þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2014 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM _____________ TO _____________ |
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NU SKIN ENTERPRISES, INC.
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(Exact name of registrant as specified in its charter)
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Delaware
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87-0565309
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(State or other jurisdiction of incorporation or organization)
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75 WEST CENTER STREET
PROVO, UT 84601
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(IRS Employer Identification No.)
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(Address of principal executive offices, including zip code)
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(801) 345-1000
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(Registrant's telephone number, including area code)
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
(Do not check if a smaller reporting company)
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Smaller reporting company o
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Page
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Part I.
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Financial Information
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Item 1.
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Financial Statements (Unaudited):
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Consolidated Balance Sheets
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1
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Consolidated Statements of Income
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2
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Consolidated Statements of Comprehensive Income
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3
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Consolidated Statements of Cash Flows
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4
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Notes to Consolidated Financial Statements
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5
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Item 2.
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Management's Discussion and Analysis of Financial Condition and Results of Operations
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15
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Item 3.
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Quantitative and Qualitative Disclosures about Market Risk
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25
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Item 4.
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Controls and Procedures
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25
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Part II.
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Other Information
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Item 1.
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Legal Proceedings
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26
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Item 1A.
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Risk Factors
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27
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Item 2.
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Unregistered Sales of Equity Securities and Use of Proceeds
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27
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Item 3.
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Defaults Upon Senior Securities
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27
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Item 4.
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Mine Safety Disclosures
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27
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Item 5.
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Other Information
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28
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Item 6.
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Exhibits
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29
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Signature
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30
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ITEM 1. | FINANCIAL STATEMENTS |
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June 30, 2014
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December 31, 2013
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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219,501
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$
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525,153
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Current investments
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14,227
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21,974
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Accounts receivable
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41,712
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68,652
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Inventories, net
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389,650
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339,669
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Prepaid expenses and other
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180,957
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162,886
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846,047
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1,118,334
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Property and equipment, net
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429,332
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396,042
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Goodwill
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112,446
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112,446
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Other intangible assets, net
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79,258
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83,168
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Other assets
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136,531
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111,072
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Total assets
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$
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1,603,614
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$
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1,821,062
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LIABILITIES AND STOCKHOLDERS' EQUITY
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Current liabilities:
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Accounts payable
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$
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35,836
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$
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82,684
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Accrued expenses
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383,012
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626,284
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Current portion of debt
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99,828
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67,824
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518,676
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776,792
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Long-term debt
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111,621
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113,852
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Other liabilities
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81,559
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71,799
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Total liabilities
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711,856
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962,443
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Commitments and contingencies (Note 9)
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Stockholders' equity:
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Class A common stock – 500 million shares authorized, $.001 par value, 90.6 million shares issued
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91
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91
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Additional paid-in capital
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410,440
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397,383
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Treasury stock, at cost – 31.3 million and 31.6 million shares, respectively
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(844,615)
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(826,904)
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Accumulated other comprehensive loss
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(42,284)
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(46,228)
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Retained earnings
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1,368,126
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1,334,277
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891,758
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858,619
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Total liabilities and stockholders' equity
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$
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1,603,614
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$
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1,821,062
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Three Months Ended
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Six Months Ended
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||||||
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June 30, 2014
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June 30, 2013
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June 30, 2014
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June 30, 2013
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Revenue
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$
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650,027
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$
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671,328
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$
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1,321,088
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$
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1,212,633
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Cost of sales
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156,010
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111,273
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262,654
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201,318
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Gross profit
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494,017
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560,055
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1,058,434
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1,011,315
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Operating expenses:
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Selling expenses
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283,575
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297,170
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596,676
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530,264
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General and administrative expenses
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155,705
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148,302
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305,824
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283,809
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Total operating expenses
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439,280
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445,472
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902,500
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814,073
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Operating income
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54,737
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114,583
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155,934
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197,242
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Other income (expense), net
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(21,119)
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(1,187)
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(38,627)
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(1,075)
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Income before provision for income taxes
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33,618
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113,396
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117,307
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196,167
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Provision for income taxes
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14,111
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38,961
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42,946
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67,450
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Net income
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$
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19,507
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$
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74,435
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$
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74,361
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$
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128,717
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Net income per share (Note 2):
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Basic
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$
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0.33
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$
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1.27
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$
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1.26
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$
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2.20
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Diluted
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$
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0.32
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$
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1.22
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$
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1.22
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$
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2.11
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Weighted-average common shares outstanding (000s):
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Basic
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59,052
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58,620
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58,961
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58,487
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Diluted
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61,118
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61,121
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61,177
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60,882
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||||||
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Three Months Ended
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Six Months Ended
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||||||
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June 30, 2014
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June 30, 2013
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June 30, 2014
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June 30, 2013
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Net income
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$
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19,507
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$
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74,435
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$
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74,361
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$
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128,717
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Other comprehensive income, net of tax:
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Foreign currency translation adjustment
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3,112
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426
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4,970
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(2,947)
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Net unrealized gains/(losses) on foreign currency cash flow hedges
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(326)
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575
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(583)
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1,561
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Less: Reclassification adjustment for realized losses/(gains) in current earnings
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(207)
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(901)
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(443)
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(2,064)
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2,579
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100
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3,944
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(3,450)
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Comprehensive income
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$
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22,086
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$
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74,535
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$
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78,305
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$
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125,267
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Six Months Ended
June 30,
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2014
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2013
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Cash flows from operating activities:
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Net income
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$
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74,361
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$
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128,717
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Adjustments to reconcile net income to net cash provided by operating activities:
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Depreciation and amortization
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24,965
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15,527
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Foreign currency (gains)/losses
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48,264
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863
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Stock-based compensation
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13,726
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11,411
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Deferred taxes
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3,871
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(2,901)
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Changes in operating assets and liabilities:
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Accounts receivable
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27,121
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(24,647)
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Inventories, net
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(54,218)
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(45,228)
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Prepaid expenses and other
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(31,157)
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(25,515)
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Other assets
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(14,797)
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(10,987)
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Accounts payable
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(46,503)
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3,593
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Accrued expenses
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(233,532)
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132,787
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Other liabilities
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3,034
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5,237
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Net cash provided by (used in) operating activities
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(184,865)
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188,857
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Cash flows from investing activities:
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Purchases of property and equipment
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(57,136)
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(82,515)
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Proceeds of investment sales
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22,011
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9,701
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Purchases of investments
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(13,655)
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(5,077)
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Net cash used in investing activities
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(48,780)
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(77,891)
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Cash flows from financing activities:
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Exercise of employee stock options
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(2,656)
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7,359
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Payment of debt
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(39,915)
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(13,890)
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Payment of cash dividends
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(40,511)
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(35,140)
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Income tax benefit of options exercised
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9,267
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|
7,309
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Proceeds from debt
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65,680
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35,000
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Repurchases of shares of common stock
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(25,002)
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(14,615)
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Net cash used in financing activities
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(33,137)
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(13,977)
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Effect of exchange rate changes on cash
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(38,870)
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(14,336)
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Net increase/(decrease) in cash and cash equivalents
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(305,652)
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82,653
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Cash and cash equivalents, beginning of period
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525,153
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320,025
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|
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Cash and cash equivalents, end of period
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$
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219,501
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$
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402,678
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1. | THE COMPANY |
2. | NET INCOME PER SHARE |
3. | DIVIDENDS PER SHARE |
4. | DERIVATIVE FINANCIAL INSTRUMENTS |
5. | REPURCHASES OF COMMON STOCK |
6. | SEGMENT INFORMATION |
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Three Months Ended
June 30,
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Six Months Ended
June 30,
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||||||
Revenue:
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2014
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2013
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2014
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2013
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|
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Greater China
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$
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229,869
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$
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261,241
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$
|
508,798
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$
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432,063
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North Asia
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195,995
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194,812
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|
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391,456
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380,722
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Americas
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89,911
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83,433
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169,820
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|
|
159,125
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South Asia/Pacific
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81,653
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85,582
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|
|
152,847
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152,539
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EMEA
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52,599
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46,260
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|
|
98,167
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|
|
88,184
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Totals
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$
|
650,027
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$
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671,328
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$
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1,321,088
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$
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1,212,633
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Three Months Ended
June 30,
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Six Months Ended
June 30,
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||||||||
Revenue:
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2014
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2013
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2014
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2013
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||||
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Nu Skin
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$
|
391,968
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$
|
411,220
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$
|
794,079
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$
|
732,660
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Pharmanex
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|
256,216
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|
|
258,862
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|
|
523,488
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|
|
477,213
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Other
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|
1,843
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|
|
1,246
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|
|
3,521
|
|
|
2,760
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Totals
|
$
|
650,027
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|
$
|
671,328
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|
$
|
1,321,088
|
|
$
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1,212,633
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Three Months Ended
June 30,
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Six Months Ended
June 30,
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||||||||
Revenue:
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2014
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|
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2013
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2014
|
2013
|
||||
|
|
|
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|
|
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|
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Mainland China
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$
|
153,795
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|
$
|
190,383
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|
$
|
366,012
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|
$
|
310,048
|
South Korea
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|
118,797
|
|
|
97,420
|
|
|
232,797
|
|
|
178,515
|
Japan
|
|
77,198
|
|
|
97,392
|
|
|
158,659
|
|
|
202,207
|
United States
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|
61,056
|
|
|
61,627
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|
|
115,878
|
|
|
118,674
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Taiwan
|
|
41,664
|
|
|
37,824
|
|
|
77,428
|
|
|
69,950
|
Hong Kong
|
|
34,410
|
|
|
33,034
|
|
|
65,358
|
|
|
52,065
|
Malaysia
|
|
23,256
|
|
|
27,797
|
|
|
42,305
|
|
|
45,840
|
Long-lived assets:
|
|
June 30, 2014
|
|
|
December 31, 2013
|
|
|
|
|
|
|
Mainland China
|
$
|
95,552
|
|
$
|
82,726
|
South Korea
|
|
24,834
|
|
|
14,345
|
Japan
|
|
12,629
|
|
|
9,970
|
United States
|
|
281,426
|
|
|
273,388
|
Taiwan
|
|
1,939
|
|
|
1,928
|
Hong Kong
|
|
2,282
|
|
|
2,497
|
Malaysia
|
|
1,267
|
|
|
1,463
|
7. | DEFERRED TAX ASSETS AND LIABILITIES |
8. | UNCERTAIN TAX POSITIONS |
9. | COMMITMENTS AND CONTINGENCIES |
10. | DEBT |
Debt Facility
|
Original Principal Amount
|
Balance as of
June 30, 2014(1)
|
Balance as of
December 31, 2013
|
Interest Rate
|
Repayment terms
|
|||||
|
|
|
|
|
|
|
|
|
|
|
Multi-currency uncommitted
shelf facility(2): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. dollar
denominated:
|
|
$40.0 million
|
|
$17.1 million
|
|
$17.1 million
|
|
6.2%
|
|
Notes due July 2016 with annual principal payments that began in July 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$20.0 million
|
|
$8.6 million
|
|
$11.4 million
|
|
6.2%
|
|
Notes due January 2017 with annual principal payments that began in January 2011.
|
|
|
|
|
|
|
|
|
|
|
|
Japanese yen
denominated:
|
|
3.1 billion yen
|
|
―
|
|
0.4 billion yen or $4.1 million
|
|
1.7%
|
|
Notes paid in full on April 30, 2014.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.3 billion yen
|
|
1.3 billion yen or $12.8 million
|
|
1.3 billion yen or $12.3 million
|
|
2.6%
|
|
Notes due September 2017 with annual principal payments that began in September 2011.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.2 billion yen
|
|
0.9 billion yen or $9.2 million
|
|
1.2 billion yen or $11.8 million
|
|
3.3%
|
|
Notes due January 2017 with annual principal payments that began in January 2011.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.0 billion yen
|
|
8.0 billion yen or $78.7 million
|
|
8.0 billion yen or $75.8 million
|
|
1.7%
|
|
Notes due May 2022 with annual principal payments that begin in May 2016.
|
|
|
|
|
|
|
|
|
|
|
|
Revolving credit facilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010(3)
|
|
|
|
$35.0 million(3)
|
|
$35.0 million
|
|
Variable 30 day:
0.66%
|
|
Revolving line of credit expired August 8, 2014.
|
|
|
|
|
|
|
|
|
|
|
|
2013
|
|
|
|
$50.0 million
|
|
$14.0 million
|
|
Variable 30 day:
0.5783%
|
|
Revolving line of credit expires September 2014.
|
|
|
|
|
|
|
|
|
|
|
|
2014(4)
|
|
|
|
―
|
|
―
|
|
N/A
|
|
Revolving line of credit expires April 2015
|
(1) | As of June 30, 2014, the current portion of the Company's debt (i.e. becoming due in the next 12 months) includes $6.2 million of the balance of its Japanese yen-denominated debt under the multi-currency uncommitted shelf facility, $8.6 million of the balance on its U.S. dollar denominated debt under the multi-currency uncommitted shelf facility and $85.0 million of the Company's revolving loans. |
(2) | On August 8, 2014, the Company entered into an amendment of the amended and restated note purchase and private shelf agreement (multi-currency), dated as of May 25, 2012, among the Company, Prudential Investment Management, Inc. and certain other purchasers. The amendment modified the restricted payments covenant to allow the aggregate amount of restricted payments to exceed the allowed threshold by no more than $110 million for the quarter ending June 30, 2014, to avoid default or acceleration provisions of the agreement. |
(3) | The Company paid the outstanding balance in full prior to the August 8, 2014 expiration of the amended and restated credit agreement, dated as of May 25, 2012, among the Company, various financial institutions, and JPMorgan Chase Bank, N.A. as administrative agent. |
(4) | On April 9, 2014, the Company entered into an additional 364 day revolving line of credit with Bank of America, N.A. with a commitment amount of $50 million and an interest rate equal to 1 month LIBOR plus 95.0 basis points. The Company has not drawn on this revolving line of credit as of the date hereof. |
11. | ACCOUNTING PRONOUNCEMENTS |
12. | REVISIONS |
15. | SUBSEQUENT EVENTS |
|
Three Months Ended
|
Six Months Ended
|
||||||||||||||||||||||
|
June 30,
|
June 30,
|
||||||||||||||||||||||
|
2014
|
2013
|
Change
|
2014
|
2013
|
Change
|
||||||||||||||||||
|
||||||||||||||||||||||||
Mainland China
|
$
|
153.8
|
$
|
190.4
|
(19%)
|
|
$
|
366.0
|
$
|
310.0
|
18%
|
|
||||||||||||
Taiwan
|
41.7
|
37.8
|
10%
|
|
77.4
|
70.0
|
11%
|
|
||||||||||||||||
Hong Kong
|
34.4
|
33.0
|
4%
|
|
65.4
|
52.1
|
26%
|
|
||||||||||||||||
Greater China total
|
$
|
229.9
|
$
|
261.2
|
(12%)
|
|
$
|
508.8
|
$
|
432.1
|
18%
|
|
|
Three Months Ended
|
Six Months Ended
|
||||||||||||||||||||||
|
June 30,
|
June 30,
|
||||||||||||||||||||||
|
2014
|
2013
|
Change
|
2014
|
2013
|
Change
|
||||||||||||||||||
|
||||||||||||||||||||||||
South Korea
|
$
|
118.8
|
$
|
97.4
|
22%
|
|
$
|
232.8
|
$
|
178.5
|
30%
|
|
||||||||||||
Japan
|
77.2
|
97.4
|
(21%)
|
|
158.7
|
202.2
|
(22%)
|
|
||||||||||||||||
North Asia total
|
$
|
196.0
|
$
|
194.8
|
1%
|
|
$
|
391.5
|
$
|
380.7
|
3%
|
|
|
Three Months Ended
|
Six Months Ended
|
||||||||||||||||||||||
|
June 30,
|
June 30,
|
||||||||||||||||||||||
|
2014
|
2013
|
Change
|
2014
|
2013
|
Change
|
||||||||||||||||||
|
||||||||||||||||||||||||
Americas
|
$
|
89.9
|
$
|
83.4
|
8%
|
|
$
|
169.8
|
$
|
159.1
|
7%
|
|
|
Three Months Ended
|
Six Months Ended
|
||||||||||||||||||||||
|
June 30,
|
June 30,
|
||||||||||||||||||||||
|
2014
|
2013
|
Change
|
2014
|
2013
|
Change
|
||||||||||||||||||
|
||||||||||||||||||||||||
South Asia/Pacific
|
$
|
81.7
|
$
|
85.6
|
(5%)
|
|
$
|
152.8
|
$
|
152.5
|
―
|
|
Three Months Ended
|
Six Months Ended
|
||||||||||||||||||||||
|
June 30,
|
June 30,
|
||||||||||||||||||||||
|
2014
|
2013
|
Change
|
2014
|
2013
|
Change
|
||||||||||||||||||
|
||||||||||||||||||||||||
EMEA
|
$
|
52.6
|
$
|
46.3
|
14%
|
|
$
|
98.2
|
$
|
88.2
|
11%
|
|
·
|
expansion of our corporate facilities in the United States, Greater China and South Korea;
|
·
|
purchases of computer systems and software, including equipment and development costs;
|
·
|
development of new products and purchase of tooling and manufacturing equipment; and
|
·
|
build-out and upgrade of leasehold improvements in our various markets, including retail stores and service centers in Mainland China.
|
Debt Facility
|
Original Principal Amount
|
Balance as of
June 30, 2014(1)
|
Balance as of
December 31, 2013
|
Interest Rate
|
Repayment terms
|
|||||
|
|
|
|
|
|
|
|
|
|
|
Multi-currency uncommitted
shelf facility(2): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. dollar
denominated:
|
|
$40.0 million
|
|
$17.1 million
|
|
$17.1 million
|
|
6.2%
|
|
Notes due July 2016 with annual principal payments that began in July 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$20.0 million
|
|
$8.6 million
|
|
$11.4 million
|
|
6.2%
|
|
Notes due January 2017 with annual principal payments that began in January 2011.
|
|
|
|
|
|
|
|
|
|
|
|
Japanese yen
denominated:
|
|
3.1 billion yen
|
|
―
|
|
0.4 billion yen or $4.1 million
|
|
1.7%
|
|
Notes paid in full on April 30, 2014.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.3 billion yen
|
|
1.3 billion yen or $12.8 million
|
|
1.3 billion yen or $12.3 million
|
|
2.6%
|
|
Notes due September 2017 with annual principal payments that began in September 2011.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.2 billion yen
|
|
0.9 billion yen or $9.2 million
|
|
1.2 billion yen or $11.8 million
|
|
3.3%
|
|
Notes due January 2017 with annual principal payments that began in January 2011.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.0 billion yen
|
|
8.0 billion yen or $78.7 million
|
|
8.0 billion yen or $75.8 million
|
|
1.7%
|
|
Notes due May 2022 with annual principal payments that begin in May 2016.
|
|
|
|
|
|
|
|
|
|
|
|
Revolving credit facilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010(3)
|
|
|
|
$35.0 million(3)
|
|
$35.0 million
|
|
Variable 30 day:
0.66%
|
|
Revolving line of credit expired August 8, 2014.
|
|
|
|
|
|
|
|
|
|
|
|
2013
|
|
|
|
$50.0 million
|
|
$14.0 million
|
|
Variable 30 day:
0.5783%
|
|
Revolving line of credit expires September 2014.
|
|
|
|
|
|
|
|
|
|
|
|
2014(4)
|
|
|
|
―
|
|
―
|
|
N/A
|
|
Revolving line of credit expires April 2015
|
(1) | The current portion of our long-term debt (i.e. becoming due in the next 12 months) includes $6.2 million of the balance of our Japanese yen-denominated debt under the multi-currency uncommitted shelf facility, $8.6 million of the balance on our U.S. dollar denominated debt under the multi-currency uncommitted shelf facility and $85.0 million of our revolving loans. |
(2) | On August 8, 2014, we entered into an amendment of the amended and restated note purchase and private shelf agreement (multi-currency), dated as of May 25, 2012, among us, Prudential Investment Management, Inc. and certain other purchasers. The amendment modified the restricted payments covenant to allow the aggregate amount of restricted payments to exceed the allowed threshold by no more than $110 million for the quarter ending June 30, 2014 to avoid default or acceleration provisions of the agreement. |
(3) | We paid the outstanding balance in full prior to the August 8, 2014 expiration of the amended and restated credit agreement, dated as of May 25, 2012, among us, various financial institutions, and JPMorgan Chase Bank, N.A. as administrative agent. |
(4) | On April 9, 2014, we entered into an additional 364 day revolving line of credit with Bank of America, N.A. with a commitment amount of $50 million and an interest rate equal to 1 month LIBOR plus 95.0 basis points. We have not drawn on this revolving line of credit as of the date hereof. |
|
As of June 30, 2014
|
|
As of June 30, 2013
|
||||
Region:
|
Actives
|
|
Sales Leaders
|
|
Actives
|
|
Sales Leaders
|
|
|
|
|
|
|
|
|
Greater China
|
256,000
|
|
26,192
|
|
376,000
|
|
30,455
|
North Asia
|
393,000
|
|
17,186
|
|
389,000
|
|
17,372
|
Americas
|
189,000
|
|
7,627
|
|
176,000
|
|
6,954
|
South Asia/Pacific
|
120,000
|
|
7,450
|
|
114,000
|
|
7,120
|
EMEA
|
121,000
|
|
4,468
|
|
124,000
|
|
4,484
|
Total
|
1,079,000
|
|
62,923
|
|
1,179,000
|
|
66,385
|
ITEM 1. | LEGAL PROCEEDINGS |
ITEM 3. | DEFAULTS UPON SENIOR SECURITIES |
ITEM 6. | EXHIBITS |
10.1 | Loan Agreement, dated as of September 5, 2013, among the Company and Bank of America, N.A. |
10.2 | Loan Agreement, dated as of April 9, 2014, among the Company and Bank of America, N.A. |
10.3 | Fifth Amendment to the Amended and Restated Credit Agreement, dated as of May 25, 2012, among the Company, various financial institutions, and JPMorgan Chase Bank, N.A. as administrative agent, dated as of May 6, 2014. |
10.4 | Third Amendment to the Amended and Restated Note Purchase and Private Shelf Agreement (Multi-Currency), dated as of May 25, 2012, among the Company, Prudential Investment Management, Inc. and certain other purchasers, dated as of May 6, 2014. |
10.5 | Fourth Amendment to the Amended and Restated Note Purchase and Private Shelf Agreement (Multi-Currency), dated as of May 25, 2012, among the Company, Prudential Investment Management, Inc. and certain other purchasers, dated as of August 8, 2014. |
31.1 | Certification by M. Truman Hunt, President and Chief Executive Officer, pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes–Oxley Act of 2002. |
31.2 | Certification by Ritch N. Wood, Chief Financial Officer, pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
32.1 | Certification by M. Truman Hunt, President and Chief Executive Officer, pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
32.2 | Certification by Ritch N. Wood, Chief Financial Officer, pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
101.INS | XBRL Instance Document |
101.SCH | XBRL Taxonomy Extension Schema Document |
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document |
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document |
101.LAB | XBRL Taxonomy Extension Label Linkbase Document |
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document |
By:
|
/s/ Ritch N. Wood
|
|
|
Ritch N. Wood
|
|
|
Chief Financial Officer
|
|
|
(Duly Authorized Officer and Principal Financial and Accounting Officer)
|
|
|
|
|
(a) | During the availability period described below the Bank will provide a line of credit to the Borrower. The amount of the line of credit (the "Facility No. 1 Commitment") is Fifty Million Dollars ($50,000,000). |
(b) | This is a revolving line of credit. During the availability period, the Borrower may repay principal amounts and reborrow them. |
(c) | The Borrower agrees not to permit the principal balance outstanding to exceed the Facility No. 1 Commitment. If the Borrower exceeds this limit, the Borrower will immediately pay the excess to the Bank upon the Bank's demand. |
(a) | The Borrower will pay interest on September 30, 2013, and then on the last day of each quarter thereafter until payment in full of any principal outstanding under this facility; provided that with respect to amounts bearing interest at an optional interest rate (as described below), the Borrower will pay interest at the end of each applicable interest period. |
(b) | The Borrower will repay in full any principal, interest or other charges outstanding under this facility no later than the Facility No. 1 Expiration Date. Any interest period for an optional interest rate shall expire no later than the Facility No. 1 Expiration Date. |
(c) | The Borrower may prepay the loan in full or in part at any time. The prepayment will be applied to the outstanding amounts under the loan as directed by the Borrower. |
(a) | The interest period during which the LIBOR Rate will be in effect will be one, two, or three months. The first day of the interest period must be a day other than a Saturday or a Sunday on which banks are open for business in New York and London and dealing in offshore dollars (a "LIBOR Banking Day"). The last day of the interest period and the actual number of days during the interest period will be determined by the Bank using the practices of the London inter-bank market. |
(c) | A LIBOR Rate may be elected only for the entire principal amount outstanding under the applicable facility. |
(d) | The "LIBOR Rate" means the interest rate determined by the following formula. (All amounts in the calculation will be determined by the Bank as of the first day of the interest period.) |
(i) | "London Inter-Bank Offered Rate" means, for any applicable interest period, the rate per annum equal to the British Bankers Association LIBOR Rate (or any successor thereto approved by the Bank if the British Bankers Association is no longer making a LIBOR rate available), as published by Reuters (or other commercially available source providing quotations of such rate as selected by the Bank from time to time) at approximately 11:00 a.m. London time two (2) London Banking Days before the commencement of the interest period, for U.S. Dollar deposits (for delivery on the first day of such interest period) with a term equivalent to such interest period. If such rate is not available at such time for any reason, then the rate for that interest period will be determined by such alternate method as reasonably selected by the Bank. A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars. |
(ii) | "Reserve Percentage" means the total of the maximum reserve percentages for determining the reserves to be maintained by member banks of the Federal Reserve System for Eurocurrency Liabilities, as defined in Federal Reserve Board Regulation D, rounded upward to the nearest 1/100 of one percent. The percentage will be expressed as a decimal, and will include, but not be limited to, marginal, emergency, supplemental, special, and other reserve percentages. |
(e) | The Borrower shall irrevocably request a LIBOR Rate Portion no later than 12:00 noon Nevada time on the LIBOR Banking Day preceding the day on which the London Inter-Bank Offered Rate will be set, as specified above. For example, if there are no intervening holidays or weekend days in any of the relevant locations, the request must be made at least three days before the LIBOR Rate takes effect. |
(f) | The Bank will have no obligation to accept an election for a LIBOR Rate Portion if any of the following described events has occurred and is continuing: |
(iii) | adequate and reasonable means do not exist for determining the LIBOR Rate for any requested Interest Period. |
(g) | Each prepayment of a LIBOR Rate Portion, whether voluntary, by reason of acceleration or otherwise, will be accompanied by the amount of accrued interest on the amount prepaid and a prepayment fee as described below. A "prepayment" is a payment of an amount on a date earlier than the scheduled payment date for such amount as required by this Agreement. |
(h) | The prepayment fee is intended to compensate the Bank for the funding costs of the prepaid credit, if any. The prepayment fee will be determined by calculating the funding costs incurred by the Bank, based on the cost of funds at the time the interest rate was fixed, and subtracting the interest income which can be earned by the Bank by reinvesting the prepaid funds at the Reinvestment Rate. The calculation is defined more fully below. |
(i) | The "Fixed Interest Rate Period" is the period during which the interest rate in effect at the time of the prepayment does not change. If the Fixed Interest Rate Period does not extend for the entire remaining life of the credit, then the following rules will apply: |
(i) | For any portion of the prepaid principal for which the scheduled payment date is after the end of the Fixed Interest Rate Period, the prepayment fee for that portion shall be calculated based only on the period through the end of the Fixed Interest Rate Period, as described below. |
(ii) | If a prepayment is made on a date on which the interest rate resets, then there will be no prepayment fee. |
(j) | The prepayment fee calculation is made separately for each Prepaid Installment. A "Prepaid Installment" is the amount of the prepaid principal that would have been due on a particular scheduled payment date (the "Scheduled Payment Date"). However, as explained in the preceding paragraph, all amounts of the credit which would have been paid after the end of the Fixed Interest Rate Period shall be considered a single Prepaid Installment with a Scheduled Payment Date (for the purposes of this calculation) equal to the last day of the Fixed Interest Rate Period. |
(i) | Calculate the monthly interest payments that would have accrued on the Prepaid Installment through the applicable Scheduled Payment Date, if the prepayment had not been made. The interest payments will be calculated using the Original Cost of Funds Rate. |
(ii) | Next, calculate the monthly interest income which could be earned on the Prepaid Installment if it were reinvested by the Bank at the Reinvestment Rate through the Scheduled Payment Date. |
(iii) | Calculate the monthly differences of the amounts calculated in (i) minus the amounts calculated in (ii). |
(iv) | If the remaining term of the Fixed Interest Rate Period is greater than one year, calculate the present value of the amounts calculated in (iii), using the Reinvestment Rate. The result of the present value calculation is the prepayment fee for the Prepaid Installment. |
(l) | Finally, the prepayment fees for all of the Prepaid Installments are added together. The sum, if greater than zero, is the total prepayment fee due to the Bank. |
(i) | "Original Cost of Funds Rate" means the fixed interest rate per annum, determined solely by the Bank, at which the Bank would be able to borrow funds in the Bank Funding Markets for the duration of the Fixed Interest Rate Period in the amount of the prepaid principal and with a term, interest payment frequency, and principal repayment schedule matching the prepaid principal. |
(ii) | "Bank Funding Markets" means one or more wholesale funding markets available to the Bank, including the LIBOR, Eurodollar, and SWAP markets as applicable and available, or such other appropriate money market as determined by the Bank in its sole discretion. |
(iii) | "Reinvestment Rate" means the fixed rate per annum, determined solely by the Bank, as the rate at which the Bank would be able to reinvest funds in the amount of the Prepaid Installment in the Bank Funding Markets on the date of prepayment for a period of time approximating the period starting on the date of prepayment and ending on the Scheduled Payment Date. |
(n) | The Original Cost of Funds Rate and the Reinvestment Rate are the Bank's estimates only and the Bank is under no obligation to actually purchase or match funds for any transaction or reinvest any prepayment. The Bank may adjust the Original Cost of Funds Rate and the Reinvestment Rate to reflect the compounding, accrual basis, or other costs of the prepaid amount. The rates shall include adjustments for reserve requirements, federal deposit insurance and any other similar adjustment which the Bank deems appropriate. These rates are not fixed by or related in any way to any rate the Bank quotes or pays for deposits accepted through its branch system. |
(b) | Waiver Fee. If the Bank, at its discretion, agrees to waive or amend any terms of this Agreement, the Borrower will, at the Bank's option, pay the Bank a fee for each waiver or amendment in an amount advised by the Bank at the time the Borrower requests the waiver or amendment. Nothing in this paragraph shall imply that the Bank is obligated to agree to any waiver or amendment requested by the Borrower. The Bank may impose additional requirements as a condition to any waiver or amendment. |
(a) | The Borrower agrees to reimburse the Bank for any reasonable out-of-pocket expenses it incurs in the preparation of this Agreement and any agreement or instrument required by this Agreement. Expenses include, but are not limited to, reasonable out-of-pocket attorneys' fees. |
(b) | Unless specifically stated otherwise in this Agreement, including without limitation Sections 7.16 and 8.4, the Borrower agrees to reimburse the Bank for the cost of periodic field examinations of the Borrower's properties, books and records, at such intervals as the Bank may reasonably require. The actions described in this paragraph may be performed by employees of the Bank or by independent examiners. |
(a) | Each payment by the Borrower will be made in U.S. Dollars and immediately available funds, without setoff or counterclaim. Payments will be made by debit to a deposit account, if direct debit is provided for in this Agreement or is otherwise authorized by the Borrower. For payments not made by direct debit, payments will be made by mail to the address shown on the Borrower's statement, or by such other method as may be permitted by the Bank. |
(b) | For any payment under this Agreement made by debit to a deposit account, the Borrower will maintain sufficient immediately available funds in the deposit account to cover each debit. If there are insufficient immediately available funds in the deposit account on the date the Bank enters any such debit authorized by this Agreement, the Bank may reverse the debit. |
(c) | Each disbursement by the Bank and each payment by the Borrower will be evidenced by records kept by the Bank. In addition, the Bank may, at its discretion, require the Borrower to sign one or more promissory notes. |
(d) | Prior to the date each payment of principal and interest and any fees from the Borrower becomes due (the "Due Date"), the Bank will send to the Borrower a statement of the amounts that will be due on that Due Date (the "Billed Amount"). The calculations in the bill will be made on the assumption that no new extensions of credit or payments will be made between the date of the billing statement and the Due Date, and that there will be no changes in the applicable interest rate. If the Billed Amount differs from the actual amount due on the Due Date (the "Accrued Amount"), the discrepancy will be treated as follows: |
(i) | If the Billed Amount is less than the Accrued Amount, the Billed Amount for the following Due Date will be increased by the amount of the discrepancy. The Borrower will not be in default by reason of any such discrepancy. |
(a) | The Bank may honor instructions for advances or repayments given by the Borrower (if an individual), or by any one of the individuals authorized to sign loan agreements on behalf of the Borrower, or any other individual designated by any one of such authorized signers (each an "Authorized Individual"). Any Authorized Individual may also provide instructions to the Bank for the designation of optional interest rates and/or the issuance of letters of credit, if such features are provided under this Agreement. The Bank may honor any such instructions made by any one of the Authorized Individuals, whether such instructions are given in writing or by telephone, telefax or Internet and intranet websites designated by the Bank with respect to separate products or services offered by the Bank. The Bank's obligation to act on such instructions is subject to the terms, conditions and procedures stated elsewhere in this Agreement. |
(b) | Except as specified elsewhere in this Agreement, in following instructions from an Authorized Individual for advances or repayments, the Bank shall have the right, but not the obligation, to require that any advances be deposited in and repayments be withdrawn from a deposit account owned by the Borrower and held at the Bank. The Bank may require additional written authorization from the Borrower before processing advances or repayments except as provided in this subparagraph. |
(c) | The Borrower will indemnify and hold the Bank harmless from all liability, loss, and costs in connection with any act resulting from instructions the Bank reasonably believes are made by any Authorized Individual, whether such instructions are given in writing or by telephone, telefax or electronic communications (including e-mail, Internet and intranet websites). This paragraph will survive this Agreement's termination, and will benefit the Bank and its officers, employees, and agents. |
(a) | any reserve or deposit requirements (excluding any reserve requirement already reflected in the calculation of the interest rate in this Agreement); and |
(a) | Each Plan (other than a multiemployer plan) is in compliance in all material respects with ERISA, the Code and other federal or state law, including all applicable minimum funding standards and there have been no prohibited transactions with respect to any Plan (other than a multiemployer plan), which has resulted or could reasonably be expected to result in a material adverse effect. |
(c) | The following terms have the meanings indicated for purposes of this Agreement: |
(i) | "Code" means the Internal Revenue Code of 1986, as amended. |
(iii) | "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code. |
(iv) | "Plan" means a plan within the meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, including any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA. |
(a) | To use the proceeds of Facility No. 1 only for working capital and other general corporate purposes and, in compliance with applicable law and this Agreement, for the purchase, redemption or other acquisition of its then-outstanding stock or membership interests. |
(b) | The proceeds of the credit extended under this Agreement may not be used directly or indirectly to purchase or carry any "margin stock" as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or extend credit to or invest in other parties for the purpose of purchasing or carrying any such "margin stock," or to reduce or retire any indebtedness incurred for such purpose. |
(a) | Within 90 days of the fiscal year end, the annual financial statements of the Borrower. These financial statements must be audited (with an opinion satisfactory to the Bank) by a Certified Public Accountant acceptable to the Bank. The statements shall be prepared on a consolidated basis. |
(b) | Within 60 days after each period's end (excluding the last period in each fiscal year), quarterly financial statements of the Borrower, certified and dated by an authorized financial officer. These financial statements may be company-prepared. The statements shall be prepared on a consolidated basis. |
(c) | Promptly, upon sending or receipt, copies of any management letters and correspondence relating to management letters, sent or received by the Borrower to or from the Borrower's auditor. If no management letter is prepared, the Bank may, in its discretion, request a letter from such auditor stating that no deficiencies were noted that would otherwise be addressed in a management letter. |
(d) | Together with each of the annual and quarterly financial statements delivered hereunder, a compliance certificate of the Borrower, signed by an authorized financial officer and setting forth (i) the information and computations (in sufficient detail) to establish compliance with all financial covenants at the end of the period covered by the financial statements then being furnished and (ii) whether there existed as of the date of such financial statements and whether there exists as of the date of the certificate, any default under this Agreement applicable to the party submitting the information and, if any such default exists, specifying the nature thereof and the action the party is taking and proposes to take with respect thereto. |
(e) | Promptly upon the Bank's request, such other books, records, statements, lists of property and accounts, budgets, forecasts or reports as to the Borrower and as to each guarantor of the Borrower's obligations to the Bank as the Bank may request. Documents required to be delivered pursuant to paragraphs (a) and (b) of this Section 7.2 shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC's Electronic Data Gathering and Retrieval System. |
(a) | Any event of default, or any event which, with notice or lapse of time or both, would constitute an event of default, exists under this Agreement; or |
(c) | Workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower in the usual course of business. |
(d) | Liabilities in existence on the date of this Agreement disclosed in the Borrower's most recent financial statement. |
(e) | Additional debts and capital lease obligations for the acquisition of fixed assets, to the extent permitted elsewhere in this Agreement. |
(f) | Indebtedness of any entity that becomes a subsidiary or Borrower or is merged into or consolidated with the Borrower or any subsidiary or any indebtedness assumed in connection with the acquisition of any such assets or secured by a lien on any such assets prior to the acquisition thereof; provided that such indebtedness exists at the time such entity becomes a subsidiary and is not created in contemplation of or in connection with such entity becoming a subsidiary. |
(g) | Intercompany indebtedness and guarantees by the Borrower of indebtedness of its subsidiaries. |
(h) | Extensions, renewals, refinancings and replacements of any of the foregoing indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the extensions, renewals, refinancings and replacements thereof) or result in an earlier maturity date. |
(i) | Indebtedness under interest rate, commodities and foreign currency exchange protection agreements entered into in the ordinary course of business to manage existing or anticipated risks and not for speculative purposes. |
(k) | Additional debts and capital lease obligations which, together with the Facility No. 1 Commitment and the debts permitted under subparagraphs (d), (e), (f), (h) and (j), above, both before and immediately after giving effect thereto, do not result in Borrower's consolidated Funded Debt to EBITDA Ratio to exceed 2.0:1.0. |
(c) | Liens outstanding on the date of this Agreement and disclosed in the Borrower's most recent financial statement, provided that the total principal amount of debts secured by such liens does not exceed Fifty Million Dollars ($50,000,000), and all extensions, renewals, refinancings and replacements of such indebtedness permitted pursuant to Section 7.5(h). |
(d) | Liens and security interests with respect to indebtedness permitted pursuant to Section 7.5(e) and all extensions, renewals, refinancings and replacements of such indebtedness permitted pursuant to Section 7.5(h). |
(e) | Liens on receivables of the Borrower or any direct or indirect subsidiary and the related assets of the type specified in clauses (i) through (iv) in the definition of "Permitted Securitization Program" in connection with any Permitted Securitization Program. |
(a) | Not to sell, assign, lease, transfer or otherwise dispose of any part of the Borrower's business or the Borrower's assets except (i) in the ordinary course of the Borrower's business, (ii) not in the ordinary course of the Borrower's business in an aggregate amount not exceeding Fifty Million Dollars ($50,000,000) in any fiscal year or (iii) in connection with any transaction or series of transactions pursuant to which direct and indirect subsidiaries of Borrower are converted, restructured or reorganized for tax or corporate planning, whether by (1) transfer, (2) acquisition, (3) contribution, (4) merger, (5) consolidation, (6) voluntary dissolution, (7) liquidation, (8) recapitalization, (9) change in identity, form, or place of organization, or (10) otherwise, in each case the result of which may cause a direct or indirect sale, assignment or transfer of equity interests and/or other assets between and among Borrower and/or various subsidiaries of Borrower, provided, both before and immediately after giving effect thereto: |
(i) | No event of default, or any event which, with notice or lapse of time or both, would constitute an event of default, shall exist under this Agreement; or |
(b) | Not to sell, assign, lease, transfer or otherwise dispose of any assets for less than fair market value, as reasonably determined in good faith by the Borrower, or enter into any agreement to do so. |
(c) | To maintain and preserve all rights, privileges, and franchises the Borrower now has, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. |
(d) | To make any repairs, renewals, or replacements to keep the Borrower's properties in good working condition, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. |
(iii) | readily marketable securities (including commercial paper, but excluding restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission). |
(d) | The purchase, redemption or other acquisition of its then-outstanding stock or membership interests to the extent permitted under Section 7.4 hereof. |
(e) | Investments consisting of any acquisition permitted pursuant to Section 7.11(b) hereof. |
(c) | Extensions of credit in the nature of accounts receivable or notes receivable arising from the sale or lease of goods or services in the ordinary course of business to non-affiliated entities. |
(d) | Loans that do not exceed an aggregate amount of Ten Million Dollars ($10,000,000) outstanding at any one time. |
(a) | Enter into any consolidation, merger, or other combination, or become a partner in a partnership, a member of a joint venture, or a member of a limited liability company. |
(b) | Acquire or purchase a business or its assets if, both before and immediately after giving effect thereto, (i) any event of default, or any event which, with notice or lapse of time or both, would constitute an event of default, exists under this Agreement; or (ii) the Borrower's consolidated Funded Debt to EBITDA Ratio exceeds 2.00:1.0. Before making any such acquisition, the Borrower must obtain the prior, effective written consent or approval of the board of directors or equivalent governing body of the business being acquired. |
(c) | Engage in any business activities substantially different from the Borrower's present business and businesses reasonably related to or complementary extensions of such business. |
(a) | Any substantial dispute between any governmental authority and the Borrower, which individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. |
(b) | Any event of default under this Agreement, or any event which, with notice or lapse of time or both, would constitute an event of default. |
(c) | Any material adverse change in the Borrower's business condition (financial or otherwise), operations, properties or prospects, or ability to repay the credit. |
(d) | Any change in the Borrower's name, legal structure, state of registration (for a registered entity), place of business, or chief executive office if the Borrower has more than one place of business. |
(e) | Any event or condition relating to health, safety, the environment, or any hazardous substances with regard to the Borrower's property, activities, or operations which could reasonably be expected to result in liability of the Borrower in excess of Ten Million Dollars ($10,000,000) in the aggregate. |
(a) | General Business Insurance. To maintain insurance as is usual for the business it is in, which may include self-insurance (whether by a captive insurance company or otherwise), as determined by the Borrower exercising reasonable discretion. |
(b) | Evidence of Insurance. Upon the request of the Bank, to deliver to the Bank a copy of each insurance policy, or, if permitted by the Bank, a certificate of insurance listing all insurance in force. |
(b) | Any Plan termination (or commencement of proceedings to terminate a Plan) or the full or partial withdrawal from a Plan under Section 4041 or 4042 of ERISA. |
(a) | This Dispute Resolution Provision concerns the resolution of any controversies or claims between the parties, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (i) this agreement (including any renewals, extensions or modifications); or (ii) any document related to this agreement (collectively a "Claim"). For the purposes of this Dispute Resolution Provision only, the term "parties" shall include any parent corporation, subsidiary or affiliate of the Bank involved in the servicing, management or administration of any obligation described or evidenced by this agreement. |
(b) | At the request of any party to this agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the "Act"). The Act will apply even though this agreement provides that it is governed by the law of a specified state. |
(c) | Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association or any successor thereof ("AAA"), and the terms of this Dispute Resolution Provision. In the event of any inconsistency, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitration. |
(d) | The arbitration shall be administered by AAA and conducted, unless otherwise required by law, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateral, in the state specified in the governing law section of this agreement. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced. |
(e) | The arbitrator(s) will give effect to statutes of limitation in determining any Claim and shall dismiss the arbitration if the Claim is barred under the applicable statutes of limitation. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this agreement. |
(f) | This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. |
(g) | The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration. |
(h) | Any arbitration or court trial (whether before a judge or jury) of any Claim will take place on an individual basis without resort to any form of class or representative action (the "Class Action Waiver"). The Class Action Waiver precludes any party from participating in or being represented in any class or representative action regarding a Claim. Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties' agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The Parties acknowledge and agree that under no circumstances will a class action be arbitrated. |
(a) | In addition to any rights and remedies of the Bank provided by law, upon the occurrence and during the continuance of any event of default under this Agreement, the Bank is authorized, at any time, to set off and apply any and all Deposits of the Borrower held by the Bank or its affiliates against any and all Obligations owing to the Bank. The set-off may be made irrespective of whether or not the Bank shall have made demand under this Agreement, and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable Deposits and without regard for the availability or adequacy of other collateral. Any Deposits may be converted, sold or otherwise liquidated at prevailing market prices in order to effect such set-off. |
(b) | The set-off may be made without prior notice to the Borrower or any other party, any such notice being waived by the Borrower to the fullest extent permitted by law. The Bank agrees promptly to notify the Borrower after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. |
(c) | For the purposes of this paragraph, "Deposits" means any deposits (general or special, time or demand, provisional or final, individual or joint) as well as any money, instruments, securities, credits, claims, demands, income or other property, rights or interests owned by the Borrower which come into the possession or custody or under the control of the Bank or its affiliates. "Obligations" means all obligations, now or hereafter existing, of the Borrower to the Bank under this Agreement and under any other agreement or instrument executed in connection with this Agreement. |
(a) | represent the sum of the understandings and agreements between the Bank and the Borrower concerning this credit; |
(b) | replace any prior oral or written agreements between the Bank and the Borrower concerning this credit; and |
(c) | are intended by the Bank and the Borrower as the final, complete and exclusive statement of the terms agreed to by them. |
(a) | During the availability period described below, the Bank will provide a line of credit to the Borrower (the "Line of Credit"). The amount of the Line of Credit (the "Facility No. 1 Commitment") is Fifty Million Dollars ($50,000,000). |
(b) | This is a revolving line of credit. During the availability period, the Borrower may repay principal amounts and reborrow them. |
(c) | The Borrower agrees not to permit the principal balance outstanding to exceed the Facility No. 1 Commitment. If the Borrower exceeds this limit, the Borrower will immediately pay the excess to the Bank upon the Bank's demand. |
(a) | The Borrower will pay interest on June 30, 2014, and then on the last day of each quarter thereafter until payment in full of any principal outstanding under this facility; provided that with respect to amounts bearing interest at an optional interest rate (as described below), the Borrower will pay interest at the end of each applicable interest period. |
(b) | The Borrower will repay in full any principal, interest or other charges outstanding under this facility no later than the Facility No. 1 Expiration Date. Any interest period for an optional interest rate shall expire no later than the Facility No. 1 Expiration Date. |
(c) | The Borrower may prepay the loan in full or in part at any time. The prepayment will be applied to the outstanding amounts under the loan as directed by the Borrower. |
(a) | The interest rate is a rate per year equal to the Bank's Prime Rate plus zero percentage points. |
(b) | The Prime Rate is the rate of interest publicly announced from time to time by the Bank as its Prime Rate. The Prime Rate is set by the Bank based on various factors, including the Bank's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans. The Bank may price loans to its customers at, above, or below the Prime Rate. Any change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of a change in the Bank's Prime Rate. |
(a) | The LIBOR Rate plus 0.95 percentage points. |
(a) | The interest period during which the LIBOR Rate will be in effect will be one, two, or three months. The first day of the interest period must be a day other than a Saturday or a Sunday on which banks are open for business in New York and London and dealing in offshore dollars (a "LIBOR Banking Day"). The last day of the interest period and the actual number of days during the interest period will be determined by the Bank using the practices of the London inter-bank market. |
(b) | Each LIBOR Rate Portion will be for an amount not less than One Hundred Thousand Dollars ($100,000). |
(c) | A LIBOR Rate may be elected only for the entire principal amount outstanding under the applicable facility. |
(d) | The "LIBOR Rate" means the interest rate determined by the following formula. (All amounts in the calculation will be determined by the Bank as of the first day of the interest period.) |
(i) | "LIBOR" means, for any applicable interest period, the rate per annum equal to the London Interbank Offered Rate (or a comparable or successor rate which is approved by the Bank), as published by Bloomberg (or other commercially available source providing quotations of such rate as selected by the Bank from time to time) at approximately 11:00 a.m. London time two (2) London Banking Days before the commencement of the interest period, for U.S. Dollar deposits (for delivery on the first day of such interest period) with a term equivalent to such interest period. If such rate is not available at such time for any reason, then the rate for that interest period will be determined by such alternate method as reasonably selected by the Bank. A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars. |
(ii) | "Reserve Percentage" means the total of the maximum reserve percentages for determining the reserves to be maintained by member banks of the Federal Reserve System for Eurocurrency Liabilities, as defined in Federal Reserve Board Regulation D, rounded upward to the nearest 1/100 of one percent. The percentage will be expressed as a decimal, and will include, but not be limited to, marginal, emergency, supplemental, special, and other reserve percentages. |
(e) | The Borrower shall irrevocably request a LIBOR Rate Portion no later than 12:00 noon Nevada time on the LIBOR Banking Day preceding the day on which LIBOR will be set, as specified above. For example, if there are no intervening holidays or weekend days in any of the relevant locations, the request must be made at least three days before the LIBOR Rate takes effect. |
(f) | The Bank will have no obligation to accept an election for a LIBOR Rate Portion if any of the following described events has occurred and is continuing: |
(i) | Dollar deposits in the principal amount, and for periods equal to the interest period, of a LIBOR Rate Portion are not available in the London inter-bank market; |
(ii) | the LIBOR Rate does not accurately reflect the cost of a LIBOR Rate Portion; or |
(iii) | adequate and reasonable means do not exist for determining the LIBOR Rate for any requested Interest Period. |
(g) | Each prepayment of a LIBOR Rate Portion, whether voluntary, by reason of acceleration or otherwise, will be accompanied by the amount of accrued interest on the amount prepaid and a prepayment fee as described below. A "prepayment" is a payment of an amount on a date earlier than the scheduled payment date for such amount as required by this Agreement. |
(h) | The prepayment fee is intended to compensate the Bank for the funding costs of the prepaid credit, if any. The prepayment fee will be determined by calculating the funding costs incurred by the Bank, based on the cost of funds at the time the interest rate was fixed, and subtracting the interest income which can be earned by the Bank by reinvesting the prepaid funds at the Reinvestment Rate. The calculation is defined more fully below. |
(i) | The "Fixed Interest Rate Period" is the period during which the interest rate in effect at the time of the prepayment does not change. If the Fixed Interest Rate Period does not extend for the entire remaining life of the credit, then the following rules will apply: |
(i) | For any portion of the prepaid principal for which the scheduled payment date is after the end of the Fixed Interest Rate Period, the prepayment fee for that portion shall be calculated based only on the period through the end of the Fixed Interest Rate Period, as described below. |
(ii) | If a prepayment is made on a date on which the interest rate resets, then there will be no prepayment fee. |
(j) | The prepayment fee calculation is made separately for each Prepaid Installment. A "Prepaid Installment" is the amount of the prepaid principal that would have been due on a particular scheduled payment date (the "Scheduled Payment Date"). However, as explained in the preceding paragraph, all amounts of the credit which would have been paid after the end of the Fixed Interest Rate Period shall be considered a single Prepaid Installment with a Scheduled Payment Date (for the purposes of this calculation) equal to the last day of the Fixed Interest Rate Period. |
(i) | Calculate the monthly interest payments that would have accrued on the Prepaid Installment through the applicable Scheduled Payment Date, if the prepayment had not been made. The interest payments will be calculated using the Original Cost of Funds Rate. |
(ii) | Next, calculate the monthly interest income which could be earned on the Prepaid Installment if it were reinvested by the Bank at the Reinvestment Rate through the Scheduled Payment Date. |
(iii) | Calculate the monthly differences of the amounts calculated in (i) minus the amounts calculated in (ii). |
(iv) | If the remaining term of the Fixed Interest Rate Period is greater than one year, calculate the present value of the amounts calculated in (iii), using the Reinvestment Rate. The result of the present value calculation is the prepayment fee for the Prepaid Installment. |
(l) | Finally, the prepayment fees for all of the Prepaid Installments are added together. The sum, if greater than zero, is the total prepayment fee due to the Bank. |
(i) | "Original Cost of Funds Rate" means the fixed interest rate per annum, determined solely by the Bank, at which the Bank would be able to borrow funds in the Bank Funding Markets for the duration of the Fixed Interest Rate Period in the amount of the prepaid principal and with a term, interest payment frequency, and principal repayment schedule matching the prepaid principal. |
(ii) | "Bank Funding Markets" means one or more wholesale funding markets available to the Bank, including the LIBOR, Eurodollar, and SWAP markets as applicable and available, or such other appropriate money market as determined by the Bank in its sole discretion. |
(iii) | "Reinvestment Rate" means the fixed rate per annum, determined solely by the Bank, as the rate at which the Bank would be able to reinvest funds in the amount of the Prepaid Installment in the Bank Funding Markets on the date of prepayment for a period of time approximating the period starting on the date of prepayment and ending on the Scheduled Payment Date. |
(n) | The Original Cost of Funds Rate and the Reinvestment Rate are the Bank's estimates only and the Bank is under no obligation to actually purchase or match funds for any transaction or reinvest any prepayment. The Bank may adjust the Original Cost of Funds Rate and the Reinvestment Rate to reflect the compounding, accrual basis, or other costs of the prepaid amount. The rates shall include adjustments for reserve requirements, federal deposit insurance and any other similar adjustment which the Bank deems appropriate. These rates are not fixed by or related in any way to any rate the Bank quotes or pays for deposits accepted through its branch system. |
3.1
|
Fees.
|
(b) | Waiver Fee. If the Bank, at its discretion, agrees to waive or amend any terms of this Agreement, the Borrower will, at the Bank's option, pay the Bank a fee for each waiver or amendment in an amount advised by the Bank at the time the Borrower requests the waiver or amendment. Nothing in this paragraph shall imply that the Bank is obligated to agree to any waiver or amendment requested by the Borrower. The Bank may impose additional requirements as a condition to any waiver or amendment. |
(a) | The Borrower agrees to reimburse the Bank for any reasonable out-of-pocket expenses it incurs in the preparation of this Agreement and any agreement or instrument required by this Agreement. Expenses include, but are not limited to, reasonable out-of-pocket attorneys' fees. |
(b) | Unless specifically stated otherwise in this Agreement, including without limitation Sections 7.16 and 8.4, the Borrower agrees to reimburse the Bank for the cost of periodic field examinations of the Borrower's properties, books and records, at such intervals as the Bank may reasonably require. The actions described in this paragraph may be performed by employees of the Bank or by independent examiners. |
4.1
|
Disbursements and Payments.
|
(a) | Each payment by the Borrower will be made in U.S. Dollars and immediately available funds, without setoff or counterclaim. Payments will be made by debit to a deposit account, if direct debit is provided for in this Agreement or is otherwise authorized by the Borrower. For payments not made by direct debit, payments will be made by mail to the address shown on the Borrower's statement, or by such other method as may be permitted by the Bank. |
(b) | For any payment under this Agreement made by debit to a deposit account, the Borrower will maintain sufficient immediately available funds in the deposit account to cover each debit. If there are insufficient immediately available funds in the deposit account on the date the Bank enters any such debit authorized by this Agreement, the Bank may reverse the debit. |
(c) | Each disbursement by the Bank and each payment by the Borrower will be evidenced by records kept by the Bank which will, absent manifest error, be conclusively presumed to be correct and accurate and constitute an account stated between the Borrower and the Bank. In addition, the Bank may, at its discretion, require the Borrower to sign one or more promissory notes. |
(a) | The Bank may honor instructions for advances or repayments given by the Borrower (if an individual), or by any one of the individuals authorized to sign loan agreements on behalf of the Borrower, or any other individual designated by any one of such authorized signers (each an "Authorized Individual"). Any Authorized Individual may also provide instructions to the Bank for the designation of optional interest rates and/or the issuance of letters of credit, if such features are provided under this Agreement. The Bank may honor any such instructions made by any one of the Authorized Individuals, whether such instructions are given in writing or by telephone, telefax or Internet and intranet websites designated by the Bank with respect to separate products or services offered by the Bank. The Bank's obligation to act on such instructions is subject to the terms, conditions and procedures stated elsewhere in this Agreement. |
(b) | Except as specified elsewhere in this Agreement, in following instructions from an Authorized Individual for advances or repayments, the Bank shall have the right, but not the obligation, to require that any advances be deposited in and repayments be withdrawn from a deposit account owned by the Borrower and held at the Bank. The Bank may require additional written authorization from the Borrower before processing advances or repayments except as provided in this subparagraph. |
(c) | The Borrower will indemnify and hold the Bank harmless from all liability, loss, and costs in connection with any act resulting from instructions the Bank reasonably believes are made by any Authorized Individual, whether such instructions are given in writing or by telephone, telefax or electronic communications (including e-mail, Internet and intranet websites). This paragraph will survive this Agreement's termination, and will benefit the Bank and its officers, employees, and agents. |
(a) | any reserve or deposit requirements (excluding any reserve requirement already reflected in the calculation of the interest rate in this Agreement); and |
(b) | any capital requirements relating to the Bank's assets and commitments for credit. |
5.4
|
Good Standing.
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(a) | Each Plan (other than a multiemployer plan) is in compliance in all material respects with ERISA, the Code and other federal or state law, including all applicable minimum funding standards and there have been no prohibited transactions with respect to any Plan (other than a multiemployer plan), which has resulted or could reasonably be expected to result in a material adverse effect. |
(b) | With respect to any Plan subject to Title IV of ERISA: |
(i) | No reportable event has occurred under Section 4043(c) of ERISA which requires notice. |
(ii) | No action by the Borrower or any ERISA Affiliate to terminate or withdraw from any Plan has been taken and no notice of intent to terminate a Plan has been filed under Section 4041 or 4042 of ERISA. |
(c) | The following terms have the meanings indicated for purposes of this Agreement: |
(i) | "Code" means the Internal Revenue Code of 1986, as amended. |
(ii) | "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. |
(iii) | "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code. |
(iv) | "Plan" means a plan within the meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, including any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA. |
(a) | The Borrower represents that neither the Borrower nor any of its affiliated entities, including any of its direct or indirect subsidiaries, nor, to the knowledge of the Borrower, any owner, trustee, director, officer, employee, agent, affiliate or representative of the Borrower or any of its direct or indirect subsidiaries is an individual or entity ("Person") currently the subject of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of Treasury's Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty's Treasury, or other relevant sanctions authority (collectively, "Sanctions"), nor is the Borrower or any of its direct or indirect subsidiaries located, organized or resident in a country or territory that is the subject of Sanctions. |
(b) | The Borrower represents and covenants that it will not, directly or indirectly, use the proceeds of the credit provided under this Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. |
(a) | To use the proceeds of Facility No. 1 only for working capital and other general corporate purposes and, in compliance with applicable law and this Agreement, for the purchase, redemption or other acquisition of its then-outstanding stock or membership interests. |
(b) | The proceeds of the credit extended under this Agreement may not be used directly or indirectly to purchase or carry any "margin stock" as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or extend credit to or invest in other parties for the purpose of purchasing or carrying any such "margin stock," or to reduce or retire any indebtedness incurred for such purpose. |
(a) | Within 90 days of the fiscal year end, the annual financial statements of the Borrower. These financial statements must be audited (with an opinion satisfactory to the Bank) by a Certified Public Accountant acceptable to the Bank. The statements shall be prepared on a consolidated basis. |
(b) | Within 60 days after each period's end (excluding the last period in each fiscal year), quarterly financial statements of the Borrower, certified and dated by an authorized financial officer. These financial statements may be company-prepared. The statements shall be prepared on a consolidated basis. |
(c) | Promptly, upon sending or receipt, copies of any management letters and correspondence relating to management letters, sent or received by the Borrower to or from the Borrower's auditor. If no management letter is prepared, the Bank may, in its discretion, request a letter from such auditor stating that no deficiencies were noted that would otherwise be addressed in a management letter. |
(d) | Together with each of the annual and quarterly financial statements delivered hereunder, a compliance certificate of the Borrower, signed by an authorized financial officer and setting forth (i) the information and computations (in sufficient detail) to establish compliance with all financial covenants at the end of the period covered by the financial statements then being furnished and (ii) whether there existed as of the date of such financial statements and whether there exists as of the date of the certificate, any default under this Agreement applicable to the party submitting the information and, if any such default exists, specifying the nature thereof and the action the party is taking and proposes to take with respect thereto. |
(e) | Promptly upon the Bank's request, such other books, records, statements, lists of property and accounts, budgets, forecasts or reports as to the Borrower and as to each guarantor of the Borrower's obligations to the Bank as the Bank may request. |
(a) | Any event of default, or any event which, with notice or lapse of time or both, would constitute an event of default, exists under this Agreement; or |
(b) | Borrower's consolidated Funded Debt to EBITDA Ratio would exceed 2.00:1.0. |
(a) | Acquiring goods, supplies, or merchandise on normal trade credit. |
(b) | Endorsing negotiable instruments received in the usual course of business. |
(c) | Workers' compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion or other financial guarantees provided by the Borrower in the usual course of business. |
(d) | Liabilities in existence on the date of this Agreement disclosed in the Borrower's most recent financial statement. |
(e) | Additional debts and capital lease obligations for the acquisition of fixed assets, to the extent permitted elsewhere in this Agreement. |
(f) | Indebtedness of any entity that becomes a subsidiary or Borrower or is merged into or consolidated with the Borrower or any subsidiary or any indebtedness assumed in connection with the acquisition of any such assets or secured by a lien on any such assets prior to the acquisition thereof; provided that such indebtedness exists at the time such entity becomes a subsidiary and is not created in contemplation of or in connection with such entity becoming a subsidiary. |
(g) | Intercompany indebtedness and guarantees by the Borrower of indebtedness of its subsidiaries. |
(h) | Extensions, renewals, refinancings and replacements of any of the foregoing indebtedness that do not increase the outstanding principal amount thereof (other than by the amount of any fees or expenses incurred in the extensions, renewals, refinancings and replacements thereof) or result in an earlier maturity date. |
(i) | Indebtedness under interest rate, commodities and foreign currency exchange protection agreements entered into in the ordinary course of business to manage existing or anticipated risks and not for speculative purposes. |
(j) | Securitization Debt in connection with any Permitted Securitization Program. |
(k) | Additional debts and capital lease obligations which, together with the Facility No. 1 Commitment and the debts permitted under subparagraphs (d), (e), (f), (h) and (j), above, both before and immediately after giving effect thereto, do not result in Borrower's consolidated Funded Debt to EBITDA Ratio to exceed 2.00:1.0. |
(a) | Liens and security interests in favor of the Bank or any affiliate of the Bank. |
(b) | Liens for taxes not yet due or contested in good faith by the Borrower. |
(c) | Liens outstanding on the date of this Agreement and disclosed in the Borrower's most recent financial statement, provided that the total principal amount of debts secured by such liens does not exceed Fifty Million Dollars ($50,000,000), and all extensions, renewals, refinancings and replacements of such indebtedness permitted pursuant to Section 7.5(h). |
(d) | Liens and security interests with respect to indebtedness permitted pursuant to Section 7.5(e) and all extensions, renewals, refinancings and replacements of such indebtedness permitted pursuant to Section 7.5(h). |
(e) | Liens on receivables of the Borrower or any direct or indirect subsidiary and the related assets of the type specified in clauses (i) through (iv) in the definition of "Permitted Securitization Program" in connection with any Permitted Securitization Program. |
(a) | Not to sell, assign, lease, transfer or otherwise dispose of any part of the Borrower's business or the Borrower's assets except (i) in the ordinary course of the Borrower's business, (ii) not in the ordinary course of the Borrower's business in an aggregate amount not exceeding Fifty Million Dollars ($50,000,000) in any fiscal year or (iii) in connection with any transaction or series of transactions pursuant to which direct and indirect subsidiaries of Borrower are converted, restructured or reorganized for tax or corporate planning, whether by (1) transfer, (2) acquisition, (3) contribution, (4) merger, (5) consolidation, (6) voluntary dissolution, (7) liquidation, (8) recapitalization, (9) change in identity, form, or place of organization, or (10) otherwise, in each case the result of which may cause a direct or indirect sale, assignment or transfer of equity interests and/or other assets between and among Borrower and/or various subsidiaries of Borrower, provided, both before and immediately after giving effect thereto: |
(i) | No event of default, or any event which, with notice or lapse of time or both, would constitute an event of default, shall exist under this Agreement; or |
(ii) | Borrower's consolidated Funded Debt to EBITDA Ratio shall not exceed 2.00:1.0. |
(b) | Not to sell, assign, lease, transfer or otherwise dispose of any assets for less than fair market value, as reasonably determined in good faith by the Borrower, or enter into any agreement to do so. |
(c) | To maintain and preserve all rights, privileges, and franchises the Borrower now has, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. |
(d) | To make any repairs, renewals, or replacements to keep the Borrower's properties in good working condition, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. |
(a) | Existing investments disclosed to the Bank in writing. |
(b) | Investments in the Borrower's direct and indirect subsidiaries. |
(c) | Investments in any of the following: |
(i) | certificates of deposit; |
(ii) | U.S. treasury bills and other obligations of the federal government; |
(iii) | readily marketable securities (including commercial paper, but excluding restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission). |
(d) | The purchase, redemption or other acquisition of its then-outstanding stock or membership interests to the extent permitted under Section 7.4 hereof. |
(e) | Investments consisting of any acquisition permitted pursuant to Section 7.11(b) hereof. |
(f) | Investments consisting of any loan permitted pursuant to Section 7.9 hereof. |
(g) | Other investments that do not exceed an aggregate amount of Twenty-Five Million Dollars ($25,000,000) outstanding at any one time. |
(a) | Existing extensions of credit disclosed to the Bank in writing. |
(b) | Extensions of credit to the Borrower's current subsidiaries. |
(c) | Extensions of credit in the nature of accounts receivable or notes receivable arising from the sale or lease of goods or services in the ordinary course of business to non-affiliated entities. |
(d) | Loans that do not exceed an aggregate amount of Ten Million Dollars ($10,000,000) outstanding at any one time. |
(a) | Enter into any consolidation, merger, or other combination, or become a partner in a partnership, a member of a joint venture, or a member of a limited liability company. |
(b) | Acquire or purchase a business or its assets if, both before and immediately after giving effect thereto, (i) any event of default, or any event which, with notice or lapse of time or both, would constitute an event of default, exists under this Agreement; or (ii) the Borrower's consolidated Funded Debt to EBITDA Ratio exceeds 2.00:1.0. Before making any such acquisition, the Borrower must obtain the prior, effective written consent or approval of the board of directors or equivalent governing body of the business being acquired. |
(c) | Engage in any business activities substantially different from the Borrower's present business and businesses reasonably related to or complementary extensions of such business. |
(d) | Liquidate or dissolve the Borrower's business. |
(a) | Any substantial dispute between any governmental authority and the Borrower, which individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. |
(b) | Any event of default under this Agreement, or any event which, with notice or lapse of time or both, would constitute an event of default. |
(c) | Any material adverse change in the Borrower's business condition (financial or otherwise), operations, properties or prospects, or ability to repay the credit. |
(d) | Any change in the Borrower's name, legal structure, state of registration (for a registered entity), place of business, or chief executive office if the Borrower has more than one place of business. |
(e) | Any event or condition relating to health, safety, the environment, or any hazardous substances with regard to the Borrower's property, activities, or operations which could reasonably be expected to result in liability of the Borrower in excess of Ten Million Dollars ($10,000,000) in the aggregate. |
(a) | General Business Insurance. To maintain insurance as is usual for the business it is in, which may include self-insurance (whether by a captive insurance company or otherwise), as determined by the Borrower exercising reasonable discretion. |
(b) | Evidence of Insurance. Upon the request of the Bank, to deliver to the Bank a copy of each insurance policy, or, if permitted by the Bank, a certificate of insurance listing all insurance in force. |
(a) | A reportable event shall occur under Section 4043(c) of ERISA. |
(b) | Any Plan termination (or commencement of proceedings to terminate a Plan) or the full or partial withdrawal from a Plan under Section 4041 or 4042 of ERISA. |
10.6
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Severability; Waivers.
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10.9
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One Agreement.
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(a) | represent the sum of the understandings and agreements between the Bank and the Borrower concerning this credit; |
(b) | replace any prior oral or written agreements between the Bank and the Borrower concerning this credit; and |
(c) | are intended by the Bank and the Borrower as the final, complete and exclusive statement of the terms agreed to by them. |
10.11
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Notices.
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Applicable Margin for Eurodollar Loans and Yen LIBOR Loans
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0.7500%
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Applicable Margin for Floating Rate Loans
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0.000%
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Fee for Standby Letters of Credit
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1.000%
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Commitment Fee Rate
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0.250%
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By: | Prudential Investment Management, Inc., as investment manager |
By: | Prudential Investment Management, Inc., as sub-adviser |
By: | Prudential Investment Management, Inc., as investment manager |
By: | Prudential Private Placement Investors, L.P., as investment advisor |
By: | Prudential Private Placement Investors, Inc., as its general partner |
By: | Prudential Investment Management (Japan), as investment manager |
By: | Prudential Investment Management, Inc., as sub-adviser |
Date: August 12, 2014
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/s/ Ritch N. Wood
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Ritch N. Wood
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Chief Financial Officer
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(Principal Financial Officer)
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