution" is defined in the seventh recital.
"Immaterial Subsidiary" means a Subsidiary that is not a Material
Subsidiary.
"Impermissible Qualification" means any qualification or exception to the
opinion or certification of any independent public accountant as to any
financial statement delivered hereunder (i) which is of a "going concern" or
similar nature, (ii) which relates to the limited scope of examination of
matters relevant to such financial statement, or (iii) which relates to the
treatment or classification of any Item in such financial statement and which,
as a condition to its removal, would require an adjustment to such Item the
effect of which would be to cause the Person delivering such financial statement
to be in Default.
13
"including" and "include" means including without limiting the generality
of any description preceding such term, and, for purposes of each Loan Document,
the parties hereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
"Indebtedness" of any Person means:
(a) all obligations of such Person for borrowed money or advances and
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) net Hedging Obligations of such Person;
(e) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services (excluding trade accounts payable in the ordinary
course of business which are not overdue for a period of more than 90 days
or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the
books of such Person), and indebtedness secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien on property owned or being acquired by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) obligations arising under Synthetic Leases;
(g) to the extent not otherwise included in any of the foregoing
clauses, Attributable Debt; and
(h) all Contingent Liabilities of such Person in respect of any of the
foregoing.
The Indebtedness of any Person shall include the Indebtedness of any other
Person (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such Person, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
14
"Interco Subordination Agreement" means a Subordination Agreement, in form
and substance reasonably satisfactory to the Administrative Agent, executed and
delivered by two or more Obligors pursuant to the terms of this Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as of
the date hereof and substantially in the form of Exhibit G hereto, executed and
delivered by the Second Lien Agent, the Obligors and the Administrative Agent
pursuant to the terms of this Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Interest Coverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately preceding Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the sum (for all such Fiscal Quarters) of Interest Expense;
provided that, with respect to the four consecutive Fiscal Quarter period ending
(i) December 31, 2007, Interest Expense for purposes hereof shall be actual
Interest Expense for the two Fiscal Quarter period ending December 31, 2007
multiplied by two, and (ii) March 31, 2008, Interest Expense for purposes hereof
shall be actual Interest Expense for the three Fiscal Quarter period ending
March 31, 2008 multiplied by one and one-third.
"Interest Expense" means, for any applicable period, and without
duplication for such period or among one or more prior periods, the aggregate
interest expense (both accrued and paid and net of interest income received
during such period by Holdings and its Subsidiaries, other than any interest
income resulting from payments of interest by the Rollover Purchasers on the
Shareholder Loan) of Holdings and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptances and net costs under Hedging Obligations) for such
applicable period, including the portion of any payments in respect of
Capitalized Lease Liabilities allocable to interest expense (whether or not
actually paid during such period), but excluding any amortization or write-off
of financing or other debt issuance costs otherwise included therein.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and ending on (but excluding) the day which numerically corresponds to such date
one, two, three or six months thereafter and, if available to all applicable
Lenders, nine or 12 months thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), as any Borrower may
select in its relevant notice pursuant to Section 2.3 or 2.4; provided that (i)
the Borrowers shall not be permitted to select Interest Periods to be in effect
at any one time which have expiration dates occurring on more than eight
different dates, (ii) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business Day
of a calendar month, in
15
which case such Interest Period shall end on the Business Day next preceding
such numerically corresponding day), and (iii) no Interest Period for any Loan
may end later than the Stated Maturity Date for such Loan.
"Investment" means, relative to any Person, (i) any loan, advance or
extension of credit made by such Person to any other Person, including the
purchase by such Person of any bonds, notes, debentures or other debt securities
of any other Person, (ii) Contingent Liabilities in favor of any other Person,
and (iii) any Capital Securities held by such Person in any other Person. The
amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such Investment.
"Investment Period" means, relative to any Synthetic Deposits, the period
beginning on (and including) the date on which such Synthetic Deposit is
deposited or on the last day of the preceding Investment Period and ending on
(but excluding) the day which numerically corresponds to such date one month
thereafter (or, if such month has no numerically corresponding day, on the last
Business Day of such month); provided that (i) if any such Investment Period
would otherwise end on a day which is not a Business Day, such Investment Period
shall end on the next following Business Day (unless such next following
Business Day is the first Business Day of a calendar month, in which case such
Investment Period shall end on the Business Day next preceding such numerically
corresponding day), (ii) the first Investment Period shall be comprised of the
period beginning on (and including) the Closing Date and ending on the day which
numerically corresponds to such date one month thereafter (subject to clause (i)
above) and (iii) no Investment Period may end later than the Synthetic Facility
Maturity Date.
"ISP Rules" is defined in Section 11.9.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Revolving Loan Borrower (or, in the
case of any Issuance Request delivered on or prior to the Closing Date,
Acquisition Co.), substantially in the form of Exhibit B-2 hereto.
"Issuers" means the Revolving Issuer and the Synthetic Issuer.
"J.P. Morgan Securities" is defined in the preamble.
"Lead Arrangers" is defined in the preamble.
"Lender Assignment Agreement" means an assignment agreement substantially
in the form of Exhibit D hereto.
"Lenders" is defined in the preamble and includes any Person which becomes
a Lender hereunder pursuant to a Lender Assignment Agreement.
"Lender's Environmental Liability" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages
16
(including consequential damages), disbursements or expenses of any kind or
nature whatsoever (including reasonable attorneys' fees at trial and appellate
levels and experts' fees and disbursements and expenses incurred in
investigating, defending against or prosecuting any litigation, claim or
proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against the Administrative Agent, any Lender or any Issuer or any of
such Person's Affiliates, shareholders, directors, officers, employees, and
agents in connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of Holdings or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from Holdings' or any of its Subsidiaries' or any of
their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty
contained or referred to in Section 6.12 (without regard to "knowledge" or
"materiality" qualifications or exceptions contained in such
representations or warranties);
(c) any violation or claim of violation by Holdings or any of its
Subsidiaries of any Environmental Laws; or
(d) the imposition of any Lien for damages caused by or the recovery of
any costs for the cleanup, release or threatened release of Hazardous
Material by Holdings or any of its Subsidiaries, or in connection with any
property owned or formerly owned by Holdings or any of its Subsidiaries.
"Letter of Credit" means, as the context may require, a Revolving Letter of
Credit and/or a Synthetic Letter of Credit.
"Letter of Credit Outstandings" means, as the context may require, the
Revolving Letter of Credit Outstandings and/or the Synthetic Letter of Credit
Outstandings, in each case after giving effect to the participations of the
Lenders therein pursuant to Section 2.6.1.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the ratio
of
(a) Total Debt outstanding on the last day of such Fiscal Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans, the
rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London, England
time two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, and in an amount
approximately equal to the
17
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.
"LIBOR Office" means the office of a Lender designated as its "LIBOR
Office" on Schedule II hereto or in a Lender Assignment Agreement, or such other
office designated from time to time by notice from such Lender to the Borrowers
and the Administrative Agent, whether or not outside the United States, which
shall be making or maintaining the LIBO Rate Loans of such Lender.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"LKE Program" means that certain program established by Swift Nevada and
its Subsidiaries for the disposition and exchange of trucks, trailers and other
transportation assets in exchanges intended to qualify as "like-kind exchanges"
under Section 1031 of the Code with Chicago Deferred Exchange Corporation or any
other qualified institution acting as the "qualified intermediary" (as defined
under Section 1031 of the Code or the Treasury Regulations promulgated
thereunder) for such exchanges.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Letters of Credit, each Rate Protection Agreement, the Fee Letter, the Security
Agreements, the Subsidiary
18
Guaranty, the Intercreditor Agreement, and each other agreement, certificate,
document or instrument delivered in connection with any Loan Document, whether
or not specifically mentioned herein or therein.
"Loans" means, as the context may require, a Revolving Loan, a Term Loan or
a Swing Line Loan of any type.
"Material Adverse Effect" means a material adverse effect on (i) the
business, financial condition, operations, performance or properties of any
Borrower, or of Holdings and its Subsidiaries taken as a whole; (ii) the rights
and remedies of any Secured Party under any Loan Document; or (iii) the ability
of any Obligor (other than an Immaterial Subsidiary) to perform its Obligations
under any Loan Document.
"Material Subsidiary" means, at any date of determination, any Subsidiary
of Holdings (other than a Borrower) (i) whose total assets at the last day of
the consecutive four quarter period ending on the last day of the most recent
fiscal period for which financial statements have been delivered pursuant to
clause (a) or (b) of Section 7.1.1 were equal to or greater than 5% of the
consolidated total assets of Holdings and its Subsidiaries for such date or (ii)
whose gross revenues for such consecutive four quarter period were equal to or
greater than 5% of the consolidated gross revenues of Holdings and its
Subsidiaries for such consecutive four quarter period, in each case determined
in accordance with GAAP.
"Maximum Capital Expenditures Amount" is defined in Section 7.2.7.
"Merger" is defined in the third recital.
"Merger Agreement" is defined in the third recital.
"Moody's" means Moody's Investors Service, Inc.
"Morgan Stanley" is defined in the preamble.
"Mortgage" means each mortgage, deed of trust or agreement executed and
delivered by any Obligor in favor of the Administrative Agent for the benefit of
the Secured Parties pursuant to the requirements of this Agreement in form and
substance reasonably satisfactory to the Administrative Agent, under which a
Lien is granted on the real property and fixtures described therein, in each
case as amended, supplemented, amended and restated or otherwise modified from
time to time.
"Mortgaged Property" means each parcel of real property owned by the
Borrowers or any Guarantor in the United States with a fair market value (as
determined by Swift Nevada in good faith) in excess of $1,000,000.
"Motor Vehicle Financing" means a secured debt financing (whether in the
form of a secured financing, a sale and leaseback transaction, a Capital Lease
Liability or otherwise) to be entered into by one or more U.S. Subsidiaries of
Swift Nevada collateralized by specified Motor Vehicles and related assets,
which financing (i) may include (x) one or more tranches of secured debt
financings and/or sale and leasebacks of Motor Vehicles, and (y) one or more put
options
19
exercisable by such U.S. Subsidiary that would require the lender thereunder to
purchase specified Motor Vehicles at certain times and agreed upon prices and to
lease back such Motor Vehicles to such U.S. Subsidiary at certain agreed upon
rental prices and lease terms, and (ii) shall not exceed $500,000,000 over the
term of this Agreement and the terms, conditions and documentation of which
shall be reasonably satisfactory to the Administrative Agent.
"Motor Vehicles" means motor vehicles, trailers, containers and related
equipment owned or leased by any Subsidiary of Holdings.
"Mr. Moyes" is defined in the first recital.
"Net Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any cash insurance proceeds or condemnation awards received by
Holdings, the Borrowers or any of their respective Subsidiaries in connection
with such Casualty Event, but excluding (i) any proceeds or awards required to
be paid to a creditor (other than the Lenders) which holds a first priority Lien
permitted by clause (d) of Section 7.2.3 on the property which is the subject of
such Casualty Event, (ii) any actual and reasonable costs incurred by Holdings,
the Borrowers or any of their respective Subsidiaries in connection with the
adjustment or settlement of any claims of Holdings, the Borrowers or such
Subsidiary in respect thereof, (iii) any bona fide direct expenses incurred in
connection with any Casualty Event, including income taxes (or Restricted
Payments to its shareholders with respect to such income taxes permitted to be
paid in accordance with clause (a) of Section 7.2.6) estimated in good faith by
the seller thereof to be payable as a result of any gain recognized in
connection therewith and (iv) any proceeds received as a result of a recovery
under any subrogation claim.
"Net Debt Proceeds" means with respect to any Indebtedness incurred by
Holdings or any of its Subsidiaries after the date hereof of the type specified
in clause (a) of the definition of "Indebtedness" not otherwise permitted by
Section 7.2.2, the excess of (i) the gross cash proceeds received by such Person
arising from such incurrence, over (ii) all reasonable and customary legal,
investment banking, brokerage and accounting and other professional fees, sales
commissions expenses, costs and disbursements actually incurred in connection
with such Indebtedness.
"Net Disposition Proceeds" means the gross cash proceeds received by
Holdings or any of its U.S. Subsidiaries from any Disposition (other than in
respect of (i) proceeds of a capital contribution from, or the issuance of any
Capital Securities to, the Rollover Purchasers, Holdings, the Borrowers or any
of their respective Subsidiaries, or (ii) proceeds received in respect of the
issuance of Capital Securities, warrants or options or the exercise of any such
warrants or options under any management or employee stock option plan) pursuant
to clauses (c) and (g) (in the case of clause (g), only to the extent a
prepayment is required pursuant to such clause (g)) of Section 7.2.11 and any
cash payment received in respect of promissory notes or other non-cash
consideration delivered to Holdings and its U.S. Subsidiaries in respect
thereof, minus the sum of (i) all reasonable and customary legal, investment
banking, brokerage and accounting fees and expenses incurred in connection with
such Disposition; (ii) all taxes (or Restricted Payments made by Holdings to its
shareholders with respect to such taxes permitted to be paid in accordance with
clause (a) of Section 7.2.6) actually paid or estimated by Holdings to be
payable in cash within the next 12 months in connection with such Disposition;
provided that
20
the amount of estimated taxes (or estimated Restricted Payments) in excess of
the amount of taxes actually required to be paid in cash in respect of such
Disposition within such 12-month period shall constitute Net Disposition
Proceeds; (iii) payments made by Holdings or any of its U.S. Subsidiaries to
retire Indebtedness (other than the Credit Extensions) where payment of such
Indebtedness, including any premium or penalty, is required by the terms of such
Indebtedness in connection with such Disposition; and (iv) the amount of any
reserves established to fund contingent liabilities estimated in good faith to
be payable and that are directly attributable to such event (as determined
reasonably and in good faith by the chief financial or chief accounting officer
of the Term Loan Borrower), provided that, upon any termination of any such
reserve, all amounts not paid-out in connection therewith shall be deemed to be
"Net Disposition Proceeds" of such Disposition.
"Net Equity Proceeds" means with respect to any Public Offering occurring
after the Closing Date, the excess of (i) the gross cash proceeds received by
such Person from such sale, exercise or issuance, over (ii) all reasonable and
customary underwriting commissions and legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and disbursements
actually incurred in connection with such sale, exercise or issuance which have
not been paid to Affiliates of Holdings or the Borrowers in connection
therewith.
"Net Income" means, for any period, the aggregate of all amounts (exclusive
of all amounts in respect of any extraordinary gains or extraordinary losses)
which would be included as net income in accordance with GAAP on the
consolidated financial statements of Holdings and its Subsidiaries for such
period.
"Non-Affected Replacement Lender" is defined in Section 4.11.
"Non-Excluded Taxes" means any Taxes, with respect to the Administrative
Agent, any Lender, or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, other than (i) Taxes that
are imposed on the overall net income (however denominated) and franchise Taxes
imposed in lieu thereof, (a) by any Governmental Authority under the laws of
which such Lender is organized or has its principal office or maintains its
applicable lending office or (b) by any Governmental Authority solely as a
result of a present or former connection between such recipient and the
jurisdiction of such Governmental Authority (other than any such connection
arising solely from such recipient having executed, delivered or performed its
obligations or received a payment under, or enforced, any of the Loan
Documents), (ii) any branch profits Taxes imposed by the United States or any
similar Tax imposed by any other jurisdiction in which the Borrower is located
and (iii) Taxes imposed as a result of any Lender or the Administrative Agent's
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
"Non-U.S. Lender" means any Lender that is not a "United States person", as
defined under Section 7701(a)(30) of the Code.
"Note" means, as the context may require, a Revolving Note, a Term Note, or
a Swing Line Note.
21
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under or in connection with a Loan Document, including
Reimbursement Obligations and the principal of and premium, if any, and interest
(including interest accruing during the pendency of any proceeding of the type
described in Section 8.1.9, whether or not allowed in such proceeding) on the
Loans.
"Obligor" means, as the context may require, Holdings, Acquisition Co.,
Swift Nevada, Swift Arizona, each Subsidiary Guarantor, the Rollover Purchasers
and each other Person (other than a Secured Party) obligated under any Loan
Document; provided that, with respect to the Rollover Purchasers, only the
Rollover Purchasers Pledge Agreement shall be considered a Loan Document for
purposes of this definition.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement, operating
agreement and all shareholder agreements, voting trusts and similar arrangements
applicable to any of such Obligor's Capital Securities.
"Other Taxes" means any and all stamp, documentary or similar Taxes, or any
other excise or property Taxes or similar levies that arise on account of any
payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"Participant" is defined in clause (e) of Section 11.11.
"Patent Security Agreement" means any Patent Security Agreement executed
and delivered by any Obligor in substantially the form of Exhibit A to the
Pledge and Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which the Term Loan
Borrower or any corporation, trade or business that is, along with the Term Loan
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, as the context may require, any Lender's Revolving Loan
Percentage, Synthetic Deposit Percentage or Term Percentage.
"Permitted Acquisition" means an acquisition (whether pursuant to an
acquisition of Capital Securities, assets or otherwise) by any Subsidiary of
Swift Nevada from any Person of all or substantially all of the assets of, all
of the Capital Securities of, or a business line or unit or division of such
Person in which the following conditions are satisfied:
22
(a) immediately before and after giving effect to such acquisition no
Default shall have occurred and be continuing or would result therefrom
(including under Section 7.1.8 and Section 7.2.1); and
(b) Holdings shall have delivered to the Administrative Agent a
Compliance Certificate for the period of four full Fiscal Quarters ended
immediately preceding such acquisition (prepared in good faith and in a
manner and using such methodology which is consistent with the most recent
financial statements delivered pursuant to Section 7.1.1) giving pro forma
effect to the consummation of such acquisition and evidencing compliance
with the covenants set forth in Section 7.2.4.
"Person" means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization,
Governmental Authority or any other legal entity, whether acting in an
individual, fiduciary or other capacity.
"Pledge and Security Agreement" means the pledge and security agreement
executed and delivered by an Authorized Officer of each Borrower and each
Guarantor pursuant to the terms of this Agreement, substantially in the form of
Exhibit H hereto as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Pricing Level" means the level on the table in the definition of
"Applicable Margin" corresponding to the Applicable Rating of Holdings then in
effect.
"Public Market" means, with respect to Holdings, (i) one or more Public
Offerings have been consummated and (ii) not less than 35% of the common stock
(or equivalent) of Holdings has been distributed by means of an effective
registration statement under the Securities Act of 1933, as amended.
"Public Offering" means a public offering and sale of the Capital
Securities of Holdings or any of its Subsidiaries pursuant to a prospectus,
registration statement or similar document under the Securities Act of 1933, as
amended.
"Qualified Receivables Transaction" means any Securitization Transaction of
a Receivables Subsidiary that meets the following conditions:
(i) the Board of Directors of Swift Nevada shall have determined
in good faith that such Qualified Receivables Transaction (including
financing terms, covenants, termination events and other provisions) is
in the aggregate economically fair and reasonable to Swift Nevada and
the Receivables Subsidiary;
(ii) all sales of Receivables Assets to the Receivables Subsidiary
are made at fair market value (as determined in good faith by Swift
Nevada);
(iii) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith
by Swift Nevada) and may include Standard Securitization Undertakings;
23
(iv) the consideration to be received in connection with the
transfer of Receivables Assets consists solely of cash;
(v) no Default shall have occurred and be continuing or would
result therefrom; and
(vi) the proceeds pursuant to such Qualified Receivables
Transaction are applied in accordance with Sections 3.1.1 and 3.1.2.
"Quarterly Payment Date" means the last day of March, June, September and
December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreement" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by any Subsidiary of Holdings
under which the counterparty of such agreement is (or at the time such agreement
was entered into, was) a Lender, the Administrative Agent or an Affiliate of any
thereof.
"Receivables Assets" means a right of a Person to receive payment arising
from a sale or lease of goods or the performance of services by such Person
pursuant to an arrangement with another Person pursuant to which such other
Person is obligated to pay for such goods or services under terms that permit
the purchase of such goods and services on credit and shall include, in any
event, any items of property that would be classified as an "account," "chattel
paper," "payment intangible" or "instrument" under the UCC and any supporting
obligations and any assets related thereto which are customarily transferred, or
in respect of which security interests are customarily granted, in connection
with an asset securitization transactions involving receivables, in each case so
as long as the documentation in connection therewith is reasonably satisfactory
to the Administrative Agent.
"Receivables Subsidiary" means Swift Receivables and any other direct or
indirect wholly owned Subsidiary of Swift Arizona that (i) is a special purpose
entity engaged in Qualified Receivables Transactions, (ii) engages in no
activities other than in connection with the purchase, sale or financing of
Receivables Assets and any business or activities reasonably incidental or
related thereto, (iii) is designated by the board of directors (or equivalent
governing body) of the applicable Subsidiary (as provided below) as a
Receivables Subsidiary and (iv) meets the following conditions:
(a) no portion of the Indebtedness or any other obligations (contingent
or otherwise) of such Receivables Subsidiary:
(i) is guaranteed by Holdings or any of its Subsidiaries;
(ii) is recourse to or obligates Holdings or any of its
Subsidiaries; or
(iii) subjects any property or assets of Holdings or any of its
Subsidiaries, directly or indirectly, contingently or otherwise, to the
satisfaction thereof;
24
(b) with which neither Holdings nor any of its Subsidiaries has any
material contract, agreement, arrangement or understanding (other than
Standard Securitization Undertakings); and
(c) to which neither Holdings nor any of its Subsidiaries has any
obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results.
Any such designation by the board of directors (or equivalent governing
body) of the applicable Subsidiary shall be evidenced by a certified copy of the
resolution of the board of directors (or equivalent governing body) of such
Subsidiary giving effect to such designation and an officers certificate
certifying that such designation complies with the foregoing conditions
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (a) of Section 2.7.
"Reimbursement Obligation" means a Revolving Reimbursement Obligation
and/or a Synthetic Reimbursement Obligation.
"Related Parties" is defined in Section 11.4.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in clause (h) of Section 11.11.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time, Lenders holding more than 50% of the
Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means (i) the declaration or payment of any dividend
on, or the making of any payment or distribution on account of, or setting apart
assets for a sinking or other analogous fund for the purchase, redemption,
defeasance, retirement or other acquisition of, any class of Capital Securities
of the Borrowers or any other Subsidiary or any warrants, options or other right
or obligation to purchase or acquire any such Capital Securities, whether now or
hereafter outstanding, or (ii) the making of any other distribution in respect
of such Capital Securities, in each case either directly or indirectly, whether
in cash, property or obligations of the Borrowers or any other Subsidiary or
otherwise (in the case of clause (i) and (ii) above, other than dividends or
distributions payable solely in common stock of Holdings or any Subsidiary).
"Revolving Issuer" means LaSalle Bank National Association in its capacity
as Issuer of the Revolving Letters of Credit. At the request of LaSalle Bank
National Association and with the consent of the Revolving Loan Borrower (not to
be unreasonably withheld), another Lender may issue one or more Revolving
Letters of Credit hereunder.
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"Revolving Letter of Credit" is defined in clause (a) of Section 2.1.2.
"Revolving Letter of Credit Commitment" means the Revolving Issuer's
obligation to issue Revolving Letters of Credit pursuant to Section 2.1.2 and,
with respect to each Revolving Loan Lender, such Lender's Revolving Letter of
Credit Participation Obligations.
"Revolving Letter of Credit Commitment Amount" means, on any date, a
maximum amount of $175,000,000, as such amount may be permanently reduced from
time to time pursuant to Section 2.2.
"Revolving Letter of Credit Outstandings" means, on any date, an amount
equal to the sum of (i) the then aggregate undrawn Stated Amount of all issued
and outstanding Revolving Letters of Credit, and (ii) the then aggregate amount
of all unpaid and outstanding Revolving Reimbursement Obligations.
"Revolving Letter of Credit Participation Obligation" is defined in clause
(a) of Section 2.6.1.
"Revolving Loan Borrower" means Swift Arizona.
"Revolving Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Revolving Loans pursuant to clause (a) of Section
2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $300,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of (i) the
Closing Date (if the initial Credit Extension has not occurred on or prior to
such date), (ii) the fifth anniversary of the Closing Date, (iii) the date on
which the Revolving Loan Commitment Amount is terminated in full or reduced to
zero pursuant to the terms of this Agreement, and (iv) the date on which any
Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clause (iii) or
(iv), the Revolving Loan Commitments shall terminate automatically and without
any further action.
"Revolving Loan Exposure" means, as of any date of determination, (a) prior
to the termination of the Revolving Loan Commitments, the aggregate amount of
all Revolving Loan Commitments; and (b) after the termination of the Revolving
Loan Commitments, the sum of (i) the aggregate outstanding principal amount of
all Revolving Loans and (ii) all Revolving Letter of Credit Outstandings.
"Revolving Loan Lender" is defined in clause (a) of Section 2.1.1.
"Revolving Loan Percentage" means, relative to any Lender, the applicable
percentage relating to Revolving Loans set forth opposite its name on Schedule
II hereto under the Revolving Loan Commitment column or set forth in a Lender
Assignment Agreement under the Revolving Loan Commitment column, as such
percentage may be adjusted from time to time pursuant to Lender Assignment
Agreements executed by such Lender and its Assignee Lender
26
and delivered pursuant to Section 11.11. A Lender shall not have any Revolving
Loan Commitment if its percentage under the Revolving Loan Commitment column is
zero.
"Revolving Loans" is defined in clause (a) of Section 2.1.1.
"Revolving Note" means a promissory note of the Revolving Loan Borrower
payable to any Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Revolving Loan Borrower to
such Revolving Loan Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Revolving Reimbursement Obligation" is defined in Section 2.6.3.
"Rollover Equity Investment" is defined in the fifth recital.
"Rollover Purchasers" is defined in the first recital.
"Rollover Purchasers Blocked Account" means any Account (as defined in the
Shareholder Loan Agreement) in respect of which a Shareholder Loan Control
Agreement (i) has been executed and delivered by a Rollover Purchaser, Swift
Nevada and the financial institution at which such Account is maintained and
(ii) is in full force and effect.
"Rollover Purchasers Pledge Agreement" means the pledge agreement executed
and delivered by each Rollover Purchaser (or any Person authorized to act on
behalf of any such Rollover Purchaser) pursuant to the terms of this Agreement,
substantially in the form of Exhibit I hereto as amended, supplemented, amended
and restated or otherwise modified from time to time.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Second Lien Agent" means U.S. Bank National Association in its capacity as
second lien agent for the Senior Notes Trustees and the holders of the Senior
Notes, and each of its successors and assigns.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, each counterparty to a Rate Protection Agreement that is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate thereof, each Person to whom a Borrower or a Guarantor owes Cash
Management Obligations and (in each case), each of their respective successors,
transferees and assigns.
"Securitization Transactions" means any transaction or series of
transactions entered into by Holdings or any of its Subsidiaries pursuant to
which any Person issues interests, the proceeds of which are used to finance a
discrete pool of Receivables Assets (in each case whether now existing or
arising in the future), and which may include a grant of a security interest in
any such
27
Receivables Assets (whether now existing or arising in the future) of Holdings
or any of its Subsidiaries.
"Security Agreements" means (i) the Pledge and Security Agreement, (ii) the
Rollover Purchasers Pledge Agreement and (iii) each other agreement pursuant to
which the Administrative Agent is granted a Lien to secure the Obligations.
"Senior Fixed Notes" is defined in the seventh recital.
"Senior Floating Notes" is defined in the seventh recital.
"Senior Floating Notes Trustee" is defined in the definition of "Senior
Note Indentures".
"Senior Note Documents" means the Senior Notes, the Senior Note Indentures
and all other agreements, documents and instruments executed and delivered with
respect to the Senior Notes or the Senior Note Indentures, as the same may be
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with this Agreement and the Senior Note Indenture.
"Senior Note Indentures" means, collectively, (i) the Indenture, dated the
date hereof, between the Term Loan Borrower, the Person acting as trustee
thereunder (the "Senior Floating Notes Trustee") and the guarantors named
therein, pursuant to which the Senior Floating Notes and any supplemental
issuance of "second-priority senior secured floating rate notes" thereunder are
issued, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with this Agreement and such
Senior Note Indenture and (ii) the Indenture, dated the date hereof, between the
Term Loan Borrower, the Person acting as trustee thereunder (together with the
Senior Floating Notes Trustee, the "Senior Notes Trustee") and the guarantors
named therein, pursuant to which the Senior Fixed Notes and any supplemental
issuance of "second-priority senior secured fixed rate notes" thereunder are
issued, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with this Agreement and such
Senior Note Indenture.
"Senior Notes" is defined in the seventh recital.
"Senior Notes Trustee" is defined in the definition of "Senior Note
Indentures".
"Shareholder Loan" is defined in the sixth recital.
"Shareholder Loan Agreement" means the credit agreement, dated as of the
date hereof, among the Rollover Purchasers as borrowers thereunder and Swift
Nevada as the lender thereunder, as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
the terms thereof and this Agreement.
"Shareholder Loan Control Agreement" means a tri-party blocked account
control agreement among Swift Nevada, any financial institution and any Rollover
Purchaser with respect to any Accounts (as defined in the Shareholder Loan
Agreement) pursuant to which Restricted Payments permitted pursuant to clause
(b) of Section 7.2.6 are required to be deposited.
28
"Shareholder Loan Documents" means the Shareholder Loan Agreement, the
Shareholder Loan Notes, the Shareholder Loan Pledge Agreement and all other
agreements, documents, certificates and instruments executed and delivered with
respect to the Shareholder Loan Agreement, the Shareholder Loan Notes and the
Shareholder Loan Pledge Agreement, including any Shareholder Loan Control
Agreement, in each case as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with this
Agreement and the Shareholder Loan Agreement.
"Shareholder Loan Notes" means the "Notes" as defined in the Shareholder
Loan Agreement, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with this Agreement and the Shareholder
Loan Agreement.
"Shareholder Loan Pledge Agreement" means the "Borrower Pledge Agreement"
as defined in the Shareholder Loan Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with this
Agreement and the Shareholder Loan Agreement.
"Solvent" means, with respect to any Person and its Subsidiaries on a
particular date, that on such date
(a) the fair value of the property of such Person and its Subsidiaries
on a consolidated basis is greater than the total amount of liabilities,
including contingent liabilities, of such Person and its Subsidiaries on a
consolidated basis;
(b) the present fair salable value of the assets of such Person and its
Subsidiaries on a consolidated basis is not less than the amount that will
be required to pay the probable liability of such Person and its
Subsidiaries on a consolidated basis on its debts as they become absolute
and matured;
(c) such Person does not intend to, and does not believe that it or its
Subsidiaries will, incur debts or liabilities beyond the ability of such
Person and its Subsidiaries to pay as such debts and liabilities mature;
and
(d) such Person and its Subsidiaries on a consolidated basis is not
engaged in business or a transaction, and such Person and its Subsidiaries
on a consolidated basis is not about to engage in a business or a
transaction, for which the property of such Person and its Subsidiaries on
a consolidated basis would constitute an unreasonably small capital. The
amount of Contingent Liabilities at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at such
time, can reasonably be expected to become an actual or matured liability.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by Holdings or any of its Subsidiaries
which are reasonably customary (as determined in good faith by Holdings) in a
securitization of Receivables Assets.
"Stated Amount" means, on any date and with respect to a particular Letter
of Credit, the total amount then available to be drawn under such Letter of
Credit.
29
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (i) with respect to all Term Loans, the
seventh anniversary of the Closing Date, (ii) with respect to all Revolving
Loans and Swing Line Loans, the fifth anniversary of the Closing Date and (iii)
with respect to all Synthetic Deposits, the Synthetic Facility Maturity Date.
"Subsidiary" means, with respect to any Person, any other Person of which
more than 50% of the outstanding Voting Securities of such other Person
(irrespective of whether at the time Capital Securities of any other class or
classes of such other Person shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of
such Person, or by one or more other Subsidiaries of such Person. Unless the
context otherwise specifically requires, the term "Subsidiary" shall be a
reference to a Subsidiary of Holdings. Except for purposes of Sections 6.10,
6.11, 6.12, 7.1.2 (solely with respect to compliance with applicable laws),
7.1.6 and 8.1.7 and clause (d) of Section 7.2.1, Swift Puerto Rico shall be
deemed not to be a Subsidiary of Holdings or any of its Subsidiaries for
purposes of this Agreement, any term or provision hereof to the contrary
notwithstanding.
"Subsidiary Guarantor" means each Subsidiary that has executed and
delivered to the Administrative Agent the Subsidiary Guaranty (including by
means of a delivery of a supplement thereto).
"Subsidiary Guaranty" means the subsidiary guaranty executed and delivered
by an Authorized Officer of each U.S. Subsidiary (other than the Captive
Insurance Company and any Receivables Subsidiary) pursuant to the terms of this
Agreement, substantially in the form of Exhibit F hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Swift Arizona" is defined in the preamble.
"Swift Nevada" is defined in the preamble.
"Swift Puerto Rico" means Swift Transportation of Puerto Rico, Inc.
"Swift Receivables" means Swift Receivables Corporation, a Delaware
corporation.
"Swing Line Lender" means, subject to the terms of this Agreement, Morgan
Stanley.
"Swing Line Loan" is defined in clause (b) of Section 2.1.1.
"Swing Line Loan Commitment" is defined in clause (b) of Section 2.1.1.
"Swing Line Loan Commitment Amount" means, on any date, $25,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Revolving Loan Borrower
payable to the Swing Line Lender, in the form of Exhibit A-3 hereto (as such
promissory note may be
30
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Revolving Loan Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Synthetic Account Balance" means, at any time, the aggregate amount on
deposit in the Synthetic Deposit Account excluding any interest or other
earnings or income earned or accrued thereon.
"Synthetic Deposit" is defined in clause (b) of Section 2.1.4.
"Synthetic Deposit Account" means the account established by the
Administrative Agent with the Synthetic Depository with the title "Synthetic
Lenders (Swift Transportation) Credit-Linked Deposit Account" (or similar title)
pursuant to clause (a) of Section 2.1.4.
"Synthetic Deposit Allocation" is defined in clause (a) of Section 2.1.4.
"Synthetic Deposit Amount" means, with respect to any Synthetic Lender as
of any date, an amount equal to the product of (a) such Lender's Synthetic
Deposit Percentage as of such date multiplied by (b) the Synthetic Letter of
Credit Commitment Amount as of such date.
"Synthetic Deposit Earnings" means, with respect to Synthetic Deposits and
any applicable period of time, the amount of interest or other income or
earnings actually earned and received as a result of the investment of such
Synthetic Deposits during such period (as mutually agreed between Swift Nevada
and the Synthetic Depository as provided pursuant to clause (b) of Section
2.1.4).
"Synthetic Deposit Percentage" means, relative to any Synthetic Lender, the
applicable percentage relating to Synthetic Deposits set forth opposite its name
on Schedule II hereto under the Synthetic Deposit column or set forth in a
Lender Assignment Agreement under the Synthetic Deposit column, as such
percentage may be adjusted from time to time pursuant to Lender Assignment
Agreements executed by such Lender and its assignee Lender and delivered
pursuant to Section 11.11.
"Synthetic Depository" means LaSalle Bank National Association or one or
more of its Affiliates or, if LaSalle Bank National Association or one or more
of its Affiliates shall cease to be the Synthetic Issuer, such other
institution, from time to time, as agreed by the Borrowers and the
Administrative Agent.
"Synthetic Facility Maturity Date" means the seventh anniversary of the
Closing Date.
"Synthetic Issuer" means LaSalle Bank National Association in its capacity
as issuer of the Synthetic Letters of Credit. At the request of LaSalle Bank
National Association and with the consent of the Revolving Loan Borrower (not to
be unreasonably withheld), another Lender may issue one or more Synthetic
Letters of Credit hereunder.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (i) that
31
is not a capital lease in accordance with GAAP; and (ii) in respect of which the
lessee retains or obtains ownership of the property so leased for federal income
tax purposes, other than any such lease under which that Person is the lessor.
"Synthetic Lender" means, as of any time of determination, any Lender which
has a Synthetic Deposit Percentage pursuant to Schedule II hereto or pursuant to
a Lender Assignment Agreement which, in either case, is greater than 0%.
"Synthetic Letter of Credit" is defined in clause (a) of Section 2.1.5.
"Synthetic Letter of Credit Commitment" means the Synthetic Issuer's
obligation to issue Synthetic Letters of Credit pursuant to Section 2.1.5 and,
with respect to each Synthetic Lender, such Lender's Synthetic Participation
Obligation.
"Synthetic Letter of Credit Commitment Amount" means, on any date, a
maximum of $150,000,000, as such amount may be permanently reduced from time to
time pursuant to Section 2.2.1.
"Synthetic Letter of Credit Commitment Termination Date" means the earliest
of (i) the seventh anniversary of the Closing Date, (ii) the date on which the
Synthetic Letter of Credit Commitment Amount is terminated in full or
permanently reduced to zero pursuant to the terms of this Agreement, and (iii)
the date on which any Commitment Termination Event occurs.
"Synthetic Letter of Credit Outstandings" means, on any date, an amount
equal to the sum of (i) the then aggregate Stated Amount of all issued and
outstanding Synthetic Letters of Credit and (ii) the then aggregate amount of
all unpaid and outstanding Synthetic Reimbursement Obligations.
"Synthetic Participation Fee" is defined in Section 3.3.4.
"Synthetic Participation Obligation" is defined in clause (b) of Section
2.6.1.
"Synthetic Reimbursement Obligation" is defined in Section 2.6.3.
"Taxes" means all income, stamp or other taxes, duties, levies, imposts,
charges, assessments, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
and all interest, penalties or similar liabilities with respect thereto.
"Term Loan Borrower" means, collectively, (i) at all times prior to the
Merger, Acquisition Co. and (ii) at all times on and after the Merger, Swift
Nevada.
"Term Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term Loans pursuant to Section 2.1.3.
"Term Loan Commitment Amount" means, on any date, $1,720,000,000.
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"Term Loan Commitment Termination Date" means the earliest of (i) the
Closing Date (if the Term Loans have not been made on or prior to such date),
and (ii) the Closing Date (immediately after the making of the Term Loans on
such date), and (iii) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (ii) or (iii), the Term
Loan Commitments shall terminate automatically and without any further action.
"Term Loans" is defined in Section 2.1.3.
"Term Note" means a promissory note of the Term Loan Borrower payable to
any Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Term Loan Borrower to such Lender resulting from
outstanding Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Term Percentage" means, relative to any Lender, the applicable percentage
relating to Term Loans set forth opposite its name on Schedule II hereto under
the Term Loan Commitment column or set forth in a Lender Assignment Agreement
under the Term Loan Commitment column, as such percentage may be adjusted from
time to time pursuant to Lender Assignment Agreements executed by such Lender
and its Assignee Lender and delivered pursuant to Section 11.11. A Lender shall
not have any Term Loan Commitment if its percentage under the Term Loan
Commitment column is zero.
"Termination Date" means the date on which all Obligations have been paid
in full in cash, the Synthetic Lenders have received the full amount of their
Synthetic Deposit, all Letters of Credit have been terminated or expired (or
been Cash Collateralized), all Rate Protection Agreements have been terminated
and all Commitments shall have terminated.
"Total Debt" means, on any date, (i) the outstanding principal amount of
all Indebtedness of Holdings and its Subsidiaries of the type referred to in
clause (a) (which, in the case of the Revolving Loans, shall be deemed to equal
the average daily amount of the Revolving Loans outstanding for the Fiscal
Quarter ending on or immediately preceding the date of determination), clause
(b) (which, in the case of Letter of Credit Outstandings shall (i) exclude
obligations of the type described in clause (i) of the definitions of "Revolving
Letter of Credit Outstandings" and "Synthetic Letter of Credit Outstandings", as
applicable, and (ii) be deemed to equal the average daily amount of Letter of
Credit Outstandings for the Fiscal Quarter ending on or immediately preceding
the date of determination), clause (c) (which, in the case of Capital Lease
Liabilities with respect to Motor Vehicles, shall be deemed to equal the average
daily amount of such Capital Lease Liabilities outstanding for the Fiscal
Quarter ending on or immediately preceding the date of determination), clause
(f) (which shall be deemed to equal the average daily amount of Synthetic Lease
obligations outstanding for the Fiscal Quarter ending on or immediately
preceding the date of determination) and clause (g) (which shall be deemed to
equal the average daily balance of Attributable Debt outstanding for the Fiscal
Quarter ending on or immediately preceding the date of determination), in each
case of the definition of "Indebtedness" (exclusive of intercompany Indebtedness
between and among Holdings and its Subsidiaries) and any Contingent Liability in
respect of any of the foregoing minus (ii) cash and Cash Equivalent Investments
held by Holdings and its Subsidiaries.
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"Total Exposure Amount" means, on any date of determination (and without
duplication), the sum of (i) the outstanding principal amount of all Term Loans,
plus (ii) the Revolving Loan Exposure plus (iii) the aggregate amount of all
Synthetic Deposits.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by any Obligor substantially in the form of Exhibit B to
the Pledge and Security Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Transaction Costs" is defined in the sixth recital.
"Transaction Documents" means, collectively, the Loan Documents, the Senior
Note Documents, the Merger Agreement and the documents evidencing the
Shareholder Loan and any other material document executed or delivered in
connection with the IEL Equity Contribution and the Rollover Equity Investment.
"Transactions" is defined in the seventh recital.
"Transplace Promissory Note" means the Subordinated Promissory Note, dated
January 7, 2005, in the original principal sum of $6,331,492, made by Transplace
Texas, LP in favor of Swift Transportation Co., Inc., a Nevada corporation.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York; provided that if, with respect to any Filing Statement or
by reason of any provisions of law, the perfection or the effect of perfection
or non perfection of the security interests granted to the Administrative Agent
pursuant to the applicable Loan Document is governed by the Uniform Commercial
Code as in effect in a jurisdiction of the United States other than New York,
then "UCC" means the Uniform Commercial Code as in effect from time to time in
such other jurisdiction for purposes of the provisions of each Loan Document and
any Filing Statement relating to such perfection or effect of perfection or non
perfection.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary that is incorporated or organized
under the laws of the United States, a state thereof or the District of
Columbia.
"Voting Securities" means, with respect to any Person, Capital Securities
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wachovia Bank" is defined in the preamble.
"Wachovia Securities" is defined in the preamble.
34
"Welfare Plan" means a "welfare plan", as such term is defined in Section
3(1) of ERISA.
"wholly owned Subsidiary" means any Subsidiary all of the outstanding
Capital Securities of which (other than any director's qualifying shares or
investments by foreign nationals mandated by applicable laws) is owned directly
or indirectly by Holdings.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References. Unless otherwise specified, references in a
Loan Document to any Article or Section are references to such Article or
Section of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used in each Loan Document shall be interpreted,
and all accounting determinations and computations thereunder (including under
Section 7.2.4 and the definitions used in such calculations) shall be made, in
accordance with those generally accepted accounting principles ("GAAP") applied
in the preparation of the financial statements referred to in clause (a) of
Section 5.1.7. Unless otherwise expressly provided, all financial covenants and
defined financial terms shall be computed on a consolidated basis for Holdings
and its Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.
SECTION 2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment.
From time to time on any Business Day occurring from and after the Closing Date
but prior to the Revolving Loan Commitment Termination Date,
(a) each Lender that has a Revolving Loan Commitment (referred to as a
"Revolving Loan Lender"), agrees that it will make loans (relative to such
Lender, its "Revolving Loans") to the Revolving Loan Borrower equal to such
Lender's Revolving Loan Percentage of the aggregate amount of each
Borrowing of the Revolving Loans requested by the Revolving Loan Borrower
to be made on such day; and
(b) the Swing Line Lender agrees that it will make loans (its "Swing
Line Loans") to the Revolving Loan Borrower equal to the principal amount
of the Swing Line Loan requested by the Revolving Loan Borrower to be made
on such day. The Commitment of the Swing Line Lender described in this
clause is herein referred to as its "Swing Line Loan Commitment".
35
On the terms and subject to the conditions hereof, the Revolving Loan Borrower
may from time to time borrow, prepay and reborrow Revolving Loans and Swing Line
Loans. No Revolving Loan Lender shall be permitted or required to make any
Revolving Loan if, after giving effect thereto and the use of proceeds thereof,
the aggregate outstanding principal amount of all Revolving Loans of such
Revolving Loan Lender, together with such Lender's Revolving Loan Percentage of
the aggregate amount of all Swing Line Loans and Revolving Letter of Credit
Outstandings, would exceed such Lender's Revolving Loan Percentage of the then
existing Revolving Loan Commitment Amount. Furthermore, the Swing Line Lender
shall not be permitted or required to make Swing Line Loans if, after giving
effect thereto, (i) the aggregate outstanding principal amount of all Swing Line
Loans would exceed the then existing Swing Line Loan Commitment Amount or (ii)
unless otherwise agreed to by the Swing Line Lender, in its sole discretion, the
sum of all Swing Line Loans and Revolving Loans made by the Swing Line Lender
plus the Swing Line Lender's Revolving Loan Percentage of the aggregate amount
of Revolving Letter of Credit Outstandings would exceed the Swing Line Lender's
Revolving Loan Percentage of the then existing Revolving Loan Commitment Amount.
SECTION 2.1.2. Revolving Letter of Credit Commitment. From time to time on
any Business Day occurring from the Closing Date but three days prior to the
Revolving Loan Commitment Termination Date, the relevant Revolving Issuer agrees
that it will
(a) issue one or more standby letters of credit (relative to such
Issuer, its "Revolving Letter of Credit") for the account of any Borrower
or any Subsidiary Guarantor in the Stated Amount requested by the Revolving
Loan Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby Revolving
Letter of Credit previously issued hereunder.
No Issuer shall be permitted or required to issue any Revolving Letter of Credit
if, after giving effect thereto, (i) the aggregate amount of all Revolving
Letter of Credit Outstandings would exceed the Revolving Letter of Credit
Commitment Amount or (ii) the sum of the aggregate amount of all Revolving
Letter of Credit Outstandings plus the aggregate principal amount of all
Revolving Loans and Swing Line Loans then outstanding would exceed the Revolving
Loan Commitment Amount.
SECTION 2.1.3. Term Loan Commitment. In a single Borrowing (which shall be
a Business Day) occurring on or prior to the applicable Commitment Termination
Date, each Lender that has a Term Loan Commitment agrees that it will make loans
(relative to such Lender, its "Term Loans") to the Term Loan Borrower equal to
such Lender's Term Loan Percentage of the aggregate amount of the Term Loan
Borrowing of Term Loans requested by the Borrower to be made on such day. No
amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.4. Synthetic Deposit Account. (a) On or prior to the Closing
Date, the Administrative Agent shall cause the Synthetic Deposit Account to be
established for purposes of receiving deposits made to such account by (or on
behalf of) the Synthetic Lenders as required pursuant to clause (b) of Section
2.6.1 and clause (b) of this Section in connection with the
36
purchase by such Synthetic Lenders of participation interests in Synthetic
Letters of Credit. The Administrative Agent (or any of its sub-agents or
Affiliates) shall maintain in the Register records enabling it to determine at
any time the portion of the Synthetic Deposit Account allocable to each
Synthetic Lender held in the Synthetic Deposit Account based on such Synthetic
Lender's Synthetic Deposit Percentage (such amount, as evidenced by such
records, being referred to as such Lender's "Synthetic Deposit Allocation"). The
Administrative Agent shall also maintain in the Register the Synthetic Deposit
Allocations for assignee Lenders as shall be required pursuant to Section 11.11.
No Person (other than the Administrative Agent or any of its sub-agents or
Affiliates, for the benefit of the Synthetic Issuer or otherwise) shall have the
right to make any withdrawals from the Synthetic Deposit Account or exercise any
other right or power with respect thereto, except as expressly provided in
clause (c) below. Without limiting the generality of the foregoing, each party
hereto acknowledges and agrees that (x) neither the Synthetic Deposit Account,
nor any amount on deposit at any time in the Synthetic Deposit Account, (i)
shall be the property of any Secured Party (other than the Administrative Agent
(or its applicable sub-agent or Affiliate) for the benefit of the Synthetic
Issuer) or any Obligor or (ii) shall constitute "collateral" under the Loan
Documents other than in favor of the Synthetic Issuer as cash collateral in
respect of Synthetic Participation Obligations and (y) no Obligor shall have any
right or title to, or interest in, the Synthetic Deposit Account or any amount
on deposit at any time in the Synthetic Deposit Account. In addition, each
Synthetic Lender hereby grants to Morgan Stanley & Co. Incorporated (or such
other Affiliate of the Administrative Agent or other designee from time to time
designated by the Administrative Agent) for the benefit of the Synthetic Issuer
a security interest in its rights and interests in such Synthetic Lender's
Synthetic Deposit to secure the obligations of such Synthetic Lender hereunder.
For purposes of perfecting such security interest, each Synthetic Lender hereby
instructs the Synthetic Depository as the bank in which the Synthetic Deposits
are maintained, and the Synthetic Depository hereby agrees, to follow the
instructions of Morgan Stanley & Co. Incorporated (or such other Affiliate of
the Administrative Agent or other designee from time to time designated by the
Administrative Agent) in respect of the Synthetic Deposits without further
consent by such Synthetic Lender. Each Synthetic Lender agrees that its right,
title and interest with respect to the Synthetic Deposit Account shall be
limited to the right to require its Synthetic Deposit Allocation to be used as
expressly set forth herein and that it will have no right to require the return
of its Synthetic Deposit other than as expressly provided herein (each Synthetic
Lender hereby acknowledging that its Synthetic Deposit constitutes payment for
its Synthetic Participation Obligations and that the Synthetic Issuer will be
issuing, amending, renewing and extending Synthetic Letters of Credit in
reliance on the availability of such Lender's Synthetic Deposit to discharge
such Lender's obligations in accordance with clause (c) of this Section and
Section 2.6.3). The funding of the Synthetic Deposits and the agreements with
respect thereto set forth in this Agreement constitute arrangements solely among
the Administrative Agent (including its applicable sub-agents or Affiliates),
the Synthetic Issuer and the Synthetic Lenders with respect to the funding and
reimbursement obligations of the Synthetic Lenders under this Agreement, and do
not constitute loans, extensions of credit or other financial accommodations to
any Obligor and shall not relieve the Revolving Loan Borrower of its Synthetic
Reimbursement Obligations.
(b) On the Closing Date, each Synthetic Lender shall fund to and as
directed by the Administrative Agent an amount in Dollars equal to such
Lender's Synthetic Deposit Amount for the purpose of cash collateralizing
such Synthetic Lender's Synthetic
37
Participation Obligation (each such amount being such Lender's "Synthetic
Deposit"). Upon receipt of such Synthetic Deposits on the Closing Date, the
Administrative Agent, on behalf of each Synthetic Lender, shall deposit an
amount equal to the aggregate amount of Synthetic Deposits in the Synthetic
Deposit Account. Once such Synthetic Lender has funded its Synthetic
Deposit to the Administrative Agent in full in cash, and the Administrative
Agent has made such deposit in full in cash into the Synthetic Deposit
Account, all obligations of such Synthetic Lender to reimburse the
Synthetic Issuer with respect to any draw paid by it under any Synthetic
Letter of Credit (pursuant to Section 2.6 or otherwise) shall be satisfied
in full, and such Synthetic Lender shall not have any further or other
funding obligation whatsoever hereunder in respect of any Synthetic
Reimbursement Obligations. Subject to clause (d) of this Section, upon the
deposit of each Synthetic Lender's Synthetic Deposit in the Synthetic
Deposit Account, the Synthetic Depository shall cause such Synthetic
Deposits to be invested in such instruments or other investments as
mutually agreed upon by the Synthetic Depository and Swift Nevada (and the
Synthetic Lenders and the Synthetic Issuer hereby authorize the Synthetic
Depository to create a managed investment account to invest Synthetic
Deposits and to manage investments in such account).
(c) Amounts on deposit in the Synthetic Deposit Account may be
withdrawn by (or with the written consent of) the Administrative Agent from
time to time in its reasonable determination, including, without
limitation, as follows:
(i) The Administrative Agent shall withdraw (or cause to be
withdrawn) from the Synthetic Deposit Amount the amount of Synthetic
Deposit Earnings to be paid from time to time to the Synthetic Lenders
pursuant to the last sentence of Section 3.3.4.
(ii) In the event the Borrowers do not reimburse the Synthetic
Issuer pursuant to Section 2.6.2, the Administrative Agent shall
withdraw (or cause to be withdrawn) from the Synthetic Deposit Account
the amount of such unreimbursed Disbursement (and reflect in the
Register the Synthetic Deposit Allocation of each Synthetic Lender in
the amount of such Synthetic Lender's Synthetic Deposit Percentage of
such unreimbursed Disbursement) and make such amount available to the
Synthetic Issuer, and the Synthetic Account Balance shall be reduced by
such amount.
(iii) In the event either Borrower voluntarily decides to
permanently reduce the Synthetic Letter of Credit Commitment Amount
pursuant to Section 2.2.1, the Administrative Agent shall withdraw (or
cause to be withdrawn) from the Synthetic Deposit Account an amount
equal to such reduction, and pay to each Synthetic Lender an amount
equal to the product of (A) such Lender's Synthetic Deposit Percentage
multiplied by (B) the aggregate amount of such reduction, and the
Synthetic Account Balance shall be reduced by such amount.
(iv) Upon the occurrence of the Synthetic Letter of Credit
Commitment Termination Date, all amounts in the Synthetic Deposit
Account shall be returned
38
to the Synthetic Lenders based on such Synthetic Lender's Synthetic
Deposit Percentage to the extent such amounts are not being used to
Cash Collateralize Synthetic Letter of Credit Outstandings.
(d) Notwithstanding anything to the contrary in this Agreement, neither
the Administrative Agent, nor any of its sub-agents or Affiliates (other
than in each case with respect to its own willful misconduct or gross
negligence) nor the Borrowers shall be liable for any losses due to (i) the
misappropriation of any Synthetic Deposit or Synthetic Deposit Earnings or
(ii) any delay or failure of the Synthetic Depository to distribute the
Synthetic Deposits or Synthetic Deposit Earnings or any portion thereof to
the Administrative Agent (or its sub-agent or Affiliate) or any Synthetic
Lender, as applicable (it being understood and agreed for greater certainty
that this clause shall not limit any obligation of the Borrowers hereunder
to pay any Synthetic Participation Fee). Nothing in this Agreement or any
other Loan Document shall constitute or create (nor is there any intention
to constitute or create) any guarantee by the Administrative Agent, the
Synthetic Issuer or any other Person of the amount of Synthetic Deposit
Earnings at any time, or of any rate of return on the investment of any
Synthetic Deposit held in the Synthetic Deposit Account.
(e) If the Synthetic Issuer is enjoined from taking any action referred
to in clause (c) of this Section, or if the Synthetic Issuer reasonably
determines that, by operation of law, it may reasonably be precluded or
prohibited from taking any such action, or if any Obligor or Synthetic
Lender challenges in any legal proceeding any of the acknowledgements,
agreements or characterizations set forth in any clause of this Section,
then, in any such case (and so long as such event or condition shall be
continuing), and notwithstanding anything contained herein to the contrary,
the Synthetic Issuer shall not be required to issue, renew or extend any
Synthetic Letter of Credit.
(f) In the event any payment of a Synthetic Reimbursement Obligation
shall be required to be refunded by the Synthetic Issuer to the Borrowers
after the return of the Synthetic Deposits to the Synthetic Lenders as
permitted hereunder, each Synthetic Lender agrees to acquire and fund a
participation in such refunded amount equal to the lesser of its Synthetic
Deposit Percentage thereof and the amount of its Synthetic Deposit that
shall have been so returned.
SECTION 2.1.5 Synthetic Letters of Credit. From time to time on any
Business Day occurring on or after the Closing Date but five Business Days prior
to the Synthetic Facility Maturity Date, the relevant Synthetic Issuer agrees
that it will, to the extent requested by either Borrower,
(i) issue one or more standby letters of credit (relative to such
Synthetic Issuer, its "Synthetic Letter of Credit") for the account of
the Borrowers or any Subsidiary Guarantor in the Stated Amount
requested by such Borrower on such day; or
(ii) extend the Stated Expiry Date of an existing Synthetic Letter
of Credit previously issued hereunder.
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No Synthetic Issuer shall be permitted or required to issue any Synthetic
Letter of Credit if, after giving effect thereto, (i) the aggregate amount of
all Synthetic Letter of Credit Outstandings would exceed the Synthetic Letter of
Credit Commitment Amount or (ii) the aggregate amount of all Synthetic Letter of
Credit Outstandings would exceed the Synthetic Account Balance. Each Synthetic
Letter of Credit shall provide for the payment of sight drafts, other written
demands for payment, or acceptances of usance drafts when presented for honor
thereunder in accordance with the terms thereof and when accompanied by the
documents described therein.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts
are subject to reduction from time to time as set forth below.
SECTION 2.2.1. Optional. The Revolving Loan Borrower (or either Borrower,
in the case of the Synthetic Letter of Credit Commitment Amount) may, from time
to time on any Business Day occurring after the Closing Date, voluntarily reduce
the amount of the Revolving Loan Commitment Amount, the Swing Line Loan
Commitment Amount, the Revolving Letter of Credit Commitment Amount or the
Synthetic Letter of Credit Commitment Amount on the Business Day so specified by
such Borrower; provided that, all such reductions shall require at least one
Business Day's prior notice to the Administrative Agent and be permanent, and
any partial reduction of any Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any optional or mandatory
reduction of the Revolving Loan Commitment Amount pursuant to the terms of this
Agreement which reduces the Revolving Loan Commitment Amount below the sum of
(i) the Swing Line Loan Commitment Amount and (ii) the Revolving Letter of
Credit Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Revolving Letter of
Credit Commitment Amount (as directed by the Revolving Loan Borrower in a notice
to the Administrative Agent delivered together with the notice of such voluntary
reduction in the Revolving Loan Commitment Amount) to an aggregate amount not in
excess of the Revolving Loan Commitment Amount, as so reduced, without any
further action on the part of the Swing Line Lender or any Issuer. In no event
shall the Synthetic Letter of Credit Commitment Amount be reduced to an amount
that is less than the Synthetic Letter of Credit Outstandings.
SECTION 2.3. Borrowing Procedures. Loans (other than Swing Line Loans)
shall be made by the Lenders in accordance with Section 2.3.1, Swing Line Loans
shall be made by the Swing Line Lender in accordance with Section 2.3.2 and
Synthetic Deposits shall be made by the Synthetic Lenders in accordance with
Section 2.3.3.
SECTION 2.3.1. Borrowing Procedure. In the case of Loans (other than Swing
Line Loans), by delivering a Borrowing Request to the Administrative Agent on or
before 12:00 p.m. on a Business Day, the Borrowers may from time to time
irrevocably request, on not less than one Business Day's notice in the case of
Base Rate Loans, or three Business Days' notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days' notice, that a Borrowing be
made, in the case of LIBO Rate Loans, in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000, in the case of Base Rate Loans, in a minimum
amount of $1,000,000 and an integral multiple of $500,000 or, in either case, in
the unused amount of the applicable Commitment. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type of
Loans, and shall be made on the Business Day,
40
specified in such Borrowing Request. In the case of Loans other than Swing Line
Loans, on or before 10:00 a.m. on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the Administrative
Agent shall make such funds available to the applicable Borrower by wire
transfer to the accounts such Borrower shall have specified in its Borrowing
Request. No Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan. Notwithstanding the foregoing, any Borrowing
Request with respect to any Loan required to be delivered prior to the Closing
Date may be delivered by Acquisition Co.
SECTION 2.3.2. Swing Line Loans; Participations, etc.
(a) By telephonic notice to the Swing Line Lender on or before 12:00
noon on a Business Day (followed (before the close of business on the same
Business Day) by the delivery of a confirming Borrowing Request), the
Revolving Loan Borrower may from time to time irrevocably request that
Swing Line Loans be made by the Swing Line Lender in an aggregate minimum
principal amount of $500,000 and an integral multiple of $100,000. All
Swing Line Loans shall be made as Base Rate Loans and shall not be entitled
to be converted into LIBO Rate Loans. The proceeds of each Swing Line Loan
shall be made available by the Swing Line Lender to the Revolving Loan
Borrower by wire transfer to the account the Revolving Loan Borrower shall
have specified in its notice therefor by the close of business on the
Business Day telephonic notice is received by the Swing Line Lender. Upon
the making of each Swing Line Loan, and without further action on the part
of the Swing Line Lender or any other Person, each Revolving Loan Lender
(other than the Swing Line Lender) shall be deemed to have irrevocably
purchased, to the extent of its Revolving Loan Percentage, a participation
interest in such Swing Line Loan, and such Revolving Loan Lender shall, to
the extent of its Revolving Loan Percentage, be responsible for reimbursing
within one Business Day the Swing Line Lender for Swing Line Loans which
have not been reimbursed by the Revolving Loan Borrower in accordance with
the terms of this Agreement.
(b) If (i) any Swing Line Loan shall be outstanding for more than four
Business Days, (ii) any Swing Line Loan is or will be outstanding on a date
when the Revolving Loan Borrower requests that a Revolving Loan be made, or
(iii) any Default shall occur and be continuing, then each Revolving Loan
Lender (other than the Swing Line Lender) irrevocably agrees that it will,
at the request of the Swing Line Lender, make a Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such
Lender's Revolving Loan Percentage of the aggregate principal amount of all
such Swing Line Loans then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the "Refunded Swing Line Loans"). On or before
11:00 a.m. on the first Business Day following receipt by each Revolving
Loan Lender of a request to make Revolving Loans as provided in the
preceding sentence, each Revolving Loan Lender shall deposit in an account
specified by the Swing Line Lender the amount so requested in same day
funds and such funds shall be applied by the Swing Line Lender to repay the
Refunded Swing Line Loans. At the time the Revolving Loan Lenders make
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the above referenced Revolving Loans the Swing Line Lender shall be deemed
to have made, in consideration of the making of the Refunded Swing Line
Loans, Revolving Loans in an amount equal to the Swing Line Lender's
Revolving Loan Percentage of the aggregate principal amount of the Refunded
Swing Line Loans. Upon the making (or deemed making, in the case of the
Swing Line Lender) of any Revolving Loans pursuant to this clause, the
amount so funded shall become an outstanding Revolving Loan and shall no
longer be owed as a Swing Line Loan. All interest payable with respect to
any Revolving Loans made (or deemed made, in the case of the Swing Line
Lender) pursuant to this clause shall be appropriately adjusted to reflect
the period of time during which the Swing Line Lender had outstanding Swing
Line Loans in respect of which such Revolving Loans were made. Each
Revolving Loan Lender's obligation to make the Revolving Loans referred to
in this clause shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Swing Line Lender, any Obligor or any Person for any reason whatsoever;
(ii) the occurrence or continuance of any Default; (iii) any adverse change
in the condition (financial or otherwise) of any Obligor; (iv) the
acceleration or maturity of any Obligations or the termination of any
Commitment after the making of any Swing Line Loan; (v) any breach of any
Loan Document by any Person; or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
SECTION 2.3.3. Synthetic Deposits. Either Borrower may irrevocably request
that Synthetic Deposits be made on the Closing Date by the Synthetic Lenders by
delivering a Borrowing Request to the Administrative Agent on or prior the
Closing Date.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
p.m. on a Business Day, the Borrowers may from time to time irrevocably elect,
on not less than one Business Day's notice in the case of Base Rate Loans, or
three Business Days' notice in the case of LIBO Rate Loans, and in either case
not more than five Business Days' notice, that all, or any portion in an
aggregate minimum amount of $1,000,000 and an integral multiple of $1,000,000
be, in the case of Base Rate Loans, converted into LIBO Rate Loans or be, in the
case of LIBO Rate Loans, converted into Base Rate Loans or continued as LIBO
Rate Loans (in the absence of delivery of a Continuation/Conversion Notice with
respect to any LIBO Rate Loan at least three Business Days (but not more than
five Business Days) before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); provided that (x) each such conversion or
continuation shall be pro rated among the applicable outstanding Loans of all
Lenders that have made such Loans, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO
Rate Loans when any Event of Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided that,
such LIBO Rate Loan shall nonetheless be deemed to have been made and to be held
by such Lender, and the obligation of the Borrowers to repay such LIBO Rate Loan
shall nevertheless be to such Lender for the account of such foreign branch,
Affiliate
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or international banking facility. In addition, each Borrower hereby consents
and agrees that, for purposes of any determination to be made for purposes of
Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender
elected to fund all LIBO Rate Loans by purchasing Dollar deposits in its LIBOR
Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the applicable Issuer
and the Administrative Agent an Issuance Request on or before 12:00 p.m. on a
Business Day, the applicable Borrower (or, in the case of any Issuance Request
to be delivered prior to the Closing Date, Acquisition Co.) may from time to
time irrevocably request on not less than three nor more than ten Business Days'
notice, in the case of an initial issuance of a Letter of Credit and not less
than three Business Days' prior notice, in the case of a request for the
extension of the Stated Expiry Date of a standby Letter of Credit (in each case,
unless a shorter notice period is agreed to by the Issuer, in its sole
discretion), that an Issuer issue, or extend the Stated Expiry Date of, a Letter
of Credit in such form as may be requested by such Borrower and approved by such
Issuer, solely for the purposes described in Section 7.1.7. Each Letter of
Credit shall by its terms be stated to expire on a date (its "Stated Expiry
Date") no later than the earlier to occur of (i) the Revolving Loan Commitment
Termination Date or Synthetic Letter of Credit Commitment Termination Date, as
applicable or (ii) (unless otherwise agreed to by an Issuer, in its sole
discretion) one year from the date of its issuance. Each Issuer will make
available to the beneficiary thereof the original of the Letter of Credit which
it issues.
SECTION 2.6.1. Other Lenders' Participation. (a) Upon the issuance of each
Revolving Letter of Credit, and without further action, each Revolving Loan
Lender (other than the applicable Revolving Issuer) shall be deemed to have
irrevocably purchased, to the extent of its Revolving Loan Percentage, a
participation interest in such Revolving Letter of Credit (including the
Contingent Liability and any Revolving Reimbursement Obligation with respect
thereto) (each a "Revolving Letter of Credit Participation Obligation"), and
such Revolving Loan Lender shall, to the extent of its Revolving Loan
Percentage, reimburse the applicable Revolving Issuer within one Business Day
following receipt of a notice pursuant to this Section for Revolving
Reimbursement Obligations which have not been reimbursed by the Revolving Loan
Borrower in accordance with Section 2.6.3. In addition, such Revolving Loan
Lender shall, to the extent of its Revolving Loan Percentage, be entitled to
receive a ratable portion of the Revolving Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Revolving Letter of Credit (other
than the issuance fees payable to the Revolving Issuer of such Revolving Letter
of Credit pursuant to the last sentence of Section 3.3.3) and of interest
payable pursuant to Section 3.2 with respect to any Revolving Reimbursement
Obligation. To the extent that any Revolving Loan Lender has reimbursed any
Revolving Issuer for a Disbursement, such Revolving Loan Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from the Revolving Loan Borrower or otherwise) in respect of such Disbursement.
(b) Upon the issuance of each Synthetic Letter of Credit, and without
further action, each Synthetic Lender shall be deemed to have irrevocably
purchased, to the extent of its Synthetic Deposit Percentage, a participation
interest in such Synthetic Letter of Credit (including the Contingent Liability
or Synthetic Reimbursement Obligation with respect thereto) (each, a "Synthetic
Participation Obligation"). Each Synthetic Lender's Synthetic Participation
Obligation shall be cash collateralized (as provided in Section 2.1.4), in favor
of the Synthetic Issuer, by such Synthetic Lender's Synthetic Deposit. Such
Synthetic Lender's Synthetic
43
Deposit shall be available for withdrawal by the Administrative Agent, in the
amounts contemplated by and otherwise in accordance with clause (c)(ii) of
Section 2.1.4, to reimburse the Synthetic Issuer for Synthetic Reimbursement
Obligations.
SECTION 2.6.2. Disbursements. An Issuer will notify the applicable Borrower
and the Administrative Agent promptly of the presentment for payment of any
Letter of Credit issued by such Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 p.m. on
the first Business Day following the Disbursement Date, the Borrowers will
reimburse the Administrative Agent, for the account of the applicable Issuer,
for all amounts which such Issuer has disbursed under such Letter of Credit,
together with interest thereon at a rate per annum equal to the rate per annum
then in effect for Base Rate Loans plus the then Applicable Margin for such
Loans for the period from the Disbursement Date through the date of such
reimbursement. Without limiting in any way the foregoing and notwithstanding
anything to the contrary contained herein or in any separate application for any
Letter of Credit, the Revolving Loan Borrower (in respect of Revolving Letters
of Credit) and each Borrower (in respect of Synthetic Letters of Credit) hereby
acknowledges and agrees that it shall be obligated to reimburse the applicable
Issuer upon each Disbursement of a Letter of Credit, and it shall be deemed to
be the obligor for purposes of each such Letter of Credit issued hereunder
(whether the account party on such Letter of Credit is a Borrower or a
Subsidiary Guarantor).
SECTION 2.6.3. Reimbursement. The obligation (a "Revolving Reimbursement
Obligation" in the case of a drawing under a Revolving Letter of Credit and a
"Synthetic Reimbursement Obligation" in the case of a drawing under a Synthetic
Letter of Credit) of the Borrowers under Section 2.6.2 to reimburse an Issuer
with respect to each Disbursement (including interest thereon), and, upon the
failure of the Borrowers to reimburse an Issuer, each Revolving Loan Lender's
obligation under Section 2.6.1 to pay to such Revolving Issuer its applicable
Percentage of any Disbursements and the right of the Synthetic Issuer to be paid
with amounts on deposit in the Synthetic Deposit Account pursuant to clause
(c)(ii) of Section 2.1.4, shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrowers or such Lender, as the case may be, may have or have had
against such Issuer or any Lender, including any defense based upon the failure
of any Disbursement to conform to the terms of the applicable Letter of Credit
(if, in such Issuer's good faith opinion, such Disbursement is determined to be
appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such Letter of Credit and irrespective of any withdrawal by the
Administrative Agent from the Synthetic Deposit Account to repay unreimbursed
Synthetic Reimbursement Obligations; provided that, after paying in full its
Reimbursement Obligation hereunder, nothing herein shall adversely affect the
right of the Borrowers or such Lender, as the case may be, to commence any
proceeding against an Issuer for any wrongful Disbursement made by such Issuer
under a Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of such Issuer.
SECTION 2.6.4. Deemed Disbursements. (a) Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or upon notification by the
Administrative Agent (acting at the direction of the Required Lenders) to the
Revolving Loan Borrower of its
44
obligations under this Section, following the occurrence and during the
continuation of any other Event of Default,
(i) the aggregate Stated Amount of all Revolving Letters of Credit
shall, without demand upon or notice to the Revolving Loan Borrower or
any other Person, be deemed to have been paid or disbursed by the
applicable Revolving Issuer of such Revolving Letters of Credit
(notwithstanding that such amount may not in fact have been paid or
disbursed); and
(ii) the Revolving Loan Borrower shall be immediately obligated to
reimburse such Revolving Issuer for the amount deemed to have been so
paid or disbursed by such Revolving Issuer.
(b) Upon the occurrence and during the continuation of any Default
under Section 8.1.9 or upon notification by the Administrative Agent
(acting at the direction of the Required Lenders) to either Borrower of its
obligations under this Section, following the occurrence and during the
continuation of any other Event of Default,
(i) the aggregate Stated Amount of all Synthetic Letters of Credit
shall, without demand upon or notice to either Borrower or any other
Person, be deemed to have been paid or disbursed by the applicable
Synthetic Issuer of such Synthetic Letters of Credit (notwithstanding
that such amount may not in fact have been paid or disbursed); and
(ii) the Borrowers shall be immediately obligated to reimburse
such Synthetic Issuer for the amount deemed to have been so paid or
disbursed by such Synthetic Issuer.
(c) Amounts payable by the Borrowers pursuant to this Section shall be
deposited in immediately available funds with (or at the direction of) the
Administrative Agent and held as collateral security for the Reimbursement
Obligations. When all Defaults giving rise to the deemed disbursements
under this Section have been cured or waived the Administrative Agent shall
return to the Borrowers all amounts then on deposit with the Administrative
Agent pursuant to this Section which have not been applied to the
satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrowers, each
other Obligor and, to the extent set forth in Section 2.6.1, each Revolving Loan
Lender and Synthetic Lender shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Issuer (except to
the extent of its own gross negligence or willful misconduct) shall be
responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
45
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions required
in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender hereunder. In furtherance
and not in limitation or derogation of any of the foregoing, any action taken or
omitted to be taken by an Issuer in good faith (and not constituting gross
negligence or willful misconduct) shall be binding upon each Obligor and each
such Secured Party, and shall not put such Issuer under any resulting liability
to any Obligor or any Secured Party, as the case may be.
SECTION 2.7. Register; Notes. The Register shall be maintained on the
following terms.
(a) Each Borrower hereby designates the Administrative Agent to serve
as the Borrowers' agent, solely for the purpose of this clause, to maintain
a register (the "Register") on which the Administrative Agent will record
each Lender's Commitment, the Loans made by each Lender, the Synthetic
Deposit Allocations of each Synthetic Lender, and each repayment in respect
of the principal amount of the Loans, annexed to which the Administrative
Agent shall retain a copy of each Lender Assignment Agreement delivered to
the Administrative Agent pursuant to Section 11.11. Failure to make any
recordation, or any error in such recordation, shall not affect any
Obligor's Obligations. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan or Synthetic
Deposit is registered (or, if applicable, to which a Note has been issued)
as the owner thereof for the purposes of all Loan Documents,
notwithstanding notice or any provision herein to the contrary. Any
assignment or transfer of a Commitment, the Loans or Synthetic Deposits
made pursuant hereto shall be registered in the Register only upon delivery
to the Administrative Agent of a Lender Assignment Agreement that has been
executed by the requisite parties pursuant to Section 11.11. No assignment
or transfer of a Lender's Commitment, Loans or Synthetic Deposits shall be
effective unless such assignment or transfer shall have been recorded in
the Register by the Administrative Agent as provided in this Section.
(b) Each Borrower agrees that, upon the request to the Administrative
Agent by any Lender, each Borrower will execute and deliver to such Lender
a Note evidencing the Loans made to such Borrower by, and payable to the
order of, such Lender in a
46
maximum principal amount equal to such Lender's Percentage of the original
applicable Commitment Amount. Each Borrower hereby irrevocably authorizes
each Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the
extent not inconsistent with notations made by the Administrative Agent in
the Register, be conclusive and binding on each Obligor absent manifest
error; provided that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of any Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. Each Borrower agrees
that the Loans shall be repaid and prepaid pursuant to the following terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrowers shall repay in
full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of the Loans and
refunding of the Synthetic Deposits shall or may be made as set forth below.
(a) From time to time on any Business Day,
(i) the Borrowers may make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of any Loans (other than
Swing Line Loans); provided that, if such prepayment occurs during the
period from the Closing Date through (and including) the first
anniversary of the Closing Date, the Borrowers shall have paid a
prepayment premium of 1% of the principal amount so prepaid in
connection with any voluntary prepayment of Term Loans; provided,
further, that, (A) any such prepayment of the Term Loans shall be made
pro rata among Term Loans of the same type and, if applicable, having
the same Interest Period of all Lenders that have made such Term Loans
(applied to the remaining amortization payments for the Term Loans in
such amounts as the Term Loan Borrower shall determine) and any such
prepayment of Revolving Loans shall be made pro rata among the
Revolving Loans of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Revolving Loans; (B)
all such voluntary prepayments shall, in the case of Base Rate Loans,
require at least one but no more than five Business Days' prior notice
and, in the case of LIBO Rate Loans, at least three but no more than
five Business Days' prior notice, in each case to the Administrative
Agent; and (C) all such voluntary partial prepayments shall be, in the
case of LIBO Rate Loans, in an aggregate minimum amount of $5,000,000
and an integral multiple of $1,000,000 and, in the case of Base Rate
Loans, in an aggregate minimum amount of $1,000,000 and an integral
multiple of $100,000;
47
(ii) the Borrowers may make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of any Swing Line Loans;
provided that (A) all such voluntary prepayments shall require prior
telephonic notice to the Swing Line Lender on or before 1:00 p.m. on
the day of such prepayment (such notice to be confirmed in writing
within 24 hours thereafter); and (B) all such voluntary partial
prepayments shall be in an aggregate minimum amount of $200,000 and an
integral multiple of $100,000; and
(iii) subject to clause (b)(ii) of this Section, the Borrowers may
cause all or a portion of the Synthetic Deposits to be returned to the
Synthetic Lenders by reducing the Synthetic Letter of Credit Commitment
Amount pursuant to Section 2.2.1; provided that (A) all such voluntary
reductions of the Synthetic Deposits shall require at least one but no
more than five Business Days' prior notice to the Administrative Agent,
(B) all such voluntary partial returns of the Synthetic Deposits shall
be in an aggregate minimum amount of $5,000,000 and an integral
multiple of $1,000,000 and (C) the aggregate amount of such return
pursuant to this clause (iii) shall not exceed the excess of (x) the
aggregate amount of Synthetic Deposits held in the Synthetic Deposit
Account immediately prior to such reduction, over (y) the Synthetic
Letter of Credit Commitment Amount immediately after giving effect to
such reduction.
(b) (i) On each date when the sum of (A) the aggregate outstanding
principal amount of all Revolving Loans and Swing Line Loans and (B) the
aggregate amount of all Revolving Letter of Credit Outstandings exceeds the
Revolving Loan Commitment Amount (as it may be reduced from time to time
pursuant to this Agreement), the Revolving Loan Borrower shall make a
mandatory prepayment of Revolving Loans or Swing Line Loans (or both) and,
if necessary, Cash Collateralize all Revolving Letter of Credit
Outstandings, in an aggregate amount equal to such excess.
(ii)On each date when the aggregate amount of all Synthetic Letter
of Credit Outstandings exceeds the Synthetic Account Balance or the
Synthetic Letter of Credit Commitment Amount, the Borrowers shall
immediately make a mandatory deposit in the Synthetic Deposit Account
to Cash Collateralize all Synthetic Letter of Credit Outstandings in an
aggregate amount equal to such excess.
(iii) In the event the Administrative Agent has made a withdrawal
from the Synthetic Deposit Account to repay unreimbursed Synthetic
Reimbursement Obligations, the Borrowers shall immediately make a
mandatory deposit in the Synthetic Deposit Account equal to such
withdrawn amount.
(c) On each Quarterly Payment Date commencing September 30, 2007, the
Term Loan Borrower shall make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all Term Loans in the amount equal
to (i) 0.25% of the original aggregate outstanding principal amount with
respect to each Quarterly Payment Date occurring on or prior to September
30, 2013 and (ii) 23.5% of the original aggregate
48
outstanding principal amount with respect to each Quarterly Payment Date
thereafter (with the balance due on the Stated Maturity Date).
(d) Concurrently with the receipt by Holdings or any of its
Subsidiaries of any Net Equity Proceeds, the Borrowers shall make a
mandatory prepayment of the outstanding Loans in an amount equal to 75% of
such Net Equity Proceeds, to be applied as set forth in Section 3.1.2.
(e) Concurrently with the receipt by Holdings or any of its
Subsidiaries of any Net Debt Proceeds, the Borrowers shall make a mandatory
prepayment of the Loans in an amount equal to 100% of such Net Debt
Proceeds, to be applied as set forth in Section 3.1.2.
(f) Within 5 Business Days of receipt of any Net Disposition Proceeds
or Net Casualty Proceeds by Holdings or any of its Subsidiaries, the
Borrowers shall (subject to the next proviso) deliver to the Administrative
Agent a calculation of the amount of such proceeds, and, to the extent the
aggregate amount of such proceeds received exceeds $5,000,000 in any Fiscal
Year or $25,000,000 in the aggregate since the Closing Date, the Borrowers
shall make a mandatory prepayment of the Loans in an amount equal to 100%
of such excess Net Disposition Proceeds or Net Casualty Proceeds; provided
that upon written notice by the Term Loan Borrower to the Administrative
Agent not more than 5 Business Days following receipt of any Net
Disposition Proceeds or Net Casualty Proceeds (so long as no Event of
Default has occurred and is continuing), such proceeds may be retained by
Holdings and its Subsidiaries (and be excluded from the prepayment
requirements of this clause (f)) if (i) the Term Loan Borrower informs the
Administrative Agent in such notice of its good faith intention to apply
(or cause one or more of the Subsidiary Guarantors to apply) such Net
Disposition Proceeds or Net Casualty Proceeds to the acquisition of fixed
or capital assets or properties in the U.S. consistent with the businesses
permitted to be conducted pursuant to Section 7.2.1 (including by way of
merger, acquisition or other permitted Investment pursuant to Section
7.2.5), and (ii) within 365 days following the receipt of such Net
Disposition Proceeds or Net Casualty Proceeds, such proceeds are applied to
such acquisition or are contractually committed to be applied to such
acquisition. The amount of such Net Disposition Proceeds or Net Casualty
Proceeds unused after such 365 day period (or which cease to be so
contractually committed after such period) shall be applied to prepay the
Loans as set forth in Section 3.1.2. At any time after receipt of any such
Net Disposition Proceeds or Net Casualty Proceeds in excess of $5,000,000
in any Fiscal Year or $25,000,000 in the aggregate since the Closing Date,
but prior to the application thereof to a mandatory prepayment or the
acquisition of other assets or properties as described above, upon the
request by the Administrative Agent to the Term Loan Borrower during the
continuance of a Default, the Borrowers shall deposit (or cause to be
deposited) an amount equal to such Net Disposition Proceeds into a cash
collateral account maintained with (or, at the Administrative Agent's
discretion, on behalf of) (and subject to documentation reasonably
satisfactory to) the Administrative Agent for the benefit of the Secured
Parties (and over which the Administrative Agent shall have a first
priority perfected Lien) pending application as a prepayment or to be
released as requested by the Term Loan Borrower in respect of such
acquisition. Amounts deposited in such cash collateral
49
account shall be invested in Cash Equivalent Investments, as directed by
the Term Loan Borrower.
(g) For each Fiscal Year (beginning with the close of the 2007 Fiscal
Year), not later than five days after the date on which the financial
statements of Holdings referred to in clause (b) of Section 7.1.1 for such
Fiscal Year are required to be delivered to the Lenders, the Borrowers
shall make a mandatory prepayment of the Loans in an amount equal to 75% of
the Excess Cash Flow (if any) for such Fiscal Year, less any voluntary
prepayments of Loans made during such Fiscal Year (excluding prepayments of
Revolving Loans except to the extent any such prepayment is accompanied by
a permanent reduction of the Revolving Loan Commitments), to be applied as
set forth in Section 3.1.2; provided that the amount of such prepayment
required pursuant to this clause (g) shall be reduced to an amount equal to
(i) 50% of the Excess Cash Flow (if any) for any applicable Fiscal Year if
the Leverage Ratio on the last day of the last Fiscal Quarter of such
Fiscal Year was less than or equal to 3.75:1.00 and (ii) 25% of the Excess
Cash Flow (if any) for any applicable Fiscal Year if the Leverage Ratio on
the last day of the last Fiscal Quarter of such Fiscal Year was less than
or equal to 2.75:1.00.
(h) Immediately upon any acceleration of the Stated Maturity Date of
any Loans pursuant to Section 8.2 or Section 8.3, the Borrowers shall repay
all the Loans, unless, pursuant to Section 8.3, only a portion of all the
Loans is so accelerated (in which case the portion so accelerated shall be
so repaid).
(i) Concurrently with the receipt by Holdings or any of its
Subsidiaries of any proceeds from (x) any Qualified Receivables
Transaction, (y) the Motor Vehicle Financing or (z) any prepayment of
principal on the Shareholder Loan (which in the case of clauses (x) and (y)
above shall be net of all reasonable and customary legal, investment
banking, brokerage, accounting and other professional fees, sales
commission expenses, costs and disbursements actually incurred in
connection with such transaction), the Borrowers shall make (or cause to be
made) a mandatory prepayment of the outstanding Loans in an amount equal to
100% of such proceeds, to be applied as set forth in Section 3.1.2.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by clause (a) above or Section
4.4, provided that, notwithstanding the foregoing, if a mandatory prepayment of
LIBO Rate Loans is required pursuant to clause (g) of Section 3.1.1, on a date
that is not an Interest Payment Date, the Borrowers may delay such mandatory
prepayment until the next succeeding Interest Payment Date so long as the
Borrowers deposit an amount equal to such mandatory prepayment into a cash
collateral account maintained with (or, at the Administrative Agent's
discretion, on behalf of) (and subject to documentation reasonably satisfactory
to) the Administrative Agent for the benefit of the Secured Parties ( and over
which the Administrative Agent shall have a first priority perfected Lien).
SECTION 3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1 shall
be applied as set forth in this Section.
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(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such prepayment
or repayment, first, to the principal amount thereof being maintained as
Base Rate Loans, and second, subject to the terms of Section 4.4, to the
principal amount thereof being maintained as LIBO Rate Loans.
(b) Each prepayment of the Loans made pursuant to clauses (c), (d),
(e), (f), (g) and (i) of Section 3.1.1 shall be applied (i) first, pro rata
to a mandatory prepayment of the outstanding principal amount of all Term
Loans (applied first to the next eight scheduled installments thereof in
forward chronological order and, thereafter, in inverse order to the
remaining scheduled installments, and (ii) second, once all Term Loans have
been repaid in full, to the repayment of any outstanding Revolving Loans
until paid in full, and then to Cash Collateralize Letters of Credit
Outstandings.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of the Loans shall accrue and be payable in accordance with the terms set
forth below.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrowers may elect that the
Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable Margin; provided that Swing Line Loans shall always
accrue interest at the Alternate Base Rate plus the then effective
Applicable Margin for Revolving Loans maintained as Base Rate Loans; and
(b) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Default Rates. After the date any principal amount of
any Loan, any Synthetic Participation Fee or any Reimbursement Obligation is due
and payable (whether on the Stated Maturity Date, upon acceleration or
otherwise), or after any other monetary Obligation of the Borrowers shall have
become due and payable or after the occurrence of any Event of Default described
in clauses (a) through (d) of Section 8.1.9, the Borrowers shall jointly and
severally be obligated to pay, but only to the extent permitted by law, interest
(after as well as before judgment) on such amounts at a rate per annum equal to
(i) in the case of overdue principal on any Loan or any overdue Synthetic
Participation Fee, the rate of interest that otherwise would be applicable to
such Loan or Synthetic Participation Fee plus 2% per annum; and (ii) in the case
of overdue interest, fees, and other monetary Obligations, the Alternate Base
Rate plus 2% per annum.
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SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable by the Borrowers, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan on the principal amount so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months, on
the date occurring on each three-month interval occurring after the first
day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate Loans
on a day when interest would not otherwise have been payable pursuant to
clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations after the date such
amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers, jointly and severally, agree to pay the
fees set forth below. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrowers jointly and severally agree to
pay to the Administrative Agent for the account of each Lender, for the period
(including any portion thereof when any of its Commitments are suspended by
reason of any Borrower's inability to satisfy any condition of Article V)
commencing on the Closing Date and continuing through the applicable Commitment
Termination Date, a commitment fee in an amount equal to 0.50% per annum, in
each case on such Lender's Percentage of the sum of the average daily unused
portion of the applicable Commitment Amount (net of Revolving Letter of Credit
Outstandings, in the case of the Revolving Loan Commitment Amount). All
commitment fees payable pursuant to this Section shall be calculated on a year
comprised of 360 days and payable by the Borrowers in arrears on the Closing
Date and thereafter on each Quarterly Payment Date, commencing with the first
Quarterly Payment Date following the Closing Date, and on the Revolving Loan
Commitment Termination Date. The principal amount of outstanding Swing Line
Loans shall not constitute usage of the Revolving Loan Commitment with respect
to the calculation of commitment fees to be paid by the Borrowers to the
Lenders.
SECTION 3.3.2. Administrative Agent's Fee. The Borrowers agree to pay to
the Administrative Agent, for its own account, the fees in the amounts and on
the dates set forth in the Fee Letter.
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SECTION 3.3.3. Letter of Credit Fees. The Borrowers, jointly and severally,
agree to pay to the Administrative Agent, for the pro rata account of the
applicable Revolving Issuer and each Revolving Loan Lender, a Revolving Letter
of Credit fee in a per annum amount equal to the Applicable Margin then in
effect with respect to LIBO Rate Loans, multiplied by the Stated Amount of each
such Revolving Letter of Credit, such fees being payable quarterly in arrears on
each Quarterly Payment Date following the date of issuance of each Revolving
Letter of Credit and on the Revolving Loan Commitment Termination Date. The
Borrowers, jointly and severally, further agree to pay to the applicable Issuer
quarterly in arrears on each Quarterly Payment Date following the date of
issuance of each Revolving Letter of Credit and on the Revolving Loan Commitment
Termination Date an issuance and fronting fee as agreed to by the Borrowers and
such Issuer.
SECTION 3.3.4. Synthetic Letter of Credit Fees. From the Closing Date, a
fee (the "Synthetic Participation Fee") will accrue in respect of the Synthetic
Deposits of the Synthetic Lenders, which fee shall be calculated as follows: (i)
for each relevant Investment Period for such Synthetic Deposits, the product of
(x) the Benchmark Return for such Investment Period multiplied by (y) the
average daily amount of the Synthetic Letter of Credit Commitment Amount for
such Investment Period (whether or not such Commitment is used or otherwise
available), less (ii) the amount of Synthetic Deposit Earnings for such
Investment Period. The Borrowers, jointly and severally, agree to pay the
Synthetic Participation Fee to the Administrative Agent, for the pro rata
account of the Synthetic Lenders (determined on the basis of their respective
Synthetic Deposit Amounts), without duplication, on (a) the Stated Maturity Date
for such Synthetic Deposit, (b) the date of any return of a Synthetic Deposit
pursuant to clause (a)(iii) of Section 3.1.1 on the amount of such deemed
Synthetic Deposits so returned, and (c) the last day of each Investment Period.
In addition, within two Business Days of any date set forth in the preceding
sentence, the Administrative Agent shall pay (or cause to be paid) to each
Synthetic Lender, on the same pro rata basis for any applicable Investment
Period as set forth above in this Section, the Synthetic Deposit Earnings as of
the date set forth in the preceding sentence for such Investment Period.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Term Loan Borrower and
the Administrative Agent, be conclusive and binding on the Borrowers) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that
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(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to it in its relevant market; or
(b) by reason of circumstances affecting its relevant market, adequate
means do not exist for ascertaining the interest rate applicable hereunder
to LIBO Rate Loans;
then, upon notice from the Administrative Agent to the Term Loan Borrower and
the Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans
shall forthwith be suspended until the Administrative Agent shall notify the
Term Loan Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrowers, jointly
and severally, agree to reimburse each Lender and Issuer for any increase in the
cost to such Lender or Issuer of, or any reduction in the amount of any sum
receivable by such Secured Party in respect of, such Secured Party's Commitments
and the making of Credit Extensions hereunder (including the making, continuing
or maintaining (or of its obligation to make or continue) any Loans as, or of
converting (or of its obligation to convert) any Loans into, LIBO Rate Loans) or
such Secured Party's Synthetic Deposit that arise in connection with any change
in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in after the Closing Date of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any Governmental Authority, except for such changes with respect to
increased capital costs and Taxes which are governed by Sections 4.5 and 4.6,
respectively. Each affected Secured Party shall promptly notify the
Administrative Agent and the Term Loan Borrower in writing of the occurrence of
any such event, stating the reasons therefor and the additional amount required
fully to compensate such Secured Party for such increased cost or reduced
amount. Such additional amounts shall be, jointly and severally, payable by the
Borrowers directly to such Secured Party within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrowers. Notwithstanding anything to the contrary in this
Section, the Borrowers shall not be required to compensate a Lender pursuant to
this Section for any amounts incurred more than nine months prior to the earlier
to occur of (i) the date of such Lender's annual audit for the period in which
such circumstance occurred and (ii) the date that such Lender notifies the Term
Loan Borrower of such Lender's intention to claim compensation therefor;
provided that, if the circumstances giving rise to such claim have a retroactive
effect, then such nine-month period shall be extended to include the period of
such retroactive effect.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make or
continue any portion of the principal amount of any Loan as, or to convert any
portion of the principal amount of any Loan into, a LIBO Rate Loan) as a result
of
(a) any conversion or repayment or prepayment of the principal amount
of any LIBO Rate Loan on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Article III or
otherwise;
54
(b) any Loans not being made as LIBO Rate Loans in accordance with the
Borrowing Request therefor;
(c) any Loans not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/Conversion Notice therefor; or
(d) any withdrawal of any amount from the Synthetic Deposit Account on
a date other than the scheduled last day of the then applicable Investment
Period;
then, upon the written notice of such Lender to the Term Loan Borrower (with a
copy to the Administrative Agent), the Borrowers shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense (excluding loss of anticipated profits). Such written notice shall, in
the absence of manifest error, be conclusive and binding on the Borrowers.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Secured Party or any Person controlling such Secured Party, and such Secured
Party determines (in good faith but in its sole and absolute discretion) that
the rate of return on its or such controlling Person's capital as a consequence
of the Commitments or the Credit Extensions made, or the Letters of Credit
participated in, by such Secured Party is reduced to a level below that which
such Secured Party or such controlling Person could have achieved but for the
occurrence of any such circumstance, then upon notice from time to time by such
Secured Party to the Term Loan Borrower, the Borrowers shall within five days
following receipt of such notice pay directly to such Secured Party additional
amounts sufficient to compensate such Secured Party or such controlling Person
for such reduction in rate of return; provided that each Secured Party claiming
compensation pursuant to this Section 4.5 shall deliver to Term Loan Borrower
(with a copy to the Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such compensation in
accordance with such Secured Party's standard practice and shall certify that
the claim for compensation referred to therein is generally consistent with such
Secured Party's treatment of similarly situated customers of such Secured Party
whose transactions with such Secured Party are similarly affected by the change
in circumstances giving rise to such payment, but such Secured Party shall not
be required to disclose any confidential or proprietary information therein. A
statement of such Secured Party as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers. In determining such amount, such Secured Party may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable. Notwithstanding anything to the contrary in this Section, the
Borrowers shall not be required to compensate a Lender pursuant to this Section
for any amounts incurred more than nine months prior to the earlier to occur of
(i) the date of such Lender's annual audit for the period in which such
circumstance occurred and (ii) the date that such Lender notifies the Term Loan
Borrower of such Lender's intention to claim compensation therefor; provided
that, if the circumstances giving rise to such claim have a retroactive effect,
then such nine-month period shall be extended to include the period of such
retroactive effect.
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SECTION 4.6. Taxes. Each Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrowers under each Loan Document
shall be made without setoff, counterclaim or other defense, and free and
clear of, and without deduction or withholding for or on account of, any
Taxes. In the event that any Taxes are imposed and required to be deducted
or withheld from any payment required to be made by any Obligor to or on
behalf of any Secured Party under any Loan Document, then:
(i) subject to clause (f), if such Taxes are Non-Excluded Taxes,
the amount of such payment shall be increased as may be necessary so
that such payment is made, after withholding or deduction for or on
account of such Taxes, in an amount that is not less than the amount
provided for in such Loan Document; and
(ii) the Borrowers shall withhold the full amount of such Taxes
from such payment (as increased pursuant to clause (a)(i)) and shall
pay such amount to the Governmental Authority imposing such Taxes in
accordance with applicable law.
(b) In addition, the Borrowers shall be, jointly and severally,
obligated to pay all Other Taxes imposed to the relevant Governmental
Authority imposing such Other Taxes in accordance with applicable law.
(c) As promptly as practicable after the payment of any Non-Excluded
Taxes or Other Taxes, and in any event within 45 days of any such payment
being due, the Borrowers shall furnish to the Administrative Agent a copy
of an official receipt (or a certified copy thereof) evidencing the payment
of such Non-Excluded Taxes or Other Taxes. The Administrative Agent shall
make copies thereof available to any Lender upon request therefor.
(d) Subject to clause (f), the Borrowers shall be, jointly and
severally, obligated to indemnify each Secured Party for any Non-Excluded
Taxes and Other Taxes levied, imposed or assessed on (and whether or not
paid directly by) such Secured Party whether or not such Non-Excluded Taxes
or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority. Promptly upon having knowledge that any such
Non-Excluded Taxes or Other Taxes have been levied, imposed or assessed,
and promptly upon notice thereof by any Secured Party, the Borrowers shall
be, jointly and severally, obligated to pay such Non-Excluded Taxes or
Other Taxes directly to the relevant Governmental Authority (provided that
no Secured Party shall be under any obligation to provide any such notice
to the Borrowers). In addition, the Borrowers shall be, jointly and
severally, obligated to indemnify each Secured Party for any incremental
Taxes that may become payable by such Secured Party as a result of any
failure of any Borrower to pay any Taxes when due to the appropriate
Governmental Authority or to deliver to the Administrative Agent, pursuant
to clause (c), documentation evidencing the payment of Taxes or Other
Taxes. With respect to indemnification for Non-Excluded Taxes and Other
Taxes actually paid by any Secured Party or the indemnification
56
provided in the immediately preceding sentence, such indemnification shall
be made within 30 days after the date such Secured Party makes written
demand therefor. The written demand shall include a certificate setting
forth the amount of such Taxes and, in reasonable detail, the calculation
and basis for such Tax. The Administrative Agent and any Lender pursuant to
Section 4.6 shall take all reasonable actions (consistent with its internal
policy and legal and regulatory restrictions) requested by the Borrowers to
assist the Borrowers, as the case may be, at the sole expense of the
Borrowers, to recover from the relevant taxation authority or Governmental
Authority any Taxes in respect of which amounts were paid pursuant to
clauses (a), (b) or (d) of Section 4.6; provided, however, neither the
Administrative Agent nor any Lender will be required to take any action
that would be, in the sole judgment of such Administrative Agent or such
Lender, legally inadvisable, or commercially or otherwise disadvantageous
in any respect, and in no event shall the Administrative Agent or any
Lender be required to disclose any tax returns or any other information
that, in its sole judgment of the Lender, is confidential. Each Borrower
acknowledges that any payment made to any Secured Party or to any
Governmental Authority in respect of the indemnification obligations of the
Borrowers provided in this clause shall constitute a payment in respect of
which the provisions of clause (a) and this clause shall apply.
(e) (i) Each Lender that is a United States Person, as defined in
Section 7701(a)(30) of the Code (other than Persons that are corporations
or otherwise exempt from United States backup withholding tax), on or prior
to the date on which such Lender becomes a Lender hereunder (and from time
to time thereafter upon the request of the Term Loan Borrower or the
Administrative Agent, but only for so long as such Lender is legally
entitled to do so), shall deliver to the Term Loan Borrower and the
Administrative Agent either (a) a properly completed and duly executed
United States Internal Revenue Form W-9 or any successor form, certifying
that such Person is exempt from United States backup withholding Tax on
payments made hereunder or (b) if such Lender is disregarded for federal
income tax purposes, the documents that would be required by this clause
(e) with respect to its beneficial owner if such beneficial owner were the
Lender or the Administrative Agent.
(ii) Each Non-U.S. Lender, on or prior to the date on which such
Non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of the Term Loan Borrower or the Administrative
Agent, but only for so long as such Non-U.S. Lender is legally entitled to
do so), shall deliver to the Term Loan Borrower and the Administrative
Agent either (a) in the case of a Non-U.S. Lender that is treated as a
corporation for U.S. federal income tax purposes, two duly completed copies
of either (i) Internal Revenue Service Form W-8BEN claiming eligibility of
the Non-U.S. Lender for benefits of an income tax treaty to which the
United States is a party or (ii) Internal Revenue Service Form W-8ECI, or
in either case an applicable successor form; or (b) in the case of a
Non-U.S. Lender described in clause (e)(ii)(a) above that is not legally
entitled to deliver either form listed in clause (e)(ii)(a), above (i) a
certificate to the effect that such Non-U.S. Lender is not (A) a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of any Borrower within the meaning of Section 881(c)(3)(B) of
the Code, or (C) a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the
57
Code (referred to as an "Exemption Certificate") and (ii) two duly
completed copies of Internal Revenue Service Form W-8BEN or applicable
successor form; or (c) in the case of a Non-U.S. Lender that is treated as
a partnership or other non-corporate entity for U.S. federal income tax
purposes, a complete and properly executed IRS Form W-8IMY (or any
successor forms thereto) (including all required documents and
attachments).
(f) The Borrowers shall not be obligated to pay any additional amounts
to any Lender pursuant to clause (a)(i), or to indemnify any Lender
pursuant to clause (d), in respect of United States federal withholding
taxes to the extent imposed as a result of (i) the failure of such Lender
to deliver to the Term Loan Borrower the form or forms and/or an Exemption
Certificate, as applicable to such Lender, pursuant to clause (e), (ii)
such form or forms and/or Exemption Certificate not establishing a complete
exemption from U.S. federal withholding tax on payments of interest or
Synthetic Participation Fees or the information or certifications made
therein by the Lender being untrue or inaccurate on the date delivered in
any material respect, or (iii) the Lender designating a successor lending
office at which it maintains its Loans which has the effect of causing such
Lender to become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided that, the Borrowers shall
be, jointly and severally, obligated to pay additional amounts to any such
Lender pursuant to clause (a)(i), and to indemnify any such Lender pursuant
to clause (d), in respect of United States federal withholding taxes if (i)
any such failure to deliver a form or forms or an Exemption Certificate or
the failure of such form or forms or Exemption Certificate to establish a
complete exemption from U.S. federal withholding tax or inaccuracy or
untruth contained therein resulted from a change in any applicable statute,
treaty, regulation or other applicable law or any interpretation of any of
the foregoing occurring after the Closing Date, which change rendered such
Lender no longer legally entitled to deliver such form or forms or
Exemption Certificate or otherwise ineligible for a complete exemption from
U.S. federal withholding tax, or rendered the information or certifications
made in such form or forms or Exemption Certificate untrue or inaccurate in
a material respect, (ii) the redesignation of the Lender's lending office
was made at the request of any Borrower or (iii) the obligation to pay any
additional amounts to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an
Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of any Borrower.
(g) Notwithstanding the Borrowers' right to deduct or withhold any
Non-Excluded Taxes imposed with respect to a Synthetic Participation Fee
pursuant to clause (a) of Section 4.6 and notwithstanding anything to the
contrary in this Agreement, the Administrative Agent shall have the right
to withhold the full amount of any Non-Excluded Taxes imposed and required
to be deducted or withheld from the payment of Synthetic Participation
Fees. If the Administrative Agent makes such deduction or withholding, the
Administrative Agent shall (i) pay such amount to the Governmental
Authority imposing such Taxes in accordance with applicable law, (ii) pay
such Synthetic Participation Fee net of any such deduction or withholding,
and (iii) make available upon request a copy of an official receipt (or
certified copy thereof) evidencing the payment of such Taxes to a Borrower.
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SECTION 4.7. Payments, Computations; Proceeds of Collateral, etc.
(a) Unless otherwise expressly provided in a Loan Document, all
payments by the Borrowers pursuant to each Loan Document shall be made by
the Borrowers to the Administrative Agent for the pro rata account of the
Secured Parties entitled to receive such payment. All payments shall be
made without setoff, deduction or counterclaim not later than 12:00 p.m. on
the date due in same day or immediately available funds to such account as
the Administrative Agent shall specify from time to time by notice to the
Term Loan Borrower. Funds received after that time shall be deemed to have
been received by the Administrative Agent on the next succeeding Business
Day. The Administrative Agent shall promptly remit in same day funds to
each Secured Party its share, if any, of such payments received by the
Administrative Agent for the account of such Secured Party. All interest
(including interest on LIBO Rate Loans) and fees shall be computed on the
basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (or, in the case of interest on a
Base Rate Loan (calculated at other than the Federal Funds Rate), 365 days
or, if appropriate, 366 days). Payments due on other than a Business Day
shall (except as otherwise required by clause (ii) of the proviso of the
definition of "Interest Period") be made on the next succeeding Business
Day and such extension of time shall be included in computing interest and
fees in connection with that payment.
(b) All amounts received as a result of the exercise of remedies under
the Loan Documents (including from the proceeds of collateral securing the
Obligations) or under applicable law shall be applied upon receipt to the
Obligations as follows: (i) first, to the payment of all Obligations owing
to the Administrative Agent, in its capacity as the Administrative Agent
(including the fees and expenses of counsel to the Administrative Agent),
(ii) second, after payment in full in cash of the amounts specified in
clause (b)(i), to the ratable payment of all interest (including interest
accruing after the commencement of a proceeding in bankruptcy, insolvency
or similar law, whether or not permitted as a claim under such law) and
fees owing under the Loan Documents, and all costs and expenses owing to
the Secured Parties pursuant to the terms of the Loan Documents, until paid
in full in cash, (iii) third, after payment in full in cash of the amounts
specified in clauses (b)(i) and (b)(ii), to the ratable payment of the
principal amount of the Loans then outstanding, the aggregate Reimbursement
Obligations then owing, the Cash Collateralization for Contingent
Liabilities under Letter of Credit Outstandings (and each Synthetic Lender
shall be entitled to receive its Synthetic Deposit Percentage of the
amounts in the Synthetic Deposit Account to the extent such amounts are not
being used, after giving effect to this clause, to cash collateralize
Synthetic Letter of Credit Outstandings), credit exposure owing to Secured
Parties under Rate Protection Agreements and Cash Management Obligations
owing to the Secured Parties, (iv) fourth, after payment in full in cash of
the amounts specified in clauses (b)(i) through (b)(iii), to the ratable
payment of all other Obligations owing to the Secured Parties, and (v)
fifth, after payment in full in cash of the amounts specified in clauses
(b)(i) through (b)(iv), and following the Termination Date, to each
applicable Obligor or any other Person lawfully entitled to receive such
surplus. For purposes of clause (b)(iii), "credit exposure" means, at any
time for any Secured Party with respect to a Rate Protection Agreement to
which
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such Secured Party is a party, (A) for any date on or after the date such
Rate Protection Agreement has been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (B) for
any date prior to the date referenced in preceding clause (A), the
amount(s) determined as the mark-to-market value(s) for such Rate
Protection Agreement by such Secured Party.
SECTION 4.8. Sharing of Payments. If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in
excess of its pro rata share of payments obtained by all Secured Parties, such
Secured Party shall purchase from the other Secured Parties such participations
in Credit Extensions made by them as shall be necessary to cause such purchasing
Secured Party to share the excess payment or other recovery ratably (to the
extent such other Secured Parties were entitled to receive a portion of such
payment or recovery) with each of them; provided that, if all or any portion of
the excess payment or other recovery is thereafter recovered from such
purchasing Secured Party, the purchase shall be rescinded and each Secured Party
which has sold a participation to the purchasing Secured Party shall repay to
the purchasing Secured Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Secured Party's ratable
share (according to the proportion of (a) the amount of such selling Secured
Party's required repayment to the purchasing Secured Party to (b) total amount
so recovered from the purchasing Secured Party) of any interest or other amount
paid or payable by the purchasing Secured Party in respect of the total amount
so recovered. Each Borrower agrees that any Secured Party purchasing a
participation from another Secured Party pursuant to this Section may, to the
fullest extent permitted by law, exercise all its rights of payment (including
pursuant to Section 4.9) with respect to such participation as fully as if such
Secured Party were the direct creditor of such Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law any Secured Party receives a secured claim in lieu of a setoff to which this
Section applies, such Secured Party shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Secured Parties entitled under this Section to share in the
benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Secured Party shall, upon the occurrence and
during the continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) each Borrower hereby
grants to each Secured Party a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of such Borrower then or
thereafter maintained with such Secured Party; provided that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Secured Party agrees promptly to notify the Term Loan Borrower and the
Administrative Agent after any such appropriation and application made by such
Secured Party; provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Secured Party
under this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Secured Party may
have.
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SECTION 4.10. Mitigation. Each Lender agrees that if it makes any demand
for payment under Sections 4.3, 4.5 or 4.6, it will use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, as determined in its
sole discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrowers to make payments
under Section 4.3, 4.5 or 4.6.
SECTION 4.11. Removal of Lenders. If any Lender (an "Affected Lender") (i)
makes a demand upon any Borrower for (or if any Borrower is otherwise required
to pay) amounts pursuant to Section 4.3, 4.5 or 4.6, or (ii) becomes a
Defaulting Lender, the Borrowers may, at their sole cost and expense, within 90
days of receipt by the Borrower of such demand or notice (or the occurrence of
such other event causing any Borrower to be required to pay such compensation)
or within 90 days of such Lender becoming a Defaulting Lender, as the case may
be, give notice (a "Replacement Notice") in writing to the Administrative Agent
and such Affected Lender of its intention to cause such Affected Lender to sell
all or any portion of its Loans, Commitments, Notes and/or Synthetic Deposit to
another financial institution or other Person (a "Non-Affected Replacement
Lender") designated in such Replacement Notice; provided that no Replacement
Notice may be given by the Borrowers if (A) such replacement conflicts with any
applicable law or regulation or (B) prior to any such replacement, such Lender
shall have taken any necessary action under Section 4.5 or 4.6 (if applicable)
so as to eliminate the continued need for payment of amounts owing pursuant to
Section 4.5 or 4.6 and withdrew its request for compensation under Section 4.3,
4.5 or 4.6. If the Administrative Agent shall, in the exercise of its reasonable
discretion and within 30 days of its receipt of such Replacement Notice, notify
the Term Loan Borrower and such Affected Lender in writing that the Non-Affected
Replacement Lender is reasonably satisfactory to the Administrative Agent (such
consent not being required where the Non-Affected Replacement Lender is already
a Lender), then such Affected Lender shall, subject to the payment of any
amounts due pursuant to Section 4.4, assign, in accordance with Section 11.11,
the portion of its Commitments, Loans, Notes (if any), Synthetic Deposits and
other rights and obligations under this Agreement and all other Loan Documents
(including Reimbursement Obligations, if applicable) designated in the
replacement notice to such Non-Affected Replacement Lender; provided that (A)
such assignment shall be without recourse, representation or warranty and shall
be on terms and conditions reasonably satisfactory to such Affected Lender and
such Non-Affected Replacement Lender, and (B) the purchase price paid by such
Non-Affected Replacement Lender shall be in the amount of such Affected Lender's
Loans designated in the Replacement Notice, Synthetic Deposits and/or its
Percentage of outstanding Reimbursement Obligations, as applicable, together
with all accrued and unpaid interest and fees in respect thereof, plus all other
amounts (including the amounts demanded and unreimbursed under Sections 4.3, 4.5
and 4.6), owing to such Affected Lender hereunder. Upon the effective date of an
assignment described above, the Non-Affected Replacement Lender shall become a
"Lender" for all purposes under the Loan Documents. Each Lender hereby grants to
the Administrative Agent an irrevocable power of attorney (which power is
coupled with an interest) to execute and deliver, on behalf of such Lender as
assignor, any assignment agreement necessary to effectuate any assignment of
such Lender's interests hereunder in the circumstances contemplated by this
Section.
SECTION 4.12. Application to Synthetic Participation Fees. The foregoing
provisions of this Article IV (other than Section 4.6) shall apply, mutatis
mutandis, to Synthetic
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Participation Fees as if Synthetic Participation Fees were interest on Loans and
to Synthetic Deposits as if Synthetic Deposits were LIBO Rate Loans.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders and,
if applicable, the Issuer to make the initial Credit Extension shall be subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Article.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Obligor, as applicable, (i) a copy of a good standing
certificate, dated a date reasonably close to the Closing Date, for each such
Person and (ii) a certificate, dated as of the Closing Date, duly executed and
delivered by such Person's Secretary or Assistant Secretary, managing member or
general partner, as applicable, as to
(a) resolutions of each such Person's Board of Directors (or other
managing body, in the case of entities other than a corporation) then in
full force and effect authorizing, to the extent relevant, all aspects of
the Transactions applicable to such Person and the execution, delivery and
performance of each Loan Document to be executed by such Person and the
transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its officers, managing
member or general partner, as applicable, authorized to act with respect
to each Loan Document to be executed by such Person; and
(c) the full force and validity of each Organic Document of such
Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Closing Date Certificate. The Administrative Agent shall
have received the Closing Date Certificate, dated as of the Closing Date and
duly executed and delivered by an Authorized Officer of Holdings, in which
certificate Holdings shall agree and acknowledge that the statements made
therein shall be deemed to be true and correct representations and warranties of
Holdings and its Subsidiaries as of such date, and, at the time each such
certificate is delivered, such statements shall in fact be true and correct in
all material respects. All documents and agreements (including the Transaction
Documents) required to be appended to the Closing Date Certificate shall be in
form and substance reasonably satisfactory to the Administrative Agent, shall
have been executed and delivered by the requisite parties, and shall be in full
force and effect.
SECTION 5.1.3. Consummation of Transactions. The Administrative Agent
shall have received evidence reasonably satisfactory to it that all actions
necessary to consummate the Transactions shall have been taken in accordance
with
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all applicable law and in accordance with the terms of each applicable
Transaction Document, without amendment or waiver of any material provision
thereof. The Administrative Agent shall also have received:
(a) copies of all material documentation relating to the
Transactions, including the Merger Agreement and the related schedules and
exhibits;
(b) evidence reasonably satisfactory to it that the Rollover
Purchasers have made the Rollover Equity Investment;
(c) evidence reasonably satisfactory to it that the Senior Note
Documents have been entered into and the Senior Notes have been issued in
the amount of $835,000,000 and the Administrative Agent shall be
reasonably satisfied with the terms and conditions thereof. The
Administrative Agent shall also have received duly executed copies of the
Senior Note Documents;
(d) evidence reasonably satisfactory to it that Mr. Moyes and Vickie
Moyes have made the IEL Equity Contribution;
(e) evidence reasonably satisfactory to it that the Shareholder Loan
has been or will be made simultaneously with the consummation of the other
Transactions;
(f) copies of all Shareholder Loan Documents, including the
Shareholder Loan Notes evidencing the Shareholder Loan between the
Rollover Purchasers and Swift Nevada; and
(g) evidence reasonably satisfactory to it that the Rollover
Purchasers have pledged all of the issued and outstanding Capital
Securities of Holdings owned by them to each of the Secured Parties and
Swift Nevada.
SECTION 5.1.4. Payment of Outstanding Indebtedness, etc. All Indebtedness
identified in Item 7.2.2(b) of the Disclosure Schedule, together with all
interest, all prepayment premiums and other amounts due and payable with respect
thereto, shall have been paid in full from the proceeds of the initial Credit
Extension and the commitments in respect of such Indebtedness shall have been
terminated (other than letters of credit under the Existing Credit Agreement
which will be backed by Letters of Credit), and all Liens securing payment of
any such Indebtedness shall have been released and the Administrative Agent
shall have received all Uniform Commercial Code Form UCC-3 termination
statements or other instruments as may be suitable or appropriate in connection
therewith.
SECTION 5.1.5. Intercreditor Agreement. The Administrative Agent shall
have received the Intercreditor Agreement, dated as of the Closing Date, duly
executed and delivered by the Administrative Agent, the Second Lien Agent, each
Borrower and each Guarantor.
SECTION 5.1.6. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes duly executed and delivered by an Authorized Officer of the
applicable Borrower.
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SECTION 5.1.7. Financial Information, etc. The Administrative Agent shall
have received
(a) a pro forma consolidated balance sheet and related pro forma
consolidated statements of income and cash flows of Holdings as of and for
the twelve-month period ending at the most recent fiscal quarter ending at
least 45 days prior to the Closing Date prepared after giving effect to
the Transactions as if the Transactions had occurred as of such date (in
the case of such balance sheet) or at the beginning of such period (in the
case of such other financial statements), in each case which financial
statements shall be in a form consistent with the financial statements or
forecasts previously provided to the Lead Arrangers by Swift Nevada.
(b) evidence that Swift Nevada's adjusted EBITDA for the year ended
December 31, 2006 was no less than $481,900,000.
SECTION 5.1.8. Compliance Certificate. The Administrative Agent shall have
received an initial Compliance Certificate on a pro forma basis as if the
Transactions have been consummated and the initial Credit Extension had been
made as of the first day of the Fiscal Quarter in which the Merger was
consummated and as to such items therein as the Administrative Agent reasonably
requests, dated the date of the initial Credit Extension, duly executed (and
with all schedules thereto duly completed) and delivered by the chief financial
or accounting Authorized Officer of Holdings.
SECTION 5.1.9. Solvency, etc. The Administrative Agent shall have received
a solvency certificate duly executed and delivered by the chief financial or
accounting Authorized Officer of Holdings, dated as of the Closing Date,
attesting to the solvency of Holdings, the Borrowers and the Guarantors, on a
pro forma basis, after giving effect to the Transactions, in form and substance
reasonably satisfactory to the Administrative Agent.
SECTION 5.1.10. Guarantees. The Administrative Agent shall have received
the Subsidiary Guaranty, dated as of the date hereof, duly executed and
delivered by an Authorized Officer of each U.S. Subsidiary (other than the
Captive Insurance Company or any Receivables Subsidiary).
SECTION 5.1.11. Security Agreements. The Administrative Agent shall have
received, with counterparts for each Lender, executed counterparts of the
Security Agreements, each dated as of the date hereof, duly executed and
delivered by each applicable Obligor thereunder, together with
(a) certificates (in the case of Capital Securities that are
certificated securities (as defined in the UCC)) evidencing all of the
issued and outstanding Capital Securities owned by each Obligor (i) in the
case of the Borrower and the Guarantors, in its U.S. Subsidiaries and 65%
of the issued and outstanding Voting Securities of each Foreign Subsidiary
(together with all the issued and outstanding non-voting Capital
Securities of such Foreign Subsidiary) directly owned by each Obligor, and
(ii) in the case of the Rollover Purchasers, in Holdings, which
certificates in each case shall be accompanied by undated instruments of
transfer duly executed in blank, or, for any Capital Securities
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that are uncertificated securities (as defined in the UCC), confirmation
and evidence reasonably satisfactory to the Administrative Agent that the
security interest therein has been transferred to and perfected by the
Administrative Agent for the benefit of the Secured Parties in accordance
with Articles 8 and 9 of the UCC and all laws otherwise applicable to the
perfection of the pledge of such Capital Securities.
(b) Filing Statements suitable in form for naming Acquisition Co.,
Holdings, Swift Arizona, Swift Nevada, each other Subsidiary Guarantor and
the Rollover Purchasers as a debtor and the Administrative Agent as the
secured party, or other similar instruments or documents to be filed under
the UCC of all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interests of the
Administrative Agent pursuant to such Security Agreement;
(c) UCC Form UCC-3 termination statements, if any, necessary to
release all Liens and other rights of any Person (i) in any collateral
described in any security agreement previously granted by any Person, and
(ii) securing any of the Indebtedness identified in Item 7.2.2(b) of the
Disclosure Schedule, together with such other UCC Form UCC-3 termination
statements as the Administrative Agent may reasonably request from such
Obligors; and
(d) certified copies of UCC Requests for Information or Copies (Form
UCC-11), or a similar search report, dated a date reasonably near to the
Closing Date, listing all effective financing statements which name any
Obligor (under its present name and any previous names) as the debtor,
together with copies of such financing statements (none of which shall,
except with respect to Liens permitted by Section 7.2.3, evidence a Lien
on any collateral described in any Loan Document).
SECTION 5.1.12. Intellectual Property Security Agreements. The
Administrative Agent shall have received a Patent Security Agreement, a
Copyright Security Agreement and a Trademark Security Agreement, as applicable,
each dated as of the Closing Date, duly executed and delivered by each Obligor
that, pursuant to a Security Agreement, is required to provide such intellectual
property security agreements to the Administrative Agent.
SECTION 5.1.13. Filing Agent, etc. All Uniform Commercial Code financing
statements or other similar financing statements and Uniform Commercial Code
(Form UCC-3) termination statements required pursuant to the Loan Documents
(collectively, the "Filing Statements") shall have been delivered (including by
way of electronic mail) to Corporation Service Company or another similar filing
service company acceptable to the Administrative Agent (the "Filing Agent"). The
Filing Agent shall have acknowledged in a writing satisfactory to the
Administrative Agent and its counsel (i) the Filing Agent's receipt (including
by way of electronic mail) of all Filing Statements, (ii) that the Filing
Statements have either been submitted for filing in the appropriate filing
offices or will be submitted for filing in the appropriate offices within ten
days following the Closing Date and (iii) that the Filing Agent will notify the
Administrative Agent and its counsel of the results of such submissions within
30 days following the Closing Date.
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SECTION 5.1.14. Insurance. The Administrative Agent shall have received
(i) certificates of insurance from one or more insurance companies reasonably
satisfactory to the Administrative Agent, evidencing coverage required to be
maintained pursuant to each Loan Document and endorsements naming the
Administrative Agent on behalf of the Secured Parties as loss payee or
additional insured, as applicable and (ii) certified copies of the insurance
policies (or binders in respect thereof), from one or more insurance companies
reasonably satisfactory to the Administrative Agent, evidencing coverage
required to be maintained pursuant to each Loan Document.
SECTION 5.1.15. Mortgage. The Administrative Agent shall have received
counterparts of each Mortgage with respect to each Mortgaged Property, dated as
of the date hereof, duly executed and delivered by the applicable Obligor,
together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each Mortgage with respect to
each Mortgaged Property as may be necessary or, in the opinion of the
Administrative Agent, desirable to create a valid, perfected first
priority Lien against the properties purported to be covered thereby;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent for the benefit of the Secured Parties in amounts and
in form and substance and issued by insurers, satisfactory to the
Administrative Agent, with respect to the property purported to be covered
by each such Mortgage, insuring that title to such property is marketable
and that the interests created by each such Mortgage constitute valid
first Liens thereon free and clear of all defects and encumbrances other
than as approved by the Administrative Agent, and if required by the
Administrative Agent and if available, revolving credit endorsement,
comprehensive endorsement, variable rate endorsement, access and utilities
endorsements, mechanic's lien endorsement and such other endorsements as
the Administrative Agent shall reasonably request and shall be accompanied
by evidence of the payment in full of all premiums thereon; and
(c) such other approvals, opinions, or documents as the
Administrative Agent may request in form and substance reasonably
satisfactory to the Administrative Agent including consents and estoppel
agreements from landlords, in form and substance reasonably satisfactory
to the Administrative Agent;
provided, however, that the obligation to deliver such Mortgages shall not
be a condition to the initial Credit Extension on the Closing Date, so long as
the Obligors have used commercially reasonable efforts to deliver such Mortgages
on the Closing Date and deliver such Mortgages within 60 days after the Closing
Date (or such later date as the Administrative Agent may agree).
SECTION 5.1.16. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the Closing Date and addressed to the Administrative
Agent and all Lenders, from
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(a) Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to
the Obligors, in form and substance reasonably satisfactory to the
Administrative Agent; and
(b) local counsel to the Obligors in the following jurisdictions, in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent:
(i) The Scudder Law Firm, Arizona counsel to the Obligors;
(ii) The Scudder Law Firm, Tennessee counsel to the Obligors;
(iii) Beckley Singleton, Nevada counsel to the Obligors; and
(iv) Handler, Thayer & Duggan, L.L.C., Illinois counsel to the
Obligors.
SECTION 5.1.17. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
Sections 3.3 and, if then invoiced, 11.3.
SECTION 5.1.18. Reorganization. The Administrative Agent shall have
received evidence reasonably acceptable to it indicating that the reorganization
of Swift Nevada's Subsidiaries has occurred (or will occur contemporaneously
with the consummation of the Transactions) pursuant to which (i) Swift Arizona
will become the sole direct wholly owned Subsidiary of Swift Nevada and (ii) all
of the other Subsidiaries of Swift Nevada will become direct or indirect
Subsidiaries of Swift Arizona.
SECTION 5.1.19. Patriot Act Disclosures. The Administrative Agent and each
Lender shall have received all Patriot Act disclosures reasonably requested by
them prior to execution of this Agreement.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and each
Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to the satisfaction of each of the conditions precedent set
forth below.
SECTION 5.2.1. Credit Extension Request, etc. Subject to Section 2.3.2,
the Administrative Agent shall have received a Borrowing Request if Loans are
being requested, or an Issuance Request if a Letter of Credit is being requested
or extended.
SECTION 5.2.2. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of any Obligor shall be reasonably
satisfactory in form and substance to the Administrative Agent and its counsel.
SECTION 5.3. Subsequent Credit Extensions. The obligation of each Lender
and each Issuer to make any Credit Extension other than the initial Credit
Extension on the Closing Date shall be subject to the satisfaction of the
condition precedent set forth below.
SECTION 5.3.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to such Credit Extension the following statements shall
be true and correct:
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(a) the representations and warranties set forth in each Loan
Document shall be true and correct in all material respects with the same
effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date), in each case
other than representations and warranties which are subject to a
materiality qualifier, in which case such representations and warranties
shall be (or shall have been) true and correct; and
(b) no Default shall have then occurred and be continuing.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
On the date of each Credit Extension (other than the initial Credit
Extension) each of Holdings and the Borrowers represents and warrants to each
Secured Party as set forth in this Article.
SECTION 6.1. Organization, etc. Each Obligor (other than the Rollover
Purchasers) is validly organized and existing and in good standing under the
laws of the state or jurisdiction of its incorporation or organization, is duly
qualified to do business and is in good standing as a foreign entity in each
jurisdiction where the nature of its business requires such qualification
(except in jurisdictions where the failure to be so qualified or in good
standing has not had and could not reasonably be expected to result in a
Material Adverse Effect), and each Obligor has full power and authority and
holds all requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under each Loan Document to which it is a
party, to own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Obligor of each Loan Document executed or to be
executed by it, each Obligor's participation in the consummation of all aspects
of the Transactions, and the execution, delivery and performance by Holdings,
the Borrowers or (if applicable) any other Obligor of the agreements executed
and delivered by it in connection with the Transactions (provided that with
respect to the Rollover Purchasers, such agreements shall be limited to the
Rollover Purchasers Pledge Agreement) are in each case within such Person's
powers, have been duly authorized by all necessary action, and do not
(a) contravene any (i) Obligor's Organic Documents, if applicable,
(ii) court decree or order binding on or affecting any Obligor or (iii)
law or governmental regulation binding on or affecting any Obligor; or
(b) result in (i) or require the creation or imposition of, any Lien
on (x) with respect to all Obligors other than the Rollover Purchasers,
any properties of such Obligors, or (y) in the case of the Rollover
Purchasers, the Capital Securities of Holdings owned by the Rollover
Purchasers, except (in the case of both clause (a) above and this clause
(b)) as permitted by this Agreement, or (ii) a default under any material
contractual restriction binding on or affecting any Obligor.
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SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority or other Person (other than those that have been, or on the Closing
Date will be, duly obtained or made and which are, or on the Closing Date will
be, in full force and effect) is required for the consummation of the
Transaction or the due execution, delivery or performance by any Obligor of any
Loan Document to which it is a party, or for the due execution, delivery and/or
performance of the Loan Documents, in each case by the parties thereto or the
consummation of the Transactions except, to the extent such failure to obtain
such approval or to provide such notice (other than in respect of a Governmental
Authority) could not reasonably be expected to result in a Material Adverse
Effect. Neither Holdings nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.4. Validity, etc. Each Loan Document to which any Obligor is a
party constitutes the legal, valid and binding obligations of such Obligor,
enforceable against such Obligor in accordance with their respective terms
(except, in any case, as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by principles of equity).
SECTION 6.5. Financial Information. The consolidated financial statements
of Holdings and its Subsidiaries furnished to the Administrative Agent and each
Lender pursuant to Section 5.1.7 have been prepared in accordance with GAAP
consistently applied, and present fairly in all material respects the
consolidated financial condition of the Persons covered thereby as at the dates
thereof and the results of their operations for the periods then ended. All
balance sheets, all statements of income and of cash flow and all other
financial information of Holdings and its Subsidiaries furnished pursuant to
Section 7.1.1 have been and will for periods following the Closing Date be
prepared in accordance with GAAP consistently applied with the financial
statements delivered pursuant to Section 5.1.7, and do or will present fairly in
all material respects the consolidated financial condition of the Persons
covered thereby as at the dates thereof and the results of their operations for
the periods then ended.
SECTION 6.6. No Material Adverse Change. There has been no material
adverse change in the financial condition, results of operations, performance,
business or properties, of Holdings and its Subsidiaries, taken as a whole,
since December 31, 2006.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or,
to the knowledge of Holdings or any of its Subsidiaries, threatened litigation,
action, proceeding or labor controversy (i) except as disclosed in Item 6.7 of
the Disclosure Schedule, affecting Holdings any of its Subsidiaries, or any of
their respective properties, businesses, assets or revenues, which could
reasonably be expected to have a Material Adverse Effect, and no material
adverse development has occurred in any labor controversy, litigation,
arbitration or governmental investigation or proceeding disclosed in Item 6.7 of
the Disclosure Schedule, or (ii) which purports to affect the legality, validity
or enforceability of any Loan Document, the Transaction Documents or the
Transactions.
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SECTION 6.8. Subsidiaries. Holdings has no Subsidiaries, except those
Subsidiaries which are identified in Item 6.8 of the Disclosure Schedule, or
which are permitted to have been organized or acquired in accordance with
Section 7.2.5 or 7.2.10.
SECTION 6.9. Ownership of Properties. Holdings and each of its
Subsidiaries owns (i) in the case of owned real property, good and marketable
fee title to, and (ii) in the case of owned personal property, good and valid
title to, or, in the case of leased real or personal property, valid and
enforceable leasehold interests (as the case may be) in, all of its properties
and assets, tangible and intangible, of any nature whatsoever, free and clear in
each case of all Liens or claims, except for minor defects in title that do not
materially interfere with its ability to conduct business or to utilize such
assets for their intended purposes and Liens permitted pursuant to Section
7.2.3. Set forth in Item 6.9 of the Disclosure Schedule is a true and complete
list of each Mortgaged Property.
SECTION 6.10. Taxes. Holdings and each of its Subsidiaries has filed all
tax returns and reports required by law to have been filed by it and has paid
all Taxes thereby shown to be due and owing, except any such Taxes which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the Closing Date and prior to the date
of any Credit Extension hereunder, no steps have been taken to terminate any
Pension Plan, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which might reasonably be expected to result in the incurrence by
the Borrowers or any member of the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.11 of the Disclosure Schedule,
neither any Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12
of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater)
owned or leased by Holdings or any of its Subsidiaries have been, and
continue to be, owned or leased by Holdings and its Subsidiaries in
compliance with all Environmental Laws, except to the extent the failure
to be in compliance could not reasonably be expected to result in a
Material Adverse Effect;
(b) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information received by
Holdings or any of its Subsidiaries with respect to any alleged violation
of any Environmental Law, or (ii) complaints, notices or inquiries to
Holdings or any of its Subsidiaries regarding potential liability under
any Environmental Law, in each case, that singly or in the aggregate have
had, or could reasonably be expected to have, a Material Adverse Effect;
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(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by Holdings or any of
its Subsidiaries that have, or could reasonably be expected to have, a
Material Adverse Effect;
(d) Holdings and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters, except to the extent the
non-issuance or the failure to be in compliance could not reasonably be
expected to result in a Material Adverse Effect;
(e) no property now or previously owned or leased by Holdings or any
of its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by Holdings or any of its Subsidiaries that,
singly or in the aggregate, have, or could reasonably be expected to have,
a Material Adverse Effect;
(g) neither Holdings nor any Subsidiary has directly transported or
directly arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state
list or which is the subject of federal, state or local enforcement
actions or other investigations which may lead to material claims against
Holdings or such Subsidiary for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by Holdings or
any Subsidiary that, singly or in the aggregate, have, or could reasonably
be expected to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by Holdings which, with the passage of time, or
the giving of notice or both, would give rise to liability under any
Environmental Law that singly or in the aggregate have had, or could
reasonably be expected to have, a Material Adverse Effect.
SECTION 6.13. Accuracy of Information. None of the factual information,
when taken as a whole, heretofore or contemporaneously furnished in writing to
any Secured Party by or (with the knowledge of Holdings or any Borrower) on
behalf of any Obligor (other than the Rollover Purchasers) in connection with
any Loan Document or any transaction contemplated hereby (including the
Transactions) contains, as of the date such information was furnished (and as
modified or supplemented by other information so furnished) any untrue statement
of a material fact, or omits to state any material fact necessary to make any
information not misleading, and no other factual information, when taken as a
whole, hereafter furnished in connection with any Loan Document by or (with the
knowledge of Holdings or any Borrower) on behalf of any such Obligor to any
Secured Party will contain, as of the date such information
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was furnished (and as modified or supplemented by other information so
furnished), any untrue statement of a material fact or will omit to state any
material fact necessary to make any information, when taken as a whole, not
misleading on the date as of which such information is dated or certified.
SECTION 6.14. Regulations U and X. Neither Holdings nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
buying or carrying margin stock, and no proceeds of any Credit Extensions will
be used to purchase or carry margin stock in a way which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which
meanings are provided in F.R.S. Board Regulation U or Regulation X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.15. Solvency. The Borrowers and the Guarantors, taken as a
whole, on a consolidated basis, both before and after giving effect to any
Credit Extension, are Solvent.
SECTION 6.16. Tax Status.
(a) At all times after January 17, 2007 and prior to a Public
Offering of Capital Securities of Holdings, Holdings is treated as an S
Corporation as defined under Section 1361(a)(1) of the Code for U.S.
federal income tax purposes.
(b) From and after the election by each U.S. Subsidiary of Holdings
(other than Acquisition Co. and the Captive Insurance Company) to be
treated as a S-Corporation (as defined under Section 1361(a)(1) of the
Code), in each case pursuant to Section 1362 of the Code and in accordance
with clause (c) of Section 7.1.12, until the time of a Public Offering of
Capital Securities of either Holdings, Swift Nevada or Swift Arizona, each
such U.S. Subsidiary of Holdings is treated as a Qualified Subchapter S
Subsidiary as defined under Section 1361(b)(3)(B) of the Code or otherwise
disregarded as separate from its owner for U.S. federal income tax
purposes.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Each of Holdings and the Borrower
agrees with each Lender, each Issuer and the Administrative Agent that until the
Termination Date has occurred, each of Holdings and the Borrower will, and will
cause its Subsidiaries to, perform or cause to be performed the obligations set
forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. Holdings will
furnish to the Administrative Agent (and the Administrative Agent will make
available to each Lender) copies of the following financial statements, reports,
notices and information:
(a) within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year (or (i) if Holdings is required to file such
information on a Form 10-Q with the SEC, promptly following such filing or
(ii) in the case of the Fiscal Quarter ended March 31, 2007, on or prior
to July 1, 2007), an unaudited consolidated balance sheet of Holdings and
its Subsidiaries as of the end of such Fiscal Quarter and
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consolidated statements of income and cash flow of Holdings and its
Subsidiaries for such Fiscal Quarter and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter (which, in the case of the Fiscal Quarter ending June 30, 2007,
shall be in a form consistent with the financial statements provided by
Swift Nevada on its Form 8-K for the Fiscal Quarter ended March 31, 2007),
and including (in each case), in comparative form the figures for the
corresponding Fiscal Quarter in, and year to date portion of, the
immediately preceding Fiscal Year, certified as complete and correct by
the chief financial or accounting Authorized Officer of Holdings (subject
to normal year-end audit adjustments); provided that, with respect to the
financial information required under this clause (a) for the period ending
June 30, 2007 which was not otherwise provided as set forth above, such
financial information will be delivered on or before August 29, 2007;
(b) within 90 days after the end of each Fiscal Year, a copy of the
consolidated balance sheet of Holdings and its Subsidiaries, and the
related consolidated statements of income and cash flow of Holdings and
its Subsidiaries for such Fiscal Year (or if Holdings is required to file
such information on a Form 10-K with the SEC, promptly following such
filing), setting forth in comparative form the figures for the immediately
preceding Fiscal Year which (i) shall be audited (without any
Impermissible Qualification) by independent public accountants reasonably
acceptable to the Administrative Agent, and (ii) shall include a
calculation of the financial covenants set forth in Section 7.2.4 and
state that, in performing the examination necessary to deliver the audited
financial statements of Holdings, as of the date of delivery, no knowledge
was obtained of any Event of Default; provided that financial statements
for Fiscal Year 2007 will include separate audited statements for IEL for
the period from January 1, 2007 to the Closing Date, separate audited
consolidated financial statements of Swift Nevada and its Subsidiaries for
the period from January 1, 2007 to the Closing Date, and consolidated
financial statements of Holdings from the Closing Date to December 31,
2007; and provided further that, comparative financial information for
Fiscal Year 2007 to other years will be provided by Holdings in an
unaudited pro forma presentation only;
(c) concurrently with the delivery of the financial information
pursuant to clauses (a) and (b) (commencing with the delivery of the
financial information pursuant to clause (b) for the Fiscal Year ending
December 31, 2007), a Compliance Certificate, executed by the chief
financial or accounting Authorized Officer of Holdings, (i) showing
compliance with the financial covenants set forth in Section 7.2.4 and
stating that no Default has occurred and is continuing (or, if a Default
has occurred, specifying the details of such Default and the action that
Holdings or an Obligor has taken or proposes to take with respect
thereto), (ii) stating that no Subsidiary has been formed or acquired
since the delivery of the last Compliance Certificate (or, if a Subsidiary
has been formed or acquired since the delivery of the last Compliance
Certificate, a statement that such Subsidiary has complied with Section
7.1.8), (iii) indicating (x) the amounts of any Net Disposition Proceeds,
Net Casualty Proceeds, Net Equity Proceeds, Net Debt Proceeds or net
proceeds to be applied pursuant to clause (i) of Section 3.1.1 and (y) in
the case of any Net Disposition Proceeds or Net Casualty Proceeds, the
amounts of any such proceeds being retained by the applicable Obligors
pursuant to clause (f) of Section 3.1.1 and the time period within which
such proceeds are to be applied, (iv) indicating any
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changes to the Schedules to any Security Agreement provided pursuant to
the terms of such Security Agreement, (v) providing the information
required with respect to Motor Vehicles required under clause (a)(i) of
Section 4.6 of the Pledge and Security Agreement and (vi) in the case of a
Compliance Certificate delivered concurrently with the financial
information pursuant to clause (b), including a calculation of Excess Cash
Flow;
(d) as soon as available and in any event no later than the date the
annual financial statements are delivered pursuant to clause (b), an
annual budget, prepared on a quarterly basis for such Fiscal Year and
containing consolidated projected financial statements (including balance
sheets and statements of operations and cash flows) of Holdings and its
Subsidiaries, in substantially the form of the projections previously
delivered to the Administrative Agent;
(e) as soon as possible and in any event within three days after
Holdings or any other Obligor obtains knowledge of the occurrence of a
Default, a statement of an Authorized Officer of Holdings or the Term Loan
Borrower setting forth details of such Default and the action which
Holdings or such Obligor has taken and proposes to take with respect
thereto;
(f) as soon as possible and in any event within three days after
Holdings or any other Obligor obtains knowledge of (i) the occurrence of
any material adverse development with respect to any litigation, action,
proceeding or labor controversy described in Item 6.7 of the Disclosure
Schedule or (ii) the commencement of any litigation, action, proceeding or
labor controversy of the type and materiality described in Section 6.7,
notice thereof and, to the extent the Administrative Agent requests,
copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all
reports, notices, prospectuses and registration statements which any
Obligor files with the SEC or any national securities exchange;
(h) promptly upon becoming aware of (i) the institution of any steps
by any Person to terminate any Pension Plan, (ii) the failure to make a
required contribution to any Pension Plan if such failure is sufficient to
give rise to a Lien under Section 302(f) of ERISA, (iii) the taking of any
action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC
or such Pension Plan, or (iv) the occurrence of any event with respect to
any Pension Plan which could result in the incurrence by any Obligor of
any material liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;
(i) promptly upon receipt thereof, copies of all "management
letters" submitted to Holdings or any other Obligor by the independent
public accountants referred to in clause (b) in connection with each audit
made by such accountants;
(j) promptly following the mailing or receipt of any notice or
report delivered under the terms of the Senior Note Documents or the
Shareholder Loan Documents, copies of such notice or report;
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(k) all PATRIOT Act Disclosures, to the extent reasonably requested
by the Administrative Agent or any Lender; and
(l) such other financial and other information as any Lender or
Issuer through the Administrative Agent may from time to time reasonably
request (including information and reports in such detail as the
Administrative Agent may reasonably request (i) with respect to the terms
of and information provided pursuant to the Compliance Certificate and
(ii) from Swift Nevada, with respect to the Rollover Purchasers to the
extent Swift Nevada has the right under the Shareholder Loan Documents to
request such information and reports).
SECTION 7.1.2. Maintenance of Existence; Compliance with Contracts, Laws,
etc. Holdings will, and will cause each of its Subsidiaries to, preserve and
maintain its legal existence (except as otherwise permitted by Section 7.2.10),
perform in all material respects their obligations under material agreements to
which Holdings or a Subsidiary is a party, and comply in all material respects
with all applicable laws, rules, regulations and orders, including the payment
(before the same become delinquent), of all Taxes, imposed upon Holdings or its
Subsidiaries or upon their property except to the extent being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP have been set aside on the books of Holdings or
its Subsidiaries, as applicable.
SECTION 7.1.3. Maintenance of Properties. Holdings will, and will cause
each of its Subsidiaries to, maintain, preserve, protect and keep its and their
respective properties in good repair, working order and condition (ordinary wear
and tear excepted), and make necessary repairs, renewals and replacements so
that the business carried on by Holdings and its Subsidiaries may be properly
conducted at all times, unless Holdings or such Subsidiary determines in good
faith that the continued maintenance of such property is no longer economically
desirable, necessary or useful to the business of Holdings or any of its
Subsidiaries or the Disposition of such property is otherwise permitted by
Section 7.2.10 or 7.2.11.
SECTION 7.1.4. Insurance. Holdings will, and will cause each of its
Subsidiaries to maintain:
(a) insurance on its property with financially sound and reputable
insurance companies against loss and damage in at least the amounts (and
with only those deductibles), and against such risks as are consistent
with past practices of Holdings and its Subsidiaries; and
(b) all worker's compensation, employer's liability insurance or
similar insurance as may be required under the laws of any state or
jurisdiction in which it may be engaged in business.
Without limiting the foregoing, all insurance policies required pursuant
to this Section shall (i) name the Administrative Agent on behalf of the Secured
Parties as mortgagee (in the case of property insurance) or additional insured
(in the case of liability insurance), as applicable, and provide that no
cancellation or modification of the policies will be made without
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thirty days' prior written notice to the Administrative Agent and (ii) be in
addition to any requirements to maintain specific types of insurance contained
in the other Loan Documents.
SECTION 7.1.5. Books and Records. Holdings will, and will cause each of
its Subsidiaries to, keep books and records in accordance with GAAP which
accurately reflect all of its business affairs and transactions in all material
respects and permit the Administrative Agent, and during the continuance of an
Event of Default, each other Secured Party or any of their respective
representatives, at reasonable times during normal business hours and intervals
upon reasonable notice to Holdings, to visit Holdings', the Borrowers' and each
of their respective Subsidiaries' offices, to discuss such Person's financial
matters with its officers and employees, and its independent public accountants
(and Holdings hereby authorizes such independent public accountant to discuss
each such Person's financial matters with each Secured Party or their
representatives whether or not any representative of such Person is present,
provided that Holdings shall be given the opportunity to be present at any such
meeting) and to examine (and photocopy extracts from) any of its books and
records. Holdings shall pay any fees of such independent public accountant
incurred in connection with any Secured Party's exercise of its rights pursuant
to this Section.
SECTION 7.1.6. Environmental Law Covenant. Holdings will, and will cause
each of its Subsidiaries to,
(a) use and operate all of its and their facilities and properties
in compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except in each case, to the extent the failure to do
so could not reasonably be expected to result in a Material Adverse
Effect; and
(b) promptly notify the Administrative Agent and provide copies upon
receipt of all written claims, complaints, notices or inquiries relating
to the condition of its facilities and properties in respect of, or as to
compliance with, Environmental Laws, and shall promptly resolve any
non-compliance with Environmental Laws and keep its property free of any
Lien imposed by any Environmental Law, except in each case, to the extent
the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 7.1.7. Use of Proceeds. The Borrowers will apply the proceeds of
the Credit Extensions as follows:
(a) in the case of Term Loans, (i) to finance, in part, the
Transactions and (ii) to make the Shareholder Loan;
(b) to repay the Indebtedness identified in Item 7.2.2(b) of the
Disclosure Schedule;
(c) in the case of Revolving Loans, for working capital and general
corporate purposes of IEL, the Revolving Loan Borrower and its
Subsidiaries, including Permitted Acquisitions by the Revolving Loan
Borrower and its Subsidiaries; and
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(d) for issuing Letters of Credit for the account of IEL, the
Revolving Loan Borrower and its Subsidiaries in connection with their
respective general corporate purposes.
SECTION 7.1.8. Future Guarantors, Security, etc. Holdings will, and will
cause each U.S. Subsidiary (other than the Captive Insurance Company and any
Receivables Subsidiary) to, execute any documents, Filing Statements, agreements
and instruments, and take all further action (including filing Mortgages,
providing title insurance policies, and delivering other documents in support
thereof, but only to the extent such documents were required in connection with
the Mortgages provided on the Closing Date) that may be required under
applicable law, or that the Administrative Agent may reasonably request, in
order to effectuate the transactions contemplated by the Loan Documents and in
order to grant, preserve, protect and perfect the validity and first priority
(subject to Liens permitted by Section 7.2.3) of the Liens created or intended
to be created by the Loan Documents. Holdings will cause any subsequently
acquired or organized U.S. Subsidiary to execute a supplement (in form and
substance satisfactory to the Administrative Agent) to the Subsidiary Guaranty
and each other applicable Loan Document in favor of the Secured Parties. In
addition, from time to time, Holdings will, and will cause each of its
Subsidiaries to, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected Liens with
respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall designate, it being agreed that it is the intent of the
parties that the Obligations shall be secured by, among other things,
substantially all of the assets of Holdings and its U.S. Subsidiaries (other
than the Captive Insurance Company and any Receivables Subsidiary) (including
real and personal property acquired subsequent to the Closing Date, including
Mortgaged Properties), subject to the limitations set forth herein and in the
other Loan Documents; provided that neither Holdings nor its Subsidiaries shall
be required to pledge more than 65% of the Voting Securities of any Foreign
Subsidiary unless such pledge would not result in materially adverse tax
consequences to Holdings and its Subsidiaries, taken as a whole. Such Liens will
be created under the Loan Documents in form and substance reasonably
satisfactory to the Administrative Agent, and Holdings shall deliver or cause to
be delivered to the Administrative Agent all such instruments and documents
(including legal opinions, title insurance policies and lien searches) as the
Administrative Agent shall reasonably request to evidence compliance with this
Section.
SECTION 7.1.9. Rate Protection Agreements. Within 90 days following the
Closing Date, the Term Loan Borrower will enter into interest rate swap, cap,
collar or similar arrangements designed to protect the Term Loan Borrower
against fluctuations in interest rates with respect to at least 50% of the
outstanding principal amount of Term Loans for a period of at least three years
from the Closing Date, on terms reasonably satisfactory to the Administrative
Agent.
SECTION 7.1.10. Maintenance of Ratings. Holdings will use its commercially
reasonable efforts to cause a (i) Corporate Rating by S&P or Corporate Family
Rating by Moody's and (ii) senior secured credit rating with respect to the
Loans from each of S&P and Moody's to be available at all times until the Stated
Maturity Date for the Term Loans.
SECTION 7.1.11. Actions Under Shareholder Loan Documents. Swift Nevada
will, to the extent not in violation of the terms of any Shareholder Loan
Document, take,
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or omit to take, any action under, or with respect to, any Shareholder Loan
Document, in each case as the Administrative Agent or Required Lenders may
direct.
SECTION 7.1.12. Post-Closing Obligations.
(a) Mortgages. To the extent not delivered on the Closing Date,
within 60 days after the Closing Date (or such later dates from time to
time as consented to by the Administrative Agent in its reasonable
discretion), the Administrative Agent shall have received counterparts of
each Mortgage with respect to a Mortgaged Property, duly executed and
delivered by the applicable Obligor, together with evidence of the
completion (or reasonably satisfactory arrangements for the completion) of
all recordings and filings of each Mortgage as necessary to create a
valid, perfected first priority Lien against the properties purported to
be covered thereby.
(b) Motor Vehicles. Within 270 days after the Closing Date (or such
later dates from time to time as consented to by the Administrative Agent
in its reasonable discretion), the Borrower and each Guarantor shall (i)
cause the recordation or notation of the Administrative Agent's security
interest on the certificates of title or ownership in respect of each
Motor Vehicle owned by such Obligor for which a Lien is required to be
perfected in favor of the Administrative Agent pursuant to the Pledge and
Security Agreement and (ii) deliver reasonably satisfactory evidence to
the Administrative Agent of (x) such recordation or notation and (y) all
other actions necessary, or in the reasonable opinion of the
Administrative Agent desirable, to create, effect, perfect and protect the
security interests purported to be created in such Motor Vehicles pursuant
to the Loan Documents.
(c) Within one Business Day following the Closing Date, each U.S.
Subsidiary of Holdings (other than the Captive Insurance Company) shall
elect, pursuant to Section 1362 of the Code, to be treated as an
S-Corporation (as defined under Section 1361(a)(1) of the Code) and such
election shall be effective for all tax years of such U.S. Subsidiary
prior to a Public Offering of Capital Securities of either Holdings, Swift
Nevada or Swift Arizona commencing with the tax year that includes the
Closing Date.
SECTION 7.1.13. Swift Puerto Rico. Holdings and the Borrowers shall cause
(i) the liquidation, wind-up or dissolution of Swift Puerto Rico within 270 days
following the Closing Date and (ii) the assets of Swift Puerto Rico, if any,
will be acquired by, transferred to or otherwise distributed to Swift Arizona or
one or more of its Subsidiaries.
SECTION 7.1.14. Ratings Information. The Borrowers shall, no later than
one (1) Business Day after Holdings or either Borrower obtains knowledge of any
such change, give notice to the Administrative Agent (by telephone, followed
promptly by written notice) of any change (either expressly or pursuant to a
letter from S&P or Moody's stating an "implied" rating, excluding in all cases
any private indicative ratings that Holdings or the Borrowers may request from
time to time from Moody's or S&P) in Holdings' corporate rating by Moody's or
S&P, together with details thereof, and of any announcement by S&P or Moody's
that its rating in
78
respect of Holdings is "under review" or that any such rating has been placed on
a "Credit Watch List"(R) or "watch list" or that any similar action has been
taken by S&P or Moody's.
SECTION 7.2. Negative Covenants. Each of Holdings and the Borrowers
covenants and agrees with each Lender, each Issuer and the Administrative Agent
that until the Termination Date has occurred, each of Holdings and the Borrowers
will, and will cause its Subsidiaries to, perform or cause to be performed the
obligations set forth below.
SECTION 7.2.1. Business Activities. Except as otherwise expressly
permitted hereunder:
(a) Holdings will not, and will not permit any of its Subsidiaries
to, engage in any business activity except those business activities
engaged in on the date of this Agreement and activities reasonably
incidental or reasonably related thereto.
(b) Without limiting the effect of any provision contained in clause
(a) above, after the consummation of the Acquisition, Holdings will not
engage in any business activity other than those incidental to (i) its
continuing ownership of all of the Capital Securities of Swift Nevada and
IEL and activities incidental thereto, and its compliance with the
obligations applicable to it under each Loan Document, (ii) the
performance of the Transactions, and (iii) its payment of overhead
expenses and taxes (or, to the extent permitted by clause (a) of Section
7.2.6, making of distributions to its shareholders for the payment of
taxes).
(c) Without limiting the effect of any provision contained in clause
(a) above, Swift Nevada will not engage in any business activity other
than those incidental to (i) its continuing ownership of all of the
Capital Securities of Swift Arizona and activities incidental thereto, and
its compliance with the obligations applicable to it under each Loan
Document, (ii) the performance of the Transactions, (iii) its payment of
overhead expenses and taxes (or, to the extent permitted by clause (a) of
Section 7.2.6, making of distributions to Holdings for the payment of
taxes), (iv) the maintenance or disposition (in whole or in part) of its
minority ownership of the Capital Securities of (x) Asphalt Media, Inc.
and (y) Transplace, Inc., in each case so long as Swift Nevada's ownership
interests in such companies do not increase above its ownership interests
as of the Closing Date and (v) its Investment in the Transplace Promissory
Note.
(d) Swift Puerto Rico will not engage in any business activity other
than those incidental to its liquidation, winding up or dissolution.
(e) Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, Swift Receivables will not engage in
any business activity other than those specified in the definition of
"Receivables Subsidiary."
SECTION 7.2.2. Indebtedness. Holdings will not, and will not permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness,
other than:
(a) Indebtedness in respect of the Obligations;
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(b) until the Closing Date, Indebtedness that is to be repaid in
full with proceeds of the initial Credit Extensions as further identified
in Item 7.2.2(b) of the Disclosure Schedule;
(c) Indebtedness existing as of the Closing Date which is identified
in Item 7.2.2(c) of the Disclosure Schedule, and extensions, amendments,
renewals, restatements, replacements and refinancings of such
Indebtedness, in each case so long as after giving effect to any such
extension, amendment, renewal, restatement, replacement or refinancing (i)
the maturity date of any principal amount thereof is no shorter than the
maturity existing on the Closing Date and (ii) the principal amount of
such Indebtedness does not exceed that which is outstanding on the Closing
Date (as such amount has been reduced following the Closing Date);
(d) unsecured Indebtedness (i) incurred in the ordinary course of
business of Holdings' Subsidiaries (in the nature of open accounts
extended by suppliers on normal trade terms in connection with purchases
of goods and services which are not overdue for a period of more than 90
days or, if overdue for more than 90 days, as to which a dispute exists
and adequate reserves in conformity with GAAP have been established on the
books of such Subsidiary) and (ii) in respect of performance, surety or
appeal bonds provided, in each case, in the ordinary course of business,
but excluding (in each case), Indebtedness incurred through the borrowing
of money or Contingent Liabilities in respect thereof;
(e) Indebtedness (i) (A) in respect of Capitalized Lease Liabilities
other than with respect to Motor Vehicles and (B) evidencing the deferred
purchase price of newly acquired assets or incurred to finance the
acquisition of new assets or the construction or improvement of any fixed
assets of Holdings' Subsidiaries (pursuant to purchase money mortgages or
otherwise, whether owed to the seller or a third party), which assets are
used in the ordinary course of business of such Subsidiaries and such
Indebtedness is incurred within 90 days of the acquisition or completion
of such construction or improvements of such property) and extensions,
renewals, amendments, restatements, refinancings and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof or shorten the maturity of the principal amount of such
Indebtedness, in each case from that which existed at the time of any such
extension, renewal, amendment, restatement, refinancing or replacement;
provided that the aggregate amount of all Indebtedness outstanding
pursuant to this clause (e)(i) shall not at any time exceed $50,000,000
and (ii) to the extent permitted under Section 7.2.7, in respect of
Capitalized Lease Liabilities with respect to Motor Vehicles;
(f) unsecured Indebtedness of any Subsidiary owing to any Borrower
or any other Subsidiary, which Indebtedness
(i) (x) if the obligee under any such Indebtedness is a
Borrower or a Guarantor, shall be evidenced by one or more
promissory notes in form and substance satisfactory to the
Administrative Agent, which promissory notes shall be duly executed
and delivered in pledge to the Administrative Agent pursuant to a
Loan Document, and (y) if the obligee under any such Indebtedness is
not a
80
Borrower or a Guarantor, such obligee shall have previously executed
and delivered to the Administrative Agent the Interco Subordination
Agreement, in each case such Indebtedness shall not be forgiven or
otherwise discharged for any consideration other than payment in
full or in part in cash (provided that only the amount repaid in
part shall be discharged); and
(ii) if incurred by a Subsidiary that is not a Subsidiary
Guarantor, shall not (when aggregated with all other Indebtedness of
the type described in this clause (ii) and the amount of all
Investments made by the Revolving loan Borrower and the Subsidiary
Guarantors in Subsidiaries which are not Subsidiary Guarantors under
clause (e)(i) of Section 7.2.5), exceed $50,000,000 in the
aggregate;
(g) unsecured Indebtedness (not evidenced by a note or other
instrument) incurred by a Borrower owing to a Subsidiary that has
previously executed and delivered to the Administrative Agent the Interco
Subordination Agreement;
(h) Indebtedness of the Borrowers and the Guarantors incurred
pursuant to the terms of the Senior Note Documents in a principal amount
not to exceed $835,000,000 as such amount is reduced on or after the
Closing Date in accordance with the terms hereof and any extensions,
renewals, amendments, restatements, refinancings and replacement of any
such Indebtedness that do not increase the outstanding principal amount or
shorten the maturity of any principal amount thereof, in each case from
that which existed at the time of any such extension, renewal, amendment,
restatement, refinancing or replacement;
(i) Indebtedness of a Person existing at the time such Person became
a Subsidiary of Holdings, but only if such Indebtedness was not created or
incurred in contemplation of such Person becoming a Subsidiary and any
refinancings, refundings, renewals, replacements or extensions thereof
(without any increase in the principal amount thereof or any shortening of
the maturity of any principal amount thereof, in each case from that which
existed at the time of any such extension, renewal, amendment,
restatement, refinancing or replacement) and the aggregate outstanding
amount of all Indebtedness existing pursuant to this clause does not
exceed $50,000,000 at any time;
(j) other unsecured Indebtedness of the Revolving Loan Borrower and
its Subsidiaries (other than Indebtedness of Foreign Subsidiaries owing to
the Borrower or Subsidiary Guarantors) in an aggregate amount at any time
outstanding not to exceed $60,000,000;
(k) Indebtedness under Hedging Obligations entered into in the
ordinary course of business and not for speculative purposes;
(l) Indebtedness in respect of judgments or awards not deemed to be
a default under Section 8.1.6;
(m) Indebtedness consisting of customary purchase price adjustments,
earn-outs, indemnification obligations and similar items incurred in
connection with
81
acquisitions and asset sales not restricted by Sections 7.2.10 or 7.2.11
in an amount not to exceed $45,000,000 at any time;
(n) Guarantees by Holdings' Subsidiaries of obligations of any
Subsidiary to the extent of any Indebtedness permitted to be incurred by
this Section 7.2.2 or otherwise incurred in the ordinary course of
business;
(o) Indebtedness incurred by any Receivables Subsidiary in
connection with any Qualified Receivables Transaction permitted by clause
(d) of Section 7.2.11; provided that such Indebtedness is strictly limited
in recourse to such Receivables Subsidiary and its assets, except in
respect of Standard Securitization Undertakings;
(p) Indebtedness of a Borrower or a Subsidiary Guarantor owing to
the Captive Insurance Company; provided that the amount of Indebtedness in
this clause (p) does not exceed $35,000,000 in original principal amount
over the term of this Agreement;
(q) Indebtedness with respect to the Motor Vehicle Financing, so
long as the proceeds received in connection therewith are applied pursuant
to clause (i) of Section 3.1.1 and Section 3.1.2; or
(r) Attributable Debt incurred in connection with a sale and
leaseback transaction permitted pursuant to Section 7.2.15, so long as the
proceeds received in connection therewith are applied pursuant to clause
(i) of Section 3.1.1 and Section 3.1.2.
provided that no Indebtedness otherwise permitted by clause (c), (e), (f)(ii),
(h), (i), (j), (m), (o) or (q) shall be assumed, created or otherwise incurred
if a Default has occurred and is then continuing or would result therefrom.
SECTION 7.2.3. Liens. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien upon any of
its property (including Capital Securities of any Person), revenues or assets,
whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations;
(b) until the Closing Date, Liens securing payment of Indebtedness
of the type described in clause (b) of Section 7.2.2;
(c) Liens existing as of the Closing Date and disclosed in Item
7.2.3(c) of the Disclosure Schedule securing Indebtedness described in
clause (c) of Section 7.2.2, and, to the extent set forth in such clause
(c), any extensions, amendments, renewals, restatements, replacements or
refinancings of such Indebtedness; provided that, in the event of any such
extension, amendment, renewal, restatement, replacement or refinancing, no
such Lien shall encumber any additional property and the amount of
Indebtedness secured by such Lien is not increased from that existing on
the Closing Date, less the amount of any payments, prepayments or other
amortization of such Indebtedness after the Closing Date;
82
(d) Liens securing Indebtedness of the type permitted under clause
(e) of Section 7.2.2; provided that (i) such Lien is granted within 90
days after such Indebtedness is incurred (except in the case of any
extension, renewal, amendment, restatement, replacement or refinancing),
(ii) the Indebtedness secured thereby (if it is of the type described in
subclause (e)(i)(B) of such Section 7.2.2) does not exceed 90% of the
lesser of the cost or the fair market value of the applicable property,
improvements or equipment at the time of such acquisition (or
construction) and (iii) such Lien secures only the assets that are the
subject of the Indebtedness referred to in such clause (e);
(e) Liens securing Indebtedness permitted by clause (i) of Section
7.2.2; provided that such Liens existed prior to such Person becoming a
Subsidiary, were not created in anticipation thereof and attach only to
assets of such Person;
(f) statutory or common law Liens in favor of carriers,
warehousemen, mechanics, materialmen and landlords granted in the ordinary
course of business for amounts not overdue for a period of more than
thirty (30) days or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(g) Liens incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment insurance
or other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, bids, leases, trade
contracts, governmental contracts or other similar obligations (other than
for borrowed money) entered into in the ordinary course of business or to
secure obligations on surety and appeal bonds or performance bonds;
(h) judgment Liens in existence for less than 45 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;
(i) easements, rights-of-way, zoning restrictions, minor defects or
irregularities in title and other similar encumbrances not interfering in
any material respect with the value or use of the property to which such
Lien is attached;
(j) Liens for Taxes not at the time delinquent or thereafter payable
without penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(k) second priority Liens securing Indebtedness permitted by clause
(h) of Section 7.2.2 and subject to the Intercreditor Agreement; provided
that no such Lien shall extend to or cover any assets other than the
assets subject to the Liens granted to Administrative Agent;
(l) Liens in favor of the Secured Parties pursuant to a pledge of
any note or other instrument evidencing the Shareholder Loan in a
principal amount not to exceed $560,000,000, plus any amounts added to the
principal as paid-in-kind interest;
83
(m) purported Liens evidenced by the filing of precautionary UCC
financing statements relating solely to operating leases of personal
property entered into in the ordinary course of business;
(n) bankers liens and rights of set-off with respect to customary
depositary arrangements entered into in the ordinary course of business of
IEL the Revolving Loan Borrower and its Subsidiaries;
(o) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(p) any Liens on the assets of any Receivables Subsidiary arising
out of any Qualified Receivables Transaction;
(q) Liens on the assets of IEL, the Revolving Loan Lender and its
Subsidiaries not otherwise permitted by this Section so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the
date such Lien is incurred) of the assets subject thereto exceeds (as to
IEL, the Revolving Loan Borrower and all Subsidiaries collectively)
$25,000,000 at any one time;
(r) any zoning or similar law or right reserved to or vested in any
Governmental Authority to control or regulate the use of any real property
that does not materially interfere with the ordinary conduct of the
business of any Subsidiary;
(s) Liens on insurance policies and the proceeds thereof securing
the financing of the premiums with respect thereto;
(t) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
Borrowers in the ordinary course of business; and
(u) Liens on Motor Vehicles securing Indebtedness permitted by
clause (q) of Section 7.2.2.
SECTION 7.2.4. Financial Condition and Operations. Holdings will not
permit any of the events set forth below to occur.
(a) Holdings will not permit the Leverage Ratio for any period
ending on the last day of any Fiscal Quarter set forth below to be greater
than the ratio set forth opposite such Fiscal Quarter:
Fiscal Quarter Ending Ratio
- ---------------------- ---------
December 31, 2007 6.95:1.00
March 31, 2008 6.75:1.00
June 30, 2008 6.55:1.00
September 30, 2008 6.35:1.00
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December 31, 2008 6.15:1.00
March 31, 2009 5.90:1.00
June 30, 2009 5.60:1.00
September 30, 2009 5.35:1.00
December 31, 2009 5.05:1.00
March 31, 2010 4.90:1.00
June 30, 2010 4.75:1.00
September 30, 2010 4.55:1.00
December 31, 2010 4.40:1.00
March 31, 2011 4.25:1.00
June 30, 2011 4.10:1.00
September 30, 2011 3.95:1.00
December 31, 2011 3.80:1.00
March 31, 2012 3.75:1.00
June 30, 2012 3.70:1.00
September 30, 2012 3.65:1.00
December 31, 2012 3.50:1.00
March 31, 2013 3.40:1.00
June 30, 2013 3.30:1.00
September 30, 2013 3.20:1.00
December 31, 2013 3.10:1.00
March 31, 2014 3.00:1.00
June 30, 2014 2.85:1.00
(b) Holdings will not permit the Interest Coverage Ratio for any
period ending on the last day of any Fiscal Quarter set forth below set
forth below to be less than the ratio set forth opposite such Fiscal
Quarter:
Fiscal Quarter Ending Ratio
- --------------------- ---------
December 31, 2007 1.30:1.00
March 31, 2008 1.35:1.00
June 30, 2008 1.45:1.00
September 30, 2008 1.50:1.00
December 31, 2008 1.60:1.00
March 31, 2009 1.65:1.00
June 30, 2009 1.70:1.00
September 30, 2009 1.75:1.00
December 31, 2009 1.85:1.00
March 31, 2010 1.95:1.00
June 30, 2010 2.05:1.00
September 30, 2010 2.15:1.00
December 31, 2010 2.25:1.00
March 31, 2011 2.35:1.00
June 30, 2011 2.45:1.00
September 30, 2011 2.50:1.00
December 31, 2011 2.60:1.00
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March 31, 2012 2.65:1.00
June 30, 2012 2.70:1.00
September 30, 2012 2.70:1.00
December 31, 2012 2.75:1.00
March 31, 2013 2.85:1.00
June 30, 2013 2.95:1.00
September 30, 2013 3.05:1.00
December 31, 2013 3.15:1.00
March 31, 2014 3.25:1.00
June 30, 2014 3.35:1.00
SECTION 7.2.5. Investments. Holdings will not, and will not permit any of
its Subsidiaries to, purchase, make, incur, assume or permit to exist any
Investment in any other Person, except:
(a) Investments existing on the Closing Date and identified in Item
7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(d) Investments consisting of any deferred portion of the sales
price received by any Subsidiary in connection with any Disposition
permitted under Section 7.2.11;
(e) Investments by way of contributions to capital or purchases of
Capital Securities by Holdings in any Subsidiary or by any Subsidiary in
any other Subsidiary; provided that, the aggregate amount of intercompany
loans made pursuant to clause (f)(ii) of Section 7.2.2 and Investments
under this clause (e) made by Obligors in Subsidiaries that are not
Obligors shall not exceed the amount set forth in clause (f)(ii) of
Section 7.2.2 at any time;
(f) Investments constituting (i) accounts receivable arising, (ii)
trade debt granted, or (iii) deposits made in connection with the purchase
price of goods or services, in each case in the ordinary course of
business;
(g) Investments in Capital Securities constituting Permitted
Acquisitions; provided that (i) each such Investment shall result in the
acquisition of a wholly owned U.S. Subsidiary and (ii) the Leverage Ratio
as of the period of four consecutive Fiscal Quarters most recently ended
prior to the date of such Permitted Acquisition is, after giving pro forma
effect to such Permitted Acquisition, at least .25 less than is otherwise
required pursuant to clause (a) of Section 7.2.4 at the time of such
Permitted Acquisition;
(h) the Shareholder Loan in a principal amount, together with any
amounts loaned to the Rollover Purchasers from the proceeds of the Senior
Notes, not to exceed
86
$560,000,000 plus any amounts added to the principal as paid-in-kind
interest at any time;
(i) Contingent Liabilities permitted by Section 7.2.2;
(j) loans and advances (i) to employees (including drivers of Motor
Vehicles) of Holdings or any of its Subsidiaries in the ordinary course of
business (including for travel, fuel costs, tolls, entertainment and
relocation expenses) and (ii) to non-employee owner/operators of Motor
Vehicles in the ordinary course and consistent with past practices (in the
nature of advances for fuel costs, tolls, repairs and other similar
ordinary course items);
(k) Capital Expenditures permitted by Section 7.2.7;
(l) intercompany loans permitted by clause (f) of Section 7.2.2 and
clause (g) of Section 7.2.2;
(m) Investments made in connection with Permitted Acquisitions
permitted by clause (b) of Section 7.2.10;
(n) Hedging Obligations permitted by clause (k) of Section 7.2.2;
(o) advances in the ordinary course of business consistent with past
practices (i) by IEL to finance the purchase of Motor Vehicles by
non-employee owner/operators who were previously leasing such Motor
Vehicles from IEL and (ii) by Swift Arizona or its Subsidiaries to finance
tuition costs of student/trainees enrolled in driver training academies of
Swift Arizona or one of its Subsidiaries; provided that the amount of
advances pursuant to this clause (o) shall not exceed $20,000,000 in the
aggregate at any time outstanding (as reflected on the balance sheet of
Holdings);
(p) Investments made to the Captive Insurance Company, in an amount
not to exceed the minimum amount of capitalization required pursuant to
regulatory capital requirements; or
(q) other Investments in an amount not to exceed $40,000,000 over
the term of this Agreement;
provided, however, that (i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment" may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements, and (ii) no Investment otherwise
permitted by clause (g), (m) or (q) shall be permitted to be made if any Default
has occurred and is continuing or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. Holdings will not, and will not
permit any of its Subsidiaries to, declare or make a Restricted Payment, or make
any deposit for any Restricted Payment, other than Restricted Payments made by
its Subsidiaries either to the Borrowers or to Guarantors and, on a pro rata
basis, to its equity holders (with respect to any non-wholly owned Subsidiary),
except:
87
(a) so long as Holdings is treated as an S Corporation (as defined
under Section 1361(a)(1) of the Code) and to the extent its U.S.
Subsidiaries are treated as Qualified Subchapter S Subsidiaries (as
defined under Section 1361(b)(3)(b) of the Code) or otherwise disregarded
as separate from Holdings for U.S. federal income tax purposes
("Disregarded Subsidiaries"), Restricted Payments to Holdings and, without
duplication, Restricted Payments to the equityholders of Holdings in an
aggregate amount equal to 39% of Holdings' consolidated taxable income,
assuming for purposes of this calculation that (i) Holdings is a C
corporation, (ii) Holdings' only Subsidiaries are Disregarded
Subsidiaries, and (iii) the consolidated taxable income of Holdings is
reduced by the amounts received by Swift Nevada in respect of any amounts
paid pursuant to clause (b) below;
(b) so long as (i) there shall exist no Default (both before and
after giving effect to the payment thereof), (ii) Holdings is in pro forma
compliance with Section 7.2.4 (both before and after giving effect to the
payment thereof), and (iii) there shall exist no default under Section
8.1.7 of the Shareholder Loan Agreement, Restricted Payments to Holdings
and Restricted Payments to the Rollover Purchasers in an aggregate amount
equal to the actual cash amount of interest due and payable under the
Shareholder Loan, without regard to any "gross-up" or similar amounts in
respect of taxes, if any, on any such distribution; provided that (x) such
distribution shall be made no earlier than one day prior to the date such
interest is due pursuant to clause (c) of Section 3.2.2 of the Shareholder
Loan Agreement and (y) the proceeds of such distribution by Holdings to
the Rollover Purchasers shall be immediately deposited in a Rollover
Purchasers Blocked Account to be applied to the payment of such interest;
and
(c) so long as there shall exist no Default (both before and after
giving effect to the payment thereof), Restricted Payments pursuant to and
in accordance with stock option plans or other benefit plans for present
or former management or employees of Holdings and its Subsidiaries, in an
amount not to exceed $5,000,000 in any Fiscal Year and $40,000,000 over
the term of this Agreement; provided that, to the extent Restricted
Payments made in accordance with this clause (c) in any Fiscal Year do not
exceed $5,000,000, Restricted Payments made in accordance with this clause
(c) in the immediately succeeding Fiscal Year may be increased by an
amount equal to such unutilized amount from such prior Fiscal Year.
SECTION 7.2.7. Capital Expenditures. Holdings will not, and will not
permit any of its Subsidiaries to, make or commit to make Capital Expenditures
(inclusive of Capitalized Lease Liabilities pursuant to clause (e) of Section
7.2.2) in any Fiscal Year which aggregate in excess of the amount set forth
below opposite such Fiscal Year (each amount, the "Maximum Capital Expenditures
Amount"):
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Capital
Fiscal Year Expenditure Amount
----------- ------------------
2007 $460,000,000
2008 $555,000,000
2009 $430,000,000
2010 $565,000,000
2011 $855,000,000
2012 $905,000,000
2013 $645,000,000
2014 $785,000,000
provided that the Maximum Capital Expenditures Amount for any Fiscal Year shall
be increased by an amount equal to the excess, if any, of the Maximum Capital
Expenditures Amount for the previous Fiscal Year (without giving effect to any
adjustment in accordance with this proviso) over the actual amount of Capital
Expenditures for such previous Fiscal Year.
SECTION 7.2.8. No Prepayment of Certain Indebtedness. Holdings will not,
and will not permit any of its Subsidiaries to:
(a) make any payment or prepayment of principal of, or premium or
interest on, any Indebtedness incurred under the Senior Note Documents
(including any redemption or retirement thereof) (i) other than the
stated, scheduled date for payment of interest set forth in the Senior
Note Documents, or (ii) which would violate the terms of this Agreement,
the Intercreditor Agreement or the Senior Note Documents;
(b) redeem, retire, purchase, defease or otherwise acquire any
Indebtedness incurred under the Senior Note Documents;
(c) make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes; or
(d) make any payment or prepayment of principal of, or premium or
interest on, any Indebtedness that is by its express written terms
subordinated to the payment of the Obligations at any time when an Event
of Default has occurred and is continuing.
SECTION 7.2.9. Issuance of Capital Securities. Holdings will not, and will
not permit any of its Subsidiaries to, issue any Capital Securities (whether for
value or otherwise) to any Person other than (in the case of Subsidiaries) to
Holdings, the Borrowers or a Guarantor (or, in the case of Holdings, to the
Rollover Purchasers) unless the Net Equity Proceeds or Net Disposition Proceeds,
as the case may be, from such issuance are applied to prepay the Loans as
required by the terms of this Agreement.
SECTION 7.2.10. Consolidation, Merger; Permitted Acquisitions, etc.
Holdings will not, and will not permit any of its Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person, or purchase
or otherwise acquire all or substantially all of the assets of any Person (or
any division thereof), except:
89
(a) any Subsidiary may liquidate or dissolve voluntarily into, and
may merge with and into, the Revolving Loan Borrower or any of its
Subsidiaries (provided that a Subsidiary Guarantor may only liquidate or
dissolve into, or merge with and into, the Revolving Loan Borrower or
another Subsidiary Guarantor), and the assets or Capital Securities of any
Subsidiary may be purchased or otherwise acquired by the Revolving Loan
Borrower or any of its Subsidiaries (provided that the assets or Capital
Securities of any Subsidiary Guarantor may only be purchased or otherwise
acquired by the Revolving Loan Borrower or another Subsidiary Guarantor);
provided, further, that in no event shall any Subsidiary consolidate with
or merge with and into any other Subsidiary unless, after giving effect
thereto, the Administrative Agent shall have a perfected pledge of, and
security interest in and to, at least the same percentage of the issued
and outstanding interests of Capital Securities (on a fully diluted basis)
and other assets of the surviving Person as the Administrative Agent had
immediately prior to such merger or consolidation in form and substance
reasonably satisfactory to the Administrative Agent and its counsel,
pursuant to such documentation and opinions as shall be necessary in the
opinion of the Administrative Agent to create, perfect or maintain the
collateral position of the Secured Parties therein;
(b) any Person may merge with or into or consolidate with a
Guarantor (other than Holdings or a Borrower), or a Guarantor (other than
Holdings or a Borrower) may merge or consolidate with such Person, in a
transaction in which (i) the surviving entity is such Guarantor or (ii) if
the surviving entity will not be such Guarantor, simultaneously with such
transaction, the Person formed by such consolidation or in which such
Guarantor is merged, shall become a Subsidiary Guarantor and the Person
shall comply with Section 7.1.8 in connection therewith; and
(c) the purchase of all or substantially all of the assets of any
Person (or any division of any such Person), or the acquisition of such
Person by merger, in each case if (i) such purchase or acquisition
constitutes a Permitted Acquisition, and (ii) the Leverage Ratio as of the
period of four consecutive Fiscal Quarters most recently ended prior to
the date of such Permitted Acquisition is, after giving pro forma effect
to such Permitted Acquisition, at least .25 less than is otherwise
required pursuant to clause (a) of Section 7.2.4 at the time of such
Permitted Acquisition.
SECTION 7.2.11. Permitted Dispositions. Holdings will not, and will not
permit any of its Subsidiaries to, Dispose of any of Holdings', the Borrowers'
or such other Subsidiaries' assets (including with respect to the sale, transfer
or other conveyance of (i) accounts receivable or (ii) Capital Securities of
Subsidiaries) to any Person in one transaction or series of transactions,
except:
(a) a Disposition of inventory or obsolete, damaged, worn out or
surplus personal property Disposed of in the ordinary course of its
business, including Motor Vehicles (whether in connection with the LKE
Program or otherwise);
(b) a Disposition permitted by Sections 7.2.6, 7.2.9, 7.2.10 or
7.2.15;
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(c) a Disposition that (i) is for fair market value and the
consideration received consists of no less than 80% in cash, (ii) results
in Net Disposition Proceeds which, when taken together with the Net
Disposition Proceeds of all other assets Disposed of pursuant to this
clause (c) since the Closing Date, does not exceed (individually or in the
aggregate) $25,000,000 and (iii) results in Net Disposition Proceeds that
are applied, if required by such Sections, pursuant to Sections 3.1.1 and
3.1.2;
(d) a Disposition of Receivables Assets to any or by any Receivables
Subsidiary in connection with any Qualified Receivables Transaction so
long as the proceeds from such Disposition are applied pursuant to Section
3.1.1 and Section 3.1.2.;
(e) a Disposition of Cash Equivalent Investments in the ordinary
course of business;
(f) a Disposition or discount without recourse of accounts
receivable that are overdue for more than 60 days in the ordinary course
of business and consistent with past practices in connection with the
compromise or collection thereof;
(g) Dispositions of Motor Vehicles and related assets pursuant to
the exercise of a put option or sale and leaseback in connection with the
Motor Vehicle Financings, so long as the proceeds from such Disposition,
to the extent such proceeds are not required pursuant to the terms of the
Motor Vehicle Financing to be applied to the repayment of the Motor
Vehicle Financing, are applied pursuant to Section 3.1.1 and Section
3.1.2; and
(h) Dispositions of the Capital Securities of Asphalt Media, Inc.
and Transplace, Inc.
SECTION 7.2.12. Modification of Certain Agreements. Holdings will not, and
will not permit any of its Subsidiaries to, consent to any amendment,
supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in (or,
in the case of clause (b), forgive or cancel any amounts owed or to be owed
under):
(a) the Senior Note Documents, except as may be permitted pursuant
to Section 5.3 of the Intercreditor Agreement;
(b) the Shareholder Loan Documents;
(c) any of the other Transaction Documents; or
(d) the Organic Documents of Holdings, the Borrowers or any of their
respective Subsidiaries, if the result would have an adverse effect on the
rights or remedies of any Secured Party.
SECTION 7.2.13. Transactions with Affiliates. Except as identified in Item
7.2.13 of the Disclosure Schedule, Holdings will not, and will not permit any of
its Subsidiaries to, enter into or cause or permit to exist any arrangement,
transaction or contract (including for the purchase,
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lease or exchange of property or the rendering of services) with any Affiliate,
unless such arrangement, transaction or contract (i) is on fair and reasonable
terms no less favorable to Holdings or such Subsidiary than it could obtain in
an arm's-length transaction with a Person that is not an Affiliate and (ii) is
of the kind which would be entered into by a prudent Person in the position of
Holdings or such Subsidiary with a Person that is not one of its Affiliates,
provided that, notwithstanding the foregoing, Holdings' Subsidiaries may (i)
make Restricted Payments permitted by Section 7.2.6, (ii) enter into the
transactions permitted by Sections 7.2.2, 7.2.5, 7.2.9, 7.2.10 and 7.2.11 and
(iii) enter into transactions between or among the Borrowers and the Subsidiary
Guarantors to the extent not prohibited under any Loan Document.
SECTION 7.2.14. Restrictive Agreements, etc. Holdings will not, and will
not permit any of its Subsidiaries to, enter into any agreement prohibiting:
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired;
(b) the ability of any Obligor to amend or otherwise modify any Loan
Document; or
(c) the ability of any Subsidiary to make any payments, directly or
indirectly, to Holdings or the Borrowers, including by way of dividends,
advances, repayments of loans, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments.
The foregoing prohibitions shall not apply to restrictions contained (i) in any
Loan Document, (ii) in the case of clause (a), (A) any agreement governing any
Indebtedness permitted by clause (e) of Section 7.2.2 as to the assets financed
with the proceeds of such Indebtedness, (B) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary or any
of its assets pending such sale, provided such restrictions and conditions apply
only to the Subsidiary or assets that is to be sold and such sale is permitted
hereunder, (C) customary restrictions and conditions contained in agreements
relating to a Qualified Receivables Transaction permitted hereunder and the
Motor Vehicle Financing, (D) agreements binding on a Subsidiary at the time such
Subsidiary becomes a Subsidiary of the Borrower so long as such agreement is not
entered into in contemplation of such occurrence, (E) agreements that are
customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures permitted hereunder, (F) restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (G) customary provisions in leases,
subleases, licenses, sublicenses or permits so long as such restrictions relate
only to the property subject thereto, and (H) restrictions and conditions
existing on the Closing Date contained in agreements that are not material
contractual obligations of Holdings or any of its Subsidiaries (but shall apply
to any extension of renewal of, or any amendment or modification expanding the
scope of such restriction or condition), or (iii) in the case of clauses (a) and
(c), (A) any agreement of a Foreign Subsidiary governing the Indebtedness
permitted by clause (f)(ii) of Section 7.2.2 and (B) any Senior Note Documents.
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SECTION 7.2.15. Sale and Leaseback. Holdings will not, and will not permit
any of its Subsidiaries to, directly or indirectly enter into any agreement or
arrangement providing for the sale or transfer by it of any property (now owned
or hereafter acquired) to a Person and the subsequent lease or rental of such
property or other similar property from such Person, other than a sale and
leaseback entered into in connection with the Motor Vehicle Financing, so long
as the proceeds of such transaction are applied pursuant to Section 3.1.1 and
Section 3.1.2.
SECTION 7.2.16. Tax Status of future U.S. Subsidiaries. All subsequently
acquired or organized U.S. Subsidiaries of Holdings shall be treated as
Qualified Subchapter S Subsidiaries as defined under Section 1361(b)(3)(B) of
the Code or otherwise disregarded as separate from Holdings for U.S. federal
income tax purposes and no election or other action will be taken that is
inconsistent with such treatment to the extent such treatment is required with
respect to any other U.S. Subsidiary of Holdings.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Article shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations. (i) The Borrower shall default
in the payment or prepayment when due of (x) any principal on any Loan, or any
Reimbursement Obligation or any deposit of cash for collateral purposes pursuant
to Section 2.6.4, or any deposit into the Synthetic Deposit Account pursuant to
clause (b)(ii) or (b)(iii) of Section 3.1.1 or (y) any interest on any Loan or
any fee described in Article III or any other monetary Obligation, and such
default shall continue unremedied for a period of three days after such amount
was due or (ii) any Guarantor shall default in the payment when due of any
payment Obligation under a Guaranty.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any
Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The
Borrower shall default in the due performance or observance of any of its
obligations under clauses (a), (b), (c), (e), and (f) of Section 7.1.1, Section
7.1.7, Section 7.1.12 or Section 7.2, or Holdings shall default in the due
performance or observance of any of its obligations under Article X of this
Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained in any Loan Document executed by it, and such default shall
continue unremedied for a period of 45 days after the earlier to occur of (i)
notice thereof given to Holdings or any Borrower by the Administrative Agent or
any Lender or (ii) the date on which any Obligor has knowledge of such default.
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SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in the
payment of any amount when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any principal or stated amount of, or interest
or fees on, any Indebtedness (other than Indebtedness described in Section
8.1.1) of Holdings or any of its Subsidiaries or any other Obligor having a
principal or stated amount, individually or in the aggregate, in excess of
$30,000,000, or a default shall occur in the performance or observance of any
obligation or condition with respect to such Indebtedness if the effect of such
default is to accelerate the maturity of any such Indebtedness or such default
shall continue unremedied for any applicable period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause or declare such Indebtedness to become due and payable or to
require such Indebtedness to be prepaid, redeemed, purchased or defeased, or
require an offer to purchase or defease such Indebtedness to be made, prior to
its expressed maturity.
SECTION 8.1.6. Judgments. Any (i) judgment or order for the payment of
money individually or in the aggregate in excess of $30,000,000 (exclusive of
any amounts fully covered by insurance (less any applicable deductible) and as
to which the insurer has acknowledged its responsibility to cover such judgment
or order) shall be rendered against Holdings or any of its Subsidiaries or any
other Obligor and such judgment shall not have been vacated or discharged or
stayed or bonded pending appeal within 45 days after the entry thereof or
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (b) non-monetary judgment or order that has had, or could
reasonably be expected to have, a Material Adverse Effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan:
(a) the institution of any steps by any Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, such Borrower or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Holdings, any of its
Subsidiaries or any other Obligor shall:
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness generally to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in the appointment of a
trustee, receiver, sequestrator or other custodian for any substantial
part of the property of any thereof, or make a general assignment for the
benefit of creditors;
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(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for a substantial part of the property of
any thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days; provided that Holdings, each
Borrower, each Subsidiary and each other Obligor hereby expressly
authorizes each Secured Party to appear in any court conducting any
relevant proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law or any dissolution, winding up or liquidation
proceeding, in respect thereof, and, if any such case or proceeding is not
commenced by Holdings, any Borrower, any Subsidiary or any Obligor, such
case or proceeding shall be consented to or acquiesced in by Holdings,
such Borrower, such Subsidiary or such Obligor, as the case may be, or
shall result in the entry of an order for relief or shall remain for 60
days undismissed; provided that Holdings, each Borrower, each Subsidiary
and each Obligor hereby expressly authorizes each Secured Party to appear
in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan
Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document or any Lien
granted thereunder shall (except in accordance with its terms), in whole or in
part, terminate, cease to be effective or cease to be the legally valid, binding
and enforceable obligation of any Obligor party thereto; any Obligor or any
other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 with respect to any Borrower shall
occur, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be
and become immediately due and payable, without notice or demand to any Person
and each Obligor shall automatically and immediately be obligated to Cash
Collateralize all Letter of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to any Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to any Borrower declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as
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the case may be, the Commitments shall terminate and the Borrowers shall
automatically and immediately be, jointly and severally, obligated to Cash
Collateralize all Letter of Credit Outstandings. Notwithstanding anything to the
contrary contained herein or in any other Loan Document, the authority to
enforce rights and remedies hereunder and under the other Loan Documents shall
be vested exclusively in, and all actions and proceedings at law in connection
with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with this Section and Section 8.2 for the
benefit of all the Lenders and the Issuer; provided, however, that the foregoing
shall not prohibit (i) any Issuer or the Swing Line Lender from exercising the
rights and remedies that inure to its benefit (solely in its capacity as Issuer
or Swing Line Lender, as the case may be) hereunder and under the other Loan
Documents, or (ii) any Lender from exercising setoff rights in accordance with
Section 4.9.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. Actions. Each Lender hereby appoints Morgan Stanley as (i)
its Administrative Agent under and for purposes of each Loan Document and (ii)
the First Lien Agent under, and as defined in, the Intercreditor Agreement. Each
Lender authorizes the Administrative Agent (including in its capacity as First
Lien Agent under, and as defined in, the Intercreditor Agreement) to act on
behalf of such Lender under each Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by the
Administrative Agent (with respect to which the Administrative Agent agrees that
it will comply, except as otherwise provided in this Section or as otherwise
advised by counsel in order to avoid contravention of applicable law), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Administrative Agent by the terms hereof and thereof,
together with such powers as may be incidental thereto (including the release of
Liens on (x) assets Disposed of in accordance with the terms of the Loan
Documents and (y) Motor Vehicles in connection with the Motor Vehicle
Financing). Each Lender hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Administrative Agent, pro rata according to
such Lender's proportionate Total Exposure Amount, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to or arising out
of any Loan Document (including attorneys' fees), and as to which the
Administrative Agent is not reimbursed by the Borrowers; provided that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The
Administrative Agent shall not be required to take any action under any Loan
Document, or to prosecute or defend any suit in respect of any Loan Document,
unless it is indemnified hereunder to its satisfaction. If any indemnity in
favor of the Administrative Agent shall be or become, in the Administrative
Agent's determination, inadequate, the Administrative Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given. The Administrative
Agent may perform any of its duties under any Loan Document by or through its
officers, directors, agents, employees, Affiliates or other designees.
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SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified in writing by any Lender by 3:00 p.m. on the Business Day
prior to a Borrowing that such Lender will not make available the amount which
would constitute its Percentage of such Borrowing on the date specified
therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such
assumption, make available to the Borrowers a corresponding amount. If and to
the extent that such Lender shall not have made such amount available to the
Administrative Agent, such Lender and the Borrowers severally (but jointly and
severally between the Borrowers) agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date the Administrative Agent made such amount available
to the Borrowers to the date such amount is repaid to the Administrative Agent,
at the interest rate applicable at the time to Loans comprising such Borrowing
(in the case of the Borrowers) and (in the case of a Lender), at the Federal
Funds Rate (for the first two Business Days after which such amount has not been
repaid), and thereafter at the interest rate applicable to Loans comprising such
Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable to any Secured Party
for any action taken or omitted to be taken by it under any Loan Document, or in
connection therewith, except for its own willful misconduct or gross negligence,
nor responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of any Loan Document,
nor for the creation, perfection or priority of any Liens purported to be
created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by any Obligor of its
Obligations. Any such inquiry which may be made by the Administrative Agent
shall not obligate it to make any further inquiry or to take any action.
SECTION 9.4. Successor. The Administrative Agent may resign as such at any
time upon at least 30 days' prior notice to the Term Loan Borrower and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States (or any State thereof)
or a United States branch or agency of a commercial banking institution, and
having a combined capital and surplus of at least $250,000,000; provided that,
if such retiring Administrative Agent is unable to find a commercial banking
institution which is willing to accept such appointment and which meets the
qualifications set forth in above, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
assume and perform all of the duties of the Administrative Agent hereunder until
such time, if any, as the Required Lenders appoint a successor as provided for
above. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
be entitled to receive from the retiring Administrative Agent such documents of
transfer and assignment as such successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become
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vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Administrative Agent under the Loan
Documents, and Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
SECTION 9.5. Loans by Morgan Stanley. Morgan Stanley shall have the same
rights and powers with respect to (x) the Credit Extensions made by it or any of
its Affiliates, and (y) the Notes held by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not the Administrative
Agent. Morgan Stanley and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with Holdings, the Borrowers or
any Subsidiary or Affiliate of Holdings or the Borrowers as if Morgan Stanley
were not the Administrative Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and based on
such Lender's review of the financial information of the Borrowers, the Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitments. Each
Lender also acknowledges that it will, independently of the Administrative Agent
and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under the Loan Documents.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of the
Loan Documents (unless concurrently delivered to the Lenders by such Borrower).
The Administrative Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications
received by the Administrative Agent from any Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of the Loan
Documents.
SECTION 9.8. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopy, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. As to any
matters not expressly provided for by the Loan Documents, the Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, thereunder in accordance with instructions given by the Required Lenders
or all of the Lenders as is required in such circumstance, and such instructions
of such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all Secured Parties. For purposes of applying amounts in accordance
with this Section, the Administrative Agent shall be entitled to rely upon any
Secured Party that has entered into a Rate Protection Agreement with any
Obligor, or any Secured Party with respect to which Cash Management Obligations
are outstanding, for a determination (which such Secured Party agrees to provide
or cause to be provided upon request of the Administrative
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Agent) of the outstanding Obligations or Cash Management Obligations owed to
such Secured Party under any Rate Protection Agreement or in respect of Cash
Management Obligations. Unless it has actual knowledge evidenced by way of
written notice from any such Secured Party and any Borrower to the contrary, the
Administrative Agent, in acting in such capacity under the Loan Documents, shall
be entitled to assume that no Rate Protection Agreements or Obligations in
respect thereof, or any Cash Management Obligations, are in existence or
outstanding between any Secured Party and any applicable Obligor.
SECTION 9.9. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received a written notice from a Lender or any Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 11.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that, unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Secured
Parties except to the extent that this Agreement expressly requires that such
action be taken, or not be taken, only with the consent or upon the
authorization of the Required Lenders or all Lenders.
SECTION 9.10. Lead Arrangers, Other Agents. The Lead Arrangers, the
Co-Syndication Agents and the Documentation Agent shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement (or
any other Loan Document) other than those applicable to all Lenders as such.
Without limiting the foregoing, the Lead Arrangers, the Co-Syndication Agents
and the Documentation Agent shall not have or be deemed to have any fiduciary
relationship with any other Lender. Each Lender acknowledges that it has not
relied, and will not rely, on the Lead Arrangers, the Co-Syndication Agents or
the Documentation Agent in deciding to enter into this Agreement and each other
Loan Document to which it is a party or in taking or not taking action hereunder
or thereunder.
SECTION 9.11. Posting of Approved Electronic Communications.
(a) Each Borrower hereby agrees, unless directed otherwise by the
Administrative Agent or unless the electronic mail address referred to
below has not been provided by the Administrative Agent to any Borrower,
that it will, or will cause its Subsidiaries to, provide to the
Administrative Agent all information, documents and other materials that
it is obligated to furnish to the Administrative Agent pursuant to the
Loan Documents or to the Lenders under Section 7.1.1, including all
notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (i) is or relates to a Borrowing Request, a
Continuation/Conversion Notice or an Issuance Request, (ii) relates to the
payment of any principal or other amount due under this Agreement prior to
the scheduled date therefor, (iii) provides notice of any Default under
this Agreement or any other Loan Document or (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of this
Agreement and/or any Borrowing or other extension of credit hereunder (all
such non-excluded communications being referred to herein collectively as
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"Communications"), by transmitting the Communications in an
electronic/soft medium that is properly identified in a format reasonably
acceptable to the Administrative Agent to an electronic mail address as
directed by the Administrative Agent. In addition, each of Holdings and
each Borrower agrees, and agrees to cause its Subsidiaries, to continue to
provide the Communications to the Administrative Agent or the Lenders, as
the case may be, in the manner specified in the Loan Documents but only to
the extent requested by the Administrative Agent.
(b) The Borrowers further agree that the Administrative Agent may
make the Communications available to the Lenders by posting the
Communications on Intralinks or a substantially similar electronic
transmission system (the "Platform").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE
INDEMNIFIED PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE
BY THE INDEMNIFIED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
PLATFORM. IN NO EVENT SHALL THE INDEMNIFIED PARTIES HAVE ANY LIABILITY TO
ANY OBLIGOR, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND,
WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER
IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY OBLIGOR'S OR THE
ADMINISTRATIVE AGENT' TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET,
EXCEPT TO THE EXTENT THE LIABILITY OF ANY INDEMNIFIED PARTY IS FOUND IN A
FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE, WILLFUL
MISCONDUCT OR BAD FAITH.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address delivered
to any Borrower shall constitute effective delivery of the Communications
to the Administrative Agent for purposes of the Loan Documents. Each
Lender agrees that receipt of notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the
Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender agrees to notify
the Administrative Agent in writing (including by electronic
communication) from time to time of such Lender's e-mail address to which
the foregoing notice may be sent by electronic transmission and that the
foregoing notice may be sent to such e-mail address.
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Nothing herein shall prejudice the right of the Administrative Agent or
any Lender to give any notice or other communication pursuant to any Loan
Document in any other manner specified in such Loan Document.
ARTICLE X
HOLDINGS GUARANTY
SECTION 10.1. Guaranty. Holdings hereby absolutely, unconditionally and
irrevocably:
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration or
otherwise, of all Obligations of the Borrowers now or hereafter existing,
whether for principal, interest (including interest accruing at the then
applicable rate provided in the Agreement after the occurrence of any
Default set forth in Section 8.1.9, whether or not a claim for post-filing
or post-petition interest is allowed under applicable law following the
institution of a proceeding under bankruptcy, insolvency or similar laws),
fees, Reimbursement Obligations, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
ss.362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b)); and
(b) indemnifies and holds harmless each Secured Party for any and
all costs and expenses (including attorneys' fees and expenses) incurred
by such Secured Party after the occurrence and during the continuance of
an Event of Default in enforcing any rights under this Agreement;
Holdings' obligations under this Article constitute a guaranty of payment when
due and not of collection, and each Borrower specifically agrees that it shall
not be necessary or required that any Secured Party exercise any right, assert
any claim or demand or enforce any remedy whatsoever against any Borrower or any
other Person before or as a condition to the obligations of Holdings hereunder.
SECTION 10.2. Reinstatement, etc. Holdings hereby agrees that its
obligations under this Article shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in part) of any of
the Obligations is invalidated, declared to be fraudulent or preferential, set
aside, rescinded or must otherwise be restored by any Secured Party, including
upon the occurrence of any Default set forth in Section 8.1.9 or otherwise, all
as though such payment had not been made.
SECTION 10.3. Guaranty Absolute, etc. Holdings' obligations under this
Article shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall, unless thereafter reinstated in
accordance with Section 10.2, remain in full force and effect until the
Termination Date. Holdings guarantees, to the fullest extent permitted under
applicable law, that the Obligations will be paid strictly in accordance with
the terms of each Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Secured Party with
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respect thereto. The liability of Holdings under this Article shall, to the
fullest extent permitted under applicable law, be absolute, unconditional and
irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of any Loan
Document (other than this Article X);
(b) the failure of any Secured Party:
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrowers or any other Person (including any
other Guarantor) under the provisions of any Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any other
Guarantor of, or collateral securing, any Obligations;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Obligations, or any other extension,
compromise or renewal of any Obligation;
(d) any reduction, limitation, impairment or termination of any
Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and each
Borrower hereby irrevocably waives, until payment of all Obligations, any
right to or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, any Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to or departure from, any of the terms of any Loan
Document;
(f) any addition, exchange or release of any collateral or of any
Person that is (or will become) a Guarantor of the Obligations, or any
surrender or non-perfection of any collateral, or any amendment to or
waiver or release or addition to, or consent to or departure from, any
other guaranty held by any Secured Party securing any of the Obligations;
or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Borrower,
any surety or any Guarantor (other than the defense of payment in full in
cash or performance in full).
SECTION 10.4. Waiver, etc. Except for any notices expressly required to be
delivered to a Borrower hereunder, each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and the guaranty set forth in this Article X and any requirement
that any Secured Party protect, secure, perfect or insure any Lien, or any
property subject thereto, or exhaust any right or take any action against any
Borrower or any other Person (including Holdings) or entity or any collateral
securing the Obligations, as the case may be.
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SECTION 10.5. Postponement of Subrogation, etc. Holdings agrees that it
will not exercise any rights which it may acquire by way of rights of
subrogation hereunder, nor shall Holdings seek or be entitled to seek any
contribution or reimbursement from any Borrower, in respect of any payment made
hereunder, until following the Termination Date. Any other amount paid to
Holdings on account of any such subrogation rights prior to the Termination Date
shall be held in trust for the benefit of the Secured Parties and shall
immediately be paid and turned over to the Administrative Agent for the benefit
of the Secured Parties in the exact form received by Holdings (duly endorsed in
favor of the Administrative Agent, if required), to be credited and applied
against the Obligations, whether matured or unmatured, in accordance with
Section 4.7; provided that if the Obligors have made payment to the Secured
Parties of all or any part of the Obligations and the Termination Date has
occurred, then at any Borrower's request, the Administrative Agent (on behalf of
the Secured Parties) will, at the expense of Holdings, execute and deliver to
such Borrower appropriate documents (without recourse and without representation
or warranty) necessary to evidence the transfer by subrogation to such Borrower
of an interest in the Obligations resulting from such payment. In furtherance of
the foregoing, at all times prior to the Termination Date, Holdings shall
refrain from taking any action or commencing any proceeding against any Borrower
(or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made
hereunder to any Secured Party.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of each Loan
Document (other than Rate Protection Agreements, Letters of Credit or a Fee
Letter, which shall be modified only in accordance with their respective terms)
may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Borrowers, Holdings
and the Required Lenders; provided that no such amendment, modification or
waiver shall:
(a) modify clause (b) of Section 4.7, Section 4.8 (as each relates
to sharing of payments) or this Section, in each case, without the consent
of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required
to be made by a Lender pursuant to its Commitments, extend the final
Commitment Termination Date of Credit Extensions made (or participated in)
by a Lender or extend the final Stated Maturity Date for any Lender's Loan
or Synthetic Deposit, in each case without the consent of such Lender (it
being agreed, however, that any vote to rescind any acceleration made
pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to
the Loans and other Obligations shall only require the vote of the
Required Lenders);
(c) reduce (other than by way of (and to the extent of) payment in
cash) the principal amount of or reduce the rate of interest on any
Lender's Loan, reduce any fees or prepayment premium described in Article
III payable to any Lender or extend the date on which interest or fees are
payable in respect of such Lender's Loans, in each case without the
consent of such Lender (provided that the vote of Required Lenders shall
be
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sufficient to (i) waive the payment, or reduce the increased portion, of
interest accruing under Section 3.2.2 and (ii) amend the definition of
"Applicable Margin" following the withdrawal by S&P and Moody's of an
Applicable Rating);
(d) reduce the percentage set forth in the definition of "Required
Lenders" or modify any requirement hereunder that any particular action be
taken by (i) all Lenders without the consent of all Lenders or (ii) any
specific Lender without the consent of such Lender;
(e) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document,
release (i) any Borrower from its Obligations under the Loan Documents,
(ii) Holdings or any other Guarantor (other than an Immaterial Subsidiary)
from its obligations under a guaranty of the Obligations or (iii) all or
substantially all of the collateral under the Loan Documents, in each case
without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as the Administrative Agent), any
Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) unless consented to by the Administrative
Agent or such Issuer, as the case may be.
No failure or delay on the part of any Secured Party in exercising any
power or right under any Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on any Obligor in any case
shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Secured Party under any Loan
Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
Any term or provision of this Section 11.1 to the contrary
notwithstanding, if the Administrative Agent, Holdings and the Borrowers shall
have jointly identified an obvious error or any error or omission of a technical
or immaterial nature in any provision of the Loan Documents, then the
Administrative Agent, Holdings and the Borrowers shall be permitted to amend
such provision and such amendment shall become effective without any further
action or consent of any other party to any Loan Document.
SECTION 11.2. Notices; Time. All notices and other communications provided
under each Loan Document shall be in writing or by facsimile and addressed,
delivered or transmitted, if to Holdings, any Borrower, the Administrative
Agent, a Lender or an Issuer, to the applicable Person at its address or
facsimile number set forth on Schedule II hereto or set forth in the Lender
Assignment Agreement, or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed
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given when the confirmation of transmission thereof is received by the
transmitter. Electronic mail and Internet and intranet websites may be used only
to distribute routine communications by the Administrative Agent to the Lender,
such as financial statements and other information as provided in Section 7.1.1
and for the distribution and execution of Loan Documents for execution by the
parties thereto, and may not be used for any other purpose. The parties hereto
agree that delivery of an executed counterpart of a signature page to this
Agreement and each other Loan Document by facsimile (or electronic transmission)
shall be effective as delivery of an original executed counterpart of this
Agreement or such other Loan Document. Unless otherwise indicated, all
references to the time of a day in a Loan Document shall refer to New York time.
SECTION 11.3. Payment of Costs and Expenses. The Borrowers, jointly and
severally, agree to pay on demand all reasonable and documented expenses of the
Administrative Agent (including the fees and out-of-pocket expenses of Mayer,
Brown, Rowe & Maw LLP, counsel to the Administrative Agent and of local counsel,
if any, who may be retained by or on behalf of the Administrative Agent) in
connection with:
(a) the negotiation, preparation, execution and delivery of each
Loan Document and each Shareholder Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to any Loan Document and any Shareholder Loan Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated; and
(b) the filing or recording of any Loan Document (including the
Filing Statements) or any Shareholder Loan Document and all amendments,
supplements, amendment and restatements and other modifications to any
thereof, searches made following the Closing Date in jurisdictions where
Filing Statements (or other documents evidencing Liens in favor of the
Secured Parties) have been recorded and any and all other documents or
instruments of further assurance required to be filed or recorded by the
terms of any Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to any Loan Document or Shareholder Loan Document.
The Borrowers further, jointly and severally, agree to pay, and to save
each Secured Party harmless from all liability for, any stamp or other taxes
which may be payable in connection with the execution or delivery of each Loan
Document, each Shareholder Loan Document the Credit Extensions or the issuance
of the Notes. The Borrowers also, jointly and severally, agree to reimburse the
Administrative Agent (in the case of clauses (x) and (y) below) and each other
Secured Party (in the case of clause (y) below) upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses
of counsel to the Administrative Agent (and in the case of clause (y) below,
each other Secured Party)) incurred by the Administrative Agent (and in the case
of clause (y) below, each other Secured Party)) in connection with (x) the
negotiation of any restructuring or "work-out" with any Borrower, whether or not
consummated, of any Obligations and (y) the enforcement of any Obligations.
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SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrowers hereby, jointly
and severally, agree to indemnify, exonerate and hold each Secured Party (in the
case of any counterparty to any Rate Protection Agreement, solely in its
capacity as a Secured Party) and each of their respective officers, directors,
employees and agents (collectively, the "Indemnified Parties," and any such
Secured Party's respective officers, directors, employees and agents being,
collectively, "Related Parties") free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities and damages, and
expenses incurred in connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys' fees and disbursements, whether
incurred in connection with actions between or among the parties hereto or the
parties hereto and third parties (collectively, the "Indemnified Liabilities"),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to:
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension,
including all Indemnified Liabilities arising in connection with the
Transactions;
(b) the entering into and performance of any Loan Document by any of
the Indemnified Parties (including any action brought by or on behalf of
any Borrower as the result of any determination by the Required Lenders
pursuant to Article V not to fund any Credit Extension; provided that any
such action is resolved in favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Obligor or any Subsidiary
thereof of all or any portion of the Capital Securities or assets of any
Person, whether or not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by any Obligor or any
Subsidiary thereof of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by any Obligor or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, such
Obligor or Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Obligations and any transfer of the
property of any Obligor or its Subsidiaries by foreclosure or by a deed in
lieu of foreclosure for any Lender's Environmental Liability, regardless
of whether caused by, or within the control of, such Obligor or such
Subsidiary);
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except for Indemnified Liabilities arising for the account of a particular
Indemnified Party by reason of the relevant Indemnified Party's (or any Related
Party of such Indemnified Party) gross negligence or willful misconduct. Each
Obligor and its successors and assigns hereby waive, release and agree not to
make any claim or bring any cost recovery action against, any Indemnified Party
under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted. It is expressly understood and agreed that to the extent that
any Indemnified Party is strictly liable under any Environmental Laws, each
Obligor's obligation to such Indemnified Party under this indemnity shall
likewise be without regard to fault on the part of any Obligor with respect to
the violation or condition which results in liability of an Indemnified Party.
If and to the extent that the foregoing undertaking may be unenforceable for any
reason, each Obligor agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. To the extent permitted by applicable law, the Borrowers shall
not assert, and hereby waive, any claim against any Indemnified Party on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any other Loan Document, any Credit Extension
or the use of the proceeds thereof.
SECTION 11.5. Survival. The obligations of the Borrowers under Sections
2.6.3, 4.3, 4.4, 4.5, 4.6, 4.7, 11.3 and 11.4, and the obligations of the
Lenders under Section 9.1, shall in each case survive any assignment from one
Lender to another (in the case of Sections 11.3 and 11.4) and the occurrence of
the Termination Date. The representations and warranties made by each Obligor in
each Loan Document shall survive the execution and delivery of such Loan
Document.
SECTION 11.6. Severability. Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 11.7. Headings. The various headings of each Loan Document are
inserted for convenience only and shall not affect the meaning or interpretation
of such Loan Document or any provisions thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of Holdings, Acquisition Co., Swift Nevada, Swift
Arizona, the Administrative Agent and each Lender (or notice thereof
satisfactory to the Administrative Agent), shall have been received by the
Administrative Agent.
SECTION 11.9. Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER
THAN THE LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE
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SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR
RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98 INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP RULES")) AND, AS TO MATTERS
NOT GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. The
Loan Documents constitute the entire understanding among the parties hereto with
respect to the subject matter thereof and supersede any prior agreements,
written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided that the Borrowers may not assign or transfer
its rights or obligations hereunder to any Person without the consent of all
Lenders.
SECTION 11.11. Sale and Transfer of Credit Extensions; Participations in
Credit Extensions; Notes. Each Lender may assign, or sell participations in, its
Loans, Letters of Credit, Synthetic Deposits and Commitments to one or more
other Persons in accordance with the terms set forth below.
(a) Subject to clause (b), any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
the Loan Documents (including all or a portion of its Commitments,
Synthetic Deposits and the Loans at the time owing to it); provided that:
(i) except in the case of (A) an assignment of the entire
remaining amount of the assigning Lender's Commitments, Synthetic
Deposits and the Loans at the time owing to it or (B) an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitments (which
for this purpose includes Loans and Synthetic Deposits outstanding
thereunder) or principal outstanding balance of the Loans or
aggregate Synthetic Deposits of the assigning Lender subject to each
such assignment (determined as of the date the Lender Assignment
Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than (x) in the case of Term
Loans, Term Loan Commitments or Synthetic Deposits, $1,000,000 and
(y) in the case of Revolving Loans or Revolving Loan Commitments,
$5,000,000, in each case unless the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the
Borrowers, otherwise consent;
(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 Loans,
Synthetic Deposits and the Commitments assigned, except that this
clause (a)(ii) shall not prohibit any Lender from assigning all or a
portion of its rights and obligations among separate tranches on a
non-pro rata basis; and
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(iii) the parties to each assignment shall execute and deliver
to the Administrative Agent a Lender Assignment Agreement and if the
Eligible Assignee is not already Lender, administrative details
information with respect to such Eligible Assignee and applicable
tax forms.
(b) Except in the case of assignments made pursuant to the primary
syndication of the Commitments under this Agreement, any assignment
proposed pursuant to clause (a) to any Person (other than a Lender or an
Approved Fund) shall be subject to the prior written approval of (i) the
Administrative Agent (not to be unreasonably withheld), (ii) in the case
of any assignment of any Revolving Loan Commitment, the Swing Line Lender
and each Revolving Issuer, (iii) in the case of any assignment of
Synthetic Deposits, each Synthetic Issuer (not to be unreasonably
withheld) and (iv) solely with respect to assignments of Revolving Loans
and Revolving Loan Commitments, and so long as no Event of Default has
occurred and is continuing on the date such assignment is to become
effective, the Borrowers (not to be unreasonably withheld). If the consent
of the Borrowers to an assignment or to an Eligible Assignee is required
hereunder (including a consent to an assignment which does not meet the
minimum assignment thresholds specified in this Section), the Borrowers
shall be deemed to have given its consent ten Business Days after the date
notice thereof has been delivered by the assigning Lender (through the
Administrative Agent) to the Borrowers, unless such consent is expressly
refused by the Borrowers in writing prior to such tenth Business Day.
(c) Subject to acceptance and recording thereof by the
Administrative Agent pursuant to clause (d), from and after the effective
date specified in each Lender Assignment Agreement, (i) the Eligible
Assignee thereunder shall (if not already a Lender) be a party hereto and,
to the extent of the interest assigned by such Lender Assignment
Agreement, have the rights and obligations of a Lender under the Loan
Documents, and (ii) the assigning Lender thereunder shall (subject to
Section 11.5) be released from its obligations under the Loan Documents,
to the extent of the interest assigned by such Lender Assignment Agreement
(and, in the case of a Lender Assignment Agreement covering all of the
assigning Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party hereto, but shall (as to matters arising
prior to the effectiveness of the Lender Assignment Agreement) continue to
be entitled to the benefits of any provisions of the Loan Documents which
by their terms survive the termination of this Agreement). Any term or
provision hereof to the contrary notwithstanding, no portion of any
Synthetic Deposit of any assigning Synthetic Lender shall be refunded in
connection with any assignment by such Synthetic Lender, but instead (x)
the applicable Eligible Assignee shall purchase from such assigning
Synthetic Lender that portion of the Synthetic Deposit identified in the
applicable Lender Assignment Agreement for such consideration as is
mutually agreed upon by such parties; and (y) such assigned portion of
such Synthetic Deposit shall remain on deposit in the Synthetic Deposit
Account and, upon the effectiveness of such assignment, shall become the
Synthetic Deposit of such Eligible Assignee. Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not
comply with the terms of this Section shall be treated for purposes of the
Loan Documents as a sale by
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such Lender of a participation in such rights and obligations in
accordance with clause (e).
(d) The Administrative Agent shall record each assignment made in
accordance with this Section in the Register pursuant to clause (a) of
Section 2.7. The Register shall be available for inspection by any
Borrower and any Lender, at any reasonable time upon reasonable prior
notice to the Administrative Agent. In connection with each assignment of
Synthetic Deposit Amounts, the Synthetic Deposit of the assignor Lender
shall not be released, but shall instead be purchased by the relevant
Eligible Assignee and continue to be held for application (to the extent
not already applied) in accordance with Article II to satisfy such
Eligible Assignee's obligations in respect of Synthetic Deposit Amounts
and Synthetic Letters of Credit. Each Synthetic Lender agrees that
immediately prior to each assignment by a Synthetic Lender, a
corresponding portion of the Synthetic Deposit in respect of the assignor
Lender's Synthetic Deposit Allocation shall be purchased by the Eligible
Assignee and shall be transferred from the assignor's Synthetic Deposit
Allocation to the Eligible Assignee's Synthetic Deposit Allocation.
(e) Any Lender may, without the consent of, or notice to, any
Person, sell participations to one or more Persons (other than
individuals) (a "Participant") in all or a portion of such Lender's rights
or obligations under the Loan Documents (including all or a portion of its
Commitments, Synthetic Deposits or the Loans owing to it); provided that,
(i) such Lender's obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents. Any agreement or
instrument pursuant to which a Lender sells a participation shall provide
that such Lender shall retain the sole right to enforce the rights and
remedies of a Lender under the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents;
provided that, such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, take any action of the
type described in clauses (a) through (d) or clause (f) of Section 11.1
with respect to Obligations participated in by that Participant. Subject
to clause (f), the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 4.3, 4.4, 4.5, 4.6, 7.1.1, 11.3 and 11.4 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to clause (c). To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 4.9 as
though it were a Lender, but only if such Participant agrees to be subject
to Section 4.8 as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 4.3, 4.4, 4.5, 4.6, 11.3 or 11.4 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 Borrowers' prior
written consent. A Participant that would be a Non-U.S. Lender if it were
a Lender shall not be entitled to the benefits of Section 4.6 unless the
Borrowers are notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply
110
with the requirements set forth in Section 4.6 as though it were a Lender.
Any Lender that sells a participating interest in any Loan, Commitment,
Synthetic Deposit or other interest to a Participant under this Section
shall indemnify and hold harmless the Borrowers and the Administrative
Agent from and against any taxes, penalties, interest or other costs or
losses (including reasonable attorneys' fees and expenses) incurred or
payable by the Borrowers or the Administrative Agent as a result of the
failure of the Borrower or the Administrative Agent to comply with its
obligations to deduct or withhold any Taxes from any payments made
pursuant to this Agreement to such Lender or the Administrative Agent, as
the case may be, which Taxes would not have been incurred or payable if
such Participant had been a Non-U.S. Lender that was entitled to deliver
to the Borrowers, the Administrative Agent or such Lender, and did in fact
so deliver, a duly completed and valid Form W-8BEN or W-8ECI (or
applicable successor form) entitling such Participant to receive payments
under this Agreement without deduction or withholding of any United States
federal taxes.
(g) 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 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.
(h) In the event that S&P or Moody's, shall, after the date that any
Person becomes a Revolving Loan Lender or Synthetic Lender, downgrade the
long-term certificate of deposit ratings of such Lender, and the resulting
ratings shall be below BBB- or Baa3, respectively, or the equivalent, then
the Revolving Loan Borrower, the Swing Line Lender and each Issuer shall
each have the right, but not the obligation, upon notice to such Revolving
Loan Lender or Synthetic Lender, as applicable, and the Administrative
Agent, to replace such Revolving Loan Lender or Synthetic Lender with an
Eligible Assignee or a financial institution (a "Replacement Lender")
acceptable to the Revolving Loan Borrower, the Administrative Agent, the
Issuers and the Swing Line Lender (such consents not to be unreasonably
withheld or delayed; provided that no such consent shall be required if
the Replacement Lender is an existing Revolving Loan Lender or Synthetic
Lender, as applicable), and upon any such downgrading of any Revolving
Loan Lender's or Synthetic Lender's long-term certificate of deposit
rating, such Revolving Loan Lender or Synthetic Lender, as applicable,
hereby agrees to transfer and assign (in accordance with this Section) all
of its Commitments and other rights and obligations under the Loan
Documents (including Reimbursement Obligations) to such Replacement
Lender; provided that, (i) such assignment shall be without recourse,
representation or warranty (other than that such Lender owns the
Commitments, Loans and Notes being assigned, free and clear of any Liens)
and (ii) the purchase price paid by the Replacement Lender shall be in the
amount of (x) in the case of any Revolving Loan Lender, such Revolving
Loan Lender's Loans and its Percentage of outstanding Reimbursement
Obligations and (y) in the case of any Synthetic Lender, such Synthetic
Lender's Synthetic Deposit and its Percentage of Outstanding Reimbursement
Obligations, in each case, together with all accrued and unpaid interest
and fees in respect thereof, plus all other amounts (other than the
amounts (if any) demanded and
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unreimbursed under Sections 4.2 through (and including) 4.6, which shall
be paid by the Borrowers), owing to such Revolving Loan Lender or
Synthetic Lender, as applicable, hereunder. Upon any such termination or
assignment, such Revolving Loan Lender or Synthetic Lender, as applicable,
shall cease to be a party hereto but shall continue to be entitled to the
benefits of, and subject to the obligations of, any provisions of the Loan
Documents which by their terms survive the termination of this Agreement.
(i) Any Lender that sells a participating interest in any Loan or
other interest to a Participant shall, as agent of the Borrower solely for
the purpose of this Section 11.11, record in book entries maintained by
such Lender the name and the amount of the participating interest of each
Participant entitled to receive payments in respect of such participating
interests.
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude
the Administrative Agent, any Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by the Loan Documents, with the
Borrowers or any of its Affiliates in which the Borrowers or such Affiliate is
not restricted hereby from engaging with any other Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS, ANY ISSUER OR
THE BORROWERS IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED
IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT, ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES
SPECIFIED IN SECTION 11.2. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS.
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SECTION 11.14. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH
LENDER, EACH ISSUER, HOLDINGS AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS
OF THE ADMINISTRATIVE AGENT, SUCH LENDER, SUCH ISSUER, HOLDINGS OR SUCH BORROWER
IN CONNECTION THEREWITH. EACH OF HOLDINGS AND EACH BORROWER ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT,
EACH LENDER AND EACH ISSUER ENTERING INTO THE LOAN DOCUMENTS. EACH PARTY HERETO
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.
SECTION 11.15. National Security Laws. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56, signed into law October 26, 2001 (the "Act")), it is required to
obtain, verify and record information that identifies the Borrowers, which
information includes the name, address and tax identification number of the
Borrowers and other information that will allow such Lender to identify the
Borrowers in accordance with the Act.
Notwithstanding any other provision of this Agreement, no Lender will assign its
rights and obligations under this Agreement, or sell participations in its
rights and/or obligations under this Agreement, to any Person who is (i) listed
on the Specially Designated Nationals and Blocked Persons List maintained by the
U.S. Department of Treasury Office of Foreign Assets Control ("OFAC") and/or on
any other similar list maintained by OFAC pursuant to any authorizing statute,
executive order or regulation or (ii) either (A) included within the term
"designated national" as defined in the Cuban Assets Control Regulations, 31
C.F.R. Part 515 or (B) designated under Sections 1(a), 1(b), 1(c) or 1(d) of
Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or
similarly designated under any related enabling legislation or any other similar
executive orders.
ARTICLE XII
NATURE OF BORROWERS' OBLIGATIONS
SECTION 12.1. Nature of Obligations. Notwithstanding anything to the
contrary contained elsewhere in this Agreement, it is understood and agreed by
the various parties to this Agreement that all Obligations to repay principal
of, interest on, and all other amounts with respect to, all Loans and all other
Obligations pursuant to this Agreement in respect of the Loans or Commitments
and under any Note (including without limitation, all fees, indemnities, taxes
and other Obligations in connection therewith or in connection with the related
Commitments) shall constitute the joint and several obligations of the
Borrowers. In addition to the direct
113
obligations with respect to the Obligations as described above, all such
Obligations shall be guaranteed pursuant to, and in accordance with the terms
of, the Subsidiary Guaranty.
SECTION 12.2. Independent Obligation. The obligations of each of the
Borrowers with respect to the Obligations are independent of the obligations of
the other or any other guarantor, and a separate action or actions may be
brought and prosecuted against each Borrower, whether or not the other or any
other guarantor is joined in any such action or actions. Each Borrower waives,
to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by either Borrower or other circumstance which operates to toll any
statute of limitations as to such Person shall, to the fullest extent permitted
by law, operate to toll the statute of limitations as to each Borrower.
SECTION 12.3. Authorization. To the extent that Borrowers are jointly and
severally liable for any Obligation, each of the Borrowers authorizes the
Administrative Agent and the Lenders without notice or demand (except as shall
be required by applicable statute and cannot be waived), and without affecting
or impairing its liability hereunder, from time to time to:
(a) exercise or refrain from exercising any rights against the other
Borrower or any guarantor or others or otherwise act o refrain from
acting;
(b) release or substitute the other Person, endorsers, guarantors or
other obligors;
(c) settle or compromise any of the Obligations of the other Person
or any other Obligor, any security therefor or any liability (including
any of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of either Borrower to
its creditors other than the Lenders;
(d) apply any sums paid by the other Person or any other Person,
however realized to any liability or liabilities of such Person or other
Person remain unpaid; and/or
(e) consent to or waive any breach of, or act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise, by the other Person or any other Person.
SECTION 12.4. Reliance. It is not necessary for the Administrative Agent
or any other Lender to inquire into the capacity or powers of either Borrower or
any of their respective Subsidiaries or the officers, directors, members,
partners or agents acting or purporting to act on its behalf, and any
Obligations made or created in reliance upon the professed exercise of such
powers shall constitute the joint and several obligations of the Borrowers
hereunder.
SECTION 12.5. Contribution; Subrogation. Neither Borrower shall have any
rights of contribution or subrogation with respect to the other as a result of
payments made by it hereunder, in each case unless and until all Obligations
have been repaid in full in cash.
SECTION 12.6. Waiver. Each of Borrower waives any right to require the
Administrative Agent or the other Lenders to (i) proceed against the other any
guarantor or any
114
other party, (ii) proceed against or exhaust any security held from the other,
any guarantor or any other party or (iii) pursue any other remedy in the
Administrative Agent's or the Lenders' power whatsoever. Each of Borrower waives
any defense based on or arising out of any defense of the other, any guarantor
or any other party other than payment in full in cash of the respective
Obligations, including, without limitation, any defense based on or arising out
of the disability of the other, any guarantor or any other party, or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the other, in each case other than
as a result of the payment in full in cash of the respective Obligations. The
Administrative Agent and the Lenders may, at their election, foreclose on any
security held by the Administrative Agent or the other Secured Parties by one or
more judicial or non-judicial sales, whether or not every aspect of any such
sale is commercially reasonable, or exercise any other right or remedy the
Administrative Agent and the other Lenders may have against either Borrower or
any other party, or any security, without affecting or impairing in any way the
liability of either Person hereunder except to the extent the respective
Obligations have been paid in full in cash. Each of Borrower waives, to the
fullest extent permitted by law, any defense arising out of any such election by
the Administrative Agent and the other Lenders even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Person against the other or any other guarantor or
party or any security.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
SAINT CORPORATION
By: /s/ Jerry Moyes
--------------------------------------------
Name: Jerry Moyes
Title: President and Chief Executive Officer
Address: PO Box 20683
Phoenix, AZ 85043
Facsimile No.: (602) 275-6417
Attention: Elly Penrod
SAINT ACQUISITION CORPORATION
By: /s/ Jerry Moyes
--------------------------------------------
Name: Jerry Moyes
Title: President and Chief Executive Officer
Address: PO Box 20683
Phoenix, AZ 85043
Facsimile No.: (602) 275-6417
Attention: Elly Penrod
Credit Agreement
SWIFT TRANSPORTATION CO., INC.,
a Nevada corporation
By: /s/ Robert T. Goates
-------------------------------------
Name: Robert T. Goates
Title: President
Address: c/o Swift Tranportation Co., Inc.
2200 South 75th Avenue
Phoenix, AZ 85043
Facsimile No.: (602) 907-7503
Attention: Robert T. Goates
SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation
By: /s/ Robert T. Goates
-------------------------------------
Name: Robert T. Goates
Title: President
Address: c/o Swift Tranportation Co., Inc.
2200 South 75th Avenue
Phoenix, AZ 85043
Facsimile No.: (602) 907-7503
Attention: Robert T. Goates
Credit Agreement
MORGAN STANLEY SENIOR FUNDING, INC.
as Administrative Agent and as a lender
By: /s/ John McCann
--------------------------------------
Name: John McCann
Title: Vice President
Morgan Stanley Senior Funding, Inc
Credit Agreement
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ David J. Thomas
--------------------------------------
Name: David J. Thomas
Title: Senior Vice President
Credit Agreement
WACHOVIA BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Jerrroy M. Foley
--------------------------------------
Name: Jerrroy M. Foley
Title: Director
Credit Agreement
J.P. MORGAN CHASE BANK, N.A. as ALender
By: /s/ Robert P. Kellas
--------------------------------------
Name: ROBERT P. KELLAS
Title: EXECUTIVE DIRECTOR
Credit Agreement