\n 11.14 Further Assurances……………………………………. 66
\n 11.15 Integration………………………………………….. 66
\n 11.16 Governing Law………………………………………… 67
\n 11.17 Severability of Provisions…………………………….. 67
\n 11.18 Independent Covenants…………………………………. 67
\n 11.19 Headings…………………………………………….. 67
\n 11.20 Time of the Essence…………………………………… 67
\n 11.21 Purported Oral Amendments……………………………… 67
\n 11.22 Jury Trial Waiver…………………………………….. 67
\n<\/c><\/s><\/table>\nList of Schedules and Exhibits:<\/p>\n
Schedule 1.1 List of Lenders and Pro Rata Shares
\nSchedule 3.1 Pricing Grid
\nSchedule 4.4 Subsidiaries
\nSchedule 4.6 Contingent Liabilities
\nSchedule 4.10 Litigation
\nSchedule 4.13 Pension Plans
\nSchedule 4.12 Liens
\nSchedule 4.18 Hazardous Materials
\nSchedule 6.5 Indebtedness<\/p>\n
Exhibit A Form of Commitment Assignment and Acceptance
\nExhibit B Form of Compliance Certificate
\nExhibit C Form of RLC Note
\nExhibit D Form of Guaranty
\nExhibit E Form of Request for Loan
\nExhibit F Form of Pledge Agreement
\nExhibit G Form of Security Agreement<\/p>\n
iv
\n 6
\n CREDIT AGREEMENT<\/p>\n
Dated as of June 30, 1998<\/p>\n
This CREDIT AGREEMENT (“Agreement”) is entered into by and between SCHUFF
\nSTEEL COMPANY, a Delaware corporation (“Borrower”), and each lender whose name
\nis set forth on the signature pages hereof or which may hereafter execute and
\ndeliver a Commitment Assignment and Acceptance with respect to this Agreement
\npursuant to Section 11.8 (collectively, the “Lenders” and individually, a
\n“Lender”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Arranger,
\nAdministrative Agent, Issuing Bank and Swing Line Lender. In consideration of
\nthe mutual covenants and agreements herein contained, the parties hereto
\ncovenant and agree as follows:<\/p>\n
ARTICLE 1
\n DEFINITIONS AND ACCOUNTING TERMS<\/p>\n
1.1 Defined Term. As used in this Agreement, the following terms shall
\nhave the meanings set forth below:<\/p>\n
“Acquisition” means any transaction, or any series of related
\ntransactions, by which Borrower and\/or any of its Subsidiaries directly or
\nindirectly (a) acquires any going business or all or substantially all of the
\nassets of any firm, partnership, joint venture, corporation or division thereof
\nwhether through purchase of assets, merger or otherwise, (b) acquires (in one
\ntransaction or as the most recent transaction in a series of transactions)
\ncontrol of at least a majority in ordinary voting power of the securities of a
\ncorporation which have ordinary voting power for the election of directors or
\n(c) acquires control of more than 50% of the ownership interests in any
\npartnership, joint venture, limited liability company or other business entity
\nwhich does not have outstanding voting securities.<\/p>\n
“Administrative Agent” means Wells Fargo Bank, National Association, when
\nacting in its capacity as the Administrative Agent under any of the Loan
\nDocuments, and any successor Administrative Agent or assign, such successor or
\nassign to be reasonably acceptable to Borrower.<\/p>\n
“Administrative Agent’s Office” means the Administrative Agent’s address
\nas set forth on the signature pages of this Agreement, or such other address as
\nthe Administrative Agent hereafter may designate by written notice to Borrower
\nand the Lenders.<\/p>\n
“Advance” means any Advance made or to be made by any Lender to Borrower
\nas provided in Article 2, and includes each Base Rate Advance and each
\nEurodollar Rate Advance.<\/p>\n
“Affiliate” means, as to any Person, any other Person which directly or
\nindirectly Controls, or is under common Control with, or is Controlled by, such
\nPerson.<\/p>\n
1
\n 7
\n “Agreement” means this Loan Agreement either as originally executed or as
\nit may from time to time be supplemented, modified, amended, restated or
\nextended.<\/p>\n
“Arranger” means Wells Fargo Bank, National Association and any successor
\nor assign.<\/p>\n
“Banking Day” means any Monday, Tuesday, Wednesday, Thursday or Friday,
\nother than a day on which banks are authorized or required to be closed in
\nArizona, California or New York.<\/p>\n
“Base Rate” means, as of any date of determination, the higher of (a) the
\nPrime Rate or (b) the Federal Funds Rate plus one half of one percent per annum.<\/p>\n
“Base Rate Advance” means an Advance made hereunder and designated as a
\nBase Rate Advance in accordance with Article 2.<\/p>\n
“Base Rate Loan” means a Loan made hereunder and designated as a Base Rate
\nLoan in accordance with Article 2.<\/p>\n
“Base Rate Spread” means an additional component of interest, which may
\nvary over the term of any Base Rate Loan, to be added to the Base Rate in
\ndetermining the interest rate payable with respect to Base Rate Loans. As of
\neach date of determination, the Base Rate Spread equals the interest rate per
\nannum set forth on the Pricing Grid.<\/p>\n
“Borrower” means Schuff Steel Company, a Delaware corporation, and its
\nsuccessors and permitted assigns.<\/p>\n
“Capital Lease” means, as to any Person, a lease of any Property by that
\nPerson as lessee that is, or should be in accordance with Financial Accounting
\nStandards Board Statement No. 13, recorded as a “capital lease” on the balance
\nsheet of that Person prepared in accordance with GAAP.<\/p>\n
“Cash” means, when used in connection with any Person, all monetary and
\nnon-monetary items owned by that Person that are treated as cash in accordance
\nwith GAAP, consistently applied.<\/p>\n
“Cash Equivalents” means, when used in connection with any Person, that
\nPerson’s Investments in:<\/p>\n
(a) Government Securities due within one year after the date of
\n the making of the Investment;<\/p>\n
(b) readily marketable direct obligations of any State of the
\n United States of America or any political subdivision of any such State
\n given on the date of such investment a credit rating of at least Aa by
\n Moody’s Investors<\/p>\n
2
\n 8
\n Service, Inc. or AA by Standard & Poor’s Rating Group (a division of
\n McGraw- Hill, Inc.), in each case due within one year after the date of
\n the making of the Investment;<\/p>\n
(c) certificates of deposit issued by, bank deposits in,
\n eurodollar deposits through, bankers’ acceptances of, and reverse
\n repurchase agreements covering Government Securities executed by, any
\n Lender or any bank, savings and loan or savings bank doing business in and
\n incorporated under the Laws of the United States of America or any State
\n thereof and having on the date of such Investment combined capital,
\n surplus and undivided profits of at least $250,000,000, in each case due
\n within one year after the date of the making of the Investment;<\/p>\n
(d) certificates of deposit issued by, bank deposits in,
\n eurodollar deposits through, bankers’ acceptances of, and reverse
\n repurchase agreements covering Government Securities executed by, any
\n branch or office located in the United States of America of a bank
\n incorporated under the Laws of any jurisdiction outside the United States
\n of America having on the date of such Investment combined capital surplus
\n and undivided profits of at least $500,000,000, in each case due within
\n one year after the date of the making of the Investment; and<\/p>\n
(e) readily marketable commercial paper of corporations doing
\n business in and incorporated under the Laws of the United States of
\n America or any State thereof given on the date of such Investment the
\n highest credit rating by Moody’s Investors Service, Inc. and Standard & Poor’s Rating Group (a division of McGraw-Hill, Inc.), in each case due
\n within 270 days after the date of the making of the Investment.<\/p>\n
“Certificate of a Responsible Official” means a certificate signed by a
\nResponsible Official of the Person providing the certificate.<\/p>\n
“Closing Date” means the time and Banking Day on which the conditions set
\nforth in Section 8.1 are satisfied.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended or replaced and
\nas in effect from time to time.<\/p>\n
“Collateral” means all of the property of Borrower and of each Subsidiary,
\npresent and future.<\/p>\n
“Commercial Letter of Credit” means a Letter of Credit that is not a
\nStandby Letter of Credit.<\/p>\n
3
\n 9
\n “Commercial Letter of Credit Fee” means one percent (1.0%) of the stated
\namount of the Letter of Credit.<\/p>\n
“Commitment” means, subject to Section 2.4, $25,000,000. The respective
\nPro Rata Shares of the Lenders with respect to the Commitment as of the Closing
\nDate are set forth in Schedule 1.1.<\/p>\n
“Commitment Assignment and Acceptance” means a Commitment Assignment and
\nAcceptance executed by a Lender and an Eligible Assignee substantially in the
\nform of Exhibit A and registered with the Administrative Agent pursuant to
\nSection 11.8.<\/p>\n
“Compliance Certificate” means a certificate in the form of Exhibit B,
\nproperly completed and signed by a Senior Officer of Borrower.<\/p>\n
“Contingent Obligation” means, as to any Person, any (a) direct or
\nindirect guarantee of Indebtedness of, or other obligation performable by, any
\nother Person, including any endorsement (other than for collection or deposit in
\nthe ordinary course of business), co-making or sale with recourse of the
\nobligations of any other Person, or (b) assurance given to an obligee with
\nrespect to the performance of an obligation by, or the financial condition of,
\nany other Person, whether direct, indirect or contingent, including any purchase
\nor repurchase agreement covering such obligation or any collateral security
\ntherefor, any agreement to provide funds (by means of loans, capital
\ncontributions or otherwise) to such other Person, any agreement to support the
\nsolvency or level of any balance sheet item to such other Person, or any
\n“keep-well,” “take-or-pay,” “through put” or other arrangement of whatever
\nnature having the effect of assuring or holding harmless any obligee against
\nloss with respect to any obligation of such other Person, or (c) any obligation
\nof a partnership or joint venture of which such Person is a partner or joint
\nventurer. The amount of any Contingent Obligation shall be deemed to be an
\namount equal to the stated or determinable amount of the related primary
\nobligation (unless the Contingent Obligation is limited by its terms to a lesser
\namount, in which case to the extent of such amount) or, if not stated or
\ndeterminable, the maximum reasonably anticipated liability in respect thereof as
\ndetermined by the Person in good faith.<\/p>\n
“Contractual Obligation” means, as to any Person, any material provision
\nof any outstanding Securities issued by that Person or of any material
\nagreement, instrument or undertaking to which that Person is a party or by which
\nit or any of its Property is bound.<\/p>\n
“Control” (and the correlative terms, “Controlled by” and “under common
\nControl with”) means possession, directly or indirectly, of power to direct or
\ncause the direction of management or policies (whether through ownership of
\nsecurities or partnership or other ownership interests, by contract or
\notherwise); provided that, in any event, any Person that owns, directly or
\nindirectly, 5% or more of the securities having ordinary voting power for the
\nelection of directors or other governing body of a corporation having 100 or
\nmore record owners of such securities (other than securities having such power
\nonly by reason of the happening of a contingency), or 5% or more of the
\npartnership or other ownership interests of any other Person having 100 or more
\nowners of such partnership or other ownership interests<\/p>\n
4
\n 10
\n(other than as a limited partner of such other Person), will be deemed to
\ncontrol such corporation or other Person.<\/p>\n
“Debtor Relief Laws” means the Bankruptcy Code of the United States of
\nAmerica, as amended from time to time, and all other applicable liquidation,
\nconservatorship, bankruptcy, moratorium, rearrangement receivership, insolvency,
\nreorganization, or similar debtor relief Laws from time to time in effect
\naffecting the rights of creditors generally.<\/p>\n
“Default” means any Event of Default or any event that, with the giving of
\nany applicable notice or passage of time specified in Section 9.1, or both,
\nwould be an Event of Default.<\/p>\n
“Default Rate” means the interest rate described in Section 3.7.<\/p>\n
“Designated Deposit Account” means a demand deposit account to be
\nmaintained by Borrower with the Administrative Agent, as from time to time
\ndesignated by Borrower by written notification to the Administrative Agent.<\/p>\n
“Designated Employee” means any natural Person designated by Borrower as
\nan employee of Borrower authorized to make requests for Loans under this
\nAgreement on behalf of Borrower pursuant to a written notice thereof signed by a
\nResponsible Official of Borrower delivered to Administrative Agent.<\/p>\n
“Designated Eurodollar Market” means, with respect to any Eurodollar Rate
\nLoan, the London interbank market.<\/p>\n
“Disposition” means the sale, transfer or other disposition in any single
\ntransaction or series of related transactions of any asset or group of related
\nassets, of Borrower or any of its Subsidiaries (including a sale, transfer or
\nother disposition by Borrower to one or more of its Subsidiaries or by a
\nSubsidiary of Borrower to another Subsidiary of Borrower) that has or have at
\nthe date of the Disposition either a book value or fair market value (which
\nshall be deemed to be equal to the sales price for such asset or assets upon a
\nsale to a Person that is not an Affiliate of Borrower) equal to or greater than
\n$50,000,000, other than (a) the sale or other disposition of inventory in the
\nordinary course of business, (b) the sale or other disposition of equipment that
\nis replaced by equipment performing substantially the same function not later
\nthan (30) days after such sale or disposition and (c) the sale or other
\ndisposition of Cash Equivalents in the ordinary course of business.<\/p>\n
“Distribution” means, with respect to any shares of capital stock or any
\nwarrant or right to acquire shares of capital stock or any other equity security
\nissued by a Person, (a) the retirement, redemption, purchase, or other
\nacquisition for value (other than for common stock of such Person) by such
\nPerson of any such security, (b) the declaration or (without duplication)
\npayment by such Person of any dividend in Cash or in Property (other than in
\ncommon stock of such Person) on or with respect to any such security, (c) any
\nInvestment by such Person in the holder of any such security where such
\nInvestment is made in lieu of, or to<\/p>\n
5
\n 11
\navoid characterization as, a Distribution described in clauses (a) or (b) above
\nand (d) any other payment by such Person constituting a distribution under
\napplicable Laws with respect to such security.<\/p>\n
“dollars” or “$” means United States dollars.<\/p>\n
“EBITDA” means, as of any date of determination, as to Borrower and its
\nSubsidiaries, the sum of their income from operations, less interest expense,
\ntaxes, depreciation, amortization and all extraordinary items.<\/p>\n
“Eligible Assignee” means (a) with respect to any Lender, any Affiliate of
\nthat Lender, and (b) any other Person (including any Lender) approved in writing
\nby Borrower and the Arranger, which approval shall not be unreasonably withheld
\nor delayed.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, and any
\nregulations issued pursuant thereto, as amended or replaced and as in effect
\nfrom time to time.<\/p>\n
“ERISA Affiliate” means, with respect to any Person, any other Person (or
\nany trade or business, whether or not incorporated) that is under common control
\nwith that Person within the meaning of Section 414 of the Code.<\/p>\n
“Eurodollar Banking Day” means any Banking Day on which dealings in dollar
\ndeposits are conducted by and among banks in the Designated Eurodollar Market.<\/p>\n
“Eurodollar Base Rate” means, with respect to any Eurodollar Rate Loan,
\nthe interest rate per annum (determined solely by the Administrative Agent and
\nrounded upward to the next 1\/16 of 1%) at which deposits in dollars are offered
\nto prime banks by major banks in the Designated Eurodollar Market at or about
\n11:00 a.m. local time in the Designated Eurodollar Market, two (2) Eurodollar
\nBanking Days before the first day of the applicable Eurodollar Period in an
\naggregate amount approximately equal to the amount of such Eurodollar Rate Loan
\nand for a period of time comparable to the number of days in the applicable
\nEurodollar Period. The determination of the Eurodollar Rate by the
\nAdministrative Agent shall be conclusive in the absence of manifest error.<\/p>\n
“Eurodollar Lending Office” means, as to each Lender, its office or branch
\nso designated by written notice to Borrower and the Administrative Agent as its
\nEurodollar Lending Office. If no Eurodollar Lending Office is designated by a
\nLender, its Eurodollar Lending Office shall be its office at its address for
\npurposes of notices hereunder.<\/p>\n
“Eurodollar Obligations” means eurocurrency liabilities, as defined in
\nRegulation D.<\/p>\n
“Eurodollar Period” means, as to each Eurodollar Rate Loan, the period
\ncommencing on the date specified by Borrower pursuant to Section 2.1(c) and
\nending 1, 2, 3 or 6 months thereafter, as specified by Borrower in the
\napplicable Request for Loan; provided that:<\/p>\n
6
\n 12
\n (a) The first day of any Eurodollar Period shall be a Eurodollar
\n Banking Day;<\/p>\n
(b) Any Eurodollar Period that would otherwise end on a day that
\n is not a Eurodollar Banking Day shall be extended to the next succeeding
\n Eurodollar Banking Day unless such Eurodollar Banking Day falls in another
\n calendar month, in which case such Eurodollar Period shall end on the next
\n preceding Eurodollar Banking Day; and<\/p>\n
(c) No Eurodollar Period shall extend beyond the Maturity Date.<\/p>\n
“Eurodollar Rate” means, with respect to any Eurodollar Rate Loan, the
\ninterest rate (rounded upward to the next 1\/16 of 1%) determined to be equal to
\nthe Eurodollar Base Rate divided by [1 minus the Eurodollar Reserve Percentage].<\/p>\n
“Eurodollar Rate Advance” means an Advance made hereunder and designated
\nas a Eurodollar Rate Advance in accordance with Article 2.<\/p>\n
“Eurodollar Rate Loan” means a Loan made hereunder and designated as a
\nEurodollar Rate Loan in accordance with Article 2.<\/p>\n
“Eurodollar Rate Spread” means an additional component of interest (which
\nmay vary over the term of any Eurodollar Rate Loan) to be added to the
\nEurodollar Rate in determining the interest rate payable with respect to
\nEurodollar Rate Loans. As of each date of determination the Eurodollar Rate
\nSpread equals the interest rate per annum set forth on the Pricing Grid.<\/p>\n
“Eurodollar Reserve Percentage” means, with respect to any Eurodollar Rate
\nLoan, the percentage applicable as of the date of determination of the
\nEurodollar Base Rate representing the aggregate reserve requirements of the
\nAdministrative Agent (disregarding any offsetting amounts that may be available
\nto the Administrative Agent to decrease such requirements to the extent that
\nsuch offsetting amounts arose out of transactions other than those contemplated
\nby this Agreement) under Regulation D and any other applicable Laws with respect
\nto Eurodollar Obligations in an aggregate amount equal to the amount of such
\nEurodollar Rate Loan and for a time period comparable to the number of months in
\nthe applicable Eurodollar Period. The determination by the Administrative Agent
\nof any applicable Eurodollar Reserve Percentage shall be presumed correct in the
\nabsence of manifest error.<\/p>\n
“Event of Default” has the meaning provided in Section 9.1.<\/p>\n
“Facility Fee Rate” means, as of each date of determination, the rate per
\nannum set forth on the Pricing Grid.<\/p>\n
“Federal Funds Rate” means, as of any date of determination, the interest
\nrate per annum equal to the weighted average of the rates on overnight Federal
\nfunds transactions with<\/p>\n
7
\n 13
\nmembers of the Federal Reserve System arranged by Federal funds brokers, as
\npublished for such day (or, if such day is not a Banking Day, for the next
\npreceding Banking Day) by the Federal Reserve Bank of New York in its
\nstatistical release H-15 or, if such rate is not so published for any day which
\nis a Banking Day, the average of the quotations for such day on such
\ntransactions, as received by the Administrative Agent from three Federal funds
\nbrokers of recognized standing selected by it.<\/p>\n
“Financial Covenants” means those covenants provided for in Section 6.11.<\/p>\n
“Fiscal Quarter” means the fiscal quarter of Borrower consisting of a
\nthree month fiscal period ending on each March 31, June 30, September 30 and
\nDecember 31.<\/p>\n
“Fiscal Year” means the fiscal year of Borrower consisting of a twelve
\nmonth fiscal period ending on each December 31.<\/p>\n
“Fixed Charge Coverage Ratio” means, for the prior twelve months ending on
\nthe last day of a Fiscal Quarter, the ratio of (i) EBITDA less all capital
\nexpenditures and taxes paid, to (ii) the sum of interest expenses, lease
\npayments and scheduled principal payments of Borrower and its Subsidiaries.<\/p>\n
“GAAP” means, as of any date of determination, accounting principles set
\nforth as “generally accepted” in then currently effective Statements of the
\nAuditing Standards Board of the American Institute of Certified Public
\nAccountants, or, if no such Statements are then in effect, that are then
\napproved by such other entity as may be approved by a significant segment of the
\naccounting profession in the United States of America. The term “consistently
\napplied,” as used in connection therewith, means that the accounting principles
\napplied are consistent in all material respects to those applied at prior dates
\nor for prior periods.<\/p>\n
“Government Securities” means readily marketable direct full faith and
\ncredit obligations of the United States of America or obligations
\nunconditionally guaranteed by the full faith and credit of the United States of
\nAmerica.<\/p>\n
“Governmental Agency” means (a) any foreign, federal, state, county or
\nmunicipal government or political subdivision thereof, (b) any governmental or
\nquasi-governmental agency, authority, board, bureau, commission, department
\ninstrumentality or public body, (c) any court or administrative tribunal or (d)
\nwith respect to any Person, any arbitration tribunal or other non-governmental
\nauthority to whose jurisdiction that Person has consented.<\/p>\n
“Guaranty” means a Continuing Guaranty from a Subsidiary of Borrower,
\nsubstantially in the form attached hereto as Exhibit D.<\/p>\n
“Hazardous Materials” means substances defined as hazardous substances
\npursuant to the Comprehensive Environmental Response, Compensation and Liability
\nAct of 1980, 42 U.S.C. Section 9601 et seq., or as hazardous, toxic or pollutant
\npursuant to the Hazardous Materials Transportation Act 49 U.S.C. Section 1801,
\net seq., the Resource Conservation and Recovery Act 42<\/p>\n
8
\n 14
\nU.S.C. Section6901, et seq., or any other applicable Law governing environmental
\nhealth and hygiene, in each case as such Laws are amended from time to time.<\/p>\n
“Hazardous Materials Laws” means all federal, state or local laws,
\nordinances, rules or regulations governing the disposal of Hazardous Materials
\napplicable to any of the Property.<\/p>\n
“Indebtedness” means, as to any Person, (a) all indebtedness of such
\nPerson for borrowed money, (b) that portion of the obligations of such Person
\nunder Capital Leases which is properly recorded as a liability on a balance
\nsheet of that Person prepared in accordance with GAAP, (c) any obligation of
\nsuch Person that is evidenced by a promissory note or other instrument
\nrepresenting an extension of credit to such Person, whether or not for borrowed
\nmoney, (d) any obligation of such Person for the deferred purchase price of
\nProperty or services (other than trade or other accounts payable in the ordinary
\ncourse of business in accordance with customary terms), (e) any obligation of
\nsuch Person that is secured by a Lien on assets of such Person, whether or not
\nthat Person has assumed such obligation or whether or not such obligation is
\nnon-recourse to the credit of such Person, but only to the extent of the fair
\nmarket value of the assets so subject to the Lien, (f) obligations of such
\nPerson arising under acceptance facilities or under facilities for the discount
\nof accounts receivable of such Person and (g) obligations of such Person for
\nunreimbursed draws under letters of credit issued for the account of such
\nPerson.<\/p>\n
“Intangible Assets” means assets that are considered intangible assets
\nunder GAAP, including (a) any write-up in book value of any asset subsequent to
\nits acquisition and (b) customer lists, goodwill, computer software, copyrights,
\ntrade names, trademarks, patents, unamortized deferred charges, unamortized debt
\ndiscount capitalized research and development costs and other intangible assets.<\/p>\n
“Interest Coverage Ratio” means, for the prior twelve months ending on the
\nlast day of a Fiscal Quarter, the ratio of EBITDA to the interest expense of
\nBorrower and its Subsidiaries.<\/p>\n
“Interest Differential” means, with respect to any prepayment of a
\nEurodollar Rate Loan on a day other than the last day of the applicable
\nEurodollar Period and with respect to the failure to borrow a Eurodollar Rate
\nLoan on the date or in the amount specified in a Request for Loan, (a) the per
\nannum interest rate payable with respect to that Eurodollar Rate Loan as of the
\ndate of the prepayment or failure to borrow, minus (b) the Eurodollar Rate, as
\napplicable, on or as near as practicable to, the date of the prepayment or
\nfailure to borrow for a Eurodollar Rate Loan commencing on such date and ending
\non the last day of the applicable Eurodollar Period. The determination of the
\nInterest Differential by the Administrative Agent shall be conclusive in the
\nabsence of manifest error.<\/p>\n
“Investment” means, when used in connection with any Person, any
\ninvestment by or of that Person, whether by means of purchase or other
\nacquisition of capital stock or other Securities of any other Person or by means
\nof loan, advance, capital contribution, guaranty or other debt or equity
\nparticipation or interest or otherwise, in any other Person, including any<\/p>\n
9
\n 15
\npartnership and joint venture interests of such Person in any other Person. The
\namount of any Investment shall be the amount actually invested, without
\nadjustment for subsequent increases or decreases in the value of such
\nInvestment.<\/p>\n
“Issuing Bank” means Wells Fargo Bank, National Association and any
\nsuccessor or assign.<\/p>\n
“Laws” means, collectively, all, foreign, federal, state and local
\nstatutes, treaties, rules, regulations, ordinances, codes and administrative or
\ncontrolling precedents of any Governmental Agency.<\/p>\n
“Lender” means any of the lenders signatory to this Agreement, their
\nsuccessors and, upon the effective date after registration with the
\nAdministrative Agent pursuant to Section 11.8 of a Commitment Assignment and
\nAcceptance executed by an Eligible Assignee, such Eligible Assignee.<\/p>\n
“Letter of Credit Balance” means, at any time, the sum of (a) the
\naggregate undrawn amount of all Letters of Credit outstanding at such time for
\nwhich additional Collateral consisting of Cash Equivalents has not been pledged
\nplus (b) the aggregate amount which has been drawn under Letters of Credit but
\nfor which the Issuing Bank or the Lenders, as the case may be, have not been
\nreimbursed by the Borrower.<\/p>\n
“Letter of Credit Commitment” means $5,000,000.<\/p>\n
“Letter of Credit Disbursement” means any payment or disbursement made by
\nthe Issuing Bank under or pursuant to a Letter of Credit.<\/p>\n
“Letters of Credit” means letters of credit issued by the Issuing Bank for
\nthe account of the Borrower pursuant to Article 2A.<\/p>\n
“Leverage Ratio” means the ratio of Net Funded Debt of Borrower and its
\nSubsidiaries to their EBITDA for the prior twelve month period.<\/p>\n
“Lien” means any mortgage, deed of trust, pledge, hypothecation,
\nassignment for security, security interest, encumbrance, lien or charge of any
\nkind, whether voluntarily incurred or arising by operation of Law or otherwise,
\naffecting any Property, including any agreement to grant any of the foregoing,
\nany conditional sale or other title retention agreement, any lease in the nature
\nof a security interest, and\/or the filing of or agreement to give any financing
\nstatement under the Uniform Commercial Code or comparable Law of any
\njurisdiction with respect to any Property.<\/p>\n
“Loan” means any group of Advances made at any one time by the Lenders
\nunder the Commitment pursuant to Article 2 or a Swing Line Loan.<\/p>\n
10
\n 16
\n “Loan Documents” means, collectively, this Agreement, the Notes, any
\nRequest for Loan, the Security Documents and any other certificates, documents
\nor agreements of any type or nature heretofore or hereafter executed and
\ndelivered by Borrower to the Administrative Agent or to any Lender in
\nfurtherance of this Agreement, in each case either as originally executed or as
\nthe same may from time to time be supplemented, modified, amended, restated,
\nextended or supplanted.<\/p>\n
“Majority Lenders” means, as of any date of determination, Lenders whose
\naggregate Pro Rata Share is at least 51.0% of the Commitment then in effect or,
\nif the Commitment is then suspended or terminated, Lenders holding Notes
\nevidencing at least 51.0% of the aggregate Indebtedness evidenced by the Notes.<\/p>\n
“Material Adverse Effect” means any set of circumstances or events which
\n(a) has or could reasonably be expected to have any material adverse effect
\nwhatsoever upon the validity or enforceability of any Loan Document, (b) is or
\ncould reasonably be expected to be material and adverse to the condition
\n(financial or otherwise) or business operations of Borrower and its
\nSubsidiaries, taken as a whole, or to the prospects of Borrower and its
\nSubsidiaries, taken as a whole, (c) materially impairs or could reasonably be
\nexpected to materially impair the ability of Borrower and its Subsidiaries,
\ntaken as a whole, to perform its Obligations or (d) materially impairs or could
\nreasonably be expected to materially impair the ability of any of the Lenders to
\nenforce any of its legal remedies pursuant to the Loan Documents.<\/p>\n
“Maturity Date” means June 30, 2001.<\/p>\n
“Multiemployer Plan” means any employee benefit plan of a type described
\nin Section 4001(a)(3) of ERISA.<\/p>\n
“Negative Pledge” means any covenant binding on Borrower that prohibits
\nthe creation of Liens on any Property of Borrower.<\/p>\n
“Net Funded Debt” means the sum of the Indebtedness and Contingent
\nObligations of Borrower and its Subsidiaries, less amounts in excess of
\n$5,000,000 fully collateralized by Cash or Cash Equivalents resulting from the
\nissuance of the Senior Notes.<\/p>\n
“Note” means any of the promissory notes made by Borrower in favor of a
\nLender evidencing Advances under that Lender’s Pro Rata Share of the Commitment,
\nsubstantially in the form of Exhibit C, or the Swing Line Note, either as
\noriginally executed or as the same may from time to time be supplemented,
\nmodified, amended, renewed, extended or supplanted.<\/p>\n
“Obligations” means all present and future obligations of every kind or
\nnature of Borrower at any time and from time to time owed to the Administrative
\nAgent, the Issuing Bank, the Swing Line Lender or the Lenders or any one or more
\nof them under any one or more of the Loan Documents, whether due or to become
\ndue, matured or unmatured, liquidated or unliquidated, or contingent or
\nnoncontingent, including obligations of<\/p>\n
11
\n 17
\nperformance as well as obligations of payment, and including interest that
\naccrues after the commencement of any proceeding under any Debtor Relief Law by
\nor against Borrower or any Subsidiary of Borrower.<\/p>\n
“Opinion of Counsel” means the favorable written legal opinion of counsel
\nto Borrower together with copies of any officer’s certificate or legal opinion
\nof another counsel or law firm relied upon by such counsel in its opinion.<\/p>\n
“Outstanding Balance” means the sum at any time of (i) the outstanding
\nprincipal amount of the Loans, plus (ii) the Letter of Credit Balance, plus
\n(iii) the Swing Line Balance.<\/p>\n
“Party” means any Person other than the Administrative Agent and the
\nLenders, which now or hereafter is a party to any of the Loan Documents.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation or any successor
\nthereto established under ERISA.<\/p>\n
“Pension Plan” means any “employee pension benefit plan” that is subject
\nto Title IV of ERISA and which is maintained for employees of Borrower or any of
\nits ERISA Affiliates.<\/p>\n
“Permitted Encumbrances” means:<\/p>\n
(a) material inchoate Liens incident to construction or
\n maintenance of real property, or Liens incident to construction or
\n maintenance of real property, now or hereafter filed of record for which
\n adequate reserves have been set aside and which are being contested in
\n good faith by appropriate proceedings and have not proceeded to judgment;<\/p>\n
(b) material Liens for taxes and assessments on real property
\n which are not yet past due, or Liens for taxes and assessments on real
\n property for which adequate reserves have been set aside and are being
\n contested in good faith by appropriate proceedings and have not proceeded
\n to judgment;<\/p>\n
(c) easements, exceptions, reservations, or other agreements
\n granted or entered into after the date hereof affecting real property
\n which in the aggregate do not materially burden or impair the fair market
\n value or use of such real property for the purposes for which it is or may
\n reasonably be expected to be held;<\/p>\n
(d) rights reserved to or vested in any Governmental Agency by
\n Law to control or regulate, or obligations or duties under Law to any
\n Governmental Agency with respect to, the use of any real property;<\/p>\n
12
\n 18
\n (e) rights reserved to or vested in any Governmental Agency by
\n Law to control or regulate, or obligations or duties under Law to any
\n Governmental Agency with respect to, any right power, franchise, grant,
\n license, or permit;<\/p>\n
(f) present or future zoning laws and ordinances or other laws
\n and ordinances restricting the occupancy, use, or enjoyment of real
\n property;<\/p>\n
(g) statutory Liens, other than those described in clauses (a) or
\n (b) above, arising in the ordinary course of business with respect to
\n obligations which are not delinquent or are being contested in good faith
\n by appropriate proceedings, provided that, if delinquent, adequate
\n reserves have been set aside with respect thereto and, by reason of
\n nonpayment no Property is subject to a material risk of loss or
\n forfeiture;<\/p>\n
(h) Liens consisting of pledges or deposits to secure obligations
\n under workers’ compensation laws or similar legislation, including Liens
\n of judgments thereunder which are not currently dischargeable;<\/p>\n
(i) Liens consisting of pledges or deposits of Property to secure
\n performance in connection with operating leases made in the ordinary
\n course of business to which Borrower or a Subsidiary is a party as lessee;<\/p>\n
(j) Liens consisting of deposits of Property to secure statutory
\n obligations of Borrower or a Subsidiary of Borrower in the ordinary course
\n of its business; and<\/p>\n
(k) Liens consisting of deposits of Property to secure (or in
\n lieu of) surety, appeal or customs bonds in proceedings to which Borrower
\n or a Subsidiary of Borrower is a party in the ordinary course of its
\n business.<\/p>\n
“Permitted Right of Others” means a Right of Others consisting of (a) an
\ninterest (other than a legal or equitable co-ownership interest, an option or
\nright to acquire a legal or equitable co-ownership interest and any interest of
\na ground lessor under a ground lease) that does not materially impair the value
\nor use of Property for the purposes for which it is or may reasonably be
\nexpected to be held, (b) an option or right to acquire a Lien that would be a
\nPermitted Encumbrance, and (c) the reversionary interest of a landlord under a
\nlease of Property.<\/p>\n
“Person” means any entity, whether an individual, trustee, corporation,
\ngeneral partnership, limited partnership, limited liability company, joint stock
\ncompany, trust, estate, unincorporated organization, business association,
\ntribe, firm, joint venture, Governmental Agency, or otherwise.<\/p>\n
“Pledge Agreement” means a Pledge and Irrevocable Proxy Security Agreement
\nfrom Borrower substantially in the form attached hereto as Exhibit F.<\/p>\n
13
\n 19
\n “Pricing Grid” means the Pricing Grid attached hereto as Schedule 3.1.<\/p>\n
“Prime Rate” means the rate of interest most recently announced by Wells
\nFargo Bank, National Association at its principal office in San Francisco as its
\nPrime Rate, with the understanding that the Prime Rate is one of several base
\nrates used by Wells Fargo Bank and serves as the basis upon which effective
\nrates of interest are calculated for those loans making reference thereto, and
\nis evidenced by the recording thereof after its announcement in such internal
\npublication or publications as Wells Fargo Bank may designate. Each change in
\nthe Prime Rate will be effective on the day the change is announced within Wells
\nFargo Bank.<\/p>\n
“Property” means any interest in any kind of property or asset whether
\nreal, personal or mixed, or tangible or intangible.<\/p>\n
“Pro Rata Share” means, with respect to each Lender, the percentage of the
\nCommitment set forth opposite the name of that Lender on Schedule 1.1.<\/p>\n
“Quarterly Payment Date” means June 30, 1998 and each subsequent September
\n30, December 31, March 31 and June 30 through the Maturity Date.<\/p>\n
“Regulations D, G, U and X” mean, respectively, Regulations D, G, U and X,
\nas at any time amended, of the Board of Governors of the Federal Reserve System,
\nor any other regulation in substance substituted therefor.<\/p>\n
“Request for Loan” means a written request for a Loan substantially in the
\nform of Exhibit E, signed by a Responsible Official of Borrower and properly
\ncompleted to provide all information required to be included therein.<\/p>\n
“Requirement of Law” means, as to any Person, the articles or certificate
\nof incorporation and by-laws or other organizational or governing documents of
\nsuch Person, and any Law, or judgment, award, decree, writ or determination of a
\nGovernmental Agency, in each case applicable to or binding upon such Person or
\nany of its Property or to which such Person or any of its Property is subject.<\/p>\n
“Responsible Official” means (a) when used with reference to a Person
\nother than an individual, any corporate officer of such Person, general partner
\nof such Person, corporate officer of a corporate general partner of such Person,
\nor corporate officer of a corporate general partner of a partnership that is a
\ngeneral partner of such Person, or any other responsible official thereof duly
\nacting on behalf thereof, and (b) when used with reference to a Person who is an
\nindividual, such Person or his authorized agent acting through a power of
\nattorney. Any document or certificate hereunder that is signed or executed by a
\nResponsible Official of a Person shall be conclusively presumed to have been
\nauthorized by all necessary corporate, partnership and\/or other action on the
\npart of that Person.<\/p>\n
“Right of Others” means, as to any Property in which a Person has an
\ninterest, (a) any legal or equitable right, title or other interest (other than
\na Lien) held by any other Person in or<\/p>\n
14
\n 20
\nwith respect to that Property, and (b) any option or right (including any option
\nor right to acquire a Lien) held by any other Person to acquire any such right,
\ntitle or other interest in or with respect to that Property.<\/p>\n
“RLC Note” means a Note evidencing Advances made to Borrower pursuant to
\nArticle 2.<\/p>\n
“Securities” means any capital stock, share, voting trust certificate,
\nbond, debenture, note or other evidence of indebtedness, limited partnership
\ninterest, or any warrant, option or other right to purchase or acquire any of
\nthe foregoing.<\/p>\n
“Security Agreement” means a Security Agreement from a Subsidiary of
\nBorrower, substantially in the form attached hereto as Exhibit G.<\/p>\n
“Security Documents” has the meaning provided in Section 3.16.<\/p>\n
“Senior Notes” means those 10.5% Senior Notes due 2008 issued on June 4,
\n1998 in the amount of $100,000,000.00.<\/p>\n
“Senior Officer” means the (a) chief executive officer, (b) chief
\noperating officer, (c) chief financial officer, (d) vice president or (e)
\ntreasurer, in each, case whatever the title nomenclature may be, of the Person
\ndesignated.<\/p>\n
“Special Eurodollar Circumstance” means (a) the adoption of any Law by any
\nGovernmental Agency, central branch or comparable authority with respect to
\nactivities in the Designated Eurodollar Market, or (b) any change in the
\ninterpretation or administration of any existing Law by any Governmental Agency,
\ncentral bank or comparable authority charged with the interpretation or
\nadministration thereof, or (c) compliance by any Lender or its Eurodollar
\nLending Office with any request or directive (whether or not having the force of
\nLaw) of any such Governmental Agency, central bank or comparable authority, or
\n(d) the existence or occurrence of circumstances affecting the Designated
\nEurodollar Market generally that are beyond the reasonable control of the
\nLenders.<\/p>\n
“Standby Letter of Credit” means a Letter of Credit intended to secure an
\nobligation of Borrower to the beneficiary of such Letter of Credit.<\/p>\n
“Subsidiary” means, as of any date of determination and with respect to
\nany Person, any corporation, partnership, joint venture, limited liability
\ncompany or other business entity, whether now existing or hereafter organized or
\nacquired: (a) in the case of a corporation, of which a majority of the
\nsecurities having ordinary voting power for the election of directors or other
\ngoverning body (other than securities having such power only by reason of the
\nhappening of a contingency) are at the time beneficially owned by such Person
\nand\/or one or more Subsidiaries of such Person, or (b) in the case of a
\npartnership, joint venture, limited liability company or other business entity,
\nof which such Person or a Subsidiary of such Person is a general partner or
\njoint venturer or of which a majority of the partnership or other ownership<\/p>\n
15
\n 21
\ninterests are at the time beneficially owned by such Person and\/or one or more
\nof its Subsidiaries.<\/p>\n
“Swing Line” means the revolving line of credit established by the Swing
\nLine Lender in favor of Borrower pursuant to Article 2B.<\/p>\n
“Swing Line Balance” means, as of any date of determination, the aggregate
\nprincipal Indebtedness of Borrower on all Swing Line Loans then outstanding.<\/p>\n
“Swing Line Commitment” means $5,000,000.00.<\/p>\n
“Swing Line Lender” means Wells Fargo Bank, National Association.<\/p>\n
“Swing Line Loans” means loans made by the Swing Line Lender to Borrower
\npursuant to Article 2B.<\/p>\n
“Swing Line Note” means that promissory note executed by Borrower in favor
\nof the Swing Line Lender in connection with the Swing Line.<\/p>\n
“Termination Event” means (a) a “reportable event” as defined in Section
\n4043 of ERISA (other than a “reportable event” that is not subject to the
\nprovision for 30 day notice to the PBGC), (b) the withdrawal of Borrower or any
\nof its ERISA Affiliates from a Pension Plan during any plan year in which it was
\na “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the
\nfiling of a notice of intent to terminate a Pension Plan or the treatment of an
\namendment to a Pension Plan as a termination thereof pursuant to Section 4041 of
\nERISA, (d) the institution of proceedings to terminate a Pension Plan by the
\nPBGC or (e) any other event or condition which might reasonably be expected to
\nconstitute grounds under ERISA for the termination of, or the apportionment of a
\ntrustee to administer, any Pension Plan.<\/p>\n
“Type”, when used with respect to any Loan or Advance, means the
\ndesignation of whether such Loan or Advance is a Base Rate Loan or Advance or a
\nEurodollar Rate Loan or Advance.<\/p>\n
1.2 Use of Defined Terms. Any defined term used in the plural shall refer
\nto all members of the relevant class, and any defined term used in the singular
\nshall refer to any one or more of the members of the relevant class.<\/p>\n
1.3 Accounting Terms. All accounting terms not specifically defined in
\nthis Agreement shall be construed in conformity with, and all financial data
\nrequired to be submitted by this Agreement shall be prepared in conformity with,
\nGAAP applied on a consistent basis, except as otherwise specifically prescribed
\nherein. In the event that GAAP changes during the term of this Agreement such
\nthat the Financial Covenants would then be calculated in a different manner or
\nwith different components, (a) Borrower and the Lenders agree to promptly amend
\nthis Agreement in such respects as are necessary to conform those covenants as
\ncriteria for evaluating Borrower’s financial condition to substantially the same<\/p>\n
16
\n 22
\ncriteria as were effective prior to such change in GAAP and (b) unless and until
\nsuch an amendment to the Loan Documents is effected, Borrower shall report its
\nperformance with respect to the affected covenants in accordance with GAAP as in
\neffect prior to such changes.<\/p>\n
1.4 Rounding. Any financial ratios required to be maintained by Borrower
\npursuant to this Agreement shall be calculated by dividing the appropriate
\ncomponent by the other component, carrying the result to one place more than the
\nnumber of places by which such ratio is expressed in this Agreement and rounding
\nthe result up or down to the nearest number (with a round-up if there is no
\nnearest number) to the number of places by which such ratio is expressed in this
\nAgreement.<\/p>\n
1.5 Exhibits and Schedules. All Exhibits and Schedules to this Agreement
\neither as originally existing or as the same may from time to time be
\nsupplemented, modified or amended, are incorporated herein by this reference. A
\nmatter disclosed on any Schedule shall be deemed disclosed on all Schedules.<\/p>\n
1.6 References to “Borrower and its Subsidiaries.” Any reference herein to
\n“Borrower and its Subsidiaries” or the like shall refer solely to Borrower
\nduring such times, if any, as Borrower shall have no Subsidiaries.<\/p>\n
1.7 Miscellaneous Terms. The term “or” is disjunctive; the term “and” is
\nconjunctive. The term “shall” is mandatory; the term “may” is permissive.
\nMasculine terms also apply to females; feminine terms also apply to males. The
\nterm “including” is by way of example and not limitation. Each reference to an
\nhour or time of the day set forth in any Loan Document, unless otherwise stated,
\nshall be deemed to be a reference to the hour or time of the day in Phoenix,
\nArizona.<\/p>\n
17
\n 23
\n ARTICLE 2<\/p>\n
LOANS<\/p>\n
2.1 Loans – General.<\/p>\n
(a) Subject to the terms and conditions set forth in this
\nAgreement, at any time and from time to time from the Closing Date through the
\nMaturity Date, each Lender shall, pro rata according to its Pro Rata Share of
\nthe then applicable Commitment, make Advances to Borrower under the Commitment
\nin such amounts as Borrower may request that do not exceed in the aggregate at
\nany one time outstanding the amount of that Lender’s pro Rata Share of the then
\napplicable Commitment; provided that, after giving effect to the Loan of which
\nsuch Advance is a part, the Outstanding Balance shall not exceed the Commitment.
\nSubject to the limitations set forth herein, Borrower may borrow, repay and
\nreborrow under the Commitment without premium or penalty.<\/p>\n
(b) Subject to the next sentence, each Loan shall be made
\npursuant to a Request for Loan which shall specify the requested (i) date of
\nsuch Loan, (ii) Type of Loan, (iii) amount of such Loan and (iv) if a Eurodollar
\nRate Loan is requested, the Eurodollar Period for such Loan. Unless the
\nAdministrative Agent has notified, in its sole and absolute discretion, Borrower
\nto the contrary, a Loan may be requested by telephone, telecopier or telex by a
\nResponsible Official of Borrower or by any Designated Employee, in which case
\nBorrower shall promptly confirm such request by transmitting a telecopy of, or
\nat Administrative Agent’s request by mailing, a Request for Loan conforming to
\nthe preceding sentence to Administrative Agent.<\/p>\n
(c) Promptly following receipt of a Request for Loan, the
\nAdministrative Agent shall notify each Lender by telephone, telecopier or telex
\nof the date and Type of the Loan, any applicable Eurodollar Period, and that
\nLender’s Pro Rata Share of the Loan. Not later than 11:00 a.m. (California
\ntime), on the date specified for any Loan, each Lender shall make its Pro Rata
\nShare of the Loan available to the Administrative Agent at the Administrative
\nAgent’s Office in immediately available funds. Upon fulfillment of the
\napplicable conditions set forth in Article 8, all Advances shall be credited in
\nimmediately available funds to the Designated Deposit Account.<\/p>\n
(d) Unless the Majority Lenders otherwise consent, each Base Rate
\nLoan shall be an integral multiple of $100,000 but not less than $500,000 and
\neach Eurodollar Rate Loan shall be an integral multiple of $500,000 but not less
\nthan $1,000,000.<\/p>\n
(e) The Advances made by each Lender under its Pro Rata Share of
\nthe Commitment shall be evidenced by that Lender’s RLC Note.<\/p>\n
(f) A Request for Loan shall be irrevocable upon the
\nAdministrative Agent’s first notification thereof.<\/p>\n
18
\n 24
\n (g) The purpose of the Commitment is to provide for the working
\ncapital needs and general corporate purposes of the Borrower.<\/p>\n
(h) If no Request for Loan (or telephonic or other request for a
\nLoan referred to in the second sentence of Section 2.1(b), if applicable) has
\nbeen made within the requisite notice periods set forth in Sections 2.2 and 2.3
\nin connection with a Loan which, if made, would not increase the outstanding
\nprincipal Indebtedness outstanding under the Commitment, then Borrower shall be
\ndeemed to have requested a Base Rate Loan in an amount equal to the amount
\nnecessary to cause such outstanding principal Indebtedness to remain the same
\nand, subject to Section 8.2 the Lenders shall make the Advances necessary to
\nmake such Loan notwithstanding Sections 2.1(b) and 2.2.<\/p>\n
(i) If a Loan is to be made on the same date that another Loan is
\ndue and payable, Borrower or the Lenders, as the case may be, shall make
\navailable to the Administrative Agent the net amount of funds giving effect to
\nboth such loans, and the effect for purposes of this Agreement shall be the same
\nas if separate transfers of funds had been made with respect to each such Loan.<\/p>\n
2.2 Base Rate Loans. Each request by Borrower for a Base Rate Loan shall
\nbe made pursuant to a Request for Loan (or telephonic or other request for a
\nLoan referred to in the second sentence of Section 2.1(b), if applicable)
\nreceived by the Administrative Agent, at the Administrative Agent’s Office, not
\nlater than 11:00 a.m. (California time) on the day prior to the date of the
\nrequested Base Rate Loan. All Loans shall constitute Base Rate Loans unless
\nproperly designated as Eurodollar Rate Loans.<\/p>\n
2.3 Eurodollar Rate Loans.<\/p>\n
(a) Each request by Borrower for a Eurodollar Rate Loan shall be
\nmade pursuant to a Request for Loan (or telephonic or other request for a Loan
\nreferred to in the second sentence of Section 2.1(b), if applicable) received by
\nthe Administrative Agent, at the Administrative Agent’s Office, not later than
\n11:00 a.m. (California time) at least three (3) Eurodollar Banking Days before
\nthe first day of the applicable Eurodollar Period.<\/p>\n
(b) Prior to the first day of the applicable Eurodollar Period,
\nthe Administrative Agent shall determine the applicable Eurodollar Rate (which
\ndetermination shall be conclusive in the absence of manifest error) and promptly
\nshall give notice of the same to Borrower and the Lenders by telephone,
\ntelecopier or telex.<\/p>\n
(c) Unless all of the Lenders otherwise consent, no Eurodollar
\nRate Loan may be requested during the continuation of a Default or Event of
\nDefault.<\/p>\n
(d) Unless the Majority Lenders otherwise consent no more than
\nsix (6) Eurodollar Rate Loans shall be outstanding at any one time.<\/p>\n
19
\n 25
\n (e) Nothing contained herein shall require any Lender to fund any
\nEurodollar Rate Advance in the Designated Eurodollar Market.<\/p>\n
2.4 Voluntary Reduction of the Commitment. Borrower shall have the right,
\nat any time and from time to time, without penalty or charge, upon at least five
\n(5) Banking Days’ prior written notice to the Administrative Agent, voluntarily
\nto reduce, permanently and irrevocably, in aggregate principal amounts in an
\nintegral multiple of $250,000.00 which are not less than $1,000,000, all or a
\nportion of the then undisbursed portion of the Commitment; provided that any
\nsuch reduction shall be accompanied by payment of all accrued and unpaid
\nfacility fees with respect to the portion of the Commitment being reduced.<\/p>\n
2.5 Administrative Agent’s Right to Assume Funds Available for Advances.
\nUnless the Administrative Agent shall have been notified by any Lender no later
\nthan the Banking Day prior to the funding by the Administrative Agent of any
\nLoan that such Lender does not intend to make available to the Administrative
\nAgent such Lender’s Pro Rata Share of the total amount of such Loan (and
\nprovided that the Administrative Agent has given such Lender notice of such Loan
\nin accordance with Section 2.1(c)), the Administrative Agent may assume that
\nsuch Lender has made such amount available to the Administrative Agent on the
\ndate of the Loan and the Administrative Agent may, in reliance upon such
\nassumption, make available to Borrower a corresponding amount. If the
\nAdministrative Agent has made funds available to Borrower based on such
\nassumption and such corresponding amount is not in fact made available to the
\nAdministrative Agent by such Lender, the Administrative Agent shall be entitled
\nto recover such corresponding amount on demand from such Lender. If such Lender
\ndoes not pay such corresponding amount forthwith upon the Administrative Agent’s
\ndemand therefor, the Administrative Agent promptly shall notify Borrower and
\nBorrower shall pay such corresponding amount to the Administrative Agent. The
\nAdministrative Agent also shall be entitled to recover from such Lender,
\ninterest on such corresponding amount in respect of each day from the date such
\ncorresponding amount was made available by the Administrative Agent to Borrower
\nto the date such corresponding amount is recovered by the Administrative Agent
\nat a rate per annum equal to the Federal Funds Rate.<\/p>\n
20
\n 26
\n ARTICLE 2A<\/p>\n
LETTERS OF CREDIT<\/p>\n
2A.1 Letters of Credit.<\/p>\n
(a) Provided that the Borrower has satisfied the conditions
\nprecedent contained in Section 2A.1(c) hereof, the Issuing Bank agrees, from
\ntime to time, to issue and\/or renew Standby Letters of Credit on behalf of the
\nBorrower so long as upon such issuance and\/or renewal, after giving to such
\nStandby Letter of Credit, (i) the Outstanding Balance will not exceed the
\nCommitment and (ii) the Letter of Credit Balance will not exceed the Letter of
\nCredit Commitment. The expiration date of a Standby Letter of Credit may not
\nexceed the earlier of the Maturity Date or one year after its issuance. On each
\nQuarterly Payment Date and on the earlier of the expiration date of a Standby
\nLetter of Credit and the date upon which the Obligations are paid in full and
\nthe Commitment terminated, Borrower shall pay in arrears to the Administrative
\nAgent, for the account of each Lender according to its Pro Rata Share of the
\nCommitment, a Standby Letter of Credit fee equal to the Eurodollar Rate Spread
\ntimes the undrawn amount of each outstanding Standby Letter of Credit.<\/p>\n
(b) Provided that the Borrower has satisfied the conditions
\nprecedent contained in Section 2A.1(c) hereof, the Issuing Bank agrees, from
\ntime to time, to issue and\/or renew Commercial Letters of Credit on behalf of
\nthe Borrower so long as upon such issuance and\/or renewal, after giving to such
\nCommercial Letter of Credit, (i) the Outstanding Balance, will not exceed the
\nCommitment and (ii) the Letter of Credit Balance will not exceed the Letter of
\nCredit Commitment. The expiration date of a Commercial Letter of Credit may not
\nexceed the Maturity Date. Borrower shall pay to the Administrative Agent, for
\nthe account of each Lender according to its Pro Rata Share of the Commitment,
\nthe Commercial Letter of Credit Fee upon the issuance and\/or renewal of such
\nCommercial Letter of Credit.<\/p>\n
(c) The obligation of the Issuing Bank to issue and\/or renew any
\nLetters of Credit on behalf of the Borrower shall be subject to the following
\nconditions precedent on the date of issuance or renewal of each such Letter of
\nCredit:<\/p>\n
(i) The Borrower shall execute and deliver to the Issuing Bank
\n an application for letter of credit, specifying the amount of the
\n requested Letter of Credit, the requested term thereof, the Type of Letter
\n of Credit and the beneficiary thereof; and<\/p>\n
(ii) The Borrower shall pay to the Issuing Bank, for its own
\n account, such reasonable fronting, issuance, drawing, amendment, transfer,
\n obligation and other fees as shall be agreed upon by Borrower and the
\n Issuing Bank from time to time.<\/p>\n
21
\n 27
\n (iii) No Event of Default which has not been waived by the
\n Administrative Agent and the Majority Lenders shall exist and no event or
\n condition shall exist that after notice or lapse of time, or both would
\n constitute an Event of Default.<\/p>\n
(d) That Letter of Credit No. NZS300285 in the stated amount of
\n$1,071,000.00 dated June 3, 1998, previously issued by Issuing Bank for the
\naccount of Borrower, shall be deemed to be a Standby Letter of Credit and,
\neffective as of the Closing Date, shall be deemed to be outstanding under this
\nAgreement.<\/p>\n
2A.2 Notice. The Issuing Bank shall give the Administrative Agent, which
\nshall in turn give to each Lender, prompt written or telecopy advice of any
\nnotice received from the Borrower pursuant to this Section 2A.<\/p>\n
2A.3 Letter of Credit Participations.<\/p>\n
(a) By the issuance of a Letter of Credit and without any further
\naction on the part of the Issuing Bank or the Lenders in respect thereof, the
\nIssuing Bank hereby grants to each Lender, and each Lender hereby acquires from
\nthe Issuing Bank, a participation in such Letter of Credit equal to such
\nLender’s Pro Rata Share, based upon the Pro Rata Shares in effect at the time of
\nany drawing thereunder (or, if the Commitment shall have been terminated, the
\nPro Rata Shares in effect immediately prior to such termination), of the face
\namount of such Letter of Credit, effective upon the issuance of such Letter of
\nCredit; provided, however, that no Lender shall be required to acquire
\nparticipations in Letters of Credit that would result in its Pro Rata Share of
\nthe Letter of Credit Balance exceeding its Pro Rata Share of the Commitment. In
\nconsideration and in furtherance of the foregoing, each Lender hereby absolutely
\nand unconditionally agrees to pay to the Administrative Agent, for the account
\nof the Issuing Bank, in accordance with Section 2A.4 below, such Lender’s pro
\nrata percentage of each unreimbursed Letter of Credit Disbursement made by the
\nIssuing Bank.<\/p>\n
(b) Each Lender acknowledges and agrees that its acquisition of
\nparticipations pursuant to paragraph (a) above in respect of Letters of Credit
\nis absolute and unconditional and shall not be affected by any circumstance
\nwhatsoever, including without limitation the occurrence and continuance of any
\nEvent of Default hereunder, and that each such payment shall be made without any
\noffset, abatement, withholding or reduction whatsoever; provided that nothing
\nherein shall constitute a waiver of any rights a Lender may have by reason of
\nthe gross negligence or wilful misconduct of the Issuing Bank.<\/p>\n
2A.4 Disbursement and Reimbursement.<\/p>\n
(a) Promptly after it shall have ascertained that any draft and
\nany accompanying documents presented under a Letter of Credit appear to be in
\nstrict conformity with the terms and conditions of such Letter of Credit, the
\nIssuing Bank shall give telephone and telecopy notice to the Borrower and the
\nAdministrative Agent of the receipt and amount of such draft and the date on
\nwhich payment thereon will be made. If the Administrative Agent<\/p>\n
22
\n 28
\nshall not have received from the Borrower the payment required pursuant to
\nparagraph (b) below by 11:00 a.m. (California time), one Banking Day after the
\ndate on which payment of a draft presented under any Letter of Credit has been
\nmade, the Administrative Agent shall promptly so notify the Issuing Bank and
\neach Lender, specifying in the notice to each Lender such Lender’s pro rata
\npercentage of such Letter of Credit Disbursement. Each Lender shall pay to the
\nAdministrative Agent, not later than 11:00 a.m. (California time), on such date,
\nsuch Lender’s percentage of such Letter of Credit Disbursement, which the
\nAdministrative Agent shall promptly pay to the Issuing Bank. The Administrative
\nAgent will promptly remit to each Lender such Lender’s percentage of any amounts
\nsubsequently received by the Administrative Agent from the Borrower in respect
\nof such Letter of Credit Disbursement; provided that (i) amounts so received for
\nthe account of any Lender prior to payment by such Lender of amounts required to
\nbe paid by it hereunder in respect of any Letter of Credit Disbursement and (ii)
\namounts representing interest on any Letter of Credit Disbursement for the
\nperiod prior to the payment by such Lender of such amounts shall in each case be
\nremitted to the Issuing Bank.<\/p>\n
(b) If the Issuing Bank shall pay any draft presented under a
\nLetter of Credit, the Borrower shall pay to the Issuing Bank or to the
\nAdministrative Agent for the account of the Issuing Bank or, if the
\nAdministrative Agent shall have received the payments provided in paragraph (a)
\nabove with respect to such drawing, for the accounts of the Lenders, an amount
\nequal to the amount of such draft before 11:00 a.m. (California time), on the
\nBanking Day immediately following the date of payment of such draft, together
\nwith interest on such amount at a rate per annum equal to the interest rate in
\neffect for Base Rate Loans from (and including) the date of payment of such
\ndraft to (but excluding) the date of such payment by the Borrower. The
\nobligation of the Borrower to pay the amounts referred to above in this
\nparagraph (b) shall be absolute, unconditional and irrevocable and shall be
\nsatisfied strictly in accordance with their terms irrespective of:<\/p>\n
(i) any lack of validity or enforceability of any Letter of
\n Credit (except as set forth in subparagraphs (iv) or (v) below);<\/p>\n
(ii) the existence of any claim, setoff, defense or other
\n right which the Borrower or any other Person may at any time have against
\n the beneficiary under any Letter of Credit, the Administrative Agent, any
\n Issuing Bank or any Lender (other than the defense of payment in
\n accordance with the terms of this Agreement or a defense based on the
\n gross negligence or wilful misconduct of the Issuing Bank) or any other
\n Person in connection with this Agreement or any other transaction;<\/p>\n
(iii) any draft or other document presented under a Letter of
\n Credit proving to be forged, fraudulent or invalid in any respect or any
\n statement therein being untrue or inaccurate in any respect; provided that
\n payment by the Issuing Bank under such Letter of Credit against
\n presentation of such draft or document shall not have constituted gross
\n negligence or wilful misconduct;<\/p>\n
23
\n 29
\n (iv) payment by the Issuing Bank under a Letter of Credit
\n against presentation of a draft or other document which does not comply in
\n any immaterial respect with the terms of such Letter of Credit; provided
\n that such payment shall not have constituted gross negligence or wilful
\n misconduct; or<\/p>\n
(v) any other circumstance or event whatsoever, whether or not
\n similar to any of the foregoing; provided that such other circumstance or
\n event shall not have been the result of gross negligence or wilful
\n misconduct of the Issuing Bank.<\/p>\n
It is understood that in making any payment under a Letter of
\nCredit (1) the Issuing Bank’s exclusive reliance on the documents presented to
\nit under such Letter of Credit as to any and all matters set forth therein,
\nincluding without limitation, reliance on the amount of any draft presented
\nunder such Letter of Credit, whether or not the amount due to the beneficiary
\nequals the amount of such draft and whether or not any document presented
\npursuant to such Letter of Credit proves to be forged, fraudulent or invalid in
\nany respect, if such document on its face appears to be in order, and whether or
\nnot any other statement or any other document presented pursuant to such Letter
\nof Credit proves to be forged or invalid or any statement therein proves to be
\ninaccurate or untrue in any respect whatsoever, and (2) any noncompliance in any
\nimmaterial respect of the documents presented under a Letter of Credit with the
\nterms thereof shall, in either case, not be deemed wilful misconduct or gross
\nnegligence of the Issuing Bank.<\/p>\n
24
\n 30
\n ARTICLE 2B<\/p>\n
SWING LINE<\/p>\n
2B.1 Swing Line. The Swing Line Lender, for its own account, shall from
\ntime to time from the Closing Date through the day prior to the Maturity Date
\nmake Swing Line Loans to Borrower in such amounts as Borrower may request,
\nprovided that (a) after giving effect to such Swing Line Loan, the Swing Line
\nBalance does not exceed the Swing Line Commitment, (b) after giving effect to
\nsuch Swing Line Loan, the Outstanding Balance does not exceed the Commitment,
\nand (c) no Swing Line Loan may be made during the continuation of a Default or
\nan Event of Default unless such Default or Event of Default has been waived by
\nthe Administrative Agent and the Majority Lenders. Borrower may borrow, repay
\nand reborrow under the Swing Line Commitment without premium or penalty.<\/p>\n
2B.2 Borrowing. Unless notified to the contrary by the Swing Line Lender,
\nborrowings under the Swing Line may be made in amounts which are integral
\nmultiples of $1.00 upon telephonic request by a Responsible Official made to the
\nAdministrative Agent not later than 11:00 a.m. (California time), on the Banking
\nDay of the requested borrowing (which telephonic request shall be promptly
\nconfirmed in writing by telecopier). Promptly after receipt of such a request
\nfor borrowing, the Administrative Agent shall provide telephonic verification to
\nthe Swing Line Lender that availability for Swing Line Loans exists under
\nSection 2B.1 (and such verification shall be promptly confirmed in writing by
\ntelecopier). Unless notified to the contrary by the Swing Line Lender, each
\nrepayment of a Swing Line Loan shall be in an amount which is an integral
\nmultiple of $1.00.<\/p>\n
2B.3 Repayments.<\/p>\n
(a) Swing Line Loans shall bear interest at a fluctuating rate
\nper annum equal to the Base Rate plus Base Rate Spread. Interest shall be
\npayable on such dates, not more frequent than monthly, as may be specified by
\nthe Swing Line Lender and in any event on the Maturity Date. The Swing Line
\nLender shall be responsible for invoicing Borrower for such interest. The
\ninterest payable on Swing Line Loans is solely for the account of the Swing Line
\nLender.<\/p>\n
(b) The principal of a Swing Line Loan shall be payable no later
\nthan ten (10) Banking Days after the date the Swing Line Loan is made by the
\nSwing Line Lender and in any event on the Maturity Date.<\/p>\n
25
\n 31
\n ARTICLE 3<\/p>\n
PAYMENTS AND FEES; SECURITY
\n DOCUMENTS; GUARANTY<\/p>\n
3.1 Principal and Interest.<\/p>\n
(a) Interest shall be payable on the outstanding daily
\nunpaid principal amount of each Advance from the date thereof until payment in
\nfull is made and shall accrue and be payable at the rates set forth herein
\nbefore and after an Event of Default, before and after maturity, before and
\nafter judgment, and before and after the commencement of any proceeding under
\nany Debtor Relief Law, with interest on overdue interest to bear interest at the
\nDefault Rate to the fullest extent permitted by applicable Laws.<\/p>\n
(b) Interest accrued on each Base Rate Loan through the
\nlast day of each calendar month shall be due and payable on the fifth Banking
\nDay following that day. Except as otherwise provided in Section 3.7, the unpaid
\nprincipal amount of each Base Rate Loan shall bear interest at a fluctuating
\nrate per annum equal to the Base Rate plus the Base Rate Spread. Each change in
\nthe interest rate applicable to Base Rate Loans shall take effect simultaneously
\nwith the corresponding changes in the Base Rate. Each change in the Base Rate
\nshall be effective as of 12:01 a.m. on the Banking Day on which such change in
\nthe Base Rate is announced, unless otherwise specified in such announcement in
\nwhich case the change shall be effective as so specified.<\/p>\n
(c) Interest accrued on each Eurodollar Rate Loan which is
\nfor a term of three months or less shall be due and payable on the last day of
\nthe related Eurodollar Period. Interest accrued on each other Eurodollar Rate
\nLoan shall be due and payable on each Quarterly Payment Date and on the last day
\nof the related Eurodollar Period. Except as otherwise provided in Section 3.7
\nthe unpaid principal amount of any Eurodollar Rate Loan shall bear interest at a
\nrate per annum equal to the Eurodollar Rate for that Eurodollar Rate Loan plus
\nthe applicable Eurodollar Rate Spread.<\/p>\n
(d) If not sooner paid, the principal Indebtedness
\nevidenced by the Notes shall be payable as follows:<\/p>\n
(i) the principal amount of each Eurodollar Rate Loan
\n shall be payable immediately on the last day of the Eurodollar Period
\n for such Loan;<\/p>\n
(ii) the principal Indebtedness evidenced by the
\n Notes shall be payable immediately in immediately available funds, to
\n the extent that the outstanding principal amount of the Loans at any
\n time exceeds the Commitment and in an amount sufficient to reduce the
\n amount outstanding to an amount equal to or less than the Commitment;
\n and<\/p>\n
26
\n 32
\n (iii) the principal Indebtedness evidenced by the
\n Notes shall in any event be payable immediately in immediately
\n available funds on the Maturity Date.<\/p>\n
(e) The Notes may, at any time and from time to time,
\nvoluntarily be paid or prepaid in whole or in part without premium or penalty,
\nexcept that with respect to any voluntary prepayment under this subsection, (i)
\nany partial prepayment of Loans shall be in an integral multiple of $500,000,
\nbut not less than $1,000,000, (ii) the Administrative Agent shall have received
\nwritten notice of any prepayment at least one (1) Banking Day, in the case of a
\nBase Rate Loan, and three (3) Banking Days, in the case of a Eurodollar Rate
\nLoan, before the date of prepayment which notice shall identify the date and
\namount of the prepayment and the Loan(s) being prepaid, (iii) each prepayment of
\nprincipal shall be accompanied by payment of interest accrued through the date
\nof payment on the amount of principal paid and (iv) any payment or prepayment or
\nconversion of all or any part of any Eurodollar Rate Loan on a day other than
\nthe last day of the applicable Eurodollar Period shall be subject to Section
\n3.6(d).<\/p>\n
3.2 Facility Fee. On each Quarterly Payment Date and on the earlier of
\nthe Maturity Date and the date upon which the Obligations are paid in full and
\nthe Commitment terminated, Borrower shall pay in arrears to the Administrative
\nAgent, for the account of each Lender according to its Pro Rata Share of the
\nCommitment, a facility fee equal to the then applicable Facility Fee Rate times
\nthe average unused portion of the Commitment for the period since the last
\nQuarterly Payment Date. For purposes of calculation of the facility fee, the
\naverage unused portion of the Commitment shall not be reduced by the amount of
\nany Swing Line Loans made.<\/p>\n
3.3 [Intentionally left blank.]<\/p>\n
3.4 Agency Fee. Borrower shall pay to the Administrative Agent an
\nagency fee in such amounts and at such times as agreed upon by letter agreement
\ndated of even date herewith between Borrower and the Administrative Agent. The
\nagency fee paid to the Administrative Agent is solely for its own account and is
\nnonrefundable.<\/p>\n
3.5 Increased Commitment Costs. If any Lender reasonably determines in
\ngood faith that compliance with any Law or regulation enacted or promulgated
\nafter the Closing Date, or with any guideline or request from any central bank
\nor other Governmental Agency issued or made after the Closing Date (whether or
\nnot having the force of Law) has or would have the effect of materially reducing
\nthe rate of return on the capital of such Lender or any corporation controlling
\nsuch Lender as a consequence of, or with reference to, such Lender’s portion of
\nthe Commitment or its making or maintaining of Advances or Swing Line Loans,
\nbelow the rate which the Lender or such other corporation could have achieved
\nbut for such compliance (taking into account the policies of such Lender or
\ncorporation with regard to capital), then the Borrower shall from time to time,
\nupon demand by such Lender (with a copy of such demand to the Administrative
\nAgent), immediately pay to such Lender additional amounts reasonably sufficient
\nto compensate such Lender or other corporation for such reduction. A certificate
\nas to such amounts, submitted to the Borrower and the Administrative<\/p>\n
27
\n 33
\nAgent by such Lender, shall be conclusive and binding for all purposes, absent
\nmanifest error. Each Lender agrees promptly to notify the Borrower and the
\nAdministrative Agent of any circumstances that would cause the Borrower to pay
\nadditional amounts pursuant to this Section, provided that the failure to give
\nsuch notice shall not affect the Borrower’s obligation to pay such additional
\namounts hereunder.<\/p>\n
3.6 Eurodollar Fees and Costs.<\/p>\n
(a) If, after the date hereof, the existence or occurrence
\nof any Special Eurodollar Circumstance:<\/p>\n
(1) shall materially subject any Lender or its
\n Eurodollar Lending Office to any tax, duty or other charge or cost with
\n respect to any Eurodollar Rate Advance, its Notes or its obligation to
\n make Eurodollar Rate Advances, or shall materially change the basis of
\n taxation of payments to any Lender of the principal of or interest on
\n any Eurodollar Rate Advance or any other amounts due under this
\n Agreement in respect of any Eurodollar Rate Advance, its Notes or its
\n obligation to make Eurodollar Rate Advances (except for changes in any
\n tax on the overall net income, gross income or gross receipts of such
\n Lender or its Eurodollar Lending Office);<\/p>\n
(2) shall impose, modify or deem applicable any
\n reserve (including, without limitation, any reserve imposed by the
\n Board of Governors of the Federal Reserve System), special deposit or
\n similar requirements against assets of, deposits with or for the
\n account of, or credit extended by, any Lender or its Eurodollar Lending
\n Office; or<\/p>\n
(3) shall impose on any Lender or its Eurodollar
\n Lending Office or the Designated Eurodollar Market any other condition
\n affecting any Eurodollar Rate Advance, its Notes, its obligation to
\n make Eurodollar Rate Advances or this Agreement or shall otherwise
\n affect any of the same;<\/p>\n
and the result of any of the foregoing, as determined by such Lender, materially
\nincreases the cost to such Lender or its Eurodollar Lending Office of making or
\nmaintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate
\nAdvance, its Notes or its obligation to make Eurodollar Rate Advances or
\nmaterially reduces the amount of any sum received or receivable by such Lender
\nor its Eurodollar Lending Office with respect to any Eurodollar Rate Advance,
\nits Notes or its obligation to make Eurodollar Rate Advances (assuming such
\nLender’s Eurodollar Lending Office had funded 100% of its Eurodollar Rate
\nAdvance in the Designated Eurodollar Market), then, upon demand by such Lender
\n(with a copy to the Administrative Agent), Borrower shall pay to such Lender
\nsuch additional amount or amounts as will reasonably compensate such Lender for
\nsuch increased cost or reduction (determined as though such Lender’s Eurodollar
\nLending Office had funded 100% of its Eurodollar Rate Advance in the Designated
\nEurodollar Market). A statement of any Lender claiming compensation under this
\nsubsection shall be conclusive in the absence of manifest error. Each Lender
\nagrees to<\/p>\n
28
\n 34
\nendeavor promptly to notify Borrower of any event of which it has actual
\nknowledge, occurring after the Closing Date, which will entitle such Lender to
\ncompensation pursuant to this Section, and agrees to designate a different
\nEurodollar Lending Office if such designation will avoid the need for or reduce
\nthe amount of such compensation and will not, in the judgment of such Lender,
\notherwise be disadvantageous to such Lender. If any Lender claims compensation
\nunder this Section, Borrower may at any time, upon at least two (2) Eurodollar
\nBanking Days’ prior notice to the Administrative Agent and Lenders and upon
\npayment in full of the amounts provided for in this Section through the date of
\nsuch payment plus any prepayment fee required by Section 3.6(d), pay in full all
\nEurodollar Rate Advances or request that all Eurodollar Rate Advances be
\nconverted to Base Rate Advances.<\/p>\n
(b) If after the date hereof, the existence or occurrence
\nof any Special Eurodollar Circumstance shall, in the opinion of any Lender, make
\nit unlawful, impossible or impracticable for such Lender or its Eurodollar
\nLending Office to make, maintain or fund its portion of any Eurodollar Rate
\nLoan, or materially restrict the authority of such Lender to purchase or sell,
\nor to take deposits of, dollars in the Designated Eurodollar Market or to
\ndetermine or charge interest rates based upon the Eurodollar Rate, and such
\nLender shall so notify the Administrative Agent and the other Lenders, then the
\nLender’s obligation to make Eurodollar Rate Advances shall be suspended for the
\nduration of such illegality, impossibility or impracticability and the
\nAdministrative Agent forthwith shall give notice thereof to Borrower. Upon
\nreceipt of such notice, the outstanding principal amount of all Eurodollar Rate
\nAdvances, together with accrued interest thereon, automatically shall be
\nconverted to Base Rate Advances with Eurodollar Periods corresponding to the
\nEurodollar Loans of which such Eurodollar Rate Advances were a part on either
\n(1) the last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
\nAdvances if the affected Lender may lawfully continue to maintain and fund such
\nEurodollar Rate Advances to such day(s) or (2) immediately if the affected
\nLender may not lawfully continue to fund and maintain such Eurodollar Rate
\nAdvances to such day(s), provided that in such event the conversion shall not be
\nsubject to payment of a prepayment fee under Section 3.6(d).<\/p>\n
(c) If, with respect to any proposed Eurodollar Rate Loan:<\/p>\n
(1) the Administrative Agent reasonably determines
\n that, by reason of circumstances affecting the Designated Eurodollar
\n Market generally that are beyond the reasonable control of the Lenders,
\n deposits in dollars (in the applicable amounts) are not being offered
\n to each of the Lenders in the Designated Eurodollar Market for the
\n applicable Eurodollar Period; or<\/p>\n
(2) the Majority Lenders advise the Administrative
\n Agent that the Eurodollar Rate as determined by the Administrative
\n Agent (i) does not represent the effective pricing to such Lenders for
\n deposits in dollars in the Designated Eurodollar Market in the relevant
\n amount for the applicable Eurodollar Period, or (ii) will not
\n adequately and fairly reflect the cost to such Lenders of making the
\n applicable Eurodollar Rate Advances;<\/p>\n
29
\n 35
\nthen the Administrative Agent forthwith shall give notice thereof to Borrower
\nand the Lenders, whereupon until the Administrative Agent notifies Borrower that
\nthe circumstances giving rise to such suspension no longer exist the obligation
\nof the Lenders to make any future Eurodollar Rate Advances shall be suspended.
\nIf at the time of such notice there is then pending a Request for Loan that
\nspecifies a Eurodollar Rate Loan, such Request for Loan shall be deemed to
\nspecify a Base Rate Loan.<\/p>\n
(d) Upon payment or prepayment of any Eurodollar Rate
\nAdvance, on a day other than the last day in the applicable Eurodollar Period
\n(whether voluntarily, involuntarily, by reason of acceleration, or otherwise),
\nor upon the failure of Borrower to borrow on the date or in the amount specified
\nfor a Eurodollar Rate Loan in any Request for Loan, Borrower shall pay to the
\nappropriate Lender a prepayment fee or failure to borrow fee, as the case may
\nbe, calculated as follows (and determined as though 100% of the Eurodollar Rate
\nAdvance had been funded in the Designated Eurodollar Market):<\/p>\n
(1) principal amount of the Eurodollar Rate Advance,
\n times [number of days between the date of prepayment and the last day
\n in the applicable Eurodollar Period], divided by 360, times the
\n applicable Interest Differential; plus<\/p>\n
(2) all actual out-of-pocket expenses (other than
\n those taken into account in the calculation of the Interest
\n Differential) incurred by the Lender (excluding allocations of any
\n expense internal to that Lender) and reasonably attributable to such
\n payment or prepayment;<\/p>\n
provided that no prepayment fee or failure to borrow fee shall be payable (and
\nno credit or rebate shall be required) if the product of the foregoing formula
\nis not a positive number. Each Lender’s determination of the amount of any
\nprepayment fee or failure to borrow fee payable under this Section 3.6(d) shall
\nbe conclusive in the absence of manifest error.<\/p>\n
3.7 Default Rate. From and after the occurrence of any Event of Default
\nthe Loans shall bear interest at a fluctuating interest rate per annum at all
\ntimes equal to the sum of the Base Rate plus 3% per annum, to the fullest extent
\npermitted by applicable Laws. Accrued and unpaid interest on past due amounts
\n(including, without limitation, interest on past due interest) shall be
\ncompounded annually, on the last day of each calendar quarter, to the fullest
\nextent permitted by applicable Laws.<\/p>\n
3.8 Computation of Interest and Fees. Computation of interest and on
\nall fees shall be calculated on the basis of a year of 360 days and the actual
\nnumber of days elapsed. Borrower acknowledges that this calculation method will
\nresult in a higher yield to the Lenders than a method based on a year of 365 or
\n366 days. Any Loan that is repaid on the same day on which it is made shall bear
\ninterest for one day. Notwithstanding anything in this Agreement to the
\ncontrary, interest in excess of the maximum amount permitted by applicable Laws
\nshall not accrue or be payable hereunder or under the Notes, and any amount paid
\nas<\/p>\n
30
\n 36
\ninterest hereunder or under the Notes which would otherwise be in excess of such
\nmaximum permitted amount shall instead be treated as a payment of principal.<\/p>\n
3.9 Non-Banking Days. If any payment to be made by Borrower or any
\nother Party under any Loan Document shall come due on a day other than a Banking
\nDay, payment shall instead be considered due on the next succeeding Banking Day
\nand the extension of time shall be reflected in computing interest.<\/p>\n
3.10 Manner and Treatment of Payments.<\/p>\n
(a) Each payment hereunder or on the Notes or under any
\nother Loan Document shall be made to the Administrative Agent for the account of
\neach of the Lenders, or the Administrative Agent as the case may be, in
\nimmediately available funds not later than 12:00 noon (California time) on the
\nday of payment (which must be a Banking Day). The amount of all payments
\nreceived by the Administrative Agent for the account of each Lender shall be
\npromptly paid by the Administrative Agent to the applicable Lender in
\nimmediately available funds. Should the Administrative Agent fail to remit to
\nany Lender any funds actually received by the Administrative Agent and due to
\nthat Lender on the same Banking Day upon which such funds are deemed received by
\nthe Administrative Agent as set forth above, that Lender shall be entitled to
\nrecover interest on such funds solely from the Administrative Agent at a rate
\nper annum equal to the Federal Funds Rate. All payments shall be made in lawful
\nmoney of the United States of America.<\/p>\n
(b) Each payment or prepayment on account of any Loan
\nshall be applied pro rata according to the outstanding Advances made by each
\nLender comprising such Loan.<\/p>\n
(c) Each Lender shall use its best efforts to keep a
\nrecord of Advances made by it and payments received by it with respect to its
\nNote and such record shall be presumptive evidence of the amounts owing, absent
\nmanifest error. Notwithstanding the foregoing sentence, no Lender shall be
\nliable to any Party for any failure to keep such a record.<\/p>\n
(d) Each payment of any amount payable by Borrower or any
\nother Party under this Agreement or any other Loan Document shall be made free
\nand clear of, and without reduction by reason of any taxes, assessments or other
\ncharges imposed by any Governmental Agency, central bank or comparable authority
\n(other than taxes on income or gross receipts generally applicable to banks). To
\nthe extent that Borrower is obligated by applicable Laws to make any deduction
\nor withholding on account of taxes, assessments or other charges imposed by any
\nGovernmental Agency from any amount payable to any Lender under any Loan
\nDocument Borrower shall (i) make such deduction or withholding and pay the same
\nto the relevant Governmental Agency and (ii) pay such additional amount to that
\nLender as is necessary to result in that Lender’s receiving a net after-tax (or
\nafter-assessment or after- charge) amount equal to the amount to which that
\nLender would have been entitled under the Loan Document absent such deduction or
\nwithholding. If and when receipt of such payment results in an excess payment or
\ncredit to that Lender on account of such taxes, assessments or other charges,
\nthat Lender shall refund such excess to Borrower.<\/p>\n
31
\n 37
\n (e) Each Lender which is organized outside the United
\nStates of America shall promptly deliver to Borrower and the Administrative
\nAgent a completed Internal Revenue Service Form 4224 and any other certificate
\nor statement or exemption required by applicable Laws, properly completed and
\nduly executed by such Lender, to establish that such payment is (1) not subject
\nto withholding under the Code because such payment is effectively connected with
\nthe conduct by such Lender of a trade or business in the United States of
\nAmerica or (2) totally exempt from United States tax under a provision of an
\napplicable tax treaty. Unless Borrower and the Administrative Agent have
\nreceived such Form or other documents satisfactory to them indicating that
\npayments hereunder or under the Notes are not subject to United States
\nwithholding tax or are subject to such tax at a rate reduced by an applicable
\ntax treaty, the Administrative Agent shall withhold the taxes from such payment
\nat the applicable statutory rate in the case of payments to or for any Lender
\norganized under the Laws of a jurisdiction outside the United States of America
\nand Section 3.10(d) shall not apply thereto.<\/p>\n
3.11 Funding Sources. Nothing in this Agreement shall be deemed to
\nobligate any Lender to obtain the funds for any Loan in any particular place or
\nmanner or to constitute a representation by any Lender that it has obtained or
\nwill obtain the funds for any Loan in any particular place or manner.<\/p>\n
3.12 Failure to Charge Not Subsequent Waiver. Any decision by the
\nAdministrative Agent or any Lender not to require payment of any interest
\n(including interest arising under Section 3.7), fee, cost or other amount
\npayable under any Loan Document, or to calculate any amount payable by a
\nparticular method, on any occasion shall in no way limit or be deemed a waiver
\nof the Administrative Agent’s or such Lender’s right to require full payment of
\nany interest (including interest arising under Section 3.7), fee, cost or other
\namount payable under any Loan Document or to calculate an amount payable by
\nanother method, on any other or subsequent occasion.<\/p>\n
3.13 Administrative Agent’s Right to Assume Payments Will be Made by
\nBorrower. Unless the Administrative Agent shall have been notified by Borrower
\nprior to the date on which any payment to be made by Borrower hereunder is due
\nthat Borrower does not intend to remit such payment, the Administrative Agent
\nmay, in its discretion, assume that Borrower has remitted such payment when so
\ndue and the Administrative Agent may, in its discretion and in reliance upon
\nsuch assumption, make available to each Lender on such payment date an amount
\nequal to such Lender’s share of such assumed payment. If Borrower has not in
\nfact remitted such payment to the Administrative Agent, each Lender shall
\nforthwith on demand repay to the Administrative Agent the amount of such assumed
\npayment made available to such Lender, together with interest thereon in respect
\nof each day from and including the date such amount was made available by the
\nAdministrative Agent to such Lender to the date such amount is repaid to the
\nAdministrative Agent at a rate per annum equal to the actual cost to the
\nAdministrative Agent of funding such amount as notified by the Administrative
\nAgent to such Lender.<\/p>\n
32
\n 38
\n 3.14 Fee Determination Detail. The Administrative Agent, and any
\nLender, shall provide reasonable detail to Borrower regarding the manner in
\nwhich the amount of any payment to the Lenders, or that Lender, under Article 3
\nhas been determined.<\/p>\n
3.15 Survivability. All of Borrower’s obligations under Sections 3.5
\nand 3.6 shall survive the date on which all Loans are fully paid.<\/p>\n
3.16 Security Documents. The Obligations shall be secured at all times
\nby valid and effective grants of security interest in the Collateral pursuant to
\nsecurity documents (collectively, the “Security Documents”) executed by Borrower
\nand each Subsidiary, present and future, subject to no prior Liens except for
\nPermitted Encumbrances, which Security Documents shall include among other
\nthings the following:<\/p>\n
(i) Security Agreements from Borrower and each Subsidiary,
\n present and future.<\/p>\n
(ii) Pledge Agreements from Borrower as to each
\n Subsidiary, present and future.<\/p>\n
3.17 Guaranty. The Obligations shall be guaranteed by each Subsidiary,
\npresent and future, pursuant to a Guaranty.<\/p>\n
33
\n 39
\n ARTICLE 4<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
Borrower represents and warrants to the Lenders that:<\/p>\n
4.1 Existence and Qualification: Power; Compliance With Laws. Borrower
\nis a corporation duly formed, validly existing and in good standing under the
\nLaws of Delaware. Borrower is duly qualified to transact business, and is in
\ngood standing, in Arizona and each other jurisdiction in which the conduct of
\nits business or the ownership or leasing of its Properties makes such
\nqualification or registration necessary, except where the failure so to qualify
\nor register and to be in good standing would not constitute a Material Adverse
\nEffect. Borrower has all requisite corporate power and authority to conduct its
\nbusiness, to own and lease its Properties and to execute and deliver each Loan
\nDocument to which it is a Party and to perform the Obligations. All outstanding
\nshares of capital stock of Borrower are duly authorized, validly issued, fully
\npaid, nonassessable and issued in compliance with all applicable state and
\nfederal securities and other Laws. Borrower is in compliance with all Laws and
\nother legal requirements applicable to its business, has obtained all
\nauthorizations, consents, approvals, orders, licenses and permits from, and has
\naccomplished all filings, registrations and qualifications with, or obtained
\nexemptions from any of the foregoing from, any Governmental Agency that are
\nnecessary for the transaction of its business, except where the failure so to
\ncomply, file, register, qualify or obtain exemptions does not constitute a
\nMaterial Adverse Effect.<\/p>\n
4.2 Authority: Compliance With Other Agreements and Instruments and
\nGovernment Regulations. The execution, delivery and performance by each Party of
\nthe Loan Documents to which it is a party have been duly authorized by all
\nnecessary corporate action, and do not:<\/p>\n
(a) Require any consent or approval not heretofore
\nobtained of any partner, director, stockholder, security holder or creditor of
\nsuch Party;<\/p>\n
(b) Violate or conflict with any provision of such Party’s
\ncertificate of incorporation or bylaws;<\/p>\n
(c) Result in or require the creation or imposition of any
\nLien or Right of Others upon or with respect to any Property now owned or leased
\nor hereafter acquired by such Party;<\/p>\n
(d) Violate any Requirement of Law applicable to such
\nParty;<\/p>\n
(e) Result in a breach of or default under, or would, with
\nthe giving of notice or the lapse of time or both, constitute a breach of or
\ndefault under, or cause or permit the acceleration of any obligation owed under,
\nany indenture or loan or credit agreement or<\/p>\n
34
\n 40
\nany other Contractual Obligation to which such Party is a party or by which such
\nParty or any of its Property is bound or affected;<\/p>\n
and no such Party is in violation to or default under, any Requirement of Law or
\nContractual Obligation, or any indenture, loan or credit agreement described in
\nSection 4.2(e), in any respect that constitutes a Material Adverse Effect.<\/p>\n
4.3 No Governmental Approvals Required. Subject to the representations
\nof the Lenders contained in Section 11.8, no authorization, consent approval,
\norder, license or permit from, or filing, registration or qualification with,
\nany Governmental Agency is required to authorize or permit under applicable Laws
\nthe execution, delivery and performance by each Party of the Loan Documents to
\nwhich it is a party.<\/p>\n
4.4 Subsidiaries.<\/p>\n
(a) Schedule 4.4 hereto correctly sets forth the names,
\nthe form of legal entity, number of shares of capital stock issued and
\noutstanding, jurisdictions of organization and chief executive offices of all
\nSubsidiaries of Borrower. Except as described in Schedule 4.4, Borrower does not
\nown any capital stock or equity interest in any Person.<\/p>\n
(b) Each Subsidiary of Borrower is in compliance with all
\nLaws and other requirements applicable to its business and has obtained all
\nauthorizations, consents, approvals, orders, licenses, and permits from, and
\neach such Subsidiary has accomplished all filings, registrations, and
\nqualifications with, or obtained exemptions from any of the foregoing from, any
\nGovernmental Agency that are necessary for the transaction of its business,
\nexcept where the failure so to comply, file, register, qualify or obtain
\nexemptions does not constitute a Material Adverse Effect.<\/p>\n
4.5 Financial Statements. Borrower has furnished to the Lenders the
\naudited consolidated financial statements of Borrower and its Subsidiaries as at
\nDecember 31, 1997 and for the Fiscal Year then ended. Such financial statements
\nfairly present the financial condition and the results of operations of Borrower
\nand its Subsidiaries as at such date and for such period in accordance with
\nGAAP, consistently applied.<\/p>\n
4.6 No Other Liabilities; No Material Adverse Effect. Borrower and its
\nSubsidiaries do not have any material liability or material contingent liability
\nnot reflected or disclosed in the balance sheet or notes thereto described in
\nSection 4.5, other than liabilities and contingent liabilities arising in the
\nordinary course of business subsequent to March 31, 1998 or as disclosed on
\nSchedule 4.6 hereto. No event or circumstance has occurred that constitutes a
\nMaterial Adverse Effect with respect to Borrower and its Subsidiaries since
\nMarch 31, 1998.<\/p>\n
4.7 Title to and Location of Property. Borrower and its Subsidiaries
\nhave good and valid title to all the Property reflected in the balance sheet
\ndescribed in Section 4.5, other than Property subsequently sold or disposed of
\nin the ordinary course of business, free and<\/p>\n
35
\n 41
\nclear of all Liens and Rights of Others, other than (i) Liens and Rights of
\nOthers permitted by Section 6.8.<\/p>\n
4.8 Intangible Assets. Borrower owns, or possesses the right to use to
\nthe extent necessary in its business, all trademarks, trade names, copyrights,
\npatents, patent rights, computer software, licenses and other Intangible Assets
\nthat are used in the conduct of its business as now operated and which are
\nmaterial to the condition (financial or otherwise), business or operations of
\nBorrower, and no such Intangible Asset, to the best knowledge of Borrower,
\nconflicts with the valid trademark, trade name, copyright, patent, patent right
\nor Intangible Asset of any other Person to the extent that such conflict
\nconstitutes a Material Adverse Effect.<\/p>\n
4.9 Governmental Regulation. Borrower and its Subsidiaries have
\nobtained all approvals necessary, if any, from Governmental Agencies to permit
\nthe execution, delivery and performance of the Obligations under the Loan
\nDocuments. Neither Borrower nor any of its Subsidiaries is subject to regulation
\nunder the Interstate Commerce Act, the Investment Company Act of 1940 or to any
\nother Law limiting or regulating its ability to incur Indebtedness for money
\nborrowed.<\/p>\n
4.10 Litigation. Except for (a) any matter fully covered (subject to
\napplicable deductibles and retentions) by insurance for which the insurance
\ncarrier has assumed full responsibility, (b) any matter, or series of related
\nmatters, involving a claim against Borrower or any of its Subsidiaries of less
\nthan $1,000,000, (c) matters described in public documents filed with
\nGovernmental Agencies and previously delivered to the Lenders, and (d) matters
\nset forth in Schedule 4.10, there are no actions, suits, proceedings or
\ninvestigations pending as to which Borrower or any of its Subsidiaries have been
\nserved or have received notice or, to the best knowledge of Borrower, threatened
\nagainst, or affecting Borrower or any of its Subsidiaries or any Property of any
\nof them before any Governmental Agency. Except for matters set forth in Schedule
\n4.10, there is no reasonable basis, to the best knowledge of Borrower, for any
\naction, suit, proceeding or investigation against or affecting Borrower or any
\nof its Subsidiaries or any Property of any of them before any Governmental
\nAgency which would constitute a Material Adverse Effect.<\/p>\n
4.11 Binding Obligations. Each of the Loan Documents will when executed
\nand delivered by any Party, constitute the legal, valid and binding obligation
\nof such Party, enforceable against such Party in accordance with its terms,
\nexcept as enforcement may be limited by Debtor Relief Laws or equitable
\nprinciples relating to the granting of specific performance and other equitable
\nremedies as a matter of judicial discretion.<\/p>\n
4.12 No Default. No event has occurred and is continuing that is a
\nDefault or Event of Default.<\/p>\n
4.13 Pension Plans. Schedule 4.13 correctly lists each Pension Plan
\nwhich, as of the Closing Date, Borrower or any of its ERISA Affiliates maintains
\nor to which, as of the Closing Date, Borrower or any ERISA Affiliate contributes
\nor is required to contribute. As of<\/p>\n
36
\n 42
\nthe Closing Date, all contributions required to be made under any such Pension
\nPlan have been made to such plan or have been reflected as a liability on the
\nconsolidated balance sheet described in Section 4.5. There is no “accumulated
\nfunding deficiency” within the meaning of Section 302 of ERISA or any liability
\nto the PBGC with respect to any Pension Plan other than a Multiemployer Plan.<\/p>\n
4.14 Regulations G, U and X. No part of the proceeds of any Advance,
\nLetter of Credit Disbursement or Swing Line Loan hereunder will be used to
\npurchase or carry, or to extend credit to others for the purpose of purchasing
\nor carrying, any “margin stock” (as such term is defined in Regulation G) in
\nviolation of Regulations G, U or X. Neither Borrower nor any of its Subsidiaries
\nis engaged principally, or as one of its important activities, in the business
\nof extending credit for the purpose of purchasing or carrying any such margin
\nstock.”<\/p>\n
4.15 Disclosure. No written statement made by a Responsible Official of
\nBorrower to the Administrative Agent the Arranger or any Lender in connection
\nwith this Agreement or in connection with any Advance contains any untrue
\nstatement of a material fact or omits a material fact necessary to make the
\nstatement made not misleading in light of all, the circumstances existing at the
\ndate the statement was made. Borrower has not intentionally withheld from the
\nLenders any information with respect to any circumstance or event which
\nconstitutes a Material Adverse Effect.<\/p>\n
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
\nreturns which are required to be filed, and have paid, or made provision for the
\npayment of, all taxes with respect to the periods, Property or transactions
\ncovered by said returns, or pursuant to any assessment received by Borrower or
\nany of its Subsidiaries, except (a) taxes for which Borrower has been fully
\nindemnified and (b) such taxes, if any, as are being contested in good faith by
\nappropriate proceedings and as to which adequate reserves have been established
\nand maintained. To the best knowledge of Borrower, there is no tax assessment
\ncontemplated or proposed by any Governmental Agency against Borrower or any of
\nits Subsidiaries that would constitute a Material Adverse Effect.<\/p>\n
4.17 Priority Status. No Indebtedness of Borrower or any of its
\nSubsidiaries is entitled to priority of payment over the Obligations, whether by
\ncontract or by operation of law. The Property of Borrower and its Subsidiaries
\nis not subject to any Lien or Negative Pledge not described on Schedule 4.17 or
\nSchedule 6.8.<\/p>\n
4.18 Hazardous Materials. Except as described in Schedule 4,18, (a)
\nneither Borrower nor any Subsidiary of Borrower at any time has disposed of,
\ndischarged, released or threatened the release of any Hazardous Materials on,
\nfrom or under the Property in violation of any Hazardous Materials Law that
\nwould individually or in the aggregate constitute a Material Adverse Effect, (b)
\nto the best knowledge of Borrower, no condition exists that violates any
\nHazardous Material Law affecting any Property except for such violations that
\nwould not individually or in the aggregate have a Material Adverse Effect, (c)
\nno Property or any portion thereof is or has been utilized by Borrower or any
\nSubsidiary of Borrower as a site for the manufacture of any Hazardous Materials
\nand (d) to the extent that any Hazardous<\/p>\n
37
\n 43
\nMaterials are used, generated or stored by Borrower or any Subsidiary of
\nBorrower on any Property, or transported to or from such Property by Borrower or
\nany Subsidiary of Borrower, such use, generation, storage and transportation are
\nin compliance in all material respects with all Hazardous Materials Laws.<\/p>\n
38
\n 44
\n ARTICLE 5<\/p>\n
AFFIRMATIVE COVENANTS
\n (OTHER THAN INFORMATION AND
\n REPORTING REQUIREMENTS)<\/p>\n
So long as any Advance or Swing Line Loan remains unpaid or any Letter
\nof Credit outstanding, or any other Obligation remains unpaid or unperformed, or
\nany portion of the Commitment remains in force, Borrower shall, and shall cause
\neach of its Subsidiaries to, unless the Administrative Agent (with the approval
\nof the Majority Lenders) otherwise consents in writing:<\/p>\n
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
\npromptly all taxes, assessments and governmental charges or levies imposed upon
\nany of them, upon their respective Property or any part thereof upon their
\nrespective income or profits or any part thereof or upon any right or interest
\nof the Administrative Agent or any Lender under any Loan Document, except that
\nBorrower and its Subsidiaries shall not be required to pay or cause to be paid
\n(a) any income or gross receipts tax or any other tax on or measured by income
\ngenerally applicable to banks or (b) any tax, assessment, charge or levy that is
\nnot yet past due, or is being contested in good faith by appropriate
\nproceedings, so long as the relevant entity has established and maintains
\nadequate reserves for the payment of the same and by reason of such nonpayment
\nand contest no material item or portion of Property of Borrower and its
\nSubsidiaries, taken as a whole, is in jeopardy of being seized, levied upon or
\nforfeited.<\/p>\n
5.2 Preservation of Existence. Preserve and maintain their respective
\nexistences in the jurisdiction of their formation and all authorizations,
\nrights, franchises, privileges, consents, approvals, orders, licenses, permits,
\nor registrations from any Governmental Agency that are necessary for the
\ntransaction of their respective business, and quality and remain qualified to
\ntransact business in each jurisdiction in which such qualification is necessary
\nin view of their respective business or the ownership or leasing of their
\nrespective Properties. The Borrower may, with the consent of the Administrative
\nAgent and the approval of the Majority Lenders, dissolve or otherwise
\ndiscontinue the operations of a Subsidiary if the Borrower’s Board of Directors
\nconcludes that it is in the best interests of the Borrower to do so.<\/p>\n
5.3 Maintenance of Properties. Maintain, preserve and protect all of
\ntheir respective depreciable Properties in good order and condition, subject to
\nwear and tear in the ordinary course of business, and not permit any waste of
\ntheir respective Properties.<\/p>\n
5.4 Maintenance of Insurance. Maintain liability, casualty and other
\ninsurance (subject to customary deductibles and retentions), in scope and amount
\nnot less than, and not less extensive than, the scope and amount of insurance
\ncoverages customary in the trades or businesses in which Borrower and its
\nSubsidiaries are from time to time engaged. All of the aforesaid insurance
\ncoverages shall be issued by insurers reasonably acceptable to<\/p>\n
39
\n 45
\nAdministrative Agent. Copies of all policies of insurance evidencing such
\ncoverages in effect from time to time shall be delivered to Administrative Agent
\nprior to the initial Advance under this Agreement and upon reasonable notice
\nupon issuance of new policies thereafter. From time to time, promptly upon
\nAdministrative Agent’s request, it shall provide evidence satisfactory to
\nAdministrative Agent (i) that required coverage in required amounts is in
\neffect, and (ii) that Administrative Agent is shown as an additional loss payee
\nwith respect to all such coverages, as Administrative Agent’s interest may
\nappear, by standard (non-attribution) loss payable endorsement, additional
\ninsured endorsement, insurer’s certificate or other means acceptable to
\nAdministrative Agent in its reasonable discretion. At Administrative Agent’s
\noption, it shall deliver to Administrative Agent certified copies of all such
\npolicies of insurance in effect from time to time, to be retained by
\nAdministrative Agent so long as Administrative Agent shall have any commitment
\nto lend hereunder and\/or any portion of the Obligation shall be outstanding or
\nunsatisfied. All such insurance policies shall provide for at least thirty (30)
\ndays prior written notice of the cancellation or modification thereof to
\nAdministrative Agent.<\/p>\n
5.5 Compliance With Laws. Comply with all Requirements of Laws
\nnoncompliance with which constitutes a Material Adverse Effect, except that
\nBorrower and its Subsidiaries need not comply with a Requirement of Law then
\nbeing contested by any of them in good faith by appropriate proceedings.<\/p>\n
5.6 Inspection Rights. At any time during regular business hours and as
\noften as reasonably requested (but not so as to materially interfere with the
\nbusiness of Borrower or any of its Subsidiaries), permit the Administrative
\nAgent or any authorized employee, agent or representative thereof to examine,
\naudit and make copies and abstracts from the records and books of account of,
\nand to visit and inspect the Properties of Borrower and its Subsidiaries and to
\ndiscuss the affairs, finances and accounts of Borrower and its Subsidiaries with
\nany of their officers, key employees, accountants, customers or vendors.
\nFollowing the occurrence of any Default (if in any event the Administrative
\nAgent does not obtain information reasonably satisfactory to a Lender as a
\nresult of any examination, audit, visit, inspection or discussion referred to
\nabove), each Lender shall, upon written notice to Administrative Agent, be
\npermitted to exercise each of the rights granted to the Administrative Agent by
\nthis Section.<\/p>\n
5.7 Keeping of Records and Books of Account. Keep adequate records and
\nbooks of account reflecting all financial transactions in conformity with GAAP,
\nconsistently applied, and in material conformity with all applicable
\nrequirements of any Governmental Agency having regulatory jurisdiction over
\nBorrower or any of its Subsidiaries.<\/p>\n
5.8 Compliance With Agreements. Promptly and fully comply with all
\nContractual Obligations under all material agreements, indentures, leases and\/or
\ninstruments to which any one or more of them is a party, whether such material
\nagreements, indentures, leases or instruments are with a Lender or another
\nPerson, except that Borrower and its Subsidiaries need not comply with
\nContractual Obligations (a) under any such agreements, indentures, leases or
\ninstruments then being contested by any of them in good faith by appropriate
\nproceedings or (b) if the failure to comply with such agreements, indentures,
\nleases or instruments does not constitute a Material Adverse Effect.<\/p>\n
40
\n 46
\n 5.9 Use of Proceeds. Use the proceeds of Advances only for proper
\ncorporate purposes of Borrower.<\/p>\n
5.10 Hazardous Materials Laws. Keep and maintain all Property and each
\nportion thereof in compliance in all material respects with all applicable
\nHazardous Materials Laws and promptly notify the Administrative Agent in writing
\n(attaching a copy of any pertinent written material) of (a) any and all material
\nenforcement, cleanup, removal or other governmental or regulatory actions
\ninstituted, completed or. threatened in writing by a Governmental Agency
\npursuant to any applicable Hazardous Materials Laws, (b) any and all material
\nclaims made or threatened in writing by any Person against Borrower relating to
\ndamage, contribution, cost recovery, compensation, loss or injury resulting from
\nany Hazardous Materials and (c) discovery by any Senior Officer of Borrower of
\nany material occurrence or condition on any real property adjoining or in the
\nvicinity of any Property that could reasonably be expected to cause such
\nProperty or any part thereof to be subject to any restrictions on ownership,
\noccupancy, transferability or use of such Property under any applicable
\nHazardous Materials Laws.<\/p>\n
5.11 New Subsidiaries.<\/p>\n
(a) Deliver to the Administrative Agent a Pledge Agreement
\nexecuted by Borrower as to any stock of each new Subsidiary owned by Borrower
\ntogether with all stock certificates owned by Borrower as to said Subsidiary and
\na stock transfer power related thereto.<\/p>\n
(b) Cause each new Subsidiary to execute and deliver to
\nthe Administrative Agent a Guaranty, Security Documents and such other documents
\nas Administrative Agent may reasonably require.<\/p>\n
41
\n 47
\n ARTICLE 6<\/p>\n
NEGATIVE COVENANTS<\/p>\n
So long as any Advance remains unpaid, or any other Obligation remains
\nunpaid or unperformed, or any portion of the Commitment remains in force,
\nBorrower shall not, and shall not permit any of its Subsidiaries to, unless the
\nAdministrative Agent (with the approval of the Majority Lenders or, if required
\npursuant to Section 11.2, all of the Lenders) otherwise consents in writing:<\/p>\n
6.1 Disposition of Property. Make any Disposition of all or a
\nsubstantial or material part of its Property, whether now owned or hereafter
\nacquired, if, after giving effect thereto, the aggregate book value or fair
\nmarket value of the Property which is the subject of all Dispositions by
\nBorrower and its Subsidiaries during the immediately preceding twelve (12) month
\nperiod exceeds $100,000,000.<\/p>\n
6.2 Mergers. Merge, consolidate or amalgamate with or into any Person,
\nexcept:<\/p>\n
(a) mergers, consolidations or amalgamations of a
\nSubsidiary of Borrower into Borrower; and<\/p>\n
(b) mergers, consolidations or amalgamations in
\nfurtherance of Investments and Acquisitions permitted by this Agreement;<\/p>\n
provided, in each case, that (y) no Default or Event of Default occurs by reason
\nof the consummation of such merger, consolidation or amalgamation, and (z)
\nBorrower is the survivor of such merger, consolidation or amalgamation, or
\nBorrower’s survivor expressly assumes the Obligations of Borrower to the
\nAdministrative Agent and the Lenders pursuant to a written instrument which is
\nin form and substance acceptable to the Administrative Agent and the Majority
\nLenders.<\/p>\n
6.3 Investments and Acquisitions. Make any Acquisition or enter into
\nany agreement to make any Acquisition, or make or suffer to exist any
\nInvestment, except:<\/p>\n
(a) Investments existing on the Closing Date and disclosed
\nin Schedule 4.4;<\/p>\n
(b) Investments consisting of Cash Equivalents; or<\/p>\n
(c) Acquisitions and Investments approved by the Majority
\nLenders.<\/p>\n
6.4 Liens, Rights of Others and Negative Pledges. Create, incur, assume
\nor suffer to exist any Lien, Negative Pledge or Right of Others of any nature
\nupon or with respect<\/p>\n
42
\n 48
\nto any of their respective Properties, or engage in any sale and leaseback
\ntransaction with respect to any of their respective Properties, whether now
\nowned or hereafter acquired, except:<\/p>\n
(a) Permitted Encumbrances and Permitted Rights of Others;<\/p>\n
(b) Liens and Negative Pledges under the Loan Documents;<\/p>\n
(c) Liens and Negative Pledges existing on the Closing
\nDate and disclosed in Schedule 4.17 and any renewals\/extensions or amendments
\nthereof; provided that the obligations secured or benefitted thereby are not
\nincreased; and<\/p>\n
(d) Rights of Others existing on the Closing Date and
\ndisclosed in Schedule 4.17.<\/p>\n
6.5 Distributions. Make any Distribution which would result in a
\nDefault or, in any event during the existence of an Event of Default whether
\nfrom capital, income or otherwise, and whether in Cash or other Property.<\/p>\n
6.6 ERISA Compliance. (a) Permit any Pension Plan, other than a
\nMultiemployer Plan, to incur any material “accumulated funding deficiency,” as
\nsuch term is defined in Section 302 of ERISA, whether or not waived, or (b) in a
\nmanner which could result in the imposition of a material Lien on any Property
\nof Borrower or any of its Subsidiaries pursuant to Section 4068 of ERISA, (i)
\npermit any Pension Plan maintained by any of them to suffer a Termination Event
\nor (ii) incur withdrawal liability under any Multiemployer Plan.<\/p>\n
6.7 Change in Nature of Business. Make any material change in the
\nnature of the business of Borrower and its Subsidiaries, taken as a whole, as at
\npresent conducted.<\/p>\n
6.8 Indebtedness Obligations. Create, incur, assume or suffer to exist
\nany Indebtedness or Contingent Obligation, except:<\/p>\n
(a) Indebtedness and Contingent Obligations in favor of
\nthe Lenders or the Administrative Agent under the Loan Documents;<\/p>\n
(b) Existing Indebtedness and Contingent Obligations
\ndisclosed in Schedule 6.8 and Indebtedness or Contingent Obligations which
\nrefinance or replace such Indebtedness or Contingent Obligations, provided in
\neach case, that the principal amount thereof is not increased;<\/p>\n
(c) Indebtedness not described above that consists of
\ntrade payables incurred in the ordinary course of business; and<\/p>\n
(d) Any obligation of any future Subsidiary to execute a
\nguaranty as required under the terms of the indenture relating to the Senior
\nNotes.<\/p>\n
43
\n 49
\n 6.9 Transactions with Affiliates. Enter into any transaction of any
\nkind with any Affiliate of Borrower other than (a) transactions between or among
\nBorrower and its wholly-owned Subsidiaries or between or among its wholly-owned
\nSubsidiaries and (b) transactions on terms at least as favorable to Borrower or
\nits Subsidiaries as would be the case in an arm’s- length transaction between
\nunrelated parties of equal bargaining power.<\/p>\n
6.10 Capital Expenditures. Make, or become legally obligated to make,
\nany capital expenditure except:<\/p>\n
(a) Maintenance capital expenditures in any Fiscal Year
\nnot in excess of $5,000,000; and<\/p>\n
(b) Capital Expenditures to the extent financed by
\nIndebtedness permitted under Section 6.8.<\/p>\n
6.11 Financial Covenants. Permit the following (collectively, the
\n“Financial Covenants”):<\/p>\n
(a) Its Leverage Ratio at the end of any Fiscal Quarter to
\nexceed:<\/p>\n
(i) After the Closing Date, to exceed 3.25 to 1.0;<\/p>\n
(ii) After the first anniversary of the Closing Date,
\n to exceed 3.00 to 1.0: and<\/p>\n
(iii) After the second anniversary of the Closing
\n Date, to exceed 2.75 to 1.0.<\/p>\n
(b) Its Interest Coverage Ratio at the end of any Fiscal
\nQuarter for the prior twelve-month period to be less than:<\/p>\n
(i) For 1998, 2.25 to 1.0;<\/p>\n
(ii) For 1999, 2.75 to 1.0; and<\/p>\n
(iii) Thereafter, 3.00 to 1.0.<\/p>\n
(c) Its Fixed Charge Coverage Ratio at the end of any
\nFiscal Quarter for the prior twelve-month period to be less than 1.5 to 1.0.<\/p>\n
(d) Its EBITDA at the end of any Fiscal Quarter to be less
\nthan $20,000,000.00 for the prior twelve-month period.<\/p>\n
44
\n 50
\n ARTICLE 7<\/p>\n
INFORMATION AND REPORTING REQUIREMENTS<\/p>\n
7.1 Financial and Business Information. So long as any Advance remains
\nunpaid, or any other Obligation remains unpaid or unperformed, or any portion of
\nthe Commitment remains in force, Borrower shall, unless the Administrative Agent
\n(with the approval of the Majority Lenders) otherwise consents in writing,
\ndeliver to the Lenders, at Borrower’s sole expense:<\/p>\n
(a) Within 90 days after the end of each Fiscal Year, (i)
\nconsolidated and consolidating balance sheets of the Borrower and its
\nSubsidiaries and the related consolidated and consolidating statements of income
\nshowing the financial condition of the Borrower and its Subsidiaries as of the
\nclose of such Fiscal Year and the results of operations during such year, and
\n(ii) consolidated and consolidating statements of cash flows of the Borrower and
\nits Subsidiaries for such fiscal year, all the foregoing financial statements to
\nbe prepared in accordance with GAAP and reported on by an accounting firm of
\nnationally recognized standing;<\/p>\n
(b) Within 45 days after the end of each of the first
\nthree Fiscal Quarters of each Fiscal Year of the Borrower, unaudited (i)
\nconsolidated and consolidating balance sheets, (ii) consolidated and
\nconsolidating statements of income and (iii) consolidated and consolidating
\nstatements of cash flows, each showing the financial condition of the Borrower
\nand its Subsidiaries as of the end of such quarter and the results of operations
\nfor the then-elapsed portion of the Fiscal Year, certified by a Senior Officer
\nof the Borrower as being correct and complete and as presenting fairly the
\nfinancial position and results of operations of the Borrower and its
\nSubsidiaries in accordance with GAAP, in each case subject to normal year-end
\nadjustments;<\/p>\n
(c) As soon as practicable, and in any event within 45
\ndays after the end of each Fiscal Quarter (other than the last Fiscal Quarter in
\neach Fiscal Year, and then within 90 days after the end of such Fiscal Quarter),
\na Compliance Certificate certified by a Senior Officer;<\/p>\n
(d) No later than 30 days before the start of each Fiscal
\nYear, projections of consolidated and consolidating financial statements for
\nsuch Fiscal Year prepared by Borrower;<\/p>\n
(e) As soon as practicable, and in any event within two
\nBanking Days after a Responsible official of Borrower obtains actual knowledge
\nof the existence of any condition or event which constitutes a Default or Event
\nof Default written notice specifying the nature and period of existence thereof
\nand specifying what action Borrower or any of its Subsidiaries are taking or
\npropose to take with respect thereto;<\/p>\n
45
\n 51
\n (f) Promptly upon a Senior Officer of Borrower becoming
\naware, and in any event within five Banking Days after becoming aware, of the
\noccurrence of any (i) “reportable event” (as such term is defined in Section
\n4043 of ERISA) or (ii) “prohibited transaction” (as such term is defined in
\nSection 406 of ERISA or Section 4975 of the Code) in connection with any Pension
\nPlan, other than a Multiemployer Plan, or any trust created thereunder, a
\nwritten notice specifying the nature thereof what action Borrower and any of its
\nSubsidiaries is taking or proposes to take with respect thereto, and, when
\nknown, any action taken by the Internal Revenue Service with respect thereto;
\nand<\/p>\n
(g) Such other data and information as from time to time
\nmay be reasonably requested by the Administrative Agent or by any Lender.<\/p>\n
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\n 52
\n ARTICLE 8<\/p>\n
CONDITIONS<\/p>\n
8.1 Initial Advances. The obligation of each Lender to make the initial
\nAdvance to be made by it hereunder, for the Issuing Bank to issue a Letter of
\nCredit and for the Swing Line Lender to make a Swing Line Loan is subject to the
\nfulfillment of the following conditions precedent each of which shall be
\nsatisfied prior to the making of the initial Advance (unless all of the Lenders,
\nin their sole and absolute discretion, shall agree otherwise):<\/p>\n
(a) The Administrative Agent shall have received all of
\nthe following, each of which shall be originals unless otherwise specified, each
\nproperly executed by a Responsible Official of each party thereto, each dated as
\nof the Closing Date and each in form and substance reasonably satisfactory to
\nthe Administrative Agent, its legal counsel, and the Lenders (unless otherwise
\nspecified or, in the case of the date of any of the following, unless the
\nAdministrative Agent and each Lender otherwise agree or direct):<\/p>\n
(1) executed counterparts of this Agreement,
\n sufficient in number for distribution to the Lenders and Borrower;<\/p>\n
(2) the RLC Notes executed by Borrower in favor of
\n each Lender, each in a principal amount equal to that Lender’s Pro Rata
\n Share of the Commitment;<\/p>\n
(3) such documentation as the Administrative Agent
\n may reasonably require to establish the due organization, valid
\n existence and good standing of each of Borrower and its Subsidiaries,
\n its qualification to engage in business in each jurisdiction in which
\n it is engaged in business or required to be so qualified, its authority
\n to execute, deliver and perform the Loan Documents, and the identity,
\n authority and capacity of each Responsible Official thereof authorized
\n to act on its behalf, including, without limitation, certified copies
\n of its certificate of incorporation and amendments thereto, bylaws and
\n amendments thereto, certificates of good standing and\/or qualification
\n to engage in business, tax clearance certificates, certificates of
\n corporate resolutions, incumbency certificates, Certificates of
\n Responsible Officials, and the like;<\/p>\n
(4) the Opinion of Counsel;<\/p>\n
(5) evidence that the execution, delivery and
\n performance of the Loan Documents has been authorized and approved;<\/p>\n
(6) an executed Compliance Certificate as of the
\n prior Fiscal Quarter;<\/p>\n
47
\n 53
\n (7) a Guaranty executed by each Subsidiary;<\/p>\n
(8) the Swing Line Note executed by Borrower in favor
\n of the Swing Line Lender;<\/p>\n
(9) Security Documents and UCC Financing Statements
\n executed by Borrower and, to the extent applicable, each Subsidiary;<\/p>\n
(10) projections of consolidated and consolidating
\n financial statements through the Maturity Date, prepared by Borrower;<\/p>\n
(11) copies of Borrower’s most recent financial
\n statements of its audited financial statements for the 1996 and 1997
\n Fiscal Years;<\/p>\n
(12) evidence of insurance in compliance with Section
\n 5.4;<\/p>\n
(13) evidence of the termination of Borrower’s
\n existing bank credit agreement and the release of all Liens related
\n thereto which termination need not include an unsecured $2,000,000 loan
\n from Southwest Bank to Addison Structural Services, Inc.;<\/p>\n
(14) evidence that its Leverage Ratio does not exceed
\n 3.25 to 1.0;<\/p>\n
(15) documents executed with respect to the
\n Designated Deposit Account; and<\/p>\n
(16) such other assurances, certificates, documents,
\n consents or opinions as the Administrative Agent reasonably may
\n require.<\/p>\n
(b) The representations and warranties of Borrower
\ncontained in Article 4 shall be true and correct.<\/p>\n
(c) Borrower shall be in compliance with all the terms and
\nprovisions of the Loan Documents, and no Default or Event of Default shall have
\noccurred and be continuing.<\/p>\n
(d) To the extent due and payable, Borrower shall have
\npaid the fees described in Section 3.4 as well as the balance of the bridge loan
\nfee for Administrative Agent’s own account pursuant to that letter agreement
\ndated of even date herewith between Borrower and the Administrative Agent.<\/p>\n
8.2 Any Advance, etc. In addition to any applicable conditions
\nprecedent set forth elsewhere in this Article 8, the obligation of each Lender
\nto make any Advance, for the Issuing Bank to issue a Letter of Credit and for
\nthe Swing Line Lender to make a Swing Line Loan is subject to the following
\nconditions precedent:<\/p>\n
48
\n 54
\n (a) except as disclosed by Borrower and approved in
\nwriting by the Majority Lenders, the representations and warranties contained in
\nArticle 4 (other than Sections 4.5, 4.6, 4.10 and 4.18) shall be true and
\ncorrect on and as of the date of the Advance as though made on that date;<\/p>\n
(b) the Administrative Agent shall have timely received a
\nRequest for Loan in compliance with Article 2 (or telephonic or other request
\nfor loan referred to in the second sentence of Section 2.1(b), if applicable)
\nand shall have promptly notified each Lender that is to fund such Advance of
\nsuch request;<\/p>\n
(c) no Default or Event of Default shall have occurred and
\nis continuing that has not been waived by the Administrative Agent and the
\nMajority Lenders; and<\/p>\n
(d) the Administrative Agent shall have received, in form
\nand substance satisfactory to the Administrative Agent, such other assurances,
\ncertificates, documents or consents related to the foregoing as the
\nAdministrative Agent reasonably may require.<\/p>\n
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\n 55
\n ARTICLE 9<\/p>\n
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT<\/p>\n
9.1 Events of Default. The existence or occurrence of any one or more
\nof the following events, whatever the reason therefor and under any
\ncircumstances whatsoever, shall constitute an Event of Default:<\/p>\n
(a) Borrower fails to pay any principal on any of the
\nNotes, or any portion thereof, on the date when due; or<\/p>\n
(b) Borrower fails to pay any interest on any of the
\nNotes, or any portion thereof, within five (5) Banking Days after the date when
\ndue; or fails to pay any other fee or amount payable to Administrative Agent,
\nthe Lenders, the Issuing Bank or the Swing Line Lender under any Loan Document
\nor any portion thereof within five (5) Banking Days after demand therefor; or<\/p>\n
(c) Any failure to comply with Section 7.1(e); or<\/p>\n
(d) Borrower, any of its Subsidiaries or any other Party
\nfails to perform or observe any covenant or agreement contained in Article 6 of
\nthis Agreement; or<\/p>\n
(e) Borrower, any of its Subsidiaries or any other Party
\nfails to perform or observe any other covenant or agreement contained in this
\nAgreement or any other Loan Document within thirty (30) days after the giving of
\nnotice by the Administrative Agent or the Majority Lenders of such Default; or<\/p>\n
(f) Any representation or warranty made in any Loan
\nDocument proves to have been incorrect when made or reaffirmed in any respect
\nthat is materially adverse to the interests of the Administrative Agent or the
\nLenders; or<\/p>\n
(g) Borrower or any of its Subsidiaries (i) fails to pay
\nthe principal, or any principal installment of any present or future
\nindebtedness for borrowed money (other than under the Notes) in an amount in
\nexcess of $1,000,000, or any guaranty of present or future indebtedness for
\nborrowed money in an amount in excess of $1,000,000, on its part to be paid,
\nwhen due (or within any stated grace period), whether at the maturity, upon
\nacceleration, by reason of required prepayment or otherwise or (ii) fails to
\nperform or observe any other term, covenant or agreement on its part to be
\nperformed or observed, or suffers any event to occur, in connection with any
\npresent or future indebtedness for borrowed money in an amount in excess of
\n$1,000,000, or of any guaranty of present or future indebtedness for borrowed
\nmoney in excess of $1,000,000, if as a result of such failure or sufferance any
\nholder or holders thereof (or an agent or trustee on its or their behalf) has
\nthe right to declare such indebtedness due before the date on which it otherwise
\nwould become due; or<\/p>\n
50
\n 56
\n (h) Any Loan Document at any time after its execution and
\ndelivery and for any reason other than the agreement of the Lenders or
\nsatisfaction in full of all the Obligations, ceases to be in full force and
\neffect or is declared by a court of competent jurisdiction to be null and void,
\ninvalid or unenforceable in any respect which, in any such event in the
\nreasonable opinion of the Majority Lenders, is materially adverse to the
\ninterests of the Lenders; or Borrower denies that it has any or further
\nliability or obligation under any Loan Document, or purports to revoke,
\nterminate or rescind same; or<\/p>\n
(i) A judgment against Borrower or any of its Subsidiaries
\nis entered for the payment of money in excess of $1,000,000 and, absent
\nprocurement of a stay of execution, such judgment remains unbonded or
\nunsatisfied for thirty (30) calendar days after the date of entry of judgment or
\nin any event, later than five (5) days prior to the date of any proposed
\nforeclosure sale thereunder; or<\/p>\n
(j) Borrower or any of its Subsidiaries institutes or
\nconsents to any proceeding under a Debtor Relief Law relating to it or to all or
\nany part of its Property, or is unable or admits in writing its inability to pay
\nits debts as they mature, or makes an assignment for the benefit of creditors;
\nor applies for or consents to the appointment of any receiver, trustee,
\ncustodian, conservator, liquidator, rehabilitator or similar officer for it or
\nfor all or any part of its Property; or any receiver, trustee, custodian,
\nconservator, liquidator, rehabilitator or similar officer is appointed without
\nthe application or consent of that Person and the appointment continues
\nundischarged or unstayed for sixty (60) calendar days; or any proceeding under a
\nDebtor Relief Law relating to any such Person or to all or any part of its
\nProperty is instituted without the consent Of that Person and continues
\nundismissed or unstayed for sixty (60) calendar days; or any judgment, writ,
\nwarrant of attachment or execution or similar process is issued or levied
\nagainst all or any material part of the Property of any such Person and is not
\nreleased, vacated or fully bonded within sixty (60) calendar days after its
\nissue or levy; or<\/p>\n
(k) The occurrence subsequent to the Closing Date of a
\nTermination Event with respect to any Pension Plan, maintained by Borrower or
\nany ERISA Affiliate of Borrower if the aggregate liability of Borrower and its
\nERISA Affiliates under ERISA as a result thereof exceeds $5,000,000; or the
\ncomplete or partial withdrawal subsequent to the Closing Date by Borrower or any
\nof its ERISA Affiliates from any Multiemployer Plan if the aggregate liability
\nof Borrower and its ERISA Affiliates as a result thereof exceeds $5,000,000; or<\/p>\n
(l) The occurrence of a change in Control without the
\nwritten consent of the Required Lenders; or<\/p>\n
(m) The occurrence of any adverse change in the financial
\ncondition of Borrower and its Subsidiaries that the Majority Lenders, in their
\nreasonable discretion, deems material, or the Majority Lenders in good faith
\nshall believe that the prospect of payment or performance of the Loans is
\nimpaired.<\/p>\n
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\n 57
\n 9.2 Remedies Upon Event of Default. Without limiting any other rights
\nor remedies of the Administrative Agent or the Lenders provided for elsewhere in
\nthis Agreement or the Loan Documents, or by applicable Law, or in equity, or
\notherwise:<\/p>\n
(a) Upon the occurrence of any Event of Default other than
\nan Event of Default described in Section 9.1(j) which remains uncured or not
\nwaived within ten (10) Banking Days of such Event of Default:<\/p>\n
(1) the commitment to make Advances and all other
\n obligations of the Administrative Agent, the Lenders, the Issuing Bank
\n or the Swing Line Lender and all rights of Borrower and any other
\n Parties under the Loan Documents shall be suspended without notice to
\n or demand upon Borrower, which are expressly waived by Borrower, except
\n that subject to Section 11.2, the Majority Lenders may waive the Event
\n of Default or, without waiving, determine, upon terms and conditions
\n satisfactory to the Majority Lenders (or all of the Lenders, as the
\n case may be), to reinstate the Commitment and make further Advances
\n which waiver or determination shall apply equally to, and shall be
\n binding upon, all the Lenders;<\/p>\n
(2) the Majority Lenders may request the
\n Administrative Agent to, and the Administrative Agent thereupon shall
\n terminate the Commitment and declare all or any part of the unpaid
\n principal of all Notes, all interest accrued and unpaid thereon and all
\n other amounts payable under the Loan Documents to be forthwith due and
\n payable, whereupon the same shall become and be forthwith due and
\n payable, without protest, presentment, notice of dishonor, demand or
\n further notice of any kind, all of which are expressly waived by
\n Borrower; and<\/p>\n
(3) the Majority Lenders may require that the
\n Borrower deposit cash with the Administrative Agent in an amount equal
\n to the aggregate Letter of Credit Balance as collateral (under its sole
\n dominion and control) for the repayment of drawings under outstanding
\n Letters of Credit.<\/p>\n
(b) Upon the occurrence of any Event of Default described
\nin Section 9.1(j):<\/p>\n
(1) the commitment to make Advances and all other
\n obligations of the Administrative Agent or the Lenders and all rights
\n of Borrower and any other Parties under the Loan Documents shall
\n terminate without notice to or demand upon Borrower, which are
\n expressly waived by Borrower, except that all the Lenders may waive the
\n Event of Default or, without waiving, determine, upon terms and
\n conditions satisfactory to all the Lenders, to reinstate the Commitment
\n and make further Advances, which waiver or determination shall apply
\n equally to, and shall be binding upon, all the Lenders; and<\/p>\n
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\n 58
\n (2) the unpaid principal of all Notes, all interest
\n accrued and unpaid thereon and all other amounts payable under the Loan
\n Documents shall be forthwith due and payable, without protest,
\n presentment notice of dishonor, demand or further notice of any kind,
\n all of which are expressly waived by Borrower.<\/p>\n
(c) Upon the occurrence of any Event of Default, the
\nLenders and the Administrative Agent, or any of them, without notice to or
\ndemand upon Borrower, which are expressly waived by Borrower, may proceed to
\nprotect, exercise and enforce their rights and remedies under the Loan Documents
\nagainst Borrower and any other Party and such other rights and remedies as are
\nprovided by Law or equity.<\/p>\n
(d) The order and manner in which the Lenders’ rights and
\nremedies are to be exercised shall be determined by the Majority Lenders in
\ntheir sole discretion, and all payments received by the Administrative Agent and
\nthe Lenders, or any of them, shall be applied first to the costs and expenses
\n(including attorneys’ fees and disbursements) of the Administrative Agent,
\nacting as Administrative Agent and of the Lenders, and thereafter paid pro rata
\nto the Lenders in the same proportions that the aggregate Obligations owed to
\neach Lender under the Loan Documents bear to the aggregate Obligations owed
\nunder the Loan Documents to all the Lenders, without priority or preference
\namong the Lenders. Regardless of how each Lender may treat payments for the
\npurpose of its own accounting, for the purpose of computing Borrower’s
\nObligations hereunder and under the Notes, payments shall be applied first, to
\nthe costs and expenses (including attorneys’ fees and disbursements) of the
\nAdministrative Agent acting as the Administrative Agent, and then to the
\nLenders, as set forth above, second, to the payment of accrued and unpaid
\ninterest due under any Loan Documents to and including the date of such
\napplication (ratably, and without duplication, according to the accrued and
\nunpaid interest due under each of the Loan Documents), and third, to the payment
\nof all other amounts (including principal and fees) then owing to the
\nAdministrative Agent or the Lenders under the Loan Documents. No application of
\npayments will cure any Event of Default, or prevent acceleration, or continued
\nacceleration, of amounts payable under the Loan Documents, or prevent the
\nexercise, or continued exercise, of rights or remedies of the Lenders hereunder
\nor thereunder or at law or in equity.<\/p>\n
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\n 59
\n ARTICLE 10<\/p>\n
THE ADMINISTRATIVE AGENT<\/p>\n
10.1 Appointment and Authorization. Each Lender hereby irrevocably
\nappoints and authorizes the Administrative Agent to take such action as agent on
\nits behalf and to exercise such powers under the Loan Documents as are delegated
\nto the Administrative Agent by the terms thereof or are reasonably incidental,
\nas determined by the Administrative Agent, thereto. This appointment and
\nauthorization is intended solely for the purpose of facilitating the servicing
\nof the Advances and does not constitute appointment of the Administrative Agent
\nas trustee for any Lender or as representative of any Lender for any other
\npurpose and, except as specifically set forth in the Loan Documents to the
\ncontrary, the Administrative Agent shall take such action and exercise such
\npowers only in an administrative and ministerial capacity. The Administrative
\nAgent is the agent of the Lenders only and does not assume any agency
\nrelationship with Borrower, express or implied.<\/p>\n
10.2 Administrative Agent and Affiliates. Wells Fargo Bank, National
\nAssociation (and each successor Administrative Agent) has the same rights and
\npowers under the Loan Documents as any other Lender and may exercise the same as
\nthough it was not the Administrative Agent and the term “Lender” or “Lenders”
\nincludes Wells Fargo Bank, National Association in its individual capacity.
\nWells Fargo Bank, National Association (and each successor Administrative Agent)
\nand its Affiliates may accept deposits from, lend money to and generally engage
\nin any kind of banking, trust or other business with Borrower, any Subsidiary
\nthereof or any Affiliate of Borrower or any Subsidiary thereof, as if it was not
\nthe Administrative Agent and without any duty to account therefor to the
\nLenders. Wells Fargo Bank, National Association (and each successor
\nAdministrative Agent) need not account to any other Lender for any monies
\nreceived by it for reimbursement of its fees, costs and expenses as
\nAdministrative Agent hereunder, or for any monies received by it in its capacity
\nas a Lender hereunder. Neither the Arranger, the Swing Line Lender, the Issuing
\nBank nor the Administrative Agent shall be deemed to hold a fiduciary
\nrelationship with any Lender and no implied covenants, functions,
\nresponsibilities, duties, obligations or liabilities shall be read into this
\nAgreement or otherwise exist against the Administrative Agent, the Swing Line
\nLender or the Arranger.<\/p>\n
10.3 Proportionate Interest of the Lenders in any Collateral. The
\nAdministrative Agent, on behalf of all the Lenders, shall hold in a Accordance
\nwith the Loan Documents all collateral or interests therein, if any, received or
\nheld by the Administrative Agent. Subject to the Administrative Agents, the
\nSwing Line Lender’s and the Lender’s rights to reimbursement for their costs and
\nexpenses hereunder (including attorneys’ fees and disbursements and other
\nprofessional services) and subject to the application of payments in accordance
\nwith Section 9.2(d), each Lender (including the Swing Line Lender) shall have an
\ninterest in any collateral or interests therein in the same proportions that the
\naggregate Obligations beneficially owed such Lender under the Loan Documents
\nbear to the aggregate Obligations owed under the Loan Documents to all the
\nLenders, without priority or preference among the Lenders.<\/p>\n
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\n 60
\n 10.4 Lenders Credit Decisions. Each Lender agrees that it has,
\nindependently and without reliance upon the Administrative Agent, the Arranger,
\nthe Swing Line Lender, any other Lender or the directors, officers, agents,
\nemployees or attorneys of the Administrative Agent, the Arranger, the Swing Line
\nLender or of any other Lender, and instead in reliance upon information supplied
\nto it by or on behalf of Borrower and upon such other information as it has
\ndeemed appropriate, made its own independent credit analysis and decision to
\nenter into this Agreement. Each Lender also agrees that it shall, independently
\nand without reliance upon the Administrative Agent the Arranger, the Swing Line
\nLender any other Lender or the directors, officers, agents, employees or
\nattorneys of the Administrative Agent the Arranger, the Swing Line Lender or of
\nany other Lender, continue to make its own independent credit analyses and
\ndecisions in acting or not acting under the Loan Documents.<\/p>\n
10.5 Action by Administrative Agent; Etc.<\/p>\n
(a) The Administrative Agent and the Swing Line Lender may
\nassume that no Default has occurred and is continuing, unless the Administrative
\nAgent and the Swing Line Lender have received written notice from Borrower
\nstating the nature of the Default or has received written notice from a Lender
\nstating the nature of the Default and that such Lender considers the Default to
\nhave occurred and to be continuing.<\/p>\n
(b) The Administrative Agent has only those obligations
\nunder the Loan Documents as are expressly set forth therein. The Arranger has no
\nobligations under the Loan Documents, although it is an intended third party
\nbeneficiary of those Sections of this Agreement which refer to the Arranger.<\/p>\n
(c) Except for any obligation expressly set forth in the
\nLoan Documents and as long as the Administrative Agent may assume that no Event
\nof Default has occurred and is continuing, the Administrative Agent may, but
\nshall not be required to, exercise its discretion to act or not act, except that
\nthe Administrative Agent shall be required to act or not act upon the
\ninstructions of the Majority Lenders (or of all the Lenders, to the extent
\nrequired by this Agreement) and those instructions shall be binding upon the
\nAdministrative Agent and all the Lenders, provided that the Administrative Agent
\nshall not be required to act or not act if to do so would be contrary to any
\nLoan Document or to applicable Law or would result, in the reasonable judgment
\nof the Administrative Agent, in substantial risk of liability to the
\nAdministrative Agent.<\/p>\n
(d) If the Administrative Agent has received a written
\nnotice specified in clause (a), the Administrative Agent shall give notice
\nthereof to the Lenders and shall act or not act upon the instructions of the
\nMajority Lenders (or of all the Lenders, to the extent required by Section
\n11.2), provided that the Administrative Agent shall not be required to act or
\nnot act if to do so would be contrary to any Loan Document or to applicable Law
\nor would result, in the reasonable judgment of the Administrative Agent in
\nsubstantial risk of liability to the Administrative Agent, and except that if
\nthe Majority Lenders (or all the Lenders, if required under this Agreement) fail
\nfor five (5) Banking Days after the receipt of notice from the Administrative
\nAgent, to instruct the Administrative Agent, then the Administrative Agent,<\/p>\n
55
\n 61
\nin its sole discretion, may act or not act as it deems advisable for the
\nprotection of the interests of the Lenders.<\/p>\n
(e) The Administrative Agent shall have no liability to
\nany Lender for acting, or not acting, as instructed by the Majority Lenders (or
\nall the Lenders, if required under this Agreement), notwithstanding any other
\nprovision hereof.<\/p>\n
10.6 Liability of Administrative Agent and Arranger. Neither the
\nAdministrative Agent, the Arranger, nor any of their respective directors,
\nadvisors, officers, agents, employees or attorneys shall be liable for any
\naction taken or not taken by them under or in connection with the Loan
\nDocuments, except for their own gross negligence or willful misconduct. Without
\nlimitation on the foregoing, the Administrative Agent, the Arranger and their
\nrespective directors, advisors, officers, agents, employees and attorneys:<\/p>\n
(a) May treat the payee of any Note as the holder thereof
\nuntil the Administrative Agent receives written notice of the assignment or
\ntransfer thereof, in form satisfactory to the Administrative Agent, signed by
\nthe payee, and may treat each Lender as the owner of that Lender’s interest in
\nthe Obligations for all purposes of this Agreement until the Administrative
\nAgent receives written notice of the assignment or transfer thereof, in form
\nsatisfactory to the Administrative Agent signed by that Lender.<\/p>\n
(b) May consult with legal counsel (including in-house
\nlegal counsel), accountants (including in-house accountants) and other
\nprofessionals or experts selected by it or with legal counsel, accountants or
\nother professionals or experts for Borrower and\/or its Subsidiaries or the
\nLenders, and shall not be liable to any Lender for any action taken or not taken
\nby it in good faith in accordance with any advice of such legal counsel,
\naccountants or other professionals or experts.<\/p>\n
(c) Shall not be responsible to any Lender for any
\nstatement, warranty or representation made in any of the Loan Documents or in
\nany notice, certificate, report, request or other statement (written or oral)
\ngiven or made in connection with any of the Loan Documents, unless such
\nstatement warranty or representation is an independent statement, warranty or
\nrepresentation of the Administrative Agent which is not based upon information
\nreceived by the Administrative Agent from Borrower or any other Person not
\naffiliated with the Administrative Agent.<\/p>\n
(d) Except to the extent expressly set forth in the Loan
\nDocuments, shall have no duty to ask or inquire as to the performance or
\nobservance by Borrower or its Subsidiaries of any of the terms, conditions or
\ncovenants of any of the Loan Documents or to inspect any collateral or the
\nProperty, books or records of Borrower or its Subsidiaries.<\/p>\n
(e) Will not be responsible to any Lender for the due
\nexecution, legality, validity, enforceability, genuineness, effectiveness,
\nsufficiency or value of any Loan Document any other instrument or writing
\nfurnished pursuant thereto or in connection therewith, or any collateral.<\/p>\n
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\n 62
\n (f) Will not incur any liability to any Lender by acting
\nor not acting in reliance upon any Loan Document, notice, consent, certificate,
\nstatement, request or other instrument or writing believed by it to be genuine
\nand signed or sent by the proper party or parties.<\/p>\n
(g) Will not incur any liability to any Lender for any
\narithmetical error in computing any amount paid or payable by the Borrower or
\nany Subsidiary or Affiliate thereof or paid or payable to or received or
\nreceivable from any Lender under any Loan Document, including, without
\nlimitation, principal, interest, commitment fees, Advances, Swing Line Loans and
\nother amounts; provided that, promptly upon discovery of such an error in
\ncomputation, the Administrative Agent, the Lenders and (to the extent
\napplicable) Borrower and\/or its Subsidiaries or Affiliates shall make such
\nadjustments as are necessary to correct such error and to restore the parties to
\nthe position that they would have occupied had the error not occurred.<\/p>\n
10.7 Indemnification. Each Lender and the Swing Line Lender shall
\nratably in accordance with their respective portions of the Commitment,
\nindemnify and hold the Administrative Agent and the Arranger and their
\nrespective directors, advisors, officers, agents, employees and attorneys
\nharmless against any and all liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, expenses or disbursements of any
\nkind or nature whatsoever (including, without limitation, attorneys’ fees and
\ndisbursements) that may be imposed on, incurred by or asserted against it or
\nthem in any way relating to or arising out of the Loan Documents (other than
\nlosses incurred by reason of the failure of Borrower to pay the indebtedness
\nrepresented by the Notes and interest thereon or to pay the fees described in
\nSections 3.2 and 3.3) or any action taken or not taken by Wells Fargo Bank,
\nNational Association as Administrative Agent thereunder, except such as result
\nfrom their own gross negligence or willful misconduct. Without limitation on the
\nforegoing, each Lender shall reimburse the Administrative Agent and the Arranger
\nupon demand for that Lender’s ratable share of any cost or expense incurred by
\nthe Administrative Agent or the Arranger in connection with the negotiation,
\npreparation., execution, delivery, amendment, waiver, restructuring,
\nreorganization (including a bankruptcy reorganization), enforcement or attempted
\nenforcement of the Loan Documents, to the extent that Borrower or any other
\nParty is required by Section 11.3 to pay that cost or expense but fails to do so
\nupon demand.<\/p>\n
10.8 Successor Administrative Agent. If the Administrative Agent
\ndetermines that for it to continue as Administrative Agent would result in a
\nconflict of interest affecting the Administrative Agent, or would create an
\nunacceptable risk of significant liability of the Administrative Agent to a
\nthird party, or would otherwise be inadvisable under prevailing standards of
\nbanking prudence, it may resign as such at any time upon prior written notice to
\nBorrower and the Lenders, to be effective upon a successor’s acceptance of
\nappointment as Administrative Agent. The Administrative Agent may also resign as
\nsuch absent such a determination by it with the consent of Borrower, which shall
\nnot be unreasonably withheld, to be likewise effective. The Majority Lenders at
\nany time may remove the Administrative Agent by written notice to that effect to
\nbe effective on such date as the Majority Lenders designate. In either event:
\n(a) the Majority Lenders shall appoint a successor Administrative Agent who<\/p>\n
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\n 63
\nmust be from among the Lenders, provided that any resigning Administrative Agent
\nshall be entitled to appoint a successor Administrative Agent from among the
\nLenders, subject to acceptance of appointment by that successor Administrative
\nAgent, if the Majority Lenders have not appointed a successor Administrative
\nAgent within thirty (30) days after the date the resigning Administrative Agent
\ngave notice of resignation; (b) upon a successor’s acceptance of appointment as
\nAdministrative Agent, the successor win thereupon succeed to and become vested
\nwith all the rights, powers, privileges and duties of the resigning
\nAdministrative Agent or the removed Administrative Agent; and (c) upon the
\neffectiveness of any resignation or removal, the resigning Administrative Agent
\nor the removed Administrative Agent thereupon will be discharged from its duties
\nand obligations thereafter arising under the Loan Documents other than
\nobligations arising as a result of any action or inaction of the resigning
\nAdministrative Agent or the removed Administrative Agent prior to the
\neffectiveness of such resignation or removal.<\/p>\n
10.9 No Obligations of Borrower. Nothing contained in this Article 10
\nshall be deemed to impose upon Borrower any obligation in respect of the due and
\npunctual performance by the Administrative Agent of its obligations to the
\nLenders under any provision of this Agreement, and Borrower shall have no
\nliability to the Administrative Agent or any of the Lenders in respect of any
\nfailure by the Administrative Agent or any Lender to perform any of its
\nobligations to the Administrative Agent or the Lenders under this Agreement.
\nWithout limiting the generality of the foregoing, where any provision of this
\nAgreement relating to the payment of any amounts due and owing under the Loan
\nDocuments provides that such payments shall be made by Borrower to the
\nAdministrative Agent for the account of the Lenders, Borrower’s obligations to
\nthe Lenders in respect of such payments shall be deemed to be satisfied upon the
\nmaking of such payments to the Administrative Agent in the manner provided by
\nthis Agreement.<\/p>\n
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\n 64
\n ARTICLE 11<\/p>\n
MISCELLANEOUS<\/p>\n
11.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
\nremedies of the Administrative Agent and the Lenders provided herein or in any
\nNote or other Loan Document are cumulative and not exclusive of any right,
\npower, privilege or remedy provided by Law or equity. No failure or delay on the
\npart of the Administrative Agent or any Lender in exercising any right power,
\nprivilege or remedy may be, or may be deemed to be, a waiver thereof, nor may
\nany single or partial exercise of any right, power, privilege or remedy preclude
\nany other or further exercise of the same or any other right, power, privilege
\nor remedy. The terms and conditions of Article 8 hereof are inserted for the
\nsole benefit of the Administrative Agent and the Lenders; the same may be waived
\nin whole or in part, with or without terms or conditions, in respect of any Loan
\nwithout prejudicing the Administrative Agent’s or the Lenders’ rights to assert
\nthem in whole or in part in respect of any other Loan.<\/p>\n
11.2 Amendments; Consents. No amendment modification, supplement
\nextension, termination or waiver of any provision of this Agreement or any other
\nLoan Document, no approval or consent thereunder, and no consent to any
\ndeparture by the Borrower or any other Party therefrom, may in any event be
\neffective unless in writing signed by the Administrative Agent with the approval
\nin writing of the Majority Lenders and Borrower, and then only in the specific
\ninstance and for the specific purpose given; and, without the approval in
\nwriting of all the Lenders, no amendment, modification, supplement, termination,
\nwaiver or consent may be effective:<\/p>\n
(a) To amend or modify the principal of or the amount of
\nprincipal, or the rate of interest payable on, any Note, or the amount of the
\nCommitment or of any facility fee payable to any Lender, or any other fee or
\namount payable to any Lender under the Loan Documents;<\/p>\n
(b) To postpone any date fixed for any payment of
\nprincipal of, prepayment of principal of or any installment of interest on, any
\nNote or any installment of any facility fee, or any other fee or amount payable
\nto any Lender under the Loan Documents, or to extend the term of the Commitment,
\nor to release any collateral for the Obligations;<\/p>\n
(c) To amend or modify the provisions of the definitions
\nof “Commitment” or “Majority Lenders,” or Section 6.8 or this Section; or<\/p>\n
(d) To amend or modify any provision of this Agreement
\nthat expressly requires the consent or approval of all the Lenders.<\/p>\n
Any amendment modification, supplement termination, waiver or consent pursuant
\nto this Section shall apply equally to, and shall be binding upon, all the
\nLenders and the Administrative Agent.<\/p>\n
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\n 65
\n 11.3 Costs, Expenses and Taxes. Borrower shall pay on demand the
\nreasonable costs and expenses of the Administrative Agent (including the fees
\nand expenses of counsel to the Administrative Agent) in connection with the
\nnegotiation, preparation, execution and delivery of the Loan Documents, and of
\nthe Administrative Agent and the Lenders in connection with any amendment,
\nwaiver, refinancing, restructuring, reorganization (including a bankruptcy
\nreorganization), enforcement or attempted enforcement of the Loan Documents, and
\nany matter related thereto, including, without limitation, reasonably incurred
\nfiling fees, recording fees, title insurance fees, appraisal fees, search fees
\nand other out-of-pocket expenses and the reasonable fees and out-of-pocket
\nexpenses of any legal counsel, independent public accountants and other outside
\nexperts retained by the Administrative Agent or any Lender, and including,
\nwithout limitation, any reasonable costs, expenses or fees incurred or suffered
\nby the Administrative Agent or any Lender in connection with or during the
\ncourse of any bankruptcy or insolvency proceedings of Borrower or any Subsidiary
\nthereof Borrower shall pay any and all documentary and other taxes (other than
\nincome or gross receipts taxes generally applicable to banks) and all reasonable
\ncosts, expenses, fees and charges payable or determined to be payable in
\nconnection with the filing or recording of this Agreement any other Loan
\nDocument or any other instrument or writing to be delivered hereunder or
\nthereunder, or in connection with any transaction pursuant hereto or thereto,
\nand shall reimburse, hold harmless and indemnify the Administrative Agent and
\nthe Lenders from and against any and all reasonable loss, liability or legal or
\nother expense with respect to or resulting from any delay in paying or failure
\nto pay any tax, cost, expense, fee or charge or that any of them may suffer or
\nincur by reason of the failure of any Party to perform any of its Obligations.
\nAny amount payable to the Administrative Agent or any Lender under this Section
\nshall bear interest from the second Banking Day following the date of demand for
\npayment at the Default Rate.<\/p>\n
11.4 Nature of Lenders’ Obligations. The obligations of the Lenders
\nhereunder are several and not joint or joint and several. Nothing contained in
\nthis Agreement or any other Loan Document and no action taken by the
\nAdministrative Agent or the Lenders or any of them pursuant hereto or thereto
\nmay, or may be deemed to, make the Lenders a partnership, an association, a
\njoint venture or other entity, either among themselves or with the Borrower or
\nany Affiliate of the Borrower. Each Lender’s several obligation to make Advances
\nis conditioned upon the performance by all other Lenders of their obligations to
\nmake similar Advances. A default by any Lender will not increase the amount of
\nthe Commitment attributable to any other Lender, and any Lender not in default
\nmay, if it desires, assume in such proportion as the nondefaulting Lenders agree
\nthe obligations of any Lender in default but is not obligated to do so.<\/p>\n
11.5 Survival of Representations and Warranties. All representations
\nand warranties contained herein or in any other Loan Document or in any
\ncertificate or other writing delivered by or on behalf of any one or more of the
\nParties to any Loan Document, will survive the making of the Advances hereunder
\nand the execution and delivery. of the Notes, and have been or will be relied
\nupon by the Administrative Agent and each Lender, notwithstanding any
\ninvestigation made by the Administrative Agent or any Lender or on their behalf.<\/p>\n
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\n 66
\n 11.6 Notices. Except as otherwise expressly provided in any Loan
\nDocument, all notices, requests, demands, directions and other communications
\nprovided for hereunder or under any other Loan Document must be in writing and
\nmust be mailed, telecopied, or personally delivered to the appropriate party at
\nthe address set forth on the signature pages of this Agreement or other
\napplicable Loan Document or, as to any party to any Loan Document, at any other
\naddress as may be designated by it in a written notice sent to all other parties
\nto such Loan Document in accordance with this Section. Except as otherwise
\nexpressly provided in any Loan Document, if any notice, request, demand,
\ndirection or other communication required or permitted by any Loan Document is
\ngiven by mail it will be effective on the earlier of receipt or the third
\ncalendar day after deposit in the United States mail with first class or mail
\npostage prepaid; if given by telex or telecopier, when sent; or if given by
\npersonal delivery, when delivered.<\/p>\n
11.7 Execution of Loan Documents; Counterparts. Unless the
\nAdministrative Agent otherwise specifies with respect to any Loan Document, this
\nAgreement and any other Loan Document may be executed in any number of
\ncounterparts and any party hereto or thereto may execute any counterpart, each
\nof which when executed and delivered will be deemed to be an original and all of
\nwhich counterparts of this Agreement or any other Loan Document, as the case may
\nbe, when taken together will be deemed to be but one and the same instrument.
\nThe execution of this Agreement or any other Loan Document by any party hereto
\nor thereto will not become effective until counterparts hereof or thereof, as
\nthe case may be, have been executed by all the parties hereto or thereto.<\/p>\n
11.8 Binding Effect; Assignment.<\/p>\n
(a) This Agreement and the other Loan Documents to which
\nBorrower is a Party will be binding upon and inure to the benefit of Borrower,
\nthe Administrative Agent each of the Lenders, and their respective successors
\nand assigns, except that Borrower may not assign its rights hereunder or
\nthereunder or any interest herein or therein without the prior written consent
\nof all the Lenders. Each Lender represents that it is not acquiring its Note
\nwith a view to the distribution thereof within the meaning of the Securities Act
\nof 1933, as amended (subject to any requirement that disposition of such Note
\nmust be within the control of such Lender). Any Lender may at any time pledge
\nits Note or any other instrument evidencing its rights as a Lender under this
\nAgreement to a Federal Reserve Bank, but no such pledge shall release that
\nLender from its obligations hereunder or grant to such Federal Reserve Bank the
\nrights of a Lender hereunder absent foreclosure of such pledge.<\/p>\n
(b) From time to time following the Closing Date, each
\nLender may assign to one or more Eligible Assignees all or any portion of its
\nPro Rata Share of the Commitment; provided that (i) such Eligible Assignee, if
\nnot then a Lender, shall be reasonably acceptable to the Administrative Agent
\nand Borrower, (ii) such assignment shall be evidenced by a Commitment Assignment
\nand Acceptance, a copy of which shall be furnished to the Administrative Agent
\nfor registration as hereinbelow provided, (iii) the assignment shall not assign
\na Pro Rata Share of the Commitment equivalent to less than $3,000,000 unless the
\nassigning Lender thereby assigns its entire Pro Rata Share and (iv) the
\neffective date of any<\/p>\n
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\n 67
\nsuch assignment shall be as specified in the Commitment Assignment and
\nAcceptance, but without the consent of the Administrative Agent not earlier than
\nthe date which is ten (10) Banking Days after the date the Administrative Agent
\nhas registered the Commitment Assignment and Acceptance in the register kept for
\nthat purpose by the Administrative Agent described below. Upon the effective
\ndate of such Commitment Assignment and Acceptance, the Eligible Assignee named
\ntherein shall be a Lender for all purposes of this Agreement with the Pro Rata
\nShare of the Commitment therein set forth and, to the extent of such Pro Rata
\nShare, the assigning Lender shall be released from its obligations under this
\nAgreement. Borrower agrees that it shall execute and deliver (against delivery
\nby the assigning Lender to Borrower of its Note) to such assignee Lender, a Note
\nevidencing that assignee Lender’s Pro Rata Share of the Commitment and to the
\nassigning Lender, a Note evidencing the remaining balance of the Pro Rata Share
\nretained by the assigning Lender.<\/p>\n
(c) By executing and delivering a Commitment Assignment
\nand Acceptance, the Eligible Assignee thereunder acknowledges and agrees that:
\n(i) other than the representation and warranty that it is the legal and
\nbeneficial owner of the Pro Rata Share of the Commitment being assigned thereby
\nfree and clear of any adverse claim, the assigning Lender has made no
\nrepresentation or warranty and assumes no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with this
\nAgreement or the execution, legality, validity, enforceability, genuineness or
\nsufficiency of this Agreement or any other Loan Document; (ii) the assigning
\nLender has made no representation or warranty and assumes no responsibility with
\nrespect to the financial condition of Borrower or the performance by Borrower of
\nthe Obligations; (iii) it has received a copy of this Agreement, together with
\ncopies of the most recent financial statements delivered pursuant to Section 7.1
\nand such other documents and information as it has deemed appropriate to make
\nits own credit analysis and decision to enter into such Commitment Assignment
\nand Acceptance; (iv) it will, independently and without reliance upon the
\nAdministrative Agent or any Lender and based on such documents and information
\nas it shall deem appropriate at the time, continue to make its own credit
\ndecisions in taking or not taking action under this Agreement; (v) it appoints
\nand authorizes the Administrative Agent to take such action and to exercise such
\npowers under this Agreement as are delegated to the Administrative Agent by this
\nAgreement; and (vi) it will perform in accordance with their terms all of the
\nobligations which by the terms of this Agreement are required to be performed by
\nit as a Lender.<\/p>\n
(d) The Administrative Agent shall maintain at the
\nAdministrative Agent’s Office a copy of each Commitment Assignment and
\nAcceptance delivered to it and a register for recordation of the names and
\naddresses of the Lenders and their respective Pro Rata Shares of the Commitment.
\nUpon receipt of a completed Commitment Assignment and Acceptance executed by any
\nLender and an Eligible Assignee, and upon receipt of a registration fee of
\n$3,000 from such Eligible Assignee, Administrative Agent shall record the making
\nof the assignments contemplated in such Commitment Assignment and Acceptance in
\nsuch register. The entries in such register shall be conclusive in the absence
\nof manifest error, and the Borrower, the Administrative Agent and the Lenders
\nmay treat each Person whose name is recorded in the register as a Lender
\nhereunder for all purposes of this Agreement.<\/p>\n
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\n (e) Each Lender may from time to time without the consent
\nof Borrower or the Administrative Agent grant participations to one or more
\nbanks or other financial institutions in a portion of its Pro Rata Share of the
\nCommitment; provided, however, that (i) such Lender’s obligations under this
\nAgreement shall remain unchanged, (ii) such Lender shall remain solely
\nresponsible to the other parties hereto for the performance of such obligations,
\n(iii) the participating banks or other financial institutions shall not be a
\nLender hereunder for any purpose if the participation agreement so provides, for
\nthe purposes of Sections 3.5, 3,6 and 11.11 but only to the extent that the cost
\nof such benefits to Borrower does not exceed the cost which Borrower would have
\nincurred in respect of such Lender absent the participation, (iv) Borrower, the
\nAdministrative Agent and the other Lenders shall continue to deal solely and
\ndirectly with such Lender in connection with such Lender’s rights and
\nobligations under this Agreement, (v) the consent of the holder of such
\nparticipation interest shall not be required for amendments or waivers of
\nprovisions of the Loan Documents other than those which (A) increase the
\nmonetary amount of any of the Commitment, (B) extend the Maturity Date or any
\nother date upon which any payment of money is due to the Lenders or (C) reduce
\nthe rate of interest on the Notes, or any fee or any other monetary amount
\npayable to the Lenders and (vi) such Lender shall notify the Administrative
\nAgent in writing of the identity of the participant and the amount of the
\nparticipation interest within five Banking Days after the date granted.<\/p>\n
(f) Notwithstanding anything to the contrary contained
\nherein, any Lender (a “Granting Lender”) may grant to a special purpose funding
\nvehicle (an “SPC”) of such Granting Lender, identified as such in writing from
\ntime to time by the Granting Lender to the Administrative Agent and Borrower,
\nthe option to provide to Borrower all or any part of any Loan that such Granting
\nLender would otherwise be obligated to make to the Borrower pursuant to Sections
\n2. l(a) provided that (i) nothing herein shall constitute a commitment to make
\nany Loan by any SPC and (ii) if an SPC elects not to exercise such option or
\notherwise fails to provide all or any part of such Loan, the Granting Lender
\nshall be obligated to make such Loan pursuant to the terms hereof. The making of
\na Loan by an SPC shall utilize the Pro Rata Share of the Commitment of the
\nGranting Lender to the same extent, and as if, such Loan were made by the
\nGranting Lender. Each party hereby agrees that no SPC shall be liable for any
\nindemnity or similar payment obligation under this Agreement (all liability for
\nwhich shall remain with the related Granting Lender). In furtherance of the
\nforegoing, each party hereto agrees (which agreement shall survive the
\ntermination of this Agreement) that prior to the date that is one year and one
\nday after the payment in full of all outstanding senior indebtedness of any SPC,
\nit will not institute against or join any other Person in instituting against,
\nsuch SPC any proceeding under any Debtor Relief Law, provided that the Granting
\nLender for each SPC hereby agrees to indemnify, save and hold harmless each
\nother party hereto for any loss, cost damage and expense arising out of its
\ninability to institute any such proceeding against the SPC related to such
\nGranting Lender. In addition, notwithstanding anything to the contrary contained
\nin this Section 11.8, any SPC may (i) with notice to, but without the consent
\nof, Borrower or the Administrative Agent and without paying any processing fee
\ntherefor, assign all or a portion of its interests in any Loans to its Granting
\nLender or to any financial institutions providing liquidity and\/or credit
\nfacilities to or for the account of such SPC to fund the Loans made by such SPC
\nor to support the securities (if any) issued by such SPC to fund such Loans (but
\nnothing contained herein shall be construed in derogation of the obligation of<\/p>\n
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\n 69
\nthe Granting Lender to make Loans hereunder), provided that neither the consent
\nof the SPC or of any such assignee shall be required for amendments or waivers
\nof provisions of the Loan Documents except for those amendments or waivers for
\nwhich the consent of participants is required under Section 11.8(e)(v), and (ii)
\ndisclose on a confidential basis any non-public information relating to its
\nLoans to any rating agency, commercial paper dealer or provider of a surety,
\nguarantee or credit or liquidity enhancement to such SPC.<\/p>\n
11.9 Setoff Rights. If an Event of Default has occurred and is
\ncontinuing, the Administrative Agent or any Lender (but only with the consent of
\nthe Majority Lenders) may, to the extent permitted by applicable Laws, exercise
\nits rights under applicable Laws to setoff and apply any funds in any deposit
\naccount maintained with it by Borrower and\/or any Property of Borrower in its
\npossession against the Obligations.<\/p>\n
11.10 Sharing of Setoffs. Each Lender severally agrees that if it
\nthrough the exercise of any right of setoff, banker’s lien or counterclaim
\nagainst Borrower, or otherwise, receives payment, through any means, of the
\nObligations held by it that is in excess of that Lender’s Pro Rata Share of such
\npayment, then: (a) The Lender exercising the right of setoff, banker’s lien or
\ncounterclaim or otherwise receiving such payment shall purchase, and shall be
\ndeemed to have simultaneously purchased, from the other Lender a participation
\nin the Obligations held by the other Lender and shall pay to the other Lender a
\npurchase price in an amount so that the share of the Obligations held by each
\nLender after the exercise of the right of setoff, bankers lien or counterclaim
\nor receipt of payment shall be in the same proportion that existed prior to the
\nexercise of the right of setoff, banker’s lien or counterclaim or receipt of
\npayment; and (b) Such other adjustments and purchases of participations shall be
\nmade from time to time as shall be equitable to ensure that all of the Lenders
\nshare any payment obtained in respect of the Obligations ratably in accordance
\nwith each Lender’s share of the Obligations immediately prior to, and without
\ntaking into account, the payment; provided that, if all or any portion of a
\ndisproportionate payment obtained as a result of the exercise of the right of
\nsetoff, banker’s lien, counterclaim or otherwise is thereafter recovered from
\nthe purchasing Lender by Borrower or any Person claiming through or succeeding
\nto the rights of Borrower, the purchase of a participation shall be rescinded
\nand the purchase price thereof shall be restored to the extent of the recovery,
\nbut without interest. Each Lender that purchases a participation in the
\nObligations pursuant to this Section shall from and after the purchase have the
\nright to give all notices, requests, demands, directions and other
\ncommunications under this Agreement with respect to the portion of the
\nObligations purchased to the same extent as though the purchasing Lender were
\nthe original owner of the Obligations purchased. Borrower expressly consents to
\nthe foregoing arrangements and agrees that any Lender holding a participation in
\nan Obligation so purchased may exercise any and all rights of setoff, banker’s
\nlien or counterclaim with respect to the participation as fully as if the Lender
\nwere the original owner of the Obligation purchased; provided, however, that
\neach Lender agrees that it shall not exercise any right of setoff, banker’s lien
\nor counterclaim without first obtaining the consent of the Majority Lenders.<\/p>\n
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save and
\nhold harmless the Administrative Agent, the Arranger and each Lender and their
\ndirectors, officers,<\/p>\n
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\n 70
\nagents, advisors, attorneys and employees (collectively the “Indemnitees”) from
\nand against: (a) Any and all claims, demands, actions or causes of action that
\nare asserted against any Indemnitee by any Person (other than the Administrative
\nAgent, the Arranger or a Lender) if the claim, demand, action or cause of action
\ndirectly or indirectly relates to a claim, demand, action or cause of action
\nthat such Person has or asserts against Borrower, any Affiliate of Borrower or
\nany officer, director or shareholder of Borrower and relating to the Loan
\nDocuments; (b) Any and all claims, demands, actions or causes of action that are
\nasserted against any Indemnitee if the claim, demand, action or cause of action
\narises out of or relates to the relationship between Borrower and the Lenders
\nunder any of the Loan Documents or the transactions contemplated thereby; (c)
\nAny and all administrative or investigative proceedings by any Governmental
\nAgency arising out of or related to any claim, demand, action or cause of action
\ndescribed in clauses (a) or (b) above; and (d) Any and all liabilities, losses,
\ncosts or expenses (including attorneys, fees and disbursements and other
\nprofessional services) that any Indemnitee suffers or incurs as a result of the
\nassertion of any of the foregoing; provided that no Indemnitee shall be entitled
\nto indemnification for any loss caused by its own gross negligence or
\nmisconduct. Each Indemnitee is authorized to employ counsel of its own choosing
\nin enforcing its rights hereunder and in defending against any claim, demand,
\naction, cause of action or administrative or investigative proceeding covered by
\nthis Section; provided that each Indemnitee shall endeavor, in connection with
\nany matter covered by this Section which also involves other Indemnitees, to use
\nreasonable efforts to avoid unnecessary duplication of effort by counsel for all
\nIndemnitees. Any obligation or liability of Borrower to any Indemnitee under
\nthis Section shall be and hereby is covered and secured by the Loan Documents
\nand the Collateral, and shall survive the expiration or termination of this
\nAgreement and the repayment of all Loans and the payment and performance of all
\nother Obligations owed to the Lenders.<\/p>\n
11.12 Nonliability of the Lenders. Borrower acknowledges and agrees
\nthat:<\/p>\n
(a) Any inspections of any Property of Borrower made by or
\nthrough the Administrative Agent, the Arranger or the Lenders are for purposes
\nof administration of the Loan Documents only and Borrower is not entitled to
\nrely upon the same;<\/p>\n
(b) By accepting or approving anything required to be
\nobserved, performed, fulfilled or given to the Administrative Agent or the
\nLenders pursuant to the Loan Documents, neither the Administrative Agent nor the
\nLenders shall be deemed to have warranted or represented the sufficiency,
\nlegality, effectiveness or legal effect of the same, or of any term, provision
\nor condition thereof, and such acceptance or approval thereof shall not
\nconstitute a warranty or representation to anyone with respect thereto by the
\nAdministrative Agent or the Lenders;<\/p>\n
(c) The relationship between Borrower and the
\nAdministrative Agent the Arranger and the Lenders is, and shall at all times
\nremain, solely that of a borrower and lenders; neither the Administrative Agent
\nthe Arranger nor the Lenders shall under any circumstance be construed to be
\npartners or joint venturers of Borrower or its Affiliates; neither the
\nAdministrative Agent, the Arranger nor the Lenders shall under any circumstance<\/p>\n
65
\n 71
\nbe deemed to be in a relationship of confidence or trust or a fiduciary
\nrelationship with Borrower or its Affiliates, or to owe any fiduciary duty to
\nBorrower or its Affiliates; neither the Administrative Agent, the Arranger nor
\nthe Lenders undertake or assume any responsibility or duty to Borrower or its
\nAffiliates to select, review, inspect, supervise, pass judgment upon or inform
\nBorrower or its Affiliates of any matter in connection with their Property or
\nthe operations of Borrower or its Affiliates; Borrower and its Affiliates shall
\nrely entirely upon their own judgment with respect to such matters; and any
\nreview, inspection, supervision, exercise of judgment or supply of information
\nundertaken or assumed by the Administrative Agent the Arranger or the Lenders in
\nconnection with such matters is solely for the protection of the Administrative
\nAgent, the Arranger, the Swing Line Lender and the Lenders and neither Borrower
\nnor any other Person is entitled to rely thereon; and<\/p>\n
(d) The Administrative Agent the Arranger and the Lenders
\nshall not be responsible or liable to any Person for any loss, damage, liability
\nor claim of any kind relating to injury or death to Persons or damage to
\nProperty caused by the actions, inaction or negligence of Borrower and\/or its
\nAffiliates and Borrower hereby indemnities and holds the Administrative Agent,
\nthe Arranger and the Lenders harmless from any such loss, damage, liability or
\nclaim.<\/p>\n
11.13 No Third Parties Benefited. This Agreement is made for the
\npurpose of defining and setting forth certain obligations, rights and duties of
\nBorrower, the Administrative Agent, the Arranger and the Lenders in connection
\nwith the Loans and is made for the sole benefit of Borrower, the Administrative
\nAgent, the Arranger and the Lenders, and the Administrative Agents, the
\nArranger’s and the Lenders’ successors and assigns. Except as provided in
\nSections 11.8 and 11.11, no other Person shall have any rights of any nature
\nhereunder or by reason hereof.<\/p>\n
11.14 Further Assurances. Borrower and its Subsidiaries shall, at their
\nexpense and without expense to the Lenders or the Administrative Agent, do,
\nexecute and deliver such further acts and documents as any Lender or the
\nAdministrative Agent from time to time reasonably requires for the assuring and
\nconfirming unto the Lenders or the Administrative Agent of the rights hereby
\ncreated or intended now or hereafter so to be, or for carrying out the intention
\nor facilitating the performance of the terms of any Loan Document.<\/p>\n
11.15 Integration. This Agreement together with the other Loan
\nDocuments, comprises the complete and integrated agreement of the parties on the
\nsubject matter hereof and supersedes all prior agreements, written or oral on
\nthe subject matter hereof. In the event of any conflict between the provisions
\nof this Agreement and those of any other Loan Document, the provisions of this
\nAgreement shall control and govern; provided that the inclusion of supplemental
\nrights or remedies in favor of the Administrative Agent or the Lenders in any
\nother Loan Document shall not be deemed a conflict with this Agreement. Each
\nLoan Document was drafted with the joint participation of the respective parties
\nthereto and shall be construed neither against nor in favor of any party, but
\nrather in accordance with the fair meaning thereof.<\/p>\n
66
\n 72
\n 11.16 Governing Law. Except to the extent otherwise expressly provided
\ntherein, each loan document shall be governed by, and construed and enforced in
\naccordance with, the local Laws of Arizona.<\/p>\n
11.17 Severability of Provisions. Any provision in any Loan Document
\nthat is held to be inoperative, unenforceable or invalid as to any party or in
\nany jurisdiction shall, as to that party or jurisdiction, be inoperative,
\nunenforceable or invalid without affecting the remaining provisions or the
\noperation, enforceability or validity of that provision as to any other party or
\nin any other jurisdiction, and to this end the provisions of all Loan Documents
\nare declared to be severable.<\/p>\n
11.18 Independent Covenants. Each covenant in Articles 5, 6 and 7 is
\nindependent of the other covenants in those Articles; the breach of any such
\ncovenant shall not be excused by the fact that the circumstances underlying such
\nbreach would be permitted by another such covenant.<\/p>\n
11.19 Headings. Article and Section headings in this Agreement and the
\nother Loan Documents are included for convenience of reference only and are not
\npart of this Agreement or the other Loan Documents for any other purpose.<\/p>\n
11.20 Time of the Essence. Time is of the essence of the Loan
\nDocuments.<\/p>\n
11.21 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES THAT
\nTHIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR
\nTHE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT IN
\nWRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT WILL NOT RELY
\nON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS
\nBY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY BANK THAT DOES NOT
\nCOMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER OR
\nSUPPLEMENT TO THE AGREEMENT OF THE OTHER LOAN DOCUMENTS.<\/p>\n
11.22 Jury Trial Waiver. EACH PARTY TO THIS AGREE HEREBY EXPRESSLY
\nWAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
\nACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
\nOR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
\nTO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER
\nNOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
\nOTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
\nDEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY TRIAL COURT WITHOUT A
\nJURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A<\/p>\n
67
\n 73
\nCOPY OF THIS SECTION WITH ANY COURT AS EVIDENCE OF THE CONSENT OF THE PARTIES
\nHERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed as of the date first above written.<\/p>\n
BORROWER:<\/p>\n
SCHUFF STEEL COMPANY, a Delaware
\n corporation<\/p>\n
By:_________________________________________________
\n Name: Kenneth F. Zylstra
\n Its: Vice President and Chief
\n Financial
\n Officer<\/p>\n
Address:<\/p>\n
420 South 19th Avenue
\n Phoenix, Arizona 85009<\/p>\n
Attention: ________________________________________<\/p>\n
Telephone: (602) 251-0313
\n Telecopier: (602) 452-4465<\/p>\n
BANKS:<\/p>\n
WELLS FARGO BANK, NATIONAL
\n ASSOCIATION, individually, as the Swing Line
\n Lender, the Issuing Bank and Administrative Agent<\/p>\n
By:_________________________________________________
\n Name: Timothy J. Dillingham
\n Its: Vice President<\/p>\n
68
\n 74
\n Address for Matters Other than Loan
\n Administration:<\/p>\n
Wells Fargo Bank, National Association
\n Corporate Banking Division
\n 100 West Washington
\n Phoenix, Arizona 85003<\/p>\n
Attn: Timothy J. Dillingham, Vice President,
\n #4101-251<\/p>\n
Telephone: (602) 378-4593
\n Telecopier: (602) 378-4758<\/p>\n
Address for Loan Administration:<\/p>\n
Wells Fargo Bank, National Association
\n Commercial Bank Loan Center
\n Agency Dept. 2840
\n 201 3rd Street 8th Floor
\n San Francisco, California 94103<\/p>\n
Attn: Manager<\/p>\n
Telephone: (415) 477-5418
\n Telecopier: (415) 512-9408<\/p>\n
69<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8773,9312],"corporate_contracts_industries":[9415,9481],"corporate_contracts_types":[9561,9560],"class_list":["post-40984","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-schuff-international-inc","corporate_contracts_companies-wells-fargo---co","corporate_contracts_industries-financial__banks","corporate_contracts_industries-construction__specialty","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40984","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40984"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40984"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40984"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40984"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}