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<PAGE>
EXHIBIT 10.1
SECOND AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
Dated as of January 31, 2005
among
VIASAT, INC.
THE LENDERS HEREIN NAMED
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
and
COMERICA BANK,
as Collateral Agent
<PAGE>
TABLE OF CONTENTS
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Page
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Article 1 DEFINITIONS AND ACCOUNTING
TERMS.................................................................
1
1.1 Defined
Terms............................................................................
1
1.2 Use of Defined
Terms.....................................................................
22
1.3 Accounting
Terms.........................................................................
22
1.4
Rounding.................................................................................
23
1.5 Exhibits and
Schedules...................................................................
23
1.6 References to "Borrower and its
Subsidiaries"............................................ 23
1.7 Miscellaneous
Terms......................................................................
23
Article 2 LOANS AND LETTERS OF
CREDIT......................................................................
24
2.1 Loans -
General..........................................................................
24
2.2 Alternate Base Rate
Loans................................................................
25
2.3 Eurodollar Rate
Loans....................................................................
25
2.4 Letters of
Credit........................................................................
25
2.5 Voluntary Reduction of
Commitment........................................................
29
2.6 Administrative Agent's Right to Assume Funds Available for
Advances...................... 29
2.7
Collateral...............................................................................
30
Article 3 PAYMENTS AND
FEES................................................................................
31
3.1 Principal and
Interest...................................................................
31
3.2 Closing Date
Fees........................................................................
32
3.3 Commitment
Fee...........................................................................
32
3.4 Letter of Credit
Fees....................................................................
32
3.5 Increased Commitment
Costs...............................................................
33
3.6 Eurodollar Costs and Related
Matters..................................................... 34
3.7 Late
Payments............................................................................
37
3.8 Computation of Interest and
Fees.........................................................
37
3.9 Non-Banking
Days.........................................................................
38
3.10 Manner and Treatment of
Payments.........................................................
38
3.11 Funding
Sources..........................................................................
39
3.12 Failure to Charge Not Subsequent
Waiver.................................................. 39
3.13 Administrative Agent's Right to Assume Payments Will be
Made............................. 39
3.14 Fee Determination
Detail.................................................................
40
3.15
Survivability............................................................................
40
Article 4 REPRESENTATIONS AND
WARRANTIES...................................................................
41
4.1 Existence and Qualification; Power; Compliance With
Laws................................. 41
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations... 41
4.3 No Governmental Approvals
Required.......................................................
42
4.4
Subsidiaries.............................................................................
42
4.5 Financial
Statements.....................................................................
43
4.6 No Other Liabilities; No Material Adverse
Changes........................................ 43
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<TABLE>
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4.7 Intentionally
Deleted....................................................................
43
4.8 Intangible
Assets........................................................................
43
4.9 Public Utility Holding Company
Act....................................................... 43
4.10
Litigation...............................................................................
43
4.11 Binding
Obligations......................................................................
44
4.12 No
Default...............................................................................
44
4.13
ERISA....................................................................................
44
4.14 Regulation U; Investment Company
Act..................................................... 44
4.15
Disclosure...............................................................................
44
4.16 Tax
Liability............................................................................
45
4.17
Projections..............................................................................
45
4.18 Hazardous
Materials......................................................................
45
4.19 Security
Interests.......................................................................
45
Article 5 AFFIRMATIVE
COVENANTS............................................................................
46
5.1 Payment of Taxes and Other Potential
Liens............................................... 46
5.2 Preservation of
Existence................................................................
46
5.3 Maintenance of
Properties................................................................
46
5.4 Maintenance of
Insurance.................................................................
46
5.5 Compliance With
Laws.....................................................................
47
5.6 Inspection
Rights........................................................................
47
5.7 Keeping of Records and Books of
Account.................................................. 47
5.8 Compliance With
Agreements...............................................................
47
5.9 Use of
Proceeds..........................................................................
47
5.10 Hazardous Materials
Laws.................................................................
47
5.11 Syndication
Process......................................................................
48
5.12 Future Subsidiaries; Additional Security
Documentation................................... 48
Article 6 NEGATIVE
COVENANTS...............................................................................
49
6.1 Payment of Subordinated
Obligations......................................................
49
6.2 Disposition of
Property..................................................................
49
6.3
Mergers..................................................................................
49
6.4 Hostile
Acquisitions.....................................................................
49
6.5
Acquisitions.............................................................................
49
6.6
Distributions............................................................................
50
6.7
ERISA....................................................................................
50
6.8 Change in Nature of
Business.............................................................
50
6.9
Liens....................................................................................
50
6.10 Indebtedness and Guaranty
Obligations....................................................
51
6.11 Transactions with
Affiliates.............................................................
51
6.12 Intentionally
Omitted....................................................................
52
6.13
EBITDA...................................................................................
52
6.14 Tangible Net
Worth.......................................................................
52
6.15 Quick
Ratio..............................................................................
52
6.16
Investments..............................................................................
52
6.17 Capital
Expenditures.....................................................................
53
6.18 Amendments to Subordinated
Obligations...................................................
53
</TABLE>
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6.19 Changes in Officers, Name, Location of Chief Executive
Offices, Etc...................... 53
Article 7 INFORMATION AND REPORTING
REQUIREMENTS...........................................................
54
7.1 Financial and Business
Information.......................................................
54
7.2 Intentionally
Omitted....................................................................
56
7.3 Compliance
Certificates..................................................................
56
Article 8
CONDITIONS.......................................................................................
57
8.1 Initial Credit
Issuance..................................................................
57
8.2 Any
Advance..............................................................................
58
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT............................................. 60
9.1 Events of
Default........................................................................
60
9.2 Remedies Upon Event of
Default...........................................................
62
Article 10 THE ADMINISTRATIVE AGENT AND THE COLLATERAL
AGENT............................................... 64
10.1 Appointment and
Authorization............................................................
64
10.2 The Agents and Their
Affiliates..........................................................
64
10.3 Proportionate Interest in any
Collateral................................................. 64
10.4 Lenders' Credit
Decisions................................................................
65
10.5 Action by Administrative Agent and Collateral
Agent...................................... 65
10.6 Liability of
Agents......................................................................
66
10.7
Indemnification..........................................................................
67
10.8 Successor
Agents.........................................................................
67
10.9 No Obligations of
Borrower...............................................................
68
Article 11
MISCELLANEOUS...................................................................................
69
11.1 Cumulative Remedies; No
Waiver...........................................................
69
11.2 Amendments;
Consents.....................................................................
69
11.3 Costs, Expenses and
Taxes................................................................
70
11.4 Nature of Lenders'
Obligations...........................................................
71
11.5 Survival of Representations and
Warranties............................................... 71
11.6
Notices..................................................................................
71
11.7 Execution of Loan
Documents..............................................................
71
11.8 Binding Effect;
Assignment...............................................................
72
11.9 Right of
Setoff..........................................................................
74
11.10 Sharing of
Setoffs.......................................................................
74
11.11 Indemnity by
Borrower....................................................................
75
11.12 Nonliability of the
Lenders..............................................................
76
11.13 No Third Parties
Benefited...............................................................
77
11.14
Confidentiality..........................................................................
77
11.15 Further
Assurances.......................................................................
77
11.16
Integration..............................................................................
78
11.17 Governing Law; JURISDICTION AND
VENUE.................................................... 78
11.18 Severability of
Provisions...............................................................
78
11.19
Headings.................................................................................
78
11.20 Time of the
Essence......................................................................
78
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11.21 Foreign Lenders and
Participants.........................................................
78
11.22 Hazardous Material
Indemnity.............................................................
79
11.23 Waiver of Right to Trial by
Jury.........................................................
80
11.24 Purported Oral
Amendments................................................................
80
</TABLE>
Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Opinion of Counsel
D - Pledge Agreement
E - Pricing Certificate
F - Request for Letter of Credit
G - Request for Loan
H - Revolving Note
I - Security Agreement
J - Subsidiary Guaranty
K - Subsidiary Security Agreement
L - Investment Policy
Schedules
1.1 Lender Commitments
2.4 Existing Letters of Credit
4.4 Subsidiaries
4.6 Material Adverse Changes
4.8 Trade Names
4.10 Material Litigation
4.18 Hazardous Materials Matters
6.9 Existing Liens
6.10 Existing Indebtedness and Guaranty Obligations
6.11 Transactions with Affiliates
6.16 Existing Investments
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<PAGE>
SECOND AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
Dated as of January 31, 2005
THIS SECOND AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
(this
"Agreement") is entered into by and among ViaSat, Inc., a
Delaware corporation
("Borrower"), each lender whose name is set forth on the
signature pages of this
Agreement and each lender which may hereafter become a party to
this Agreement
pursuant to Section 11.8 (collectively, the "Lenders" and
individually, a
"Lender"), Union Bank of California, N.A., as Administrative
Agent, and Comerica
Bank, as Collateral Agent, with reference to the following
facts:
RECITALS
A. Borrower, Union Bank and Comerica Bank (collectively, the
"Existing Lenders"), as lenders, Union Bank, as administrative
agent, and
Comerica Bank, as collateral agent, are parties to the Amended
and Restated
Revolving Loan Agreement dated as of December 31, 2002, as
amended
(collectively, the "Existing Loan Agreement"), pursuant to which
the Existing
Lenders provided Borrower with various credit facilities.
B. Borrower, the Lenders, the Administrative Agent and the
Collateral Agent wish to enter into this Agreement, which shall
amend, restate,
replace and supercede (but shall not constitute a novation of)
the Existing Loan
Agreement and which hereinafter shall govern the credit
facilities provided to
Borrower by Union Bank, Comerica and the other Lenders which now
or hereafter
are parties to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and
agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following
terms shall
have the respective meanings set forth below:
"Acquisition" means any transaction, or any series of
related
transactions, consummated after the Closing Date, by which
Borrower and/or
any of its Subsidiaries directly or indirectly (a) acquires any
ongoing
business or all or substantially all of the assets of any Person
engaged
in any ongoing business, whether through a purchase of assets, a
merger or
otherwise, (b) acquires control of securities of a Person
engaged in an
ongoing business representing more than 50% of the ordinary
voting power
for the election of directors or other governing position if the
business
affairs of such Person are managed by a board of directors or
other
governing body or (c) acquires control of more than 50% of the
ownership
interest in any partnership, joint venture, limited liability
company,
business trust or other Person engaged in an ongoing business
that is not
managed by a board of directors or other governing body.
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"Administrative Agent" means Union Bank of California, N.A.
when
acting in its capacity as the Administrative Agent under any of
the Loan
Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative
Agent's
address as set forth on the signature pages of this Agreement,
or such
other address as the Administrative Agent hereafter may
designate by
written notice to Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender
to
Borrower as provided in Article 2, and includes each Alternate
Base Rate
Advance and Eurodollar Rate Advance.
"Affiliate" means, as to any Person, any other Person which
directly
or indirectly controls, or is under common control with, or is
controlled
by, such Person. As used in this definition, "control" (and
the
correlative terms, "controlled by" and "under common control
with") shall
mean possession, directly or indirectly, of power to direct or
cause the
direction of management or policies (whether through ownership
of
securities or partnership or other ownership interests, by
contract or
otherwise); provided that, in any event, any Person that owns,
directly or
indirectly, 10% or more of the securities having ordinary voting
power for
the election of directors or other governing body of a
corporation that
has more than 100 record holders of such securities, or 10% or
more of the
partnership or other ownership interests of any other Person
that has more
than 100 record holders of such interests, will be deemed to be
an
Affiliate of such corporation, partnership or other Person.
"Agreement" means this Second Amended and Restated Revolving
Loan
Agreement, either as originally executed or as it may from time
to time be
supplemented, modified, amended, restated or extended.
"Aggregate Effective Amount" means, as of any date of
determination
and with respect to all Letters of Credit then outstanding, the
sum of (a)
the aggregate effective face amounts of all such Letters of
Credit not
then paid by the Issuing Lender plus (b) the aggregate amounts
paid by the
Issuing Lender under such Letters of Credit not then reimbursed
to the
Issuing Lender by Borrower pursuant to Section 2.4(d) and not
the subject
of Advances made pursuant to Section 2.4(e).
"Alternate Base Rate" means, as of any date of determination,
the
rate per annum (rounded upwards, if necessary, to the next 1/100
of 1%)
equal to the higher of (a) the Prime Rate in effect on such date
and (b)
the Federal Funds Rate in effect on such date plus -1/2 of 1%
(50 basis
points).
"Alternate Base Rate Advance" means an Advance under the
Revolving
Commitment made hereunder and specified to be an Alternate Base
Rate
Advance in accordance with Article 2.
"Alternate Base Rate Loan" means a Revolving Loan made hereunder
and
specified to be an Alternate Base Rate Loan in accordance with
Article 2.
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"Applicable Alternate Base Rate Margin" means, for each
Pricing
Period, the interest rate margin set forth below (expressed in
basis
points per annum) opposite the Applicable Pricing Level for that
Pricing
Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
-------------
<S> <C>
I 0
II 0
III 0
</TABLE>
"Applicable Commitment Fee Rate" means, for each Pricing Period,
the
rate set forth below (expressed in basis points per annum)
opposite the
Applicable Pricing Level for that Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Commitment Fee Rate
------------- -------------------
<S> <C>
I 12.5
II 25.0
III 37.5
</TABLE>
"Applicable Eurodollar Rate Margin" means, for each Pricing
Period,
the interest rate margin set forth below (expressed in basis
points per
annum) opposite the Applicable Pricing Level for that Pricing
Period:
<TABLE>
<CAPTION>
Applicable Margin
Pricing Level
-------------
<S> <C>
I 125
II 150
III 175
</TABLE>
"Applicable Pricing Level" means, for each Pricing Period,
the
pricing level set forth below opposite the Funded Debt to EBITDA
Ratio as
of the last day of the Fiscal Quarter most recently ended prior
to the
commencement of that Pricing Period:
<TABLE>
<CAPTION>
Pricing Level Funded Debt to EBITDA Ratio
------------- ------------------------------------------
<S> <C>
I Less than 1.00 to 1.00
II Less than 1.50 to 1.00 but greater than or
equal to 1.00 to 1.00
III Greater than or equal to 1.50 to 1.00
</TABLE>
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<PAGE>
provided that (i) in the event that Borrower does not deliver a
Pricing
Certificate with respect to any Pricing Period prior to the
commencement of such
Pricing Period, then until such Pricing Certificate is
delivered, the Applicable
Pricing Level for that Pricing Period shall be Pricing Level
III, but once
Borrower has delivered a Pricing Certificate with respect to
such Pricing
Period, then any resulting change in the Applicable Pricing
Level shall be made
retroactively to the beginning of such Pricing Period, and (ii)
if any Pricing
Certificate is subsequently determined to be in error, then any
resulting change
in the Applicable Pricing Level shall be made retroactively to
the beginning of
the relevant Pricing Period.
"Arranger" means Union Bank.
"Bandwidth Capital Expenditures" means Capital Expenditures made
by
Borrower or any of its Subsidiaries to purchase or lease
satellite
transponder capacity; provided that such satellite transponder
capacity is
accounted for as a capital transaction in Borrower's
consolidated balance
sheet.
"Bank Products" means any one or more of the following types
of
services or facilities extended to Borrower by any Lender or any
Affiliate
of a Lender in reliance on such Lender's agreement to indemnify
such
Affiliate: (i) credit cards; (ii) automated clearing house
transfer or
funds; (iii) overdrafts; (iv) interest rate swap transactions;
and (v)
foreign exchange contracts.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday
or
Friday, other than a day on which banks are authorized or
required to be
closed in California or New York.
"Capital Expenditure" means any expenditure by Borrower or any
of
its Subsidiaries for or related to fixed assets or purchased
intangibles
that is treated as a capital expenditure under GAAP, including
any amount
which is required to be treated as an asset subject to a Capital
Lease
Obligation. The amount of Capital Expenditures in respect of
fixed assets
purchased or constructed by Borrower or any of its Subsidiaries
in any
fiscal period shall be net of (a) any net sales proceeds
received during
such fiscal period by Borrower or such Subsidiary for fixed
assets sold by
Borrower or such Subsidiary and (b) any casualty insurance
proceeds
received during such fiscal period by Borrower or such
Subsidiary for
casualties to fixed assets and applied to the repair or
replacement
thereof.
"Capital Lease Obligations" means all monetary obligations of
a
Person under any leasing or similar arrangement which, in
accordance with
GAAP, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all
monetary
and non-monetary items owned by that Person that are treated as
cash in
accordance with GAAP, consistently applied.
"Cash Equivalents" means money-market instruments of the
type
described in Borrower's Investment Policy, a copy of which is
attached
hereto as Exhibit K.
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<PAGE>
"Cash Income Taxes" means, with respect to any fiscal period,
taxes
on or measured by the income of Borrower that are paid or
currently
payable in Cash by Borrower during that fiscal period.
"Cash Interest Expense" means Interest Expense that is paid
or
currently payable in Cash.
"Certificate" means a certificate signed by a Senior Officer
or
Responsible Official (as applicable) of the Person providing
the
certificate.
"Change in Control" means (a) any transaction or series of
related
transactions in which any Unrelated Person or two or more
Unrelated
Persons acting in concert acquire beneficial ownership (within
the meaning
of Rule 13d-3(a)(1) under the Securities Exchange Act of 1934,
as
amended), directly or indirectly, of 35% or more of the
outstanding Common
Stock, (b) Borrower consolidates with or merges into another
Person or
conveys, transfers or leases its properties and assets
substantially as an
entirety to any Person or any Person consolidates with or merges
into
Borrower, in either event pursuant to a transaction in which
the
outstanding Common Stock is changed into or exchanged for cash,
securities
or other property, with the effect that any Unrelated Person
becomes the
beneficial owner, directly or indirectly, of 35% or more of
Common Stock
or that the Persons who were the holders of Common Stock
immediately prior
to the transaction hold less than 65% of the common stock of the
surviving
corporation after the transaction, or (c) during any period of
24
consecutive months, individuals who at the beginning of such
period
constituted the board of directors of Borrower (together with
any new or
replacement directors whose election by the board of directors,
or whose
nomination for election, was approved by a vote of at least a
majority of
the directors then still in office who were either directors at
the
beginning of such period or whose election or nomination for
reelection
was previously so approved) cease for any reason to constitute a
majority
of the directors then in office. For purposes of the foregoing,
the term
"Unrelated Person" means any Person other than (i) a Subsidiary
of
Borrower or (ii) an employee stock ownership plan or other
employee
benefit plan covering the employees of Borrower and its
Subsidiaries.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived.
The
Administrative Agent shall notify Borrower, the Lenders and the
Collateral
Agent of the date that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended
or
replaced and as in effect from time to time.
"Collateral" means all of the collateral covered by the
Security
Agreement and the Pledge Agreement.
"Collateral Agent" means Comerica when acting in its capacity as
the
Collateral Agent under any of the Loan Documents, or any
successor
Collateral Agent.
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<PAGE>
"Comerica" means Comerica Bank, a Michigan banking
corporation,
successor-in-interest to Comerica Bank - California.
"Commercial Letter of Credit" means each Letter of Credit issued
to
support the purchase of goods by Borrower which is determined to
be a
commercial letter of credit by the Issuing Lender.
"Commitment" means, subject to Section 2.5, $60,000,000. The
respective Pro Rata Shares of the Lenders with respect to the
Commitment
are set forth in Schedule 1.1.
"Commitment Assignment and Acceptance" means a commitment
assignment
and acceptance substantially in the form of Exhibit A.
"Common Stock" means the common stock of Borrower or its
successor.
"Compliance Certificate" means a certificate in the form of
Exhibit
B, properly completed and signed by a Senior Officer of
Borrower.
"Contractual Obligation" means, as to any Person, any provision
of
any outstanding security issued by that Person or of any
material
agreement, instrument or undertaking to which that Person is a
party or by
which it or any of its Property is bound.
"Credit Issuance" means the making of an Advance or the issuance
of
a Letter of Credit.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States
of America, as amended from time to time, and all other
applicable
liquidation, conservatorship, bankruptcy, moratorium,
rearrangement,
receivership, insolvency, reorganization, or similar debtor
relief Laws
from time to time in effect affecting the rights of creditors
generally.
"Default" means any event that, with the giving of any
applicable
notice or passage of time specified in Section 9.1, or both,
would be an
Event of Default.
"Default Rate" has the meaning given in Section 3.1(d).
"Designated Deposit Account" means a deposit account to be
maintained by Borrower with Union Bank or one of its Affiliates,
as from
time to time designated by Borrower by written notification to
the
Administrative Agent.
"Designated Eurodollar Market" means, with respect to any
Eurodollar
Rate Loan, the London Eurodollar Market.
"Disqualified Stock" means any capital stock, warrants, options
or
other rights to acquire capital stock (but excluding any debt
security
which is convertible, or exchangeable, for capital stock),
which, by its
terms (or by the terms of any security
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<PAGE>
into which it is convertible or for which it is exchangeable),
or upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to
a sinking fund obligation or otherwise, or is redeemable at the
option of
the holder thereof, in whole or in part, on or prior to the
Revolving Loan
Maturity Date.
"Disposition" means the sale, transfer or other disposition in
any
single transaction or series of related transactions of any
asset, or
group of related assets, of Borrower or any of its Subsidiaries
(a) which
asset or assets constitute a line of business or substantially
all the
assets of Borrower or the Subsidiary or (b) the aggregate amount
of the
Net Cash Sales Proceeds of such assets is more than $2,000,000,
other than
(i) inventory or other assets sold or otherwise disposed of in
the
ordinary course of business of Borrower or its Subsidiary or
normal in the
industry, (ii) equipment sold or otherwise disposed of where
substantially
similar equipment in replacement thereof has theretofore been
acquired, or
thereafter within 90 days is acquired, by Borrower or its
Subsidiary and
(iii) assets no longer useful in the business of Borrower and
its
Subsidiaries.
"Distribution" means, with respect to any shares of capital
stock or
any warrant or option to purchase an equity security or other
equity
security issued by a Person, (a) the retirement, redemption,
purchase or
other acquisition for Cash or for Property by such Person of any
such
security, (b) the declaration or (without duplication) payment
by such
Person of any dividend in Cash or in Property on or with respect
to any
such security, (c) any Investment by such Person in the holder
of 5% or
more of any such security if a purpose of such Investment is to
avoid
characterization of the transaction as a Distribution and (d)
any other
payment in Cash or Property by such Person constituting a
distribution
under applicable Laws with respect to such security.
"Dollars" or "$" means United States of America dollars.
"EBITDA" means, with respect to any fiscal period and with
respect
to Borrower and its Subsidiaries on a consolidated basis, the
sum of (a)
income from operations as set forth on Borrower's GAAP statement
of
operation, plus (b) depreciation, plus (c) amortization
(without
duplication).
"Eligible Assignee" means (a) another Lender, (b) with respect
to
any Lender, any Affiliate of that Lender, (c) any commercial
bank having
total assets of $1,000,000,000 or more, (d) any (i) savings
bank, savings
and loan association or similar financial institution or (ii)
insurance
company engaged in the business of writing insurance which, in
either case
(A) has total assets of $1,000,000,000 or more, (B) is engaged
in the
business of lending money and extending credit under credit
facilities
substantially similar to those extended under this Agreement and
(C) is
operationally and procedurally able to meet the obligations of a
Lender
hereunder to the same degree as a commercial bank and (e) any
other
financial institution (including a mutual fund or other fund)
having total
assets of $1,000,000,000 or more which meets the requirements
set forth in
subclauses (B) and (C) of clause (d) above; provided that each
Eligible
Assignee must either (aa) be organized under the Laws of the
United States
of America, any State thereof or the District of Columbia or
be
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<PAGE>
organized under the Laws of the Cayman Islands or any country
which is a
member of the Organization for Economic Cooperation and
Development, or a
political subdivision of such a country, and (i) act hereunder
through a
branch, agency or funding office located in the United States of
America
and (ii) be exempt from withholding of tax on interest and
deliver the
documents related thereto pursuant to Section 11.21.
"ERISA" means the Employee Retirement Income Security Act of
1974,
and any regulations or rulings issued pursuant thereto, as
amended or
replaced and as in effect from time to time.
"ERISA Affiliate" means each Person (whether or not
incorporated)
which is required to be aggregated with Borrower pursuant to
Section 414
of the Code.
"Eurodollar Banking Day" means any Banking Day on which dealings
in
Dollar deposits are conducted by and among banks in the
Designated
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Lender, its office
or
branch so designated by written notice to Borrower and the
Administrative
Agent as its Eurodollar Lending Office. If no Eurodollar Lending
Office is
designated by a Lender, its Eurodollar Lending Office shall be
its office
at its address for purposes of notices hereunder.
"Eurodollar Market" means a regular established market
located
outside the United States of America by and among banks for
the
solicitation, offer and acceptance of Dollar deposits in such
banks.
"Eurodollar Obligations" means eurocurrency liabilities, as
defined
in Regulation D or any comparable regulation of any Governmental
Agency
having jurisdiction over any Lender.
"Eurodollar Period" means, as to each Eurodollar Rate Loan,
the
period commencing on the date specified by Borrower pursuant to
Section
2.1(c) and ending 1, 2, 3 or, if available, 6 months (or, with
the written
consent of all of the Lenders, any other period) thereafter, as
specified
by Borrower in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to
the
immediately succeeding Eurodollar Banking Day unless such
Eurodollar
Banking Day falls in another calendar month, in which case
such
Eurodollar Period shall end on the immediately preceding
Eurodollar
Banking Day; and
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<PAGE>
(c) No Eurodollar Period shall extend beyond the Revolving
Loan Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan,
the average of the interest rates per annum (rounded upward, if
necessary,
to the next 1/16 of 1%) at which deposits in Dollars are offered
to the
Administrative Agent in the Designated Eurodollar Market at or
about 11:00
a.m. local time in the Designated Eurodollar Market, two (2)
Eurodollar
Banking Days before the first day of the applicable Eurodollar
Period in
an aggregate amount approximately equal to the amount of the
Advance to be
made by the Administrative Agent with respect to such Eurodollar
Rate Loan
and for a period of time comparable to the number of days in
the
applicable Eurodollar Period.
"Eurodollar Rate Advance" means an Advance made hereunder
and
specified to be a Eurodollar Rate Advance in accordance with
Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and specified
to
be a Eurodollar Rate Loan in accordance with Article 2.
"Event of Default" shall have the meaning provided in Section
9.1.
"Existing Letters of Credit" means the letters of credit, if
any,
outstanding on the Closing Date and listed on Schedule 2.4.
"Existing Loan Agreement" shall have the meaning provided in
the
recitals to this Agreement.
"Fiscal Quarter" means the fiscal quarter of Borrower ending on
each
June 30, September 30, December 31 and March 31.
"Fiscal Year" means the fiscal year of Borrower ending on each
March
31.
"Foreign Subsidiary" means a Subsidiary of Borrower that is
organized under the Laws of a country (or political subdivision
thereof)
other than the United States of America.
"Funded Debt" means, as to any Person, the types of
Indebtedness
listed in clauses (a) (excluding Guarantee Obligations), (c),
(d) and (e)
(excluding (i) contingent obligations and (ii) letters of
credit
referenced in clause (e) of the definition of "Indebtedness" to
the extent
such letters of credit are standby letters of credit and have
not been
drawn upon) of the definition of "Indebtedness".
"Funded Debt to EBITDA Ratio" means, as of the last day of
any
Fiscal Quarter, the ratio of (a) all Funded Debt of Borrower and
its
Subsidiaries on that date to (b) EBITDA for the fiscal period
consisting
of the four (4) Fiscal Quarters ended on that date.
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<PAGE>
"GAAP" means, as of any date of determination, accounting
principles
(a) set forth as generally accepted in then currently effective
Opinions
of the Accounting Principles Board of the American Institute of
Certified
Public Accountants, (b) set forth as generally accepted in then
currently
effective Statements of the Financial Accounting Standards Board
or (c)
that are then approved by such other entity as may be approved
by a
significant segment of the accounting profession in the United
States of
America. The term "consistently applied," as used in connection
therewith,
means that the accounting principles applied are consistent in
all
material respects with those applied at prior dates or for prior
periods.
"Government Securities" means readily marketable (a) direct
full
faith and credit obligations of the United States of America
or
obligations guaranteed by the full faith and credit of the
United States
of America and (b) obligations of an agency or instrumentality
of, or
corporation owned, controlled or sponsored by, the United States
of
America that are generally considered in the securities industry
to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign,
federal,
state, county or municipal government, or political subdivision
thereof,
(b) any governmental or quasi-governmental agency, authority,
board,
bureau, commission, department, instrumentality or public body
or (c) any
court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee
by
that Person of Indebtedness of, or other obligation performable
by, any
other Person or (b) assurance given by that Person to an obligee
of any
other Person with respect to the performance of an obligation
by, or the
financial condition of, such other Person, whether direct,
indirect or
contingent, including any purchase or repurchase agreement
covering such
obligation or any collateral security therefor, any agreement to
provide
funds (by means of loans, capital contributions or otherwise) to
such
other Person, any agreement to support the solvency or level of
any
balance sheet item of such other Person or any "keep-well" or
other
arrangement of whatever nature given for the purpose of assuring
or
holding harmless such obligee against loss with respect to any
obligation
of such other Person; provided, however, that the term Guaranty
Obligation
shall not include endorsements of instruments for deposit or
collection in
the ordinary course of business. The amount of any Guaranty
Obligation in
respect of Indebtedness shall be deemed to be an amount equal to
the
stated or determinable amount of the related Indebtedness
(unless the
Guaranty Obligation is limited by its terms to a lesser amount,
in which
case to the extent of such amount) or, if not stated or
determinable, the
maximum reasonably anticipated liability in respect thereof as
determined
by the Person in good faith. The amount of any other Guaranty
Obligation
shall be deemed to be zero unless and until the amount thereof
has been
(or in accordance with Financial Accounting Standards Board
Statement No.
5 should be) quantified and reflected or disclosed in the
consolidated
financial statements (or notes thereto) of Borrower.
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<PAGE>
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental
Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601
et seq., or
as "hazardous", "toxic" or "pollutant" substances or as "solid
waste"
pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C.
Section 6901, et seq., or as "friable asbestos" pursuant to the
Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq. or any
other
applicable Hazardous Materials Law, in each case as such Laws
are amended
from time to time.
"Hazardous Materials Laws" means all Laws governing the
treatment,
transportation or disposal of Hazardous Materials applicable to
any of the
Real Property.
"Indebtedness" means, as to any Person (without duplication),
(a)
indebtedness of such Person for borrowed money or for the
deferred
purchase price of Property (excluding trade and other accounts
payable in
the ordinary course of business in accordance with ordinary
trade terms),
including any Guaranty Obligation for any such indebtedness,
(b)
indebtedness of such Person of the nature described in clause
(a) that is
non-recourse to the credit of such Person but is secured by
assets of such
Person, to the extent of the fair market value of such assets
as
determined in good faith by such Person, (c) Capital Lease
Obligations of
such Person, (d) indebtedness of such Person arising under
bankers'
acceptance facilities, (e) any direct or contingent obligations
of such
Person under letters of credit issued for the account of such
Person and
(f) any net obligations of such Person under Interest Rate
Protection
Agreements.
"Intangible Assets" means assets that are considered
intangible
assets under GAAP, including customer lists, goodwill, covenants
not to
compete, copyrights, trade names, trademarks, licenses and
patents.
"Interest Expense" means, with respect to any Person and as of
the
last day of any fiscal period, the sum of (a) all interest,
fees, charges
and related expenses (in each case as such expenses are
calculated
according to GAAP) paid or payable (without duplication) for
that fiscal
period by that Person to a lender in connection with borrowed
money
(including any obligations for fees, charges and related
expenses payable
to the issuer of any letter of credit) or the deferred purchase
price of
assets that are considered "interest expense" under GAAP plus
(b) the
portion of rent paid or payable (without duplication) for that
fiscal
period by that Person under Capital Lease Obligations that
should be
treated as interest in accordance with Financial Accounting
Standards
Board Statement No. 13.
"Interest Rate Protection Agreement" means a written
agreement
between Borrower and one or more financial institutions
providing for
"swap", "cap", "collar" or other interest rate protection with
respect to
any Indebtedness.
"Investment" means, when used in connection with any Person,
any
investment by or of that Person, whether by means of purchase or
other
acquisition of stock or other securities of any other Person or
by means
of a loan, advance creating a debt,
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<PAGE>
capital contribution, guaranty or other debt or equity
participation or
interest in any other Person, including any partnership and
joint venture
interests of such Person. The amount of any Investment shall be
the amount
actually invested (minus any return of capital with respect to
such
Investment which has actually been received in Cash or has been
converted
into Cash), without adjustment for subsequent increases or
decreases in
the value of such Investment.
"Issuing Lender" means Union Bank.
"Joint Venture" means any Investment by Borrower in any Person
that
is not a Wholly-Owned Subsidiary of Borrower, which Person is
engaged in
the same or a similar line of business as Borrower.
"Laws" means, collectively, all international, foreign,
federal,
state and local statutes, treaties, rules, regulations,
ordinances, codes
and administrative or judicial precedents.
"Lender" means each lender whose name is set forth in the
signature
pages of this Agreement and each lender which may hereafter
become a party
to this Agreement pursuant to Section 11.8.
"Letters of Credit" means (a) the Existing Letters of Credit and
(b)
any of the Commercial Letters of Credit or Standby Letters of
Credit
issued by the Issuing Lender under the Commitment pursuant to
Section 2.4,
either as originally issued or as the same may be supplemented,
modified,
amended, renewed, extended or supplanted.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation,
assignment for security, security interest, encumbrance, lien or
charge of
any kind, whether voluntarily incurred or arising by operation
of Law or
otherwise, affecting any Property, including any conditional
sale or other
title retention agreement, any lease in the nature of a security
interest,
and/or the filing of any financing statement (other than a
precautionary
financing statement with respect to a lease that is not in the
nature of a
security interest) under the Uniform Commercial Code or
comparable Law of
any jurisdiction with respect to any Property.
"Loan" means, as the context may require, the amount of a
particular
Advance made or to be made, or the aggregate of the Advances
made at any
one time by the Lenders pursuant to Section 2.1.
"Loan Documents" means, collectively, this Agreement, the Notes,
the
Pledge Agreement, the Subsidiary Guaranty, the Security
Agreement, the
Subsidiary Security Agreement and any other agreements of any
type or
nature hereafter executed and delivered by Borrower or any of
the
Subsidiary Guarantors to the Administrative Agent, the
Collateral Agent or
to any Lender in any way relating to or in furtherance of this
Agreement,
in each case either as originally executed or as the same may
from time to
time be supplemented, modified, amended, restated, extended or
supplanted.
"Margin Stock" means "margin stock" as such term is defined
in
Regulation U.
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<PAGE>
"Material Adverse Effect" means any set of circumstances or
events
which (a) has had or could reasonably be expected to have any
material
adverse effect whatsoever upon the validity or enforceability of
any Loan
Document, (b) has been or could reasonably be expected to be
material and
adverse to the business or condition (financial or otherwise) of
Borrower
and its Subsidiaries, taken as a whole or (c) has materially
impaired or
could reasonably be expected to materially impair the ability of
Borrower
to perform the Obligations.
"Monthly Payment Date" means the first day of each calendar
month.
"Multiemployer Plan" means any employee benefit plan of the
type
described in Section 4001(a)(3) of ERISA to which Borrower or
any of its
ERISA Affiliates contributes or is obligated to contribute.
"Net Cash Issuance Proceeds" means, with respect to the issuance
of
any debt security or equity security by Borrower or any of
its
Subsidiaries, the Cash proceeds received by or for the account
of Borrower
or such Subsidiary in consideration of such issuance net of
(a)
underwriting discounts and commissions actually paid to any
Person not an
Affiliate of Borrower and (b) professional fees and
disbursements actually
paid in connection therewith.
"Net Cash Sales Proceeds" means, with respect to any
Disposition,
the sum of (a) the Cash proceeds received by or for the account
of
Borrower and its Subsidiaries from such Disposition plus (b) the
amount of
Cash received by or for the account of Borrower and its
Subsidiaries upon
the sale, collection or other liquidation of any proceeds that
are not
Cash from such Disposition, in each case net of (i) any amount
required to
be paid to any Person owning an interest in the assets disposed
of, (ii)
any amount applied to the repayment of Indebtedness secured by a
Lien
permitted under Section 6.9 on the asset disposed of, (iii) any
transfer,
income or other taxes payable as a result of such Disposition,
(iv)
professional fees and expenses, fees due to any Governmental
Agency,
broker's commissions and other out-of-pocket costs of sale
actually paid
to any Person that is not an Affiliate of Borrower attributable
to such
Disposition and (v) any reserves established in accordance with
GAAP in
connection with such Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for
that period,
determined in accordance with GAAP, consistently applied.
"Note" means any of the Revolving Notes, and "Notes" means all
of
the Revolving Notes.
"Obligations" means all present and future obligations of every
kind
or nature of Borrower or any of the Subsidiary Guarantors at any
time and
from time to time owed to the Administrative Agent, the
Collateral Agent
or the Lenders or any one or more of them, under any one or more
of the
Loan Documents, whether due or to become due, matured or
unmatured,
liquidated or unliquidated, or contingent or
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<PAGE>
noncontingent, including obligations of performance as well as
obligations
of payment, and including interest that accrues after the
commencement of
any proceeding under any Debtor Relief Law by or against
Borrower or any
of the Subsidiary Guarantors. "Obligations" includes, without
limitation,
all debts, liabilities and obligations now or hereafter owing
from
Borrower to any Lender or any Affiliate of a Lender arising from
or
related to Bank Products.
"Opinion of Counsel" means the favorable written legal opinion
of
counsel to Borrower, substantially in the form of Exhibit C,
together with
copies of factual certificates and legal opinions, if any,
delivered to
such counsel in connection with such opinion upon which such
counsel has
relied.
"Party" means any Person other than the Administrative Agent,
the
Collateral Agent and the Lenders, which now or hereafter is a
party to any
of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
such
term is defined in Section 3(2) of ERISA), other than a
Multiemployer
Plan, which is subject to Title IV of ERISA and is maintained by
Borrower
or to which Borrower contributes or has an obligation to
contribute.
"Permitted Acquisition" means any Acquisition by Borrower or
any
Subsidiary of Borrower (as applicable, the "acquiror") of
another Person
engaged in the same or a similar line of business as that of the
acquiror
(the "target"), provided that: (i) no Default or Event of
Default shall
exist at the time of such Acquisition or occur after giving
effect to such
Acquisition; (ii) such Acquisition shall have been approved by
the board
of directors of the target; (iii) if the total consideration
(whether such
consideration is in the form of capital stock, cash or
otherwise) for such
Acquisition exceeds $5,000,000, the pro-forma balance sheets and
combining
projections (including pro-forma financial covenant ratios)
provided by
Borrower to the Administrative Agent shall have demonstrated
that, after
giving effect to such Acquisition, (A) Borrower would have been
in
compliance with the financial covenants set forth in Sections
6.13 through
6.15 of this Agreement throughout the period of the four (4)
Fiscal
Quarters most recently ended prior to the date of such
Acquisition (or
such shorter period in which the target has been in existence)
and (B)
Borrower would remain in compliance with such financial
covenants for the
period of four (4) Fiscal Quarters immediately following the
date of such
Acquisition; (iv) if the total consideration (whether such
consideration
is in the form of capital stock, cash or otherwise) for such
Acquisition
exceeds $5,000,000, Borrower shall have borrowing availability
under the
Commitment or cash on hand of at least $20,000,000 after giving
effect to
such Acquisition; (v) the terms and conditions of any and all
seller
purchase-money financing provided to the acquiror in connection
with such
Acquisition shall be acceptable to the Administrative Agent and
the
Lenders in their reasonable discretion; (vi) Borrower shall
use
commercially reasonable efforts
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<PAGE>
to provide the Administrative Agent with at least one (1) week
prior
written notice of such Acquisition, together with at least one
(1) year
(or such shorter period in which the target has been in
existence) of
historical financial information relating to the target and such
other
documentation pertaining to the Acquisition, including pro-forma
quarterly
projections, as the Administrative Agent may reasonably request;
and (vii)
after giving effect to such Acquisition, the Borrower shall not
have made
Acquisitions, the total consideration for which (whether
such
consideration is in the form of capital stock, cash or
otherwise) exceeds:
(A) $25,000,000 in the aggregate for any single acquisition by
the
Borrower and (B) $100,000,000 in the aggregate from and after
the Closing
Date.
"Permitted Encumbrances" means, with respect to Borrower and
its
Subsidiaries:
(a) inchoate Liens incident to construction on or
maintenance of Property; or Liens incident to construction on
or
maintenance of Property now or hereafter filed of record for
which
adequate reserves have been set aside (or deposits made pursuant
to
applicable Law) and which are being contested in good faith
by
appropriate proceedings and have not proceeded to judgment,
provided
that, by reason of nonpayment of the obligations secured by
such
Liens, no such Property is subject to a material impending risk
of
loss or forfeiture;
(b) Liens for taxes and assessments on Property which are
not yet past due; or Liens for taxes and assessments on Property
for
which adequate reserves have been set aside and are being
contested
in good faith by appropriate proceedings and have not proceeded
to
judgment, provided that, by reason of nonpayment of the
obligations
secured by such Liens, no such Property is subject to a
material
impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair
market
value or use of the Property for the purposes for which it is or
may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire
communication
lines, power lines and substations, streets, trails,
walkways,
drainage, irrigation, water, and sewerage purposes, dikes,
canals,
ditches, the removal of oil, gas, coal, or other minerals, and
other
like purposes affecting Property which in the aggregate do
not
materially burden or impair the fair market value or use of
such
Property for the purposes for which it is or may reasonably
be
expected to be held;
(e) easements, exceptions, reservations, or other agreements
for the purpose of facilitating the joint or common use of
Property
in or adjacent to a shopping center or similar project
affecting
Property which in the aggregate do not materially burden or
impair
the fair market value or use of such Property for the purposes
for
which it is or may reasonably be expected to be held;
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<PAGE>
(f) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any
Governmental
Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental Agency
to control or regulate, or obligations or duties to any
Governmental
Agency with respect to, any right, power, franchise, grant,
license,
or permit;
(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment
of
Property;
(i) statutory Liens, other than those described in clauses
(a) or (b) above, arising in the ordinary course of business
with
respect to obligations which are not delinquent or are being
contested in good faith, provided that, if delinquent,
adequate
reserves have been set aside with respect thereto and, by reason
of
nonpayment, no Property is subject to a material impending risk
of
loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the
use of Property which in the aggregate do not materially impair
the
fair market value or use of the Property for the purposes for
which
it is or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of
business of
the Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar
legislation,
including Liens of judgments thereunder which are not
currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in
the
ordinary course of business;
(n) Liens consisting of deposits of Property to secure bids
made with respect to, or performance of, contracts (other
than
contracts creating or evidencing an extension of credit to
the
depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the
ordinary
course of business so long as such bank deposit accounts are
not
established or maintained for the purpose of providing such
right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrower and its Subsidiaries;
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<PAGE>
(q) Liens consisting of deposits of Property to secure (or
in lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or
legal proceeding in the ordinary course of business which is
currently being contested in good faith by appropriate
proceedings,
provided that, adequate reserves have been set aside and no
material
Property is subject to a material impending risk of loss or
forfeiture;
(s) Liens created to secure the purchase price of property
or assets; provided, that (i) any such Lien shall attach only to
the
property or assets purchased, (ii) the Indebtedness secured by
any
such Lien shall not exceed one hundred percent (100%) of the
purchase price of the property or assets purchased, (iii) any
such
Lien shall be created concurrently with or within twelve (12)
months
following the acquisition of such property or assets, and (iv)
the
principal amount of Indebtedness of Borrower and its
Subsidiaries
secured by such Liens does not exceed $5,000,000 in the
aggregate at
any time; and
(t) other non-consensual Liens incurred in the ordinary
course of business but not in connection with the incurrence of
any
Indebtedness, which do not in the aggregate, when taken
together
with all other Liens, materially impair the fair market value or
use
of the Property for the purposes for which it is or may
reasonably
be expected to be held.
"Permitted Right of Others" means a Right of Others consisting
of
(a) an interest (other than a legal or equitable co-ownership
interest, an
option or right to acquire a legal or equitable co-ownership
interest and
any interest of a ground lessor under a ground lease), that does
not
materially impair the fair market value or use of Property for
the
purposes for which it is or may reasonably be expected to be
held, (b) an
option or right to acquire a Lien that would be a Permitted
Encumbrance,
(c) the subordination of a lease or sublease in favor of a
financing
entity and (d) a license, or similar right, of or to Intangible
Assets
granted in the ordinary course of business.
"Person" means any individual or entity, including a
trustee,
corporation, limited liability company, general partnership,
limited
partnership, joint stock company, trust, estate,
unincorporated
organization, business association, firm, joint venture,
Governmental
Agency, or other entity.
"Pledge Agreement" means the pledge agreement to be executed
and
delivered pursuant to Article 5.12 by Borrower, in the form of
Exhibit D,
either as originally executed or as it may from time to time
be
supplemented, modified, amended, extended or supplanted.
"Pricing Certificate" means a certificate in the form of Exhibit
E,
properly completed and signed by a Senior Officer or his or her
designated
representative of Borrower.
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<PAGE>
"Pricing Period" means (a) the period commencing on the Closing
Date
and ending on February 16, 2005, (b) the period commencing on
February 17,
2005 and ending on May 18, 2005, and (c) thereafter, the period
commencing
on each May 19, August 18, November 17, and February 16 and
ending on the
next following August 17, November 16, February 15 or May
18,
respectively.
"Prime Rate" means the rate of interest publicly announced from
time
to time by the Administrative Agent in San Francisco, California
(or other
headquarters city of the Administrative Agent), as its
"reference rate."
The "reference rate" is one of several base rates used by
the
Administrative Agent and serves as the basis upon which
effective rates of
interest are calculated for loans and other credits making
reference
thereto. The "reference rate" is not necessarily the lowest base
interest
rate used by the Administrative Agent. The "reference rate" is
evidenced
by the recording thereof after its announcement in such
internal
publication or publications as the Administrative Agent may
designate. Any
change in the Prime Rate announced by the Administrative Agent
shall take
effect at the opening of business on the day specified in the
public
announcement of such change.
"Projections" means the projected financial information to
be
prepared by Borrower and furnished to the Lenders hereunder.
"Property" means any interest in any kind of property or
asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the
percentage
of the Commitment set forth opposite the name of that Lender on
Schedule
1.1, as such percentage may be increased or decreased pursuant
to a
Commitment Assignment and Acceptance executed in accordance with
Section
11.8.
"Quarterly Payment Date" means each April 1, July 1, October 1
and
January 1, commencing with April 1, 2005.
"Quick Ratio" means, as of the last day of any Fiscal Quarter,
in
respect of Borrower and its Subsidiaries on a consolidated basis
and
determined in accordance with GAAP, the ratio of (a) the sum of
(i) Cash
and Cash Equivalents, (ii) accounts receivable other than those
owed to
Borrower by account debtors involved in proceedings under a
Debtor Relief
Law and (iii) marketable securities to (b) current liabilities,
excluding
the aggregate outstanding principal balance of the Revolving
Loans.
"Real Property" means, as of any date of determination, all
real
property then or theretofore owned, leased or occupied by any of
Borrower
or its Subsidiaries.
"Regulation D" means Regulation D, as at any time amended, of
the
Board of Governors of the Federal Reserve System, or any other
regulation
in substance substituted therefor.
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"Regulation U" means Regulation U, as at any time amended, of
the
Board of Governors of the Federal Reserve System, or any other
regulation
in substance substituted therefor.
"Request for Letter of Credit" means a written request for a
Letter
of Credit substantially in the form of Exhibit F, signed by a
Responsible
Official of Borrower and properly completed to provide all
information
required to be included therein.
"Request for Loan" means a written request for a Loan
substantially
in the form of Exhibit G, signed by a Responsible Official of
Borrower, on
behalf of Borrower, and properly completed to provide all
information
required to be included therein.
"Requirement of Law" means, as to any Person, the articles
or
certificate of incorporation and by-laws or other organizational
or
governing documents of such Person, and any Law, or judgment,
award,
decree, writ or determination of a Governmental Agency, in each
case
applicable to or binding upon such Person or any of its Property
or to
which such Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if
the
Commitments are then in effect, Lenders having in the aggregate
51% or
more of the Commitments then in effect and (b) as of any date
of
determination if the Commitments have then been suspended or
terminated
and there is then any Indebtedness evidenced by the Notes,
Lenders holding
Notes evidencing in the aggregate 51% or more of the
aggregate
Indebtedness then evidenced by the Notes, and, in any event, not
less than
two (2) Lenders (unless there shall then be but one Lender).
"Responsible Official" means (a) any Senior Officer of Borrower
and
(b) any other responsible official of Borrower so designated in
a written
notice thereof from a Senior Officer to the Administrative
Agent. The
Lenders shall be entitled to conclusively rely upon any document
or
certificate that is signed or executed by a Responsible Official
of
Borrower or any of its Subsidiaries as having been authorized by
all
necessary corporate, partnership and/or other action on the part
of
Borrower or such Subsidiary.
"Revolving Loan" means a Loan made under the Commitment.
"Revolving Loan Maturity Date" means January 28, 2008.
"Revolving Note" means any of the promissory notes made by
Borrower
to a Lender evidencing Advances under that Lender's Pro Rata
Share of the
Commitment, substantially in the form of Exhibit H, either as
originally
executed or as the same may from time to time be supplemented,
modified,
amended, renewed, extended or supplanted.
"Right of Others" means, as to any Property in which a Person
has an
interest, any legal or equitable right, title or other interest
(other
than a Lien) held by any other
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Person in that Property, and any option or right held by any
other Person
to acquire any such right, title or other interest in that
Property,
including any option or right to acquire a Lien; provided,
however, that
(a) no covenant restricting the use or disposition of Property
of such
Person contained in any Contractual Obligation of such Person
and (b) no
provision contained in a contract creating a right of payment
or
performance in favor of a Person that conditions, limits,
restricts,
diminishes, transfers or terminates such right shall be deemed
to
constitute a Right of Others.
"Security Agreement" means the security agreement to be executed
and
delivered pursuant to Article 8 by Borrower and the Subsidiary
Guarantors,
in the form of Exhibit I, either as originally executed or as it
may from
time to time be supplemented, modified, amended, extended or
supplanted.
"Senior Officer" means (a) the chief executive officer, (b)
the
president, (c) any executive vice president, (d) the chief
financial
officer or (e) the treasurer, in each case of Borrower.
"Significant Domestic Subsidiary" means a Significant
Subsidiary
that is not a Foreign Subsidiary.
"Significant Foreign Subsidiary" means a Foreign Subsidiary that
is
a Significant Subsidiary.
"Significant Subsidiary" means a Subsidiary that either (i) had
net
income for the Fiscal Year then most recently ended in excess of
5% of Net
Income for such Fiscal Year or (ii) had net assets in excess of
5% of the
total net assets of Borrower and its Subsidiaries on a
consolidated basis
as at the end of the Fiscal Year then most recently ended.
"Special Eurodollar Circumstance" means the application or
adoption
after the Closing Date of any Law or interpretation, or any
change therein
or thereof, or any change in the interpretation or
administration thereof
by any Governmental Agency, central bank or comparable authority
charged
with the interpretation or administration thereof, or compliance
by any
Lender or its Eurodollar Lending Office with any request or
directive
(whether or not having the force of Law) of any such
Governmental Agency,
central bank or comparable authority.
"Standby Letter of Credit" means each Letter of Credit issued by
the
Issuing Lender under the Commitment pursuant to Section 2.4 to
support the
payment or performance of an obligation by Borrower.
"Stockholders' Equity" means, as of any date of determination
and
with respect to any Person, the consolidated stockholders'
equity of the
Person as of that date determined in accordance with GAAP;
provided that
there shall be excluded from Stockholders' Equity any amount
attributable
to Disqualified Stock.
"Subordinated Obligations" means any Indebtedness of Borrower
that
(a) does not have any scheduled principal payment, mandatory
principal
prepayment or sinking
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fund payment due prior to the date that is one year after the
Revolving
Loan Maturity Date, (b) is not secured by any Lien on any
Property of
Borrower or any of its Subsidiaries, (c) is not guarantied by
any
Subsidiary of Borrower unless, if such Subsidiary is a party to
the
Subsidiary Guaranty, such guaranty of such Indebtedness is
subordinated to
the Subsidiary Guaranty in a manner satisfactory to the
Administrative
Agent, (d) is subordinated by its terms in right of payment to
the
Obligations pursuant to provisions acceptable to the Requisite
Lenders,
(e) is subject to such financial and other covenants and events
of
defaults as may be acceptable to the Requisite Lenders and (f)
is subject
to customary interest blockage and delayed acceleration
provisions as may
be acceptable to the Requisite Lenders.
"Subsidiary" means, as of any date of determination and with
respect
to any Person, any corporation, limited liability company or
partnership
(whether or not, in any case, characterized as such or as a
"joint
venture"), whether now existing or hereafter organized or
acquired: (a) in
the case of a corporation or limited liability company, of which
a
majority of the securities having ordinary voting power for the
election
of directors or other governing body (other than securities
having such
power only by reason of the happening of a contingency) are at
the time
beneficially owned by such Person and/or one or more
Subsidiaries of such
Person, or (b) in the case of a partnership, of which a majority
of the
partnership or other ownership interests are at the time
beneficially
owned by such Person and/or one or more of its Subsidiaries.
Notwithstanding the foregoing, the terms, provisions and
limitations of
this Agreement (including the representations and warranties set
forth in
Article IV and the covenants set forth in Article V and VI)
shall not
apply to Trellisware Technologies, Inc., a Delaware
corporation.
"Subsidiary Guarantors" means all Significant Domestic
Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty of the
Obligations to be executed and delivered pursuant to Article 8
by the
Subsidiary Guarantors, in the form of Exhibit J, either as
originally
executed or as it may from time to time be supplemented,
modified,
amended, extended or supplanted.
"Subsidiary Security Agreement" means the security agreement to
be
executed and delivered pursuant to Article 8 by the Subsidiary
Guarantors,
in the form of Exhibit K, either as originally executed or as it
may from
time to time be supplemented, modified, amended, extended or
supplanted.
"Tangible Net Worth" means, as of any date of determination,
the
difference between (a) the sum of (i) Stockholders' Equity of
Borrower and
its Subsidiaries on such date and (ii) Subordinated
Obligations
outstanding on such date, and (b) the sum of (i) all Intangible
Assets of
Borrower and its Subsidiaries on such date, (ii) organizational
expenses
and (iii) monies due from Affiliates (including officers,
shareholders and
directors) of Borrower and its Subsidiaries on such date.
"to the best knowledge of" means, when modifying a
representation,
warranty or other statement of any Person, that the fact or
situation
described therein is known
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by the Person (or, in the case of a Person other than a natural
Person,
known by a Responsible Official of that Person) making the
representation,
warranty or other statement, or with the exercise of reasonable
due
diligence under the circumstances (in accordance with the
standard of what
a reasonable Person in similar circumstances would have done)
would have
been known by the Person (or, in the case of a Person other than
a natural
Person, would have been known by a Responsible Official of that
Person).
"type", when used with respect to any Loan or Advance, means
the
designation of whether such Loan or Advance is an Alternate Base
Rate Loan
or Advance, or a Eurodollar Rate Loan or Advance.
"Union Bank" means Union Bank of California, N.A., a
national
banking association.
"VSAT Capital Expenditures" means Capital Expenditures made
by
Borrower or any of its Subsidiaries to purchase Very Small
Aperture
Terminal (VSAT) equipment (including but not limited to hub
equipment and
customer premise equipment supplied by Borrower or third
parties) used by
Borrower's customers under service arrangements; provided that
such
equipment is accounted for as a capital transaction in
Borrower's
consolidated balance sheet.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower, 100%
of
the capital stock or other equity interest of which is owned,
directly or
indirectly, by Borrower, except for director's qualifying shares
required
by applicable Laws.
1.2 Use of Defined Terms. Any defined term used in the plural
shall
refer to all members of the relevant class, and any defined term
used in the
singular shall refer to any one or more of the members of the
relevant class.
1.3 Accounting Terms. All accounting terms not specifically
defined in
this Agreement shall be construed in conformity with, and all
financial data
required to be submitted by this Agreement shall be prepared in
conformity with,
GAAP applied on a consistent basis, except as otherwise
specifically prescribed
herein. In the event that GAAP changes during the term of this
Agreement such
that the covenants contained in Sections 6.13 through 6.15 would
then be
calculated in a different manner or with different components,
(a) Borrower and
the Lenders agree to amend this Agreement in such respects as
are necessary to
conform those covenants as criteria for evaluating Borrower's
financial
condition to substantially the same criteria as were effective
prior to such
change in GAAP and (b) Borrower shall be deemed to be in
compliance with the
covenants contained in the aforesaid Sections if and to the
extent that Borrower
would have been in compliance therewith under GAAP as in effect
immediately
prior to such change, but shall have the obligation to deliver
each of the
materials described in Article 7 to the Administrative Agent and
the Lenders, on
the dates therein specified, with financial data presented in a
manner which
conforms with GAAP as in effect immediately prior to such
change.
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<PAGE>
1.4 Rounding. Any financial ratios required to be maintained by
Borrower
pursuant to this Agreement shall be calculated by dividing the
appropriate
component by the other component, carrying the result to one
place more than the
number of places by which such ratio is expressed in this
Agreement and rounding
the result up or down to the nearest number (with a round-up if
there is no
nearest number) to the number of places by which such ratio is
expressed in this
Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to
this
Agreement, either as originally existing or as the same may from
time to time be
supplemented, modified or amended, are incorporated herein by
this reference. A
matter disclosed on any Schedule shall be deemed disclosed on
all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any reference
herein
to "Borrower and its Subsidiaries" or the like shall refer
solely to Borrower
during such times, if any, as Borrower shall have no
Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term
"and" is
conjunctive. The term "shall" is mandatory; the term "may" is
permissive.
Masculine terms also apply to females; feminine terms also apply
to males. The
term "including" is by way of example and not limitation.
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Article 2
LOANS AND LETTERS OF CREDIT
2.1 Loans - General.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing
Date through the
Revolving Loan Maturity Date, each Lender shall, pro rata
according to that
Lender's Pro Rata Share of the then applicable Commitment, make
Advances to
Borrower under the Commitment in such amounts as Borrower may
request that do
not result in the sum of (i) the aggregate principal amount
outstanding under
the Revolving Notes and (ii) the Aggregate Effective Amount of
all outstanding
Letters of Credit to exceed the then applicable Commitment.
Subject to the
limitations set forth herein, Borrower may borrow, repay and
reborrow under the
Commitment without premium or penalty.
(b) Subject to the next sentence, each Loan shall be made
pursuant
to a Request for Loan which shall specify the requested (i) date
of such Loan,
(ii) type of Loan, (iii) amount of such Loan, and (iv) in the
case of a
Eurodollar Rate Loan, the Eurodollar Period for such Loan.
Unless the
Administrative Agent has notified, in its reasonable discretion,
Borrower to the
contrary, a Loan may be requested by telephone by a Responsible
Official of
Borrower, in which case Borrower shall confirm such request by
promptly
delivering a Request for Loan (conforming to the preceding
sentence) in person
or by telecopier to the Administrative Agent. The Administrative
Agent shall
incur no liability whatsoever hereunder in acting upon any
telephonic request
for Loan purportedly made by a Responsible Official of Borrower,
and Borrower
hereby agrees to indemnify the Administrative Agent from any
loss, cost, expense
or liability as a result of so acting.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or
telecopier (and if
by telephone, promptly confirmed by telecopier) of the date and
type of the
Loan, the applicable Eurodollar Period, and that Lender's Pro
Rata Share of the
Loan. Not later than 12:00 p.m., California time, on the date
specified for any
Loan (which must be a Banking Day), each Lender shall make its
Pro Rata Share of
the Loan in immediately available funds available to the
Administrative Agent at
the Administrative Agent's Office. Upon satisfaction or waiver
of the applicable
conditions set forth in Article 8, all Advances shall be
credited on that date
in immediately available funds to the Designated Deposit
Account.
(d) Unless the Requisite Lenders otherwise consent, each
Revolving
Loan which is an Alternate Base Rate Loan shall be not less than
$500,000 and in
an integral multiple of $250,000 and each Revolving Loan which
is a Eurodollar
Rate Loan shall be not less than $500,000 and in an integral
multiple of
$500,000.
(e) The Advances made by each Lender under the Commitment shall
be
evidenced by that Lender's Revolving Note.
(f) A Request for Loan that is a Eurodollar Rate Loan shall
become
irrevocable three Eurodollar Banking Days before the requested
date of the Loan.
A Request
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<PAGE>
for Loan that is an Alternate Base Rate Loan shall become
irrevocable one
Banking Day before the requested date of the Loan.
(g) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(c), if
applicable) has been
made within the requisite notice periods set forth in Section
2.2 or 2.3 prior
to the end of the Eurodollar Period for any outstanding
Eurodollar Rate Loan,
then on the last day of such Eurodollar Period, such Eurodollar
Rate Loan shall
be automatically converted into an Alternate Base Rate Loan in
the same amount.
2.2 Alternate Base Rate Loans. Each request by Borrower for an
Alternate
Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or
other request for loan referred to in the second sentence of
Section 2.1(c), if
applicable) received by the Administrative Agent, at the
Administrative Agent's
Office, not later than 10:00 a.m. California time, on the date
(which must be a
Banking Day) immediately prior to the date of the requested
Alternate Base Rate
Loan. All Loans shall constitute Alternate Base Rate Loans
unless properly
designated as a Eurodollar Rate Loan pursuant to Section
2.3.
2.3 Eurodollar Rate Loans.
(a) Each request by Borrower for a Eurodollar Rate Loan shall
be
made pursuant to a Request for Loan (or telephonic or other
request for Loan
referred to in the second sentence of Section 2.1(c), if
applicable) received by
the Administrative Agent, at the Administrative Agent's Office,
not later than
9:00 a.m., California time, at least three (3) Eurodollar
Banking Days before
the first day of the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking Days
before
the first day of the applicable Eurodollar Period, the
Administrative Agent
shall confirm its determination of the applicable Eurodollar
Rate (which
determination shall be conclusive in the absence of manifest
error) and promptly
shall give notice of the same to Borrower and the Lenders by
telephone or
telecopier (and if by telephone, promptly confirmed by
telecopier).
(c) Unless the Administrative Agent and the Requisite
Lenders
otherwise consent, no more than four (4) Eurodollar Rate Loans
shall be
outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund
any
Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Letters of Credit.
(a) The Existing Letters of Credit described in Schedule 2.4
shall
be Letters of Credit for all purposes under this Agreement.
(1) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the
Revolving
Loan Maturity Date,
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the Issuing Lender shall issue such Letters of Credit under
the
Commitment as Borrower may request by a Request for Letter
of
Credit; provided that:
(i) giving effect to all such Letters of Credit, the
sum of:
(A) the aggregate principal amount outstanding
under the Revolving Notes; plus
(B) the Aggregate Effective Amount of all
outstanding Letters of Credit, does not exceed the then
applicable Commitment; and
(ii) the Aggregate Effective Amount under all
outstanding Letters of Credit does not exceed $15,000,000.
(2) Each Letter of Credit shall be in a form reasonably
acceptable to the Issuing Lender.
(3) Unless all the Lenders otherwise consent in a writing
delivered to the Administrative Agent, the term of any Letter
of
Credit (other than any Existing Letters of Credit) shall not
exceed
eighteen (18) months.
(4) The term of any Letter of Credit (other than any
Existing Letters of Credit) shall not extend one hundred
eighty
(180) days beyond the Revolving Loan Maturity Date unless all
the
Lenders otherwise consent in a writing delivered to the
Administrative Agent; provided, however, that a condition to
the
repayment in full of the Obligations and release of the
Collateral
shall include either: (A) the Borrower's provision to the
Issuing
Lender of cash collateral in the amount equal to 100% of the
face
amount of any Letter of Credit that will remain outstanding
after
repayment in full of the Obligations other than those relating
to
such Letter of Credit (or such lesser amount as shall then
be
available for drawing under any Letter of Credit); or (B)
the
Borrower's provision to the Issuing Lender of a "back-up"
standby
letter of credit in the full face amount of any Letter of
Credit
that will remain outstanding after repayment in full of the
Obligations other than those relating to such Letter of Credit
(or
such lesser amount as shall then be available under the
Requested
Letter of Credit) issued by a bank acceptable to the Issuing
Bank in
its reasonable discretion.
(b) Each Request for Letter of Credit shall be submitted to
the
Issuing Lender, with a copy to the Administrative Agent, at
least two (2)
Banking Days prior to the date upon which the related Letter of
Credit is
proposed to be issued. The Administrative Agent shall promptly
notify the
Issuing Lender whether such Request for Letter of Credit, and
the issuance of a
Letter of Credit pursuant thereto, conforms to the requirements
of this
Agreement. Upon issuance of a Letter of Credit, the Issuing
Lender shall
promptly notify the Administrative Agent, and the Administrative
Agent shall
promptly notify the Lenders, of the amount and terms
thereof.
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(c) Upon the issuance of a Letter of Credit, each Lender shall
be
deemed to have purchased a pro rata participation in such Letter
of Credit from
the Issuing Lender in an amount equal to that Lender's Pro Rata
Share of the
Commitment. Without limiting the scope and nature of each
Lender's participation
in any Letter of Credit, to the extent that the Issuing Lender
has not been
reimbursed by Borrower for any payment required to be made by
the Issuing Lender
under any Letter of Credit, each Lender shall, pro rata
according to its Pro
Rata Share, reimburse the Issuing Lender through the
Administrative Agent
promptly upon demand for the amount of such payment. The
obligation of each
Lender to so reimburse the Issuing Lender shall be absolute and
unconditional
and shall not be affected by the occurrence of an Event of
Default or any other
occurrence or event. Any such reimbursement shall not relieve or
otherwise
impair the obligation of Borrower to reimburse the Issuing
Lender for the amount
of any payment made by the Issuing Lender under any Letter of
Credit together
with interest as hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the
Issuing Lender
with respect to each Letter of Credit within one (1) Banking Day
after demand
made by the Issuing Lender therefor, together with interest on
such amount from
the date of any payment made by the Issuing Lender at the rate
applicable to
Alternate Base Rate Loans for two (2) Banking Days and
thereafter at the Default
Rate. The principal amount of any such payment shall be used to
reimburse the
Issuing Lender for the payment made by it under the Letter of
Credit and, to the
extent that the Lenders have not reimbursed the Issuing Lender
pursuant to
Section 2.4(c), the interest amount of any such payment shall be
for the account
of the Issuing Lender. Each Lender that has reimbursed the
Issuing Lender
pursuant to Section 2.4(c) for its Pro Rata Share of any payment
made by the
Issuing Lender under a Letter of Credit shall thereupon acquire
a pro rata
participation, to the extent of such reimbursement, in the claim
of the Issuing
Lender against Borrower for reimbursement of principal and
interest under this
Section 2.4(d) and shall share, in accordance with that pro rata
participation,
in any principal payment made by Borrower with respect to such
claim and in any
interest payment made by Borrower (but only with respect to
periods subsequent
to the date such Lender reimbursed the Issuing Lender) with
respect to such
claim.
(e) Borrower may, pursuant to a Request for Loan, request
that
Advances be made pursuant to Section 2.1(a) to provide funds for
the payment
required by Section 2.4(d) and, for this purpose, the conditions
precedent set
forth in Article 8 shall not apply. The proceeds of such
Advances shall be paid
directly to the Issuing Lender to reimburse it for the payment
made by it under
the Letter of Credit.
(f) If Borrower fails to make the payment required by
Section
2.4(d) within the time period therein set forth, in lieu of the
reimbursement to
the Issuing Lender under Section 2.4(c) the Issuing Lender may
(but is not
required to), without notice to or the consent of Borrower,
instruct the
Administrative Agent to cause Advances to be made by the Lenders
under the
Commitment in an aggregate amount equal to the amount paid by
the Issuing Lender
with respect to that Letter of Credit and, for this purpose, the
conditions
precedent set forth in Article 8 shall not apply. The proceeds
of such Advances
shall be paid directly to the Issuing Lender to reimburse it for
the payment
made by it under the Letter of Credit.
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(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be
treated in all
respects the same as the issuance of a new Letter of Credit.
(h) The obligation of Borrower to pay to the Issuing Lender
the
amount of any payment made by the Issuing Lender under any
Letter of Credit
shall be absolute, unconditional, and irrevocable, subject only
to performance
by the Issuing Lender of its obligations to Borrower under
Uniform Commercial
Code Section 5109. Without limiting the foregoing, Borrower's
obligations shall
not be affected by any of the following circumstances:
(i) any lack of validity or enforceability prior to
its stated expiration date of the Letter of Credit, this
Agreement,
or any other agreement or instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any
other
agreement or instrument relating thereto, with the consent
of
Borrower;
(iii) the existence of any claim, setoff, defense, or
other rights which Borrower may have at any time against the
Issuing
Lender, the Administrative Agent or any Lender, any beneficiary
of
the Letter of Credit (or any persons or entities for whom any
such
beneficiary may be acting) or any other Person, whether in
connection with the Letter of Credit, this Agreement, or any
other
agreement or instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement
therein being untrue or inaccurate in any respect whatsoever so
long
as any such document appeared substantially to comply with the
terms
of the Letter of Credit;
(v) payment by the Issuing Lender in good faith under
the Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the
terms
of the Letter of Credit, unless the acceptance of such draft
or
other accompanying document constituted gross negligence;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported
to
be represented by documents presented in connection with any
Letter
of Credit or any difference between any such Property and
the
character, quality, quantity, condition, or value of such
Property
as described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in
documents
presented in connection with any Letter of Credit or the
existence,
nature and extent of any insurance relative thereto;
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(viii) the solvency or financial responsibility of any
party issuing any documents in connection with a Letter of
Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing Lender,
or
any delay or interruption in any such message;
(xi) any error, neglect or default of any correspondent
of the Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes,
emergency
conditions or other causes beyond the control of the Issuing
Lender;
(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears substantially
to
comply with the terms of the Letter of Credit, the form,
accuracy,
genuineness or legal effect of any contract or document referred
to
in any document submitted to the Issuing Lender in connection
with a
Letter of Credit unless the Issuing Lender's actions
constituted
gross negligence; and
(xiv) where the Issuing Lender has acted in good faith
and observed general banking usage, any other circumstances
whatsoever unless the Issuing Lender's actions constituted
gross
negligence.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 10.6,
with all
necessary changes.
(j) The Uniform Customs and Practice for Documentary Credits,
as
published in its most current version by the International
Chamber of Commerce,
shall be deemed a part of this Section and shall apply to all
Letters of Credit
to the extent not inconsistent with applicable Law.
2.5 Voluntary Reduction of Commitment. Borrower shall have the
right, at
any time and from time to time, without penalty or charge, upon
at least five
(5) Banking Days' prior written notice by a Responsible Official
of Borrower to
the Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in
aggregate principal amounts in an integral multiple of $500,000
but not less
than $5,000,000, or to terminate, all or a portion of the then
undisbursed
portion of the Commitment. The Administrative Agent shall
promptly notify the
Lenders of any reduction or termination of the Commitment under
this Section.
2.6 Administrative Agent's Right to Assume Funds Available for
Advances.
Unless the Administrative Agent shall have been notified by any
Lender no later
than 10:00 a.m. on the Banking Day of the proposed funding by
the Administrative
Agent of any Loan that such Lender does not intend to make
available to the
Administrative Agent such
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Lender's portion of the total amount of such Loan, the
Administrative Agent may
assume that such Lender has made such amount available to the
Administrative
Agent on the date of the Loan and the Administrative Agent may,
in reliance upon
such assumption, make available to Borrower a corresponding
amount. If the
Administrative Agent has made funds available to Borrower based
on such
assumption and such corresponding amount is not in fact made
available to the
Administrative Agent by such Lender, the Administrative Agent
shall be entitled
to recover such corresponding amount on demand from such Lender.
If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's
demand therefor, the Administrative Agent promptly shall notify
Borrower and
Borrower shall pay such corresponding amount to the
Administrative Agent. The
Administrative Agent also shall be entitled to recover from such
Lender interest
on such corresponding amount in respect of each day from the
date such
corresponding amount was made available by the Administrative
Agent to Borrower
to the date such corresponding amount is recovered by the
Administrative Agent,
at a rate per annum equal to the daily Federal Funds Rate.
Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill
its share of the
Commitments or to prejudice any rights which the Administrative
Agent or
Borrower may have against any Lender as a result of any default
by such Lender
hereunder.
2.7 Collateral. To the extent required in the Security
Agreement, the
Obligations shall be secured by a first priority (subject to
Liens permitted by
Section 6.9) perfected Lien on the Collateral pursuant to the
Security
Agreement.
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<PAGE>
Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily
unpaid
principal amount of each Advance from the date thereof until
payment in full is
made and shall accrue and be payable at the rates set forth or
provided for
herein before and after Default, before and after maturity,
before and after
judgment, and before and after the commencement of any
proceeding under any
Debtor Relief Law, with interest on overdue interest at the
Default Rate to the
fullest extent permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate Loan shall be
due
and payable on each Monthly Payment Date. Except as otherwise
provided in
Sections 3.1(d) and 3.8, the unpaid principal amount of any
Alternate Base Rate
Loan shall bear interest at a fluctuating rate per annum equal
to the Alternate
Base Rate plus the Applicable Alternate Base Rate Margin. Each
change in the
interest rate under this Section 3.1(b) due to a change in the
Alternate Base
Rate shall take effect simultaneously with the corresponding
change in the
Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan shall be due
and
payable on the last day of the related Eurodollar Period. Except
as otherwise
provided in Sections 3.1(d) and 3.8, the unpaid principal amount
of any
Eurodollar Rate Loan shall bear interest at a rate per annum
equal to the
Eurodollar Rate for that Eurodollar Rate Loan plus the
Applicable Eurodollar
Rate Margin.
(d) During the existence of an Event of Default, the Loans
shall
bear interest at a rate per annum equal to the sum of (i) the
interest rate
specified in Sections 3.1(b) or 3.1(c), whichever is applicable,
plus (ii) two
(2) percentage points (the "Default Rate").
(e) If not sooner paid, the principal Indebtedness evidenced
by
the Notes shall be payable as follows:
(i) the amount, if any, by which the sum of (A) the
principal Indebtedness evidenced by the Revolving Notes plus (B)
the
Aggregate Effective Amount of all outstanding Letters of Credit
at
any time exceeds the then applicable Commitment shall be
payable
immediately; and
(ii) the principal Indebtedness evidenced by the
Revolving Notes shall in any event be payable on the Revolving
Loan
Maturity Date.
(f) The principal Indebtedness evidenced by the Notes may, at
any
time and from time to time, voluntarily be paid or prepaid in
whole or in part
without premium or penalty, except that with respect to any
voluntary prepayment
under this Subsection, (i) any partial prepayment of a Revolving
Loan shall be
not less than $250,000 and shall be an integral multiple of
$100,000 unless the
entire outstanding amount of such Loan is being prepaid, (ii)
the Administrative
Agent shall have received written notice of any prepayment by
9:00 a.m.
California time on the date that is one (1) Banking Day before
the date of
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prepayment (which must be a Banking Day) in the case of an
Alternate Base Rate
Loan, and, in the case of a Eurodollar Rate Loan, three (3)
Banking Days before
the date of prepayment, which notice shall identify the date and
amount of the
prepayment and the Loan(s) being prepaid, (iii) each prepayment
of principal on
any Eurodollar Rate Loan shall be accompanied by payment of
interest accrued to
the date of payment on the amount of principal paid, and (iv)
any payment or
prepayment of all or any part of any Eurodollar Rate Loan on a
day other than
the last day of the applicable Eurodollar Period shall be
subject to Section
3.6(e).
3.2 Closing Date Fees. On the Closing Date, Borrower shall pay
each of
the following fees:
(a) to the Administrative Agent, for the account of each Lender,
a
one-time upfront fee, based upon each Lender's Pro Rata Share of
the Commitment
on the Closing Date, as set forth in a separate agreement among
Borrower, the
Administrative Agent and the Lenders;
(b) to the Administrative Agent, for the sole account of the
Arranger, a one-time arrangement fee as set forth in a separate
agreement
between Borrower and the Arranger.
3.3 Commitment Fee. From the Closing Date through the Revolving
Loan
Maturity Date, Borrower shall pay to the Administrative Agent,
for the ratable
accounts of the Lenders pro rata according to their Pro Rata
Share of the
Revolving Commitment, a commitment fee equal to the Applicable
Commitment Fee
Rate per annum times the average daily amount by which the
Commitment exceeds an
amount equal to the sum of (i) aggregate daily principal
Indebtedness evidenced
by the Revolving Notes plus (ii) the Aggregate Effective Amount
of all Letters
of Credit then outstanding. The commitment fee shall be payable
quarterly in
arrears as of each Quarterly Payment Date within ten (10) days
after receipt by
Borrower of an invoice therefor from the Administrative
Agent.
3.4 Letter of Credit Fees. With respect to each Letter of
Credit,
Borrower shall pay the following fees:
(a) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent a standby letter of credit
fee in an amount
equal to the Applicable Eurodollar Margin per annum times the
face amount of
such Standby Letter of Credit through the termination or
expiration of such
Standby Letter of Credit; from such fee, the Administrative
Agent shall promptly
pay to Union Bank an issuance fee of 0.25% of the face amount of
such Standby
Letter of Credit and the Administrative Agent shall promptly pay
the remainder
of the fee to the Lenders ratably, in accordance with their
respective Pro Rata
Shares of the Commitment;
(b) concurrently with the issuance of each Commercial Letter
of
Credit, to the Administrative Agent a commercial letter of
credit issuance fee
in the amount set forth from time to time as the Issuing
Lender's published
scheduled fee for the issuance of
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