EXHIBIT 10.10
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JANUARY 31, 2002
AMONG
NEWPARK RESOURCES, INC
THE GUARANTORS,
THE LENDERS,
AND
BANK ONE, NA
AS ADMINISTRATIVE AGENT AND LC ISSUER
----------
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER
----------
CREDIT LYONNAIS NEW YORK BRANCH,
AS SYNDICATION AGENT
ARTICLE I. DEFINITIONS..........................................................................................1
ARTICLE II. THE CREDITS........................................................................................17
2.1. Commitments....................................................................................17
2.1.1 Tranche A Commitments.................................................................17
2.1.2 Tranche B Commitment..................................................................17
2.1.3 General Provisions....................................................................17
2.2. Termination....................................................................................17
2.3. Ratable Loans..................................................................................18
2.3.1 Tranche A Loans.......................................................................18
2.3.2 Tranche B Loans.......................................................................18
2.4. Types of Advances..............................................................................18
2.5. Commitment Fee; Reductions in Aggregate Commitment Increase in Aggregate
Commitment.....................................................................................18
2.5.1. Commitment Fee........................................................................18
2.5.2. Reductions in and Termination of Aggregate Commitment.................................18
2.5.3. Increase in Aggregate Commitment......................................................18
2.6. Minimum Amount of Each Advance.................................................................19
2.7. Optional and Mandatory Principal Payments......................................................19
2.7.1. Tranche A.............................................................................19
2.7.2. Tranche B.............................................................................19
2.7.3 General Provisions....................................................................20
2.8. Method of Selecting Types and Interest Periods for New Advances................................20
2.8.1 New Advances..........................................................................20
2.8.1 Method of Borrowing...................................................................20
2.9. Conversion and Continuation of Outstanding Advances............................................20
2.9.1. Tranche A Advances....................................................................20
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2.9.2. Tranche B Advances....................................................................21
2.10. Changes in Interest Rate, etc..................................................................21
2.11. Rates Applicable After Default.................................................................22
2.12. Method of Payment..............................................................................22
2.13. Noteless Agreement; Evidence of Indebtedness...................................................23
2.14. Telephonic Notices.............................................................................24
2.15. Interest Payment Dates; Interest and Fee Basis.................................................24
2.16. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................24
2.17. Lending Installations..........................................................................25
2.18. Non-Receipt of Funds by the Administrative Agent...............................................25
2.19. Market Disruption..............................................................................25
2.20. Judgment Currency..............................................................................26
2.21. Facility LCs...................................................................................26
2.21.1. Issuance..............................................................................26
2.21.2. Participations........................................................................26
2.21.3. Notice................................................................................27
2.21.4. Fees..................................................................................27
2.21.5. Administration........................................................................27
2.21.6. Reimbursement.........................................................................28
2.21.7. Obligations Absolute..................................................................28
2.21.8. Actions of LC Issuer..................................................................29
2.21.9. Indemnification.......................................................................29
2.21.10. Lenders' Indemnification.............................................................30
2.21.11. Facility LC Collateral Account.......................................................30
2.21.12. Rights as a Lender...................................................................31
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2.22. Replacement of Lender..........................................................................31
2.23. Limitation on Number of Loans..................................................................31
ARTICLE III. YIELD PROTECTION; TAXES...........................................................................31
3.1. Yield Protection...............................................................................31
3.2. Changes in Capital Adequacy Regulations........................................................32
3.3. Availability of Types of Advances..............................................................33
3.4. Funding Indemnification........................................................................33
3.5. Taxes..........................................................................................33
3.6. Lender Statements; Survival of Indemnity.......................................................35
ARTICLE IV. CONDITIONS PRECEDENT...............................................................................36
4.1. Initial Credit Extension.......................................................................36
4.2. Each Credit Extension..........................................................................37
4.3. Closing Date...................................................................................37
ARTICLE V. REPRESENTATIONS AND WARRANTIES......................................................................38
5.1. Existence and Standing.........................................................................38
5.2. Authorization and Validity.....................................................................38
5.3. No Conflict; Government Consent................................................................38
5.4. Financial Statements...........................................................................38
5.5. Material Adverse Change........................................................................39
5.6. Taxes..........................................................................................39
5.7. Litigation and Contingent Obligations..........................................................39
5.8. Subsidiaries...................................................................................39
5.9. ERISA..........................................................................................39
5.10. Accuracy of Information........................................................................40
5.11. Regulation U...................................................................................40
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5.12. Material Agreements............................................................................40
5.13. Compliance With Laws...........................................................................40
5.14. Ownership of Properties........................................................................40
5.15. Plan Assets; Prohibited Transactions...........................................................40
5.16. Environmental Matters..........................................................................40
5.17. Investment Company Act.........................................................................41
5.18. Public Utility Holding Company Act.............................................................41
5.19. Subordinated Indebtedness......................................................................41
5.20. Post-Retirement Benefits.......................................................................41
5.21. Insurance......................................................................................41
5.22. Solvency.......................................................................................41
5.23. Take-or-Pay....................................................................................42
ARTICLE VI. COVENANTS..........................................................................................42
6.1. Financial Reporting............................................................................42
6.2. Use of Proceeds................................................................................43
6.3. Notice of Default..............................................................................43
6.4. Conduct of Business............................................................................43
6.5. Taxes..........................................................................................44
6.6. Insurance......................................................................................44
6.7. Compliance with Laws...........................................................................44
6.8. Maintenance of Properties......................................................................44
6.9. Inspection.....................................................................................44
6.10. Dividends......................................................................................44
6.11. Indebtedness...................................................................................45
6.12. Merger.........................................................................................45
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6.13. Sale of Assets.................................................................................45
6.13.1. Limitations on Sales..................................................................45
6.13.2. Prepayment of Loans...................................................................46
6.14. Investments and Acquisitions...................................................................46
6.15. Liens..........................................................................................47
6.16. Affiliates.....................................................................................48
6.17. Amendments to Agreements.......................................................................48
6.18. Subordinated Indebtedness......................................................................48
6.19. Sale of Accounts...............................................................................48
6.20. Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities........................48
6.21. Contingent Obligations.........................................................................49
6.22. Letters of Credit..............................................................................49
6.23. Negative Pledge................................................................................49
6.24. Financial Covenants............................................................................49
6.24.1. Fixed Charge Coverage Ratio...........................................................49
6.24.2. Leverage Ratio........................................................................49
6.24.3. Senior Indebtedness Leverage Ratio....................................................50
6.24.4. Minimum Net Worth.....................................................................50
6.25. Material Domestic Subsidiary...................................................................50
6.26. Equity Proceeds................................................................................50
6.27. Environmental Matters..........................................................................51
6.27.1. Environmental Compliance..............................................................51
6.27.2. Environmental Notifications...........................................................51
6.27.3. Environmental Indemnifications........................................................52
6.28. Collateral; Guaranty...........................................................................52
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6.29. Permitted Acquisitions.........................................................................53
6.30. Permitted Financial Contracts..................................................................53
6.31. Material Foreign Subsidiary....................................................................53
6.32. SOLOCO Agreements..............................................................................53
ARTICLE VII. DEFAULTS..........................................................................................54
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................................................56
8.1. Acceleration; Facility LC Collateral Account...................................................56
8.2. Amendments.....................................................................................58
8.3. Preservation of Rights.........................................................................58
ARTICLE IX. GENERAL PROVISIONS..................................................................................59
9.1. Survival of Representations....................................................................59
9.2. Governmental Regulation........................................................................59
9.3. Headings.......................................................................................59
9.4. Entire Agreement...............................................................................59
9.5. Several Obligations; Benefits of this Agreement................................................59
9.6. Expenses; Indemnification......................................................................59
9.7. Numbers of Documents...........................................................................60
9.8. Accounting.....................................................................................60
9.9. Severability of Provisions.....................................................................60
9.10. No Liability of Lenders........................................................................60
9.11. Confidentiality................................................................................61
9.12. Nonreliance....................................................................................61
9.13. Disclosure.....................................................................................61
ARTICLE X. THE AGENT............................................................................................61
10.1. Appointment; Nature of Relationship............................................................61
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10.2. Powers.........................................................................................62
10.3. General Immunity...............................................................................62
10.4. No Responsibility for Loans, Recitals, etc.....................................................62
10.5. Action on Instructions of Lenders..............................................................63
10.6. Employment of Agents and Counsel...............................................................63
10.7. Reliance on Documents; Counsel.................................................................63
10.8. Administrative Agent's Reimbursement and Indemnification.......................................63
10.9. Notice of Default..............................................................................64
10.10. Rights as a Lender.............................................................................64
10.11. Lender Credit Decision.........................................................................64
10.12. Successor Administrative Agent.................................................................64
10.13. Administrative Agent and Arranger Fees.........................................................65
10.14. Delegation to Affiliates.......................................................................65
10.15. Execution of Collateral Documents..............................................................65
10.16. Collateral Releases and Subordinations.........................................................66
10.17. Co-Agents, Documentation Agent, Syndication Agent, etc.........................................66
ARTICLE XI. SETOFF; RATABLE PAYMENTS............................................................................66
11.1. Setoff.........................................................................................66
11.2. Ratable Payments Tranche A.....................................................................66
11.3. Ratable Payments...............................................................................67
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................................................67
12.1. Successors and Assigns.........................................................................67
12.2. Participations.................................................................................68
12.2.1. Permitted Participants; Effect........................................................68
12.2.2. Voting Rights.........................................................................68
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12.2.3. Benefit of Setoff.....................................................................68
12.3. Assignments....................................................................................68
12.3.1. Permitted Assignments.................................................................68
12.3.2. Effect; Effective Date................................................................69
12.4. Dissemination of Information...................................................................69
12.5. Tax Treatment..................................................................................69
ARTICLE XIII. NOTICES..........................................................................................70
13.1. Notices........................................................................................70
13.2. Change of Address..............................................................................70
ARTICLE XIV. COUNTERPARTS.......................................................................................70
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.......................................70
15.1. CHOICE OF LAW..................................................................................70
15.2. CONSENT TO JURISDICTION........................................................................71
15.3. WAIVER OF JURY TRIAL...........................................................................71
PRICING SCHEDULE.................................................................................................80
EXHIBIT A. FORM OF OPINION..................................................................................81
EXHIBIT B. FORM OF COMPLIANCE CERTIFICATE...................................................................82
EXHIBIT C. ASSIGNMENT AGREEMENT.............................................................................83
EXHIBIT D. LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION; BORROWING NOTICE;
CONVERSION/CONTINUATION NOTICE.............................................................91
EXHIBIT E-1. TRANCHE A NOTE...................................................................................94
EXHIBIT E-2. TRANCHE B NOTE...................................................................................96
SCHEDULE 1. SUBSIDIARIES AND OTHER INVESTMENTS...............................................................98
SCHEDULE 2. INDEBTEDNESS AND LIENS...........................................................................99
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SCHEDULE 3. CONTINGENT OBLIGATIONS............................................................................100
SCHEDULE 4. LITIGATION........................................................................................101
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AMENDED AND RESTATED
CREDIT AGREEMENT
This Amended and Restated
Credit Agreement, dated as of January 31,
2002, is among Newpark Resources, Inc., a Delaware corporation, the Lenders,
Bank One, NA, a national banking association with its main office in Chicago,
Illinois, individually as a Lender, as Administrative Agent, and as LC Issuer,
and the undersigned Guarantors.
WHEREAS, Newpark Resources, Inc., certain lenders, certain guarantors,
and Bank One, N.A., as agent are parties to a certain Amended Restated
Credit
Agreement dated as of January 31, 2001, as amended "Original
Credit Agreement");
and
WHEREAS, the parties to the Original
Credit Agreement wish to modify,
extend, and renew the loans made pursuant to the Original
Credit Agreement,
admit additional banks as Lenders, and make other changes and amendments;
NOW, THEREFORE, the parties hereto do hereby amend and completely
restate the Original
Credit Agreement, effective as of the Closing Date as
defined below, on the terms and conditions hereof and do hereby agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires the securities of a
corporation or ownership interests of a partnership or limited liability
company.
"Administrative Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article X.
"Advance" means any Tranche A Advance or Tranche B Advance (unless
otherwise expressly provided).
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 30% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the Aggregate Tranche A Commitment and the
Tranche B Commitment of all the Lenders, as reduced from time to time pursuant
to the terms hereof.
"Aggregate Tranche A Commitment" means U.S. $94,500,000.00.
"Aggregate Outstanding Credit Exposure" means, at any time, the
Aggregate Outstanding Tranche A Credit Exposure plus the Spot Dollar Amount, at
such time, of the aggregate outstanding principal amount of all Tranche B Loans.
"Aggregate Outstanding Tranche A Credit Exposure" means, at anytime,
the aggregate of the Outstanding Tranche A Credit Exposure of all Tranche A
Lenders.
"Agreement" means this amended and restated
credit agreement, as it may
be amended, modified, renewed, extended, or restated and in effect from time to
time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the US Prime Rate for such day and (ii) the sum of
the Federal Funds Effective Rate most recently determined by the Administrative
Agent for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the Chairman, President, Chief
Executive Officer, Chief Financial Officer, or Treasurer of the Borrower, acting
singly.
"Available Aggregate Tranche A Commitment" means, at any time, the
Aggregate Tranche A Commitments then in effect minus the Aggregate Outstanding
Tranche A Credit Exposure at such time.
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"Bank One" means Bank One, NA, a national banking association with its
main office at Chicago,
Illinois, in its individual capacity, and its
successors.
"Borrower" means Newpark Resources, Inc., a Delaware corporation, and
its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances or Euro-Canadian Advances, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago and New York
for the conduct of substantially all of their commercial lending activities,
interbank wire transfers can be made on the Fedwire system and dealings in
United States Dollars are carried on in the London interbank market and (ii) for
all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities and interbank wire transfers can be made on the
Fedwire system.
"Canadian Dollars" or "C$" means lawful money of Canada.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles less
any expenditure for a Permitted Acquisition.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc. or P-1 or better by Xxxxx'x Investors Service, Inc. (or each of their
respective successors), (iii) demand deposit accounts maintained in the ordinary
course of business, and (iv) certificates of deposit issued by and time deposits
with commercial banks (whether domestic or foreign) having capital and surplus
in excess of $100,000,000; provided in each case that the same provides for
payment of both principal and interest (and not principal alone or interest
alone) and is not subject to any contingency regarding the payment of principal
or interest.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and
3
Exchange Commission under the Securities Exchange Act of 1934) of 30% or more of
the outstanding shares of voting stock of the Borrower
"Closing Date" means the date, as determined by Administrative Agent,
on which all conditions precedent set forth in Sections 4.1 and 4.2 have been
satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all present and future accounts, equipment,
inventory, and general intangibles of Borrower and each Guarantor and all of
Borrower's present and future stock and other equity interests in each
Guarantor.
"Collateral Documents" means, collectively, security agreements,
pledges, and financing statements executed by Borrower and each Guarantor in
form and substance satisfactory to Administrative Agent, as they may be amended,
modified, renewed, extended, or restated and in effect from time to time,
complying with the provisions of Section 6.28.
"Commitment Fee" is defined in Section 2.5.1.
"Computation Date" is defined in Section 2.2.
"Computation Date Dollar Amount" means (i) with respect to each Tranche
B Loan denominated in Canadian Dollars, the equivalent in U.S. Dollars of the
Canadian Dollar amount of such Tranche B Loan calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for Canadian Dollars on the London market at 11:00 a.m.,
London time, on or as of the later of three Business Days prior to the Borrowing
Date of such Tranche B Loan or, if applicable, three Business Days prior to the
date on which such Tranche B Loan was most recently continued pursuant to
Section 2.9.2, and (ii) with respect to each Tranche B Loan denominated in U.S.
Dollars, the amount of such Tranche B Loan.
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Borrower and its Subsidiaries calculated
on a consolidated basis for such period.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) interest
expense, (ii) expense for taxes paid or accrued, (iii) depreciation, (iv)
amortization (v) extraordinary losses incurred other than in the ordinary course
of business, (vi) expense for payments under Synthetic Leases, and (vii) any
Unrealized Losses arising from Financial Contracts minus to the extent included
in Consolidated Net Income, (x) extraordinary gains realized other than in the
ordinary course of business, and (y) Unrealized Profits arising from Financial
Contracts, all calculated for the Borrower and its Subsidiaries on a
consolidated basis.
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"Consolidated Funded Indebtedness" means at any time the aggregate
dollar amount of Consolidated Indebtedness which has actually been funded and is
outstanding at such time, whether or not such amount is due or payable at such
time.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest Expense" means, with reference to any period,
the sum, for the Borrower and its Subsidiaries determined on a consolidated
basis without duplication in accordance with Agreement Accounting Principles),
of the following: (a) all interest in respect of Indebtedness (including the
interest component of any payments in respect of Capital Lease Obligations)
accrued or capitalized during such period (whether or not actually paid during
such period) plus (b) the net amount payable (or minus the net amount
receivable) under all Interest Rate Protection Agreements during such period
(whether or not actually paid or received during such period).
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries plus any Unrealized
Losses arising from Financial Contracts minus any Unrealized Profits arising
from Financial Contracts calculated on a consolidated basis as of such time.
"Consolidated Tangible Net Worth" means Consolidated Net Worth less all
unamortized debt discount and expense, unamortized deferred charges (excluding
deferred tax assets), goodwill, patents, trademarks, service marks, trade names,
copyrights and organization expense.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement, including, without limitation, any comfort letter, operating
agreement, or take-or-pay contract, by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes or is contingently liable upon, the obligation or liability
of any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, or the obligations of any such Person as
general partner or joint venturer of a partnership or joint venture with respect
to liabilities of the partnership or joint venture that meet the definition of
"Indebtedness" less any obligation to purchase or pay (or take or pay) for
supplies, materials, or other property, entered into in the ordinary course of
business for quantities not in excess of those that are expected to be used in
the current period.
"Conversion/Continuation Notice" is defined in Section 2.9.1.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
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"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Dollars" or "U.S. Dollars" or "U.S.$" means lawful money of the United
States.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro-Canadian Advance" means a Tranche B Advance which, except as
otherwise provided in Section 2.11, bears interest at the applicable
Euro-Canadian Rate.
"Euro-Canadian Base Rate" means, with respect to a Euro-Canadian
Advance for the relevant Interest Period, the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. Dollars appearing on
Reuters Screen LIBOR01 as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen LIBOR01 is not available
to the Administrative Agent for any reason, the applicable Euro-Canadian Base
Rate for the relevant Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S. Dollars as
reported by any other generally recognized financial information service as of
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, and (ii)
if no such British Bankers' Association Interest Settlement Rate is available to
the Administrative Agent for any reason, the applicable Euro-Canadian Base Rate
for the relevant Interest Period shall instead be the rate determined by the
Administrative Agent to be the rate at which Bank One or one of its Affiliate
banks offers to place deposits in U.S. Dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, in the approximate amount
of the relevant Euro-Canadian Loan and having a maturity equal to such Interest
Period.
"Euro-Canadian Loan" means a Tranche B Loan which, except as otherwise
provided in Section 2.11, bears interest at the applicable Euro-Canadian Rate.
6
"Euro-Canadian Rate" means, with respect to a Euro-Canadian Advance for
the relevant Interest Period, the sum of the Euro-Canadian Base Rate plus the
Applicable Margin.
"Eurodollar Advance" means a Tranche A Advance which, except as
otherwise provided in Section 2.11, bears interest at the applicable Eurodollar
Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. Dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, (i) if Reuters Screen FRBD is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. Dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent for any reason, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which Bank One or one of its Affiliate banks offers to place
deposits in U.S. Dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of the relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Tranche A Loan which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Preferred Stock" means the Borrower's 120,000 shares of
Series C Convertible Preferred Stock issued December 28, 2000, 120,000 shares of
Series B Convertible Preferred
7
Stock issued June 1, 2000 and 150,000 shares of Series A Cumulative Perpetual
Preferred Stock issued April 16, 1999.
"Facility LC" is defined in Section 2.21.1.
"Facility LC Application" is defined in Section 2.21.3.
"Facility LC Collateral Account" is defined in Section 2.21.11.
"Facility Termination Date" means the third anniversary of the Closing
Date or any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (ii) any Rate Management Transaction.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means a Tranche A Advance which, except as
otherwise provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Tranche A Loan which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Guarantor" means all Material Domestic Subsidiaries of Borrower from
time to time.
"Guaranty" means that certain amended and restated guaranty dated as of
even date herewith, executed by the Guarantor in favor of the Administrative
Agent, for the ratable benefit of the Lenders, as it may be amended, modified,
renewed, extended, or restated and in effect from time to time, including, but
not limited to, amendments to add additional Subsidiaries as a Guarantor.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts
8
payable arising in the ordinary course of such Person's business payable on
terms customary in the trade), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, acceptances, or other instruments, (v) obligations of such
Person to purchase accounts, notes receivable, securities, or other Property
arising out of or in connection with the sale by Person or any of its
Subsidiaries of the same or substantially similar accounts, notes receivable,
securities, or Property, (vi) Capitalized Lease Obligations, (vii) Contingent
Obligations, (viii) reimbursement obligations in respect of Letters of Credit,
(ix) any Synthetic Lease Obligations under Synthetic Leases, and (x) any other
obligation for borrowed money or other financial accommodation for borrowed
money which in accordance with Agreement Accounting Principles would be shown as
a liability on the consolidated balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar Advance or a
Euro-Canadian Advance, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such Interest
Period shall end on the day which corresponds numerically to such date one, two,
three or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day. No Interest Period may end after the
Facility Termination Date.
"Interest Rate Protection Agreement" means, for any Person, an interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more financial institutions providing for the transfer or mitigation
of interest risks either generally or under specific contingencies.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"LC Fee" is defined in Section 2.21.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
9
"LC Payment Date" is defined in Section 2.21.5.
"Lenders" means the Tranche A Lenders and the Tranche B Lender (unless
otherwise expressly provided).
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent listed on the signature pages hereof or on a
Schedule or otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio
calculated pursuant to Section 6.24.2 hereof.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, or other security
agreement, or any preference, priority or preferential arrangement of any kind
or nature whatsoever intended to create a security interest, including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement.
"Loan" means, with respect to a Lender, such Lender's Loans made
pursuant to Article II (or any conversion or continuation thereof), including,
in the case of the Tranche B Lender, a Tranche B Loan, and "Loans" means all
such Loans.
"Loan Documents" means this Agreement, the Facility LC Applications,
any Notes issued pursuant to Section 2.13, the Collateral Documents, and the
Guaranty.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower or the Guarantor to perform its obligations under the
Loan Documents to which it is a party, or (iii) the validity or enforceability
of any of the Loan Documents or the rights or remedies of the Administrative
Agent, the LC Issuer, or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Material Domestic Subsidiary" means any Subsidiary of the Borrower
that is incorporated under the laws of any state of the United States that, as
of the relevant date of determination, would be a "significant subsidiary" as
defined in Rule 1.02 (w) of Regulation S-X under the Securities Act as in effect
on the Closing Date, assuming the Borrower is the "registrant" referred to in
such definition.
10
"Material Foreign Subsidiary" means any Subsidiary of the Borrower that
is incorporated under the laws of any country other than the United States that,
as of the relevant date of determination, would be a "significant subsidiary" as
defined in Rule 1.02 (w) of Regulation S-X under the Securities Act as in effect
on the Closing Date, assuming the Borrower is the "registrant" referred to in
such definition.
"Modify" and "Modification" are defined in Section 2.21.1.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all Unrealized Losses over all Unrealized
Profits of such Person arising from Financial Contracts. "Unrealized Losses"
means the fair market value of the cost to such Person of replacing such
Financial Contract as of the date of determination (assuming the Financial
Contract were to be terminated as of that date), and "Unrealized Profits" means
the fair market value of the gain to such Person of replacing such Financial
Contract as of the date of determination (assuming such Financial Contracts were
to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Notes" are defined in Section 2.13.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
Commitment Fees, LC Fee, and other fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or to any
Lender, the LC Issuer, the Administrative Agent, or any indemnified party
arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
Synthetic Lease, or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheets of
such Person, but excluding from this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Tranche A Credit Exposure" means, as to any Tranche A
Lender at any time, the sum of (i) the aggregate principal amount of its Tranche
A Loans outstanding at such
11
time, plus (ii) an amount equal to its Pro Rata Tranche A Share of the LC
Obligations at such time.
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of its Outstanding Tranche A Credit Exposure and the Spot Dollar Amount at
such time of the aggregate outstanding principal amount of its Tranche B Loans.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each March, June,
September, and December, commencing on March 31, 2002 through the Facility
Termination Date, and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisitions" means Acquisitions meeting the tests of
Section 6.29.
"Permitted Financial Contract" means a Financial Contract meeting the
tests of Section 6.30.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Tranche A Commitment and
Tranche B Commitment and the denominator of which is the Aggregate Commitment.
"Pro Rata Tranche A Share" means, with respect to a Tranche A Lender, a
portion equal to a fraction, the numerator of which is such Lender's Tranche A
Commitment and the denominator of which is the Aggregate Tranche A Commitment.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
the Borrower and any Lender or Affiliate thereof which is a rate swap, basis
swap, forward rate transaction, commodity swap,
12
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) without duplication of (i), any and all
cancellations, buy backs, reversals, terminations or assignments of any Rate
Management Transactions.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.21 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs; provided, however, that any Reimbursement
Obligation that is satisfied by a draw upon the Tranche A Commitments shall not
be accounted for as a double obligation.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the Aggregate
Outstanding Credit Exposure.
13
"Required Tranche A Lenders" means Tranche A Lenders in the aggregate
having at least 66-2/3% of the Aggregate Tranche A Commitment or, if the
Aggregate Tranche A Commitment has been terminated, Tranche A Lenders in the
aggregate holding at least 66-2/3% of the Aggregate Outstanding Tranche A Credit
Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Management Obligations now or hereafter owing to any Lender or
Affiliate thereof.
"Senior Indebtedness Leverage Ratio" means, as of any date of
calculation, the ratio calculated pursuant to Section 6.24.3 hereof.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SOLOCO Agreements" means, collectively that certain Agreement
effective as of January 1, 1997 by and between OLS Consulting Services, Inc. and
Loma Company, L.L.C., that certain Exclusive License Agreement effective as of
July 1, 1995 between OLS Consulting, Services Inc. and SOLOCO, Inc., as amended,
that certain Operating Agreement of Loma Company, L.L.C. executed between
Newpark Holdings, Inc. and OLS Consulting Services, Inc., dated December 11,
1996, as amended, and that certain Exclusive License Agreement dated as of June
20, 1994 between Quality Mat Company, Inc. and SOLOCO, Inc.
"Spot Dollar Amount" means (i) with respect to each Tranche B Loan
denominated in Canadian Dollars, as of any date of determination, the equivalent
in U.S. Dollars of the Canadian Dollar amount of such Tranche B Loan calculated
on the basis of the rate of exchange at which, in accordance with normal banking
procedures, the Tranche B Lender could purchase Canadian Dollars with U.S.
Dollars at the Tranche B Lender's main office on such date, and (ii) with
respect to each Tranche B Loan denominated in U.S. Dollars, the amount of such
Tranche B Loan.
"Subordinated Debentures" means the $125,000,000 Senior Subordinated
Securities of the Borrower issued pursuant to the Indenture among the Borrower,
certain guarantors, and State Street Bank and Trust Company, as Trustee, dated
December 17, 1997.
14
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders, including the Subordinated
Debentures.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Synthetic Lease" shall mean any transaction giving rise to Synthetic
Lease Obligations.
"Synthetic Lease Obligations" shall mean the obligations of any Person
under a lease arrangement treated as an operating lease for financial accounting
purposes and a financing lease for tax purposes.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Tranche A Advance" means a Tranche A borrowing hereunder, funded in
United States Dollars, bearing interest at the applicable Eurodollar Rate or
Floating Rate (i) made by some or all of the Tranche A Lenders on the same
Borrowing Date, or (ii) converted or continued by some or all of the Tranche A
Lenders on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Tranche A Loans of the same Type
and, in the case of Eurodollar Loans, for the same Interest Period.
"Tranche A Commitment" means a commitment of the Tranche A Lenders to
make an aggregate $94,500,000.00 United States Dollar Loans. The "Tranche A
Commitment" of each Lender means the obligation of such Lender to make Tranche A
Loans to, and participate in Facility LCs issued upon the application of, the
Borrower in an aggregate amount not exceeding the amount set forth opposite its
signature below, as it may be modified as a result of any assignment that has
become effective pursuant to Section 12.3.2 or as otherwise modified from time
to time pursuant to the terms hereof.
15
"Tranche A Lenders" means lending institutions listed on the signature
pages of this Agreement as having a Tranche A Commitment, and their respective
successors and assigns.
"Tranche A Loans" means a loan which is funded in United States Dollars
which bears interest at the applicable Eurodollar Rate or the Floating Rate.
"Tranche A Note" is defined in Section 2.13.
"Tranche B Advance" means a Tranche B borrowing hereunder funded in
Canadian Dollars which, except as provided in Section 2.11, bears interest at
the applicable Euro-Canadian Rate, (i) made by the Tranche B Lender on the same
Borrowing Date, or (ii) converted or continued by the Tranche B Lender on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Euro-Canadian Loans, for the same Interest Period.
"Tranche B Commitment" means a commitment of the Tranche B Lender to
make Canadian Dollar Loans in an amount such that the Computation Date Dollar
Amount of such Loans does not exceed U.S. $5,500,000.00.
"Tranche B Lender" means Royal Bank of Canada, or such other Lender
which may succeed to its rights and obligations as Tranche B Lender pursuant to
the terms of this Agreement.
"Tranche B Loans" means a loan which is funded in Canadian Dollars and
which, except as otherwise provided in Section 2.11, bears interest at the
Euro-Canadian Rate.
"Tranche B Note" is defined in Section 2.13.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Tranche A Advance, its nature as a
Floating Rate Advance or a Eurodollar Advance and with respect to any Tranche B
Advance, its nature as a Euro-Canadian Advance in Canadian Dollars (subject to
Section 2.11).
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"US Prime Rate" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
16
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitments.
2.1.1 Tranche A Commitments. From and including the Closing
Date and prior to the Facility Termination Date, each Tranche A Lender
severally agrees, on the terms and conditions set forth in this
Agreement, to (i) make Tranche A Loans to the Borrower and (ii)
participate in Facility LCs issued upon the request of the Borrower,
provided that, after giving effect to the making of each such Tranche A
Loan and the issuance of each such Facility LC, such Tranche A Lender's
Outstanding Tranche A Credit Exposure shall not exceed its Tranche A
Commitment.
2.1.2 Tranche B Commitment. From and including the Closing
Date and prior to the Facility Termination Date, Tranche B Lender
agrees, on the terms and conditions set forth in this Agreement, to
make Tranche B Loans to the Borrower, provided that after giving effect
to the making of each such Tranche B Loan the aggregate Computation
Date Dollar Amount of all outstanding Tranche B Loans (calculated by
separately determining the Computation Date Dollar Amount of each
Tranche B Loan and then aggregating such amounts) shall not exceed the
Tranche B Commitment.
2.1.3 General Provisions. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at any time from
and after the Closing Date and prior to the Facility Termination Date.
The Aggregate Commitments shall expire on the Facility Termination
Date. The LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.21.
2.2. Termination. The Aggregate Outstanding Tranche A Credit
Exposure, all Tranche B Loans, and all other unpaid Obligations shall be paid in
full by the Borrower on the Facility Termination Date.
17
2.3. Ratable Loans.
2.3.1 Tranche A Loans. Each Tranche A Advance hereunder shall
consist of Tranche A Loans made from the several Tranche A Lenders
ratably in proportion to their Pro Rata Tranche A Shares.
2.3.2 Tranche B Loans. Tranche B Advances shall be made solely
by Tranche B Lender.
2.4. Types of Advances. Tranche A Advances may be Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.8 and 2.9 subject to the limitation of
Section 2.21. Tranche B Advances shall be Euro-Canadian Advances, subject to
Section 2.11 and to the limitation of Section 2.21.
2.5. Commitment Fee; Reductions in Aggregate Commitment; Increase
in Aggregate Commitment
2.5.1 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender according to its Pro
Rata Share a commitment fee (a "Commitment Fee") at a per annum rate
equal to the Applicable Fee Rate on an amount equal to the excess, if
any, of (i) the average daily amount of the Aggregate Commitment over
(ii) the sum of (A) the average daily amount of the Aggregate
Outstanding Tranche A Credit Exposure, plus (B) the average daily amount
of the aggregate Computation Date Dollar Amount of all outstanding
Tranche B Loans (calculated by separately determining the Computation
Date Dollar Amount of each Tranche B Loan and then aggregating such
amounts). Such Commitment Fee shall accrue with respect to the period
from the Closing Date to and including the Facility Termination Date and
shall be payable within ten (10) days after each Payment Date hereafter
and on the Facility Termination Date.
2.5.2. Reductions in and Termination of Aggregate Commitment.
The Borrower may permanently reduce the Aggregate Tranche A Commitment
in whole, or in part ratably among the Tranche A Lenders in integral
multiples of $5,000,000.00, and may permanently terminate the Tranche B
Commitment in whole, upon at least three Business Days' written notice
to the Administrative Agent, which notice shall specify the amount of
any such reduction in the case of the Tranche A Commitment, and shall
specify the termination, in the case of the Tranche B Commitment;
provided, however, that the Aggregate Tranche A Commitment may not be
reduced below the Aggregate Outstanding Tranche A Credit Exposure and
the Tranche B Commitment may not be terminated while any Tranche B Loans
are outstanding. All accrued Commitment Fees shall be payable on the
effective date of any termination of the obligations of the Lenders to
make Credit Extensions hereunder.
2.5.3. Increase in Aggregate Commitment. The Borrower shall
have the option to request that the Tranche A Lenders increase their
respective Tranche A Commitments such that the Aggregate Tranche
Commitment shall be increased to an amount not in excess of
$119,500,000.00, but no Tranche A Lender shall have any obligation
18
whatsoever to agree to any such requested increase, and each Tranche A
Lender may in its sole and absolute discretion reject any such requested
increase. If the Tranche A Lenders do not agree to increase their
respective Tranche A Commitments by amounts sufficient to provide the
entire amount of the requested increase in the Aggregate Tranche A
Commitment, the Administrative Agent shall have the right to admit
additional Tranche A Lenders, if any are agreeable, to increase the
Aggregate Tranche A Commitment to the amount requested by the Borrower,
up to the maximum amount of $119,500,000.00. In such event, the Pro Rata
Tranche A Share of the existing Lenders automatically shall be adjusted.
In the event of such increase, whether by increase in the respective
Tranche A Commitments of existing Tranche A Lenders or by admission of
additional Tranche A Lenders, the Pro Rata Share of the Lenders
automatically shall be adjusted.
2.6. Minimum Amount of Each Advance. Each Eurodollar Advance shall
be in the minimum amount of $5,000,000.00 and in multiples of $1,000,000.00 if
in excess thereof, each Euro-Canadian Advance shall be in the minimum amount of
Canadian $500,000.00 and in multiples of Canadian $500,000.00 if in excess
thereof and each Floating Rate Advance shall be in the minimum amount of
$1,000,000.00 and in multiples of $1,000,000.00 if in excess thereof; provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Tranche A Commitment.
2.7. Optional and Mandatory Principal Payments.
2.7.1. Tranche A. The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances or a
portion of the outstanding Floating Rate Advances in a minimum
aggregate amount of $1,000,000.00 or any integral multiple of
$1,000,000.00 in excess thereof, upon one Business Day's prior notice
to the Administrative Agent. The Borrower may from time to time pay,
subject to the payment of any funding indemnification amounts required
by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances or a portion of the outstanding Eurodollar Advances
in a minimum aggregate amount of $5,000,000.00 or any integral multiple
of $1,000,000.00 in excess thereof, upon three Business Days' prior
notice to the Administrative Agent.
2.7.2. Tranche B. (i) The Borrower may from time to time pay,
subject to the payment of any funding indemnification amounts required
by Section 3.4 but without penalty or premium, all outstanding
Euro-Canadian Advances or a portion of the outstanding Euro-Canadian
Advances in a minimum aggregate amount of Canadian $50,000.00 or any
integral multiple of Canadian $50,000.00 in excess thereof upon three
Business Days' prior notice to the Administrative Agent.
(ii) If at any time, as computed by the Tranche B Lender and advised to
the Administrative Agent, the Spot Dollar Amount of the outstanding
Euro-Canadian Advances is in excess of U.S. $5,500,000.00 for three
days the Tranche B Lender shall have the right to require a mandatory
prepayment of the Tranche B Loans in the amount of such excess. In such
event the Borrower shall make a mandatory prepayment of such excess
within one Business Day after notice from the Administrative Agent,
together
19
with any funding indemnification amounts required by Section 3.4 but
without penalty or premium.
2.7.3 General Provisions. The Borrower shall make mandatory
prepayments of principal in accordance with Sections 2.2, 2.7.2, 6.13
and 6.26.
2.8. Method of Selecting Types and Interest Periods for New
Advances; Method of Borrowing.
2.8.1 New Advances. The Borrower shall select the Type of
Advance and, in the case of each Eurodollar Advance and Euro-Canadian
Advance, the Interest Period applicable thereto from time to time. The
Borrower shall give the Administrative Agent irrevocable notice (a
"Borrowing Notice") substantially in the form attached to Exhibit D,
not later than 11:00 a.m. (Chicago time) at least one Business Day
before the Borrowing Date of each Floating Rate Advance and three
Business Days before the Borrowing Date for each Eurodollar Advance and
Euro-Canadian Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance and Euro-
Canadian Advance, the Interest Period applicable thereto.
2.8.2 Method of Borrowing. Not later than noon (Chicago time)
on each Borrowing Date, each Tranche A Lender shall make available its
Tranche A Loan or Loans in funds immediately available in Chicago to
the Administrative Agent at its address specified pursuant to Article
XIII. Not later than noon (Chicago time) on each Borrowing Date, the
Tranche B Lender shall make available the Tranche B Loan in funds
immediately available in Chicago to the Administrative Agent at its
address specified pursuant to Article XIII. Unless the Administrative
Agent determines that any applicable condition specified in Article IV
has not been satisfied, the Administrative Agent will make the funds so
received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address. Notwithstanding the foregoing
provisions, to the extent that a Loan made by any Lender matures on the
Borrowing Date of the requested Loan, such Lender shall apply the
proceeds of the Loan it is then making to the repayment of the
principal of the maturing Loan.
2.9. Conversion and Continuation of Outstanding Advances.
2.9.1. Tranche A Advances. Floating Rate Advances shall
continue as Floating Rate Advances unless and until such Floating Rate
Advances are converted into Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurodollar Advance shall continue as an Advance of that Type until the
end of
20
the then applicable Interest Period therefor, at which time such
Advance shall be automatically converted into a Floating Rate Advance
unless (x) such Advance is or was repaid in accordance with Section 2.7
or (y) the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Advance continue as a Eurodollar
Advance for the same or another Interest Period. Subject to the terms
of Section 2.6, the Borrower may elect from time to time to convert all
or any part of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating Rate
Advance into a Eurodollar Advance or continuation of a Eurodollar
Advance substantially in the form attached to Exhibit D, not later than
11:00 a.m. (Chicago time) at least three Business Days prior to the
date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of
such conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.9.2. Tranche B Advances. Each Euro-Canadian Advance shall
continue an Advance of that Type until the end of the then applicable
Interest Period therefor, at which time such Euro-Canadian Advance
shall automatically continue as a Euro-Canadian Advance with an
Interest Period of one month unless (x) such Advance is or was repaid
in accordance with Section 2.7 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice requesting that,
at the end of such Interest Period, such Advance continue as a
Eurodollar-Canadian Advance for the same or another Interest Period.
The Borrower shall give the Administrative Agent a
Conversion/Continuation Notice of each Continuation of a Euro-Canadian
Advance substantially in the form of Exhibit D not later than 11:00
a.m. (Chicago time) at least three Business Days prior to the date of
the requested continuation, specifying:
(i) the requested date, which shall be a Business Day, of
such continuation,
(ii) the aggregate amount of the Advance which is to be
continued, and
(iii) the amount of such Advance which is to be continued as a
Euro-Canadian Advance and the duration of the Interest Period
applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9.1, to
but excluding the date it is paid or is converted into a Eurodollar
21
Advance pursuant to Section 2.9.1 hereof, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on that portion of
any Tranche A Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance and Euro-Canadian Advance shall bear interest on the outstanding
principal amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined by the Administrative Agent as applicable to
such Eurodollar Advance or Euro-Canadian Advance, as the case may be, based upon
the Borrower's selections under Sections 2.8 and 2.9 and otherwise in accordance
with the terms hereof. No Interest Period may end after the Facility Termination
Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), (i) declare that no Advance may be made
as, converted into or continued as a Eurodollar Advance or a Euro-Canadian
Advance, and (ii) declare that all outstanding Euro-Canadian Advances shall
immediately convert to U.S. Dollars at the Spot Dollar Amount (as of the date of
such declaration) and shall bear interest at the Floating Rate. During the
continuance of a Default the Required Lenders may, at their option, by notice to
the Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (x) each Eurodollar Advance
and Euro-Canadian Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum, (y) each Floating Rate Advance (including any
Euro-Canadian Advance converted as set forth in clause (ii) above) shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum, and (z) the LC Fee shall be increased by 2% per annum,
provided that, during the continuance of a Default under Section 7.6 or 7.7, the
conversion of Euro-Canadian Advances set forth in clause (ii) above, the
interest rates set forth in clauses (x) and (y) above, and the increase in the
LC Fee set forth in clause (z) above shall be applicable to all Credit
Extensions without any election or action on the part of the Administrative
Agent or any Lender.
2.12. Method of Payment. (i) Except as set forth in Section 2.11, each
Euro-Canadian Advance shall be repaid and each payment of interest thereon shall
be paid in Canadian Dollars. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent to the
Borrower, by noon (local time) on the date when due and shall (except in the
case of Reimbursement Obligations for which the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) be
applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. The
22
Administrative Agent is hereby authorized to charge the account of the Borrower
maintained with Bank One for each payment of principal, interest, Reimbursement
Obligations and Commitment Fees, LC Fees, and other fees as it becomes due
hereunder. Each reference to the Administrative Agent in this Section 2.12 shall
also be deemed to refer, and shall apply equally, to the LC Issuer, in the case
of payments required to be made by the Borrower to the LC Issuer pursuant to
Section 2.21.6. Prior to the occurrence of a Default or an Unmatured Default,
payments designated as payments on Tranche A Loans shall be distributed to each
Tranche A Lender in its Pro Rata Tranche A Share and payments designated as
payments on Tranche B Loans shall be distributed to Tranche B Lender.
(ii) Notwithstanding the provisions of subpart (i) if, after the making
of any Euro-Canadian Advance, currency control or exchange regulations are
imposed in Canada with the result that Canadian Dollars no longer exist or the
Borrower is not able to make payment to the Administrative Agent for the account
of the Tranche B Lender in Canadian Dollars, then all payments to be made by the
Borrower hereunder in Canadian Dollars shall instead be made when due in Dollars
in an amount equal to the Spot Dollar Amount (as of the date of repayment) of
such payment date, it being the intention of the parties hereto that the
Borrower take all risks of the imposition of any such currency control or
exchange regulations.
2.13. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (c) the original stated amount of each Facility LC and the
amount of LC Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note (a "Note"). In such event, the Borrower shall prepare, execute and deliver
to any such Tranche A Lender a Note (a "Tranche A Note") and to any such Tranche
B Lender a Note (a "Tranche B Note") payable to the order of such Lender in a
form supplied by the Administrative Agent. Thereafter, the Loans evidenced by
such Note and interest thereon shall at all times (including after any
assignment pursuant to Section 12.3) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section
12.3, except to the
23
extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the Borrower, it being understood
that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on the last Business Day of each
month, commencing with the first such date to occur after the date hereof, on
any date on which the Floating Rate Advance is prepaid, whether due to
acceleration or otherwise, and at maturity. Interest accrued on that portion of
the outstanding principal amount of any Floating Rate Advance converted into a
Eurodollar Advance on a day other than the last Business Day of any month shall
be payable on the date of conversion.
Interest accrued on each Eurodollar Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Eurodollar Advance having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period.
Interest accrued on each Euro-Canadian Advance shall be payable on the
last day of its applicable Interest Period, on any date on which the
Euro-Canadian Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Euro-Canadian Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period.
Interest, Commitment Fees and LC Fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of payment. If any
payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice,
24
Conversion/Continuation Notice, and repayment notice received by it hereunder.
Promptly after notice from the LC Issuer, the Administrative Agent will notify
each Tranche A Lender of the contents of each request for issuance of a Facility
LC hereunder. The Administrative Agent will notify each Tranche A Lender and the
Borrower of the interest rate applicable to each Eurodollar Advance after
determination of such interest rate and will notify the Tranche B Lender and the
Borrower of the interest rate applicable to each Euro-Canadian Advance after
determination of such interest rate, and will give each Tranche A Lender and the
Borrower notice of each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Administrative Agent and the Borrower in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it or Facility LCs will be
issued by it and for whose account Loan payments or payments with respect to
Facility LCs are to be made.
2.18. Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (x) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.19 Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II and Article IV with respect to any Tranche
B Advance in Canadian Dollars, if there shall occur on or prior to the date of
such Tranche B Advance any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
which would in the reasonable opinion of the Administrative Agent or the Tranche
B Lender make it impracticable for the Euro-Canadian Loans comprising such
Tranche B Advance to be denominated in Canadian Dollars then the Administrative
Agent shall forthwith give notice thereto to the Borrower and the Lenders, and
such Loans shall not be made.
25
2.20 Judgment Currency. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from the Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main Chicago office on the Business Day preceding that on which final,
non-appealable judgment is given. The obligations of the Borrower in respect of
any sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Administrative Agent (as the case may be) of any sum adjudged to
be so due in such other currency such Lender or the Administrative Agent (as the
case may be) may in accordance with normal, reasonable banking procedures
purchase the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such
Lender or the Administrative Agent, as the case may be, in the specified
currency, the Borrower agrees, to the fullest extent that it may effectively do
so, as a separate obligation and notwithstanding any such judgment, to indemnify
such Lender or the Administrative Agent, as the case may be, against such loss,
and if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be, in
the specified currency and (b) any amounts shared with other Lenders as a result
of allocations of such excess as a disproportionate payment to such Lender under
Section 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the Borrower.
2.21. Facility LCs.
2.21.1. Issuance. The LC Issuer hereby agrees, on the terms
and conditions set forth in this Agreement, to issue standby and
commercial letters of credit (each, a "Facility LC") and to renew,
extend, increase, decrease or otherwise modify each Facility LC
("Modify," and each such action a "Modification"), from time to time
from and including the date of this Agreement and prior to the Facility
Termination Date upon the request of the Borrower; provided that
immediately after each such Facility LC is issued or Modified, (i) the
aggregate amount of the outstanding LC Obligations shall not exceed US
$25,000,000.00 and (ii) the Aggregate Outstanding Tranche A Credit
Exposure shall not exceed the Aggregate Tranche A Commitment. No
Facility LC shall have an expiry date later than the earlier of (x) the
fifth Business Day prior to the Facility Termination Date and (y) one
year after its issuance; provided that a Facility LC may provide for
consecutive one-year extensions with a final maturity no later than the
Fifth Business Day prior to the Facility Termination Date.
2.21.2. Participations. Upon the issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.21,
the LC Issuer shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably sold to each Tranche A
Lender, and each Tranche A Lender shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably
purchased from the LC
26
Issuer, a participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to its Pro Rata
Tranche A Share.
2.21.3. Notice. Subject to Section 2.21.1, the Borrower shall
give the LC Issuer notice prior to 11:00 a.m. (Chicago time) at least
five Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and
the nature of the transactions proposed to be supported thereby. Upon
receipt of such notice, the LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly
notify each Tranche A Lender, of the contents thereof and of the amount
of such Tranche A Lender's participation in such proposed Facility LC.
The issuance or Modification by the LC Issuer of any Facility LC shall,
in addition to the conditions precedent set forth in Article IV (the
satisfaction of which the LC Issuer shall have no duty to ascertain),
be subject to the conditions precedent that such Facility LC shall be
satisfactory to the LC Issuer and that the Borrower shall have executed
and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event
of any conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall control.
2.21.4. LC Fees. (i) The Borrower shall pay to the
Administrative Agent, for the account of the Tranche A Lenders ratably
in accordance with their respective Pro Rata Tranche A Shares with
respect to each standby and commercial Facility LC, a quarterly letter
of credit fee at a per annum rate calculated pursuant to the Pricing
Schedule, on the face amount of such standby or commercial Facility LC,
such fee to be payable in arrears within ten (10) days after each
Payment Date.
(ii) The Borrower shall also pay to the LC Issuer for its own account
a quarterly fronting fee for each standby and commercial Facility LC in
the amount of .25% on the face amount of such standby or commercial
Facility LC, such fee to be payable in arrears within ten (10) days
after each Payment Date, and shall also pay documentary and processing
charges in connection with the issuance or Modification of and draws
under standby and commercial Facility LCs in accordance with the LC
Issuer's standard schedule for such charges as in effect from time to
time.
(iii) Each fee described in this Section 2.21.4. shall constitute an
"LC Fee".
2.21.5. Administration; Reimbursement by Lenders. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Administrative Agent
and the Administrative Agent shall promptly notify the Borrower and
each other Tranche A Lender as to the amount to be paid by the LC
Issuer as a result of such demand and the proposed payment date (the
"LC Payment Date"). The responsibility of the LC Issuer to the Borrower
and each Tranche A Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be
27
in conformity in all material respects with such Facility LC. The LC
Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs as it does with respect to letters
of credit in which no participations are granted, it being understood
that in the absence of any gross negligence or willful misconduct by
the LC Issuer, each Tranche A Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of any Default or
any condition precedent whatsoever, to reimburse the LC Issuer on
demand for (i) such Lender's Pro Rata Tranche A Share of the amount of
each payment made by the LC Issuer under each Facility LC to the extent
such amount is not reimbursed by the Borrower pursuant to Section
2.21.6 below, plus (ii) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is made
after 11:00 a.m. (Chicago time) on such date, from the next succeeding
Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal
Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Floating Rate
Advances.
2.21.6. Reimbursement by Borrower. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on
or before the applicable LC Payment Date for any amounts to be paid by
the LC Issuer upon any drawing under any Facility LC, without
presentment, demand, protest or other formalities of any kind; provided
that neither the Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered
by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under any Facility LC
issued by it complied with the terms of such Facility LC or (ii) the LC
Issuer's failure to pay under any Facility LC issued by it after the
presentation to it of a request complying in all material respects with
the terms and conditions of such Facility LC. All such amounts paid by
the LC Issuer and remaining unpaid by the Borrower shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to
(x) the rate applicable to Floating Rate Advances for such day if such
day falls on or before the applicable LC Payment Date and (y) the sum
of 2% plus the rate applicable to Floating Rate Advances for such day
if such day falls after such LC Payment Date. The LC Issuer will pay to
each Tranche A Lender ratably in accordance with its Pro Rata Tranche A
Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in
respect of any Facility LC issued by the LC Issuer, but only to the
extent such Lender has made payment to the LC Issuer in respect of such
Facility LC pursuant to Section 2.21.5. Subject to the terms and
conditions of this Agreement (including without limitation the
submission of a Borrowing Notice in compliance with Section 2.8 and the
satisfaction of the applicable conditions precedent set forth in
Article IV), the Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
2.21.7. Obligations Absolute. The Borrower's obligations under
this Section 2.21 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense
to payment which the Borrower may have or have had against the LC
Issuer, any Tranche A Lender or any beneficiary of a Facility LC.
28
The Borrower further agrees with the LC Issuer and the Tranche A
Lenders that the LC Issuer and the Tranche A Lenders shall not be
responsible for, and the Borrower's Reimbursement Obligation in respect
of any Facility LC shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, any of its Affiliates, the beneficiary of any Facility LC
or any financing institution or other party to whom any Facility LC may
be transferred or any claims or defenses whatsoever of the Borrower or
of any of its Affiliates against the beneficiary of any Facility LC or
any such transferee. The LC Issuer shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any
Facility LC. The Borrower agrees that any action taken or omitted by
the LC Issuer or any Tranche A Lender under or in connection with each
Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower
and shall not put the LC Issuer or any Tranche A Lender under any
liability to the Borrower. Nothing in this Section 2.21.7 is intended
to limit the right of the Borrower to make a claim against the LC
Issuer for damages as contemplated by the proviso to the first sentence
of Section 2.21.6.
2.21.8. Actions of LC Issuer. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the LC Issuer. The LC Issuer
shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the
Tranche A Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action. Notwithstanding any other provision of this Section 2.21, the
LC Issuer shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a
request of the Required Lenders, and such request and any action taken
or failure to act pursuant thereto shall be binding upon the Lenders
and any future holders of a participation in any Facility LC.
2.21.9. Indemnification. The Borrower hereby agrees to
indemnify and hold harmless each Tranche A Lender, the LC Issuer and
the Administrative Agent, and their respective directors, officers,
agents and employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Tranche A Lender, the
LC Issuer or the Administrative Agent may incur (or which may be
claimed against such Tranche A Lender, the LC Issuer or the
Administrative Agent by any Person whatsoever) by reason of or in
connection with the issuance, execution and delivery or transfer of or
payment or failure to pay under any Facility LC or any actual or
proposed use of any Facility LC, including, without limitation, any
claims, damages, losses, liabilities, costs or expenses which the LC
Issuer may incur by reason of or in connection with (i) the
29
failure of any other Tranche A Lender to fulfill or comply with its
obligations to the LC Issuer hereunder (but nothing herein contained
shall affect any rights the Borrower may have against any defaulting
Tranche A Lender) or (ii) by reason of or on account of the LC Issuer
issuing any Facility LC which specifies that the term "Beneficiary"
included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any
drawing by any such successor Beneficiary be accompanied by a copy of a
legal document, satisfactory to the LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the Borrower
shall not be required to indemnify any Tranche A Lender, the LC Issuer
or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under any Facility LC
complied with the terms of such Facility LC or (y) the LC Issuer's
failure to pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of such
Facility LC. Nothing in this Section 2.21.9 is intended to limit the
obligations of the Borrower under any other provision of this
Agreement.
2.21.10. Lenders' Indemnification. Each Tranche A Lender
shall, ratably in accordance with its Pro Rata Tranche A Share,
indemnify the LC Issuer, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees
and disbursements), claim, demand, action, loss or liability (except
such as result from such indemnitees' gross negligence or willful
misconduct or the LC Issuer's failure to pay under any Facility LC
after the presentation to it of a request strictly complying with the
terms and conditions of the Facility LC) that such indemnitees may
suffer or incur in connection with this Section 2.21 or any action
taken or omitted by such indemnitees hereunder.
2.21.11. Facility LC Collateral Account. The Borrower agrees
that it will, upon the request of the Administrative Agent or the
Required Lenders and until the final expiration date of any Facility LC
and thereafter as long as any amount is payable to the LC Issuer or the
Tranche A Lenders in respect of any Facility LC, maintain a special
collateral account pursuant to arrangements satisfactory to the
Administrative Agent (the "Facility LC Collateral Account") at the
Administrative Agent's office at the address specified pursuant to
Article XIII, in the name of such Borrower but under the sole dominion
and control of the Administrative Agent, for the benefit of the Lenders
and in which such Borrower shall have no interest other than as set
forth in Section 8.1. The Borrower hereby pledges, assigns and grants
to the Administrative Agent, on behalf of and for the ratable benefit
of the Lenders and the LC Issuer, a security interest in all of the
Borrower's right, title and interest in and to all funds which may from
time to time be on deposit in the Facility LC Collateral Account to
secure the prompt and complete payment and performance of the
Obligations. The Administrative Agent will invest any funds on deposit
from time to time in the Facility LC Collateral Account in certificates
of deposit of Bank One having a maturity not exceeding 30 days. Nothing
in this Section 2.21.11 shall either obligate the Administrative Agent
to require the Borrower to deposit any funds in the Facility LC
Collateral Account or limit the right of the Administrative
30
Agent to release any funds held in the Facility LC Collateral Account
in each case other than as required by Section 8.1.
2.21.12. Rights as a Lender. In its capacity as a Tranche A
Lender, the LC Issuer shall have the same rights and obligations as any
other Tranche A Lender.
2.22. Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrower
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, and (ii) the Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement (A) all
interest, fees and other amounts then accrued but unpaid to such Affected Lender
by the Borrower hereunder to and including the date of termination, including
without limitation payments due to such Affected Lender under Sections 3.1, 3.2
and 3.5, and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had the
Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
2.23. Limitation on Number of Loans. No more than eight (8) Tranche A
Loans and no more than eight (8) Tranche B Loans may be outstanding at any time
or from time to time.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or
the LC Issuer to any Taxes, or changes the basis of taxation
of payments (other than with respect to
31
Excluded Taxes) to any Lender or the LC Issuer in respect of
its Eurodollar Loans, Euro-Canadian Loans, Facility LCs or
participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation or the LC Issuer (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances or
Euro-Canadian Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
or the LC Issuer of making, funding or maintaining its
Eurodollar Loans or Euro-Canadian Loans, or of issuing or
participating in Facility LCs, or reduces any amount
receivable by any Lender or any applicable Lending
Installation or the LC Issuer in connection with its
Eurodollar Loans, Euro-Canadian Loans, Facility LCs or
participations therein, or requires any Lender or any
applicable Lending Installation or the LC Issuer to make any
payment calculated by reference to the amount of Eurodollar
Loans, Euro-Canadian Loans, Facility LCs or participations
therein held or interest or LC Fees received by it, by an
amount deemed material by such Lender or the LC Issuer as the
case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Euro-Canadian Loans or Commitment or of
issuing or participating in Facility LCs or to reduce the return received by
such Lender or applicable Lending Installation or the LC Issuer, as the case may
be, in connection with such Eurodollar Loans, Euro-Canadian Loans, Commitment,
Facility LCs, or participations therein, then, within 15 days of demand by such
Lender, or the LC Issuer, as the case may be, the Borrower shall pay such Lender
or the LC Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the LC Issuer, as the case may be, for such increased
cost or reduction in amount received accrued through the date of the demand.
3.2. Changes in Capital Adequacy Regulations. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer, or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall, accrued through the date of the demand, in the
rate of return on the portion of such increased capital which such Lender or the
LC Issuer determines is attributable to this Agreement, its Outstanding Tranche
A Credit Exposure, its outstanding Tranche B Loans, or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or
32
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or the LC Issuer or any Lending Installation or any
corporation controlling any Lender or the LC Issuer. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Tranche A Lender
determines that maintenance of its Eurodollar Loans or the Tranche B Lender
determines that maintenance of its Euro-Canadian Loans, at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Tranche A Lenders
determine that (i) deposits of a type and maturity appropriate to match fund
Eurodollar Advances are not available or (ii) the interest rate applicable to
Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, or if the Tranche B Lender determines that (i)
deposits of a type and maturity appropriate to match fund Euro-Canadian Advances
are not available or (ii) the interest rate applicable to Euro-Canadian Advances
does not accurately reflect the cost of making or maintaining Euro-Canadian
Advances, then the Administrative Agent shall suspend the availability of
Eurodollar Advances or Euro-Canadian Advances, as the case may be, and require
any affected Eurodollar Advances or Euro-Canadian Advances, as the case may be,
to be repaid or, in the case of Eurodollar Advances, converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar Advance or
Euro-Canadian Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a Eurodollar Advance or Euro-Canadian Advance is not made on the
date specified by the Borrower for any reason other than default by the Lenders,
or the Applicable Margin is reset during an Interest Period, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain such Eurodollar Advance or Euro-Canadian
Advance.
3.5. Taxes. (i) All payments by the Borrower to or for the account of
any Lender, the LC Issuer or the Administrative Agent hereunder or under any
Note or Facility LC Application shall be made free and clear of and without
deduction for any and all Taxes. If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender,
the LC Issuer or the Administrative Agent, (a) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.5) such
Lender, the LC Issuer or the Administrative Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay
the full amount deducted to the relevant authority in accordance with applicable
law and (d)
33
the Borrower shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after such payment
is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Administrative Agent,
the LC Issuer, and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Administrative Agent, the LC Issuer,
or such Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Administrative
Agent, the LC Issuer, or such Lender makes demand therefor pursuant to Section
3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not more than ten Business Days after the date of this Agreement, (i)
deliver to each of the Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI,
certifying in either case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Borrower and the Administrative
Agent a United States Internal Revenue Form W-8 or W-9, as the case may be, and
certify that it is entitled to an exemption from United States backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of
the Borrower and the Administrative Agent (x) renewals or additional copies of
such form (or any successor form) on or before the date that such form expires
or becomes obsolete, and (y) after the occurrence of any event requiring a
change in the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or the
Administrative Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form or amendment with respect to it and such Lender advises the Borrower and
the Administrative Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a
34
Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of
withholding tax become subject to Taxes because of its failure to deliver a form
required under clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent under
this subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the Obligations
and termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
35
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required to
make the initial Credit Extension hereunder unless the Borrower has furnished to
the Administrative Agent with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporation of the
Borrower, together with all amendments, which may be dated
more than ninety (90) days from the hereof, and a certificate
of good standing, dated within ninety (90) days of the date
hereof, each certified by the appropriate governmental officer
in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of
the Borrower, of its by-laws and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the
Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by
name and title and bear the signatures of the Authorized
Officers and any other officers of the Borrower authorized to
sign the Loan Documents to which the Borrower is a party, upon
which certificate the Administrative Agent and the Lenders
shall be entitled to rely until informed of any change in
writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of counsel to the Borrower and the
Guarantor, addressed to the Lenders in substantially the form
of Exhibit A, together with such other opinions regarding
perfection of security interests as the Administrative Agent
may have reasonably requested.
(vi) Any Notes requested by a Lender pursuant to Section 2.13
payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Administrative Agent and signed
by an Authorized Officer, together with such other related
money transfer authorizations as the Administrative Agent may
have reasonably requested.
(viii) Copies of documentation provided in Items (i), (ii), and (iii)
(modified in the event of entities other than corporations)
for each Guarantor.
36
(viii) Executed copies of the Collateral Documents together with
evidence of filing of any UCC financing statements or
amendments as required by the Administrative Agent.
(ix) Executed Guaranty.
(x) If the initial Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application.
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Credit Extension. The Lenders shall not be required to make
any Credit Extension unless on the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to
the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on
and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their
counsel.
(iv) All Commitment Fees, LC Fees, and other fees then due to the
Administrative Agent, the LC Issuer, and the Lenders under the
Prior
Credit Agreement, this Agreement, and the fee letter
referenced in Section 10.13, shall have been paid.
Each Borrowing Notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied. Any Lender may require a duly completed compliance
certificate in substantially the form of Exhibit B as a condition to making a
Credit Extension.
4.3. Closing Date. The Administrative Agent shall notify the Borrower.
the Guarantors, and the Lenders of the Closing Date for purposes of this
Agreement, (including, but not limited to the determination of the Facility
Termination Date), the Guaranty, and the Collateral Documents.
37
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries
is a corporation, (in the case of Subsidiaries only) partnership or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2. Authorization and Validity. Each of the Borrower and each
Guarantor has the power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its obligations thereunder.
The execution and delivery by the Borrower and each Guarantor of the Loan
Documents to which it is a party and the performance of its obligations
thereunder have been duly authorized by proper corporate proceedings, and the
Loan Documents to which the Borrower is a party constitute legal, valid and
binding obligations of the Borrower and each Guarantor enforceable against the
Borrower and each Guarantor in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower and each Guarantor of the Loan Documents to which it is
a party, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate (i) any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the
Borrower or any of its Subsidiaries or (ii) the Borrower's or any Subsidiary's
articles or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument
or agreement. No order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
the Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.4. Financial Statements. The September 30, 2001 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with United States generally accepted
accounting principles as applicable to quarterly financial statements in effect
on the date such statements were prepared, and fairly present the consolidated
financial condition and operations of the Borrower and its Subsidiaries at such
date and the consolidated results of their operations for the period then ended.
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5.5. Material Adverse Change. Since September 30, 2001 there has been
no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect other than as
reflected in the draft consolidated statements of operations for the year ending
December 31, 2001 previously delivered to the Administrative Agent.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and as to which no Lien exists. No tax liens have been filed and no claims are
being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate. Each of its Subsidiaries that
is a limited liability company qualifies for partnership tax treatment under
United States federal tax law or, if any limited liability company does not
qualify for partnership tax treatment, no additional tax liability would result
therefrom.
5.7. Litigation and Contingent Obligations. Except as set forth on
Schedule 4, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries for
which adequate insurance coverage does not exist which could reasonably be
expected to have a Material Adverse Effect or which seeks to prevent, enjoin or
delay the making of any Credit Extensions. Other than any liability incident to
any litigation, arbitration or proceeding which (i) could not reasonably be
expected to have a Material Adverse Effect or (ii) is set forth on Schedule 4,
neither Borrower nor any of its Subsidiaries has any material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
5.8. Subsidiaries. Schedule 1 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000.00. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $1,000,000.00 in
the aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other member of the Controlled
Group has withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan.
39
5.10. Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Administrative Agent
or to any Lender in connection with the negotiation of, or compliance with, the
Loan Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Material Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on Schedule 2, on
the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.15, to all of
the Property and assets reflected in the Borrower's most recent consolidated
financial statements provided to the Administrative Agent as owned by the
Borrower and its Subsidiaries. To the extent that any UCC search results reflect
unterminated financing statements for which no secured obligations are
outstanding, the Borrower represents that such statements are not listed on
Schedule 2, but will be terminated promptly upon request from the Administrative
Agent.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Credit Extensions hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
40
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Subordinated Indebtedness. The Obligations and the Guaranty
(including any Rate Management Obligations now or hereafter arising and any
increases contemplated by Section 2.5.3) constitute senior indebtedness which is
entitled to the benefits of the subordination provisions of all outstanding
Subordinated Indebtedness, including, but not limited to, the provisions of the
Subordinated Debentures and the guaranties of the Subordinated Debentures
executed by the Material Domestic Subsidiaries.
5.20. Post-Retirement Benefits. The present value of the expected cost
of post-retirement medical and insurance benefits payable by the Borrower and
its Subsidiaries to its employees and former employees, as estimated by the
Borrower in accordance with procedures and assumptions deemed reasonable by the
Required Lenders, does not exceed $500,000.00.
5.21. Insurance. The certificate issued by the broker(s) placing the
property and casualty insurance for the Borrower and its Subsidiaries furnished
to the Administrative Agent on or before the date hereof attests to the
existence and adequacy of, and summarizes in all material respects, the property
and casualty insurance program carried by the Borrower with respect to itself
and its Subsidiaries, and is complete and accurate in all material respects.
5.22. Solvency. (i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the making of
each Loan, if any, made on the date hereof and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated, contingent or otherwise, of
the Borrower and its Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, contingent or
otherwise, as such
41
debts and other liabilities become absolute and matured; (c) the Borrower and
its Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
5.23. Take-or-Pay. The Borrower and its Subsidiaries have purchased
sufficient quantities of mats under the SOLOCO Agreements as of the date hereof
so that no "take or pay" obligation existed thereunder during calendar year 2001
or any prior year.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified
public accountants acceptable to the Lenders, prepared in
accordance with Agreement Accounting Principles on a
consolidated basis for itself and its Subsidiaries, including
balance sheets as of the end of such period, related profit
and loss and reconciliation of surplus statements, and a
statement of cash flows, accompanied by any management letter
prepared by said accountants.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its
Subsidiaries, consolidated unaudited balance sheets as at the
close of each such period and consolidated profit and loss and
reconciliation of surplus statements and a statement of cash
flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by an Authorized
Officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by an Authorized Officer showing the
calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof.
42
(iv) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer
Plan, certified as correct by an actuary enrolled under ERISA,
if applicable.
(v) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by an Authorized
Officer of the Borrower, describing said Reportable Event and
the action which the Borrower proposes to take with respect
thereto.
(vi) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files
with the Securities and Exchange Commission.
(ix) Such other information (including non-financial information)
as the Administrative Agent or any Lender may from time to
time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary
to, use the proceeds of the Credit Extensions for general corporate purposes and
Permitted Acquisitions. The Borrower will not, nor will it permit any Subsidiary
to, use any of the proceeds of the Advances to purchase or carry any "margin
stock" (as defined in Regulation U).
6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
43
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles. Any Subsidiary that is
organized as a limited liability company will qualify for partnership income tax
treatment under United States federal tax law, provided, however, that state
income tax treatment may vary based upon individual state laws.
6.6. Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject including, without limitation, all Environmental Laws.
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of the Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
and each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Administrative Agent or
any Lender may designate.
6.10. Dividends. The Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own capital stock) or redeem,
repurchase or otherwise acquire or retire any of its capital stock at any time
outstanding, except:
(i) any Subsidiary may declare and pay dividends or make
distributions to the Borrower or to a Wholly-Owned Subsidiary;
(ii) the Borrower may pay cash dividends on its Existing Preferred
Stock; provided, however, that no cash dividends may be paid
unless (x) the Leverage Ratio has been at or below 2.75 to
1.00 for two consecutive fiscal quarters and (y) there is no
Default or Unmatured Default and none would result from such
payment; and
44
(iii) the Borrower may repurchase or redeem its capital stock from
time to time, not in excess of an aggregate of $10,000,000.00
from the Closing Date to the Facility Termination Date;
provided, however, that no repurchase or redemption may be
made unless (x) the Leverage Ratio has been at or below 2.75
to 1.00 for two consecutive fiscal quarters and (y) there is
no Default or Unmatured Default and none would result from
such repurchase or redemption.
6.11. Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date hereof and described in
Schedule 2, including the Contingent Obligations in amounts
not in excess of that described in Schedule 3.
(iii) Indebtedness with respect to any currently existing Synthetic
Leases.
(iv) Purchase money Indebtedness arising from the acquisition of
Property for the Borrower or any Subsidiary, not in excess of
$1,000,000.00 prior to the Facility Termination Date.
(v) Indebtedness arising in connection with Permitted
Acquisitions.
(vi) Indebtedness arising after the date of this Agreement in a
maximum principal amount of $5,000,000.00.
(vii) Indebtedness not in excess of a maximum principal amount of
$7,000,000.00 in connection with the relocation of the
Excalibar Minerals Inc. Houston, Texas facility, provided that
the term of such Indebtedness is approximately ten years, and
provided that the terms and conditions of such Indebtedness
are no more restrictive than the terms of this Agreement.
6.12. Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except that a
Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary of the
Borrower.
6.13. Sale of Assets.
6.13.1. Limitations on Sales. The Borrower will not, nor will
it permit any Subsidiary to, lease, sell or otherwise dispose
of its Property to any other Person, except:
(i) Sales or leases of inventory in the ordinary course of
business.
45
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other
than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of
the Property of the Borrower and its Subsidiaries.
6.13.2. Prepayment of Loans. Upon any lease, sale, or other
disposition of Property by Borrower or any Subsidiary (other
than sales or leases of inventory in the ordinary course of
business) Borrower shall, within thirty days, prepay the Loans
ratably in proportion to their respective Pro Rata Shares of
the Aggregate Outstanding Credit Exposure in an amount equal
to 100% of the net proceeds after deduction of taxes arising
from the sale or lease and expenses related to the sale,
provided:
(i) Borrower may reinvest the net proceeds in comparable
Property within a reasonable period of time in lieu of
prepaying the Loans.
(ii) Borrower may retain up to $150,000.00 of un-reinvested
net proceeds in any calendar year.
(iii) In the event that the net proceeds from all leases,
sales, or other dispositions of Property (other than sales or
leases of inventory in the ordinary course of business) from
the Closing Date through the Facility Termination Date are
less than $1,500,000.00, Borrower shall prepay only the
Tranche A Loans ratably in proportion to their respective Pro
Rata Tranche A Shares of the Aggregate Tranche A Outstanding
Credit Exposure.
6.14. Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 1.
(iii) Permitted Acquisitions.
(iv) Investments after the date hereof in entities that are or
become Guarantors hereunder.
46
(v) Investments after the date hereof in Newpark Canada Inc. and
any other Canadian Subsidiaries acquired after the date
hereof, not in excess of the aggregate of $20,000,000.00
outstanding from time to time.
6.15. Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, grant, assume, or suffer to exist any Lien in, of or on any
of the present or future Property of the Borrower or any of its Subsidiaries,
regardless of whether any of such present or future Property is or is required
to be subjected to a Lien in favor of the Administrative Agent for the benefit
of the Lenders, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule 2.
(vii) Liens in favor of the Administrative Agent, for the benefit of
any of the Lenders, granted pursuant to any Collateral
Document.
(viii) Liens securing Indebtedness incurred under Section 6.11 (iii),
(iv), (vi), and (vii) hereof and existing Liens affecting
property of any Permitted Acquisition under Section 6.11 (v)
hereof.
(ix) Liens on personal property leased by Borrower or a Subsidiary
under an Operating Lease.
47
6.16. Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.17. Amendments to Agreements. The Borrower will not, and will not
permit any Subsidiary to, (i) amend if the result would be to waive or release
rights of the Borrower or any Subsidiary under, or (ii) terminate, the SOLOCO
Agreements or any material licenses (whether the Borrower is the licensor or the
licensee), permits, patents, trademark registrations, or copyright
registrations.
6.18. Subordinated Indebtedness. The Borrower will not, and will not
permit any Subsidiary to, make any amendment or modification to the indenture,
note or other agreement evidencing or governing any Subordinated Indebtedness,
or directly or indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness.
The Borrower shall not permit any Subsidiary to amend or otherwise change its
guarantee in respect of the Subordinated Indebtedness or any agreements relating
to the Subordinated Indebtedness, nor shall the Borrower make, or permit any
Subsidiary to make, any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest
rate on such Subordinated Indebtedness, change any dates upon which payments of
principal or interest are due thereon, change any of the covenants with respect
thereto in a manner which is more restrictive to the Borrower or any of its
Subsidiaries, change any event of default or condition to an event of default
with respect thereto, change the redemption, prepayment or defeasance provisions
thereof, change the subordination provisions thereof, or change any collateral
therefor (other than to release such collateral) or if the effect of such
amendment or change, together with all other amendments or changes made, is to
increase the obligations of the Borrower thereunder or to confer any additional
rights on the holders of such Subordinated Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to the Lenders. Anything
in this Section 6.18 to the contrary notwithstanding, Borrower and its
Subsidiaries shall have the right, without being in violation of this Section
6.18, (i) to obtain consents under the provisions of the Indenture to permit any
actions or inactions that are otherwise permitted under this Agreement and (ii)
to obtain waivers of any default or events of default under the Indenture.
Without limitation of the foregoing, the Borrower shall not make (or give any
notice in respect of) any voluntary or optional payment or prepayment or
redemption or defeasance of or with respect to the Subordinated Indebtedness or
any portion thereof without the consent of all of the Lenders.
6.19. Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse.
6.20. Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. The Borrower will not, nor will it permit any Subsidiary to, enter
into or suffer to exist any (i) Sale and Leaseback Transaction, other than the
sale and lease back of the Lafayette office building at
48
207 Town Center Parkway, Lafayette, Louisiana, or (ii) any other transaction
pursuant to which it incurs or has incurred Off-Balance Sheet Liabilities.
6.21. Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations of
a Subsidiary), except (i) by endorsement of instruments for deposit or
collection in the ordinary course of business, (ii) the Reimbursement
Obligations, (iii) the Guaranty, and (iv) those described on Schedule 3.
6.22. Letters of Credit. The Borrower will not, nor will it permit any
Subsidiary to, apply for or become liable upon or in respect of any Letter of
Credit other than Facility LCs.
6.23. Negative Pledge. Other than as set forth in Section 6.15 and
other than as set forth in the existing Subordinated Indebtedness, the Borrower
shall not enter into or suffer to exist, or permit any of its Subsidiaries to
enter into or suffer to exist, any agreement prohibiting or conditioning the
creation or assumption of any Lien upon any of its property or assets.
6.24. Financial Covenants.
6.24.1. Fixed Charge Coverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each of its fiscal
quarters, of (i) Consolidated EBITDA for the fiscal quarter then ended,
minus (ii) $1,500,000.00 for maintenance capital expenditures for the
fiscal quarter then ended, minus (iii) the average of stock repurchases
and/or retirements permitted under Section 6.10 over the immediately
preceding four fiscal quarters to (x) Consolidated Interest Expense for
the fiscal quarter then ended, plus (y) scheduled principal payments on
Consolidated Indebtedness for the fiscal quarter then ended, plus (z)
cash dividends on Existing Preferred Stock paid during the fiscal
quarter then ended, all calculated for the Borrower and its
Subsidiaries on a consolidated basis, to be less than the following:
Quarters ending: Ratio:
December 31, 2001 3.00 to 1.00
March 31, 2002 2.50 to 1.00
June 30, 2002 2.50 to 1.00
September 30, 2002 2.75 to 1.00
All quarters ending thereafter 3.00 to 1.00
6.24.2. Leverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters, of (i)
Consolidated Funded Indebtedness to (ii) Consolidated EBITDA at the end
of each of its fiscal quarters, annualized, all calculated for the
Borrower and its Subsidiaries on a consolidated basis, to be greater
than the following:
49
Quarters ending: Ratio:
December 31, 2001 3.00 to 1.00
March 31, 2002 3.50 to 1.00
June 30, 2002 3.50 to 1.00
September 30, 2002 3.25 to 1.00
December 31, 2002 3.00 to 1.00
All quarters ending thereafter 2.75 to 1.00
6.24.3. Senior Indebtedness Leverage Ratio. The Borrower will
not permit the ratio, determined as of the end of each of its fiscal
quarters, of (i) Consolidated Funded Indebtedness less Subordinated
Indebtedness to (ii) Consolidated EBITDA at the end of each of its
fiscal quarters, annualized, all calculated for the Borrower and its
Subsidiaries on a consolidated basis, to be greater than 1.50 to 1.00.
6.24.4. Minimum Net Worth. The Borrower will at all times
maintain Consolidated Tangible Net Worth of not less than
$155,000,000.00 plus (a) 75% of Consolidated Net Income for each fiscal
quarter beginning with the fiscal quarter ending on March 31, 2002,
during which Consolidated Net Income is positive, but without
reductions for any fiscal quarters during which Consolidated Net Income
is negative, plus (b) 100% of the Net Cash Proceeds from the issuance
of any capital stock, warrants or options to purchase capital stock or
other equity interest on and after Closing, plus (c) without
duplication of the preceding clause (b), 100% of any increase in
Consolidated Net Worth from the conversion of any debt to equity, the
issuance of any capital stock, warrants or options to purchase capital
stock or other equity interest, and any other transaction the effect of
which is to increase Consolidated Tangible Net Worth.
6.25. Material Domestic Subsidiary. Promptly upon acquiring a Material
Domestic Subsidiary, or promptly upon any Subsidiary becoming a Material
Domestic Subsidiary, Borrower shall cause such Material Domestic Subsidiary to
execute the Guaranty and the Security Documents.
6.26. Equity Proceeds. Within thirty (30) days after the issuance of
stock or securities of Borrower or any Subsidiary, other than pursuant to the
exercise of employee stock options Borrower shall prepay the Loans ratably in
proportion to their respective Pro Rata Shares of the Aggregate Outstanding
Credit Exposure in an amount equal to 100% of the net proceeds thereof;
provided, in the event that such net proceeds from the Closing Date through the
Facility Termination Date are less than $1,500,000.00, Borrower shall prepay
only the Tranche A Loans ratably in proportion to their respective Pro Rata
Tranche A Shares of the Aggregate Tranche A Outstanding Credit Exposure.
50
6.27. Environmental Matters.
6.27.1. Environmental Compliance.
(i) The Borrower and each Guarantor will comply with
and will use its best efforts to cause its agents, contractors
and sub-contractors (while such Persons are acting within the
scope of their contractual relationship with the Borrower and
the Guarantors) to so comply with (A) all applicable
environmental, health and safety laws, codes and ordinances,
and all rules and regulations promulgated thereunder of all
Governmental Authorities and (B) the terms and conditions of
all applicable permits, licenses, certificates and approvals
of all Governmental Authorities now or hereafter granted or
obtained with respect to properties owned or operated by the
Borrower or any Guarantor unless such compliance would violate
the laws or regulations of the jurisdictions in which the
assets are located.
(ii) The Borrower and each Guarantor will use its
best efforts and safety practices to prevent the unauthorized
release, discharge, disposal, escape or spill of Hazardous
Substances on or about properties owned or operated by the
Borrower or the Guarantors.
6.27.2. Environmental Notifications. The Borrower and each
Guarantor shall notify the Administrative Agent within five
(5) Business Days of any of the following events occurring
after the date of this Agreement:
(i) Any written notification made by Borrower or any
Guarantor to any federal, state or local environmental agency
required under any federal, state or local environmental
statute, regulation or ordinance relating to a spill or
unauthorized discharge or release of any Hazardous Substance
to the environment at, from, or as a result of any operations
on, the properties and operations owned or operated by the
Borrower and any Guarantor.
(ii) Knowledge by an officer of the Borrower or any
Guarantor of receipt of service by Borrower or such Guarantor
of any complaint, compliance order, compliance schedule,
notice letter, notice of violation, citation or other similar
notice or any judicial demand by any court, federal, state or
local environmental agency, alleging (A) any spill,
unauthorized discharge or release of any Hazardous Substance
to the environment from, or as a result of the operations on,
the properties owned or operated by the Borrower or such
Guarantor or (B) violations of applicable laws, regulations or
permits regarding the generation, storage, handling,
treatment, transportation, recycling, release or disposal of
Hazardous Substances on or as a result of operations on the
properties and operations owned or operated by the Borrower or
such Guarantor.
(iii) It is understood by the parties hereto that the
aforementioned notices are solely for the Administrative
Agent's and the Lender's information, may not otherwise be
required by any federal, state or local environmental laws,
regulations or ordinances, and are to be considered
confidential information by the Lenders and the Administrative
Agent.
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(iv) The term "environmental agency" as used herein
shall include, but not be limited to, the United States
Environmental Protection Agency, the United States Coast
Guard, the United States Mineral Management Service, the
United States Department of Transportation (in its
administration of the Hazardous Materials Transportation Act,
49 U.S.C. Sec. 1801, et seq.), the Louisiana Department of
Natural Resources, the Railroad Commission of the State of
Texas, the Texas Natural Resource Conservation Commission and
other analogous or similar Governmental Authorities regulating
or administering statutes, regulations or ordinances relating
to or imposing liability or standards of conduct concerning
the generation, storage, use, production, transportation,
handling, treatment, recycling, release or disposal of any
Hazardous Substance.
6.27.3. Environmental Indemnifications.
(i) The Borrower and the Guarantors hereby agree,
jointly and severally, to indemnify and hold the
Administrative Agent and each Lender harmless from and against
any and all claims, losses, liability, damages and injuries of
any kind whatsoever asserted against the Administrative Agent
and the Lenders with respect to or as a direct result of the
presence, escape, seepage, spillage, release, leaking,
discharge or migration from any properties owned or operated
by the Borrower or any Guarantor of any Hazardous Substance,
including without limitation, any claims asserted or arising
under any applicable environmental, health and safety laws,
codes and ordinances, and all rules and regulations
promulgated thereunder of all Governmental Authorities,
regardless of whether or not caused by or within the control
of the Borrower or any Guarantor.
(ii) It is the parties' understanding that the
Administrative Agent and the Lenders do not now, have never
and do not intend in the future to exercise any operational
control or maintenance over the properties and operations
owned or operated by the Borrower or any Guarantor, nor have
they in the past, presently, or intend in the future to,
maintain an ownership interest in the properties owned or
operated by the Borrower or any Guarantor except as may arise
upon enforcement of the rights under the Security Instruments.
6.28. Collateral; Guaranty. The Borrower shall, and shall cause each
Material Domestic Subsidiary, including any Subsidiary that becomes a Material
Domestic Subsidiary hereafter to, execute Collateral Documents in form and
substance satisfactory to Administrative Agent, to provide a valid, perfected,
first priority security interest in all present and future Collateral securing
all Secured Obligations, pari passu. The Borrower and each Material Domestic
Subsidiary shall execute such further and additional security agreements,
financing statements, and amendments thereto as may be necessary to perfect or
continue the perfection and validity of any Collateral Document, including any
that may be necessary as a result of the effectiveness, in any jurisdiction, of
revised article 9 of the Uniform Commercial Code. If requested by Administrative
Agent at any time, the Borrower shall, and shall cause each Material Domestic
Subsidiary, to deliver to Administrative Agent, all certificated securities and
other property as may be necessary for the attachment or perfection of any
security interest. The Borrower shall cause each Material Domestic Subsidiary,
including any Subsidiary that becomes a Material
52
Domestic Subsidiary hereafter, to execute the Guaranty. Each such Subsidiary
shall be permitted to execute a subordinated guaranty of the Subordinated
Debentures at or after the time at which the Guaranty is executed, provided such
guaranty shall be subordinate in all respect to the Guaranty.
6.29. Permitted Acquisitions. The Borrower will not, and will not
permit any Subsidiary to, make Acquisitions if the cumulative aggregate cash
consideration (defined as total net cash to be paid, plus Indebtedness and
Contingent Obligations to be assumed in connection with any Acquisition, plus
the Acquisition costs associated with such Acquisitions exceeds $15,000,000
through the Facility Termination Date. The Borrower will not, and will not
permit any Subsidiary to, make other Acquisitions unless (i) the acquisition
target is in the same or similar line of business as Borrower and its
subsidiaries; (ii) the Borrower or a Domestic Subsidiary is the surviving entity
holding one hundred percent (100%) of the capital stock or membership interests
in the Acquisition target; (iii) no Default or Unmatured Default shall exist
before or after any Acquisition; (iv) all Acquisitions shall be completed in
accordance with applicable laws; (v) Administrative Agent shall be provided with
satisfactory opinions with regard to any acquisition as it may request; (vi) the
terms of Section 6.28 or 6.31 as the case may be, are satisfied, and (vii) the
board of directors of the Acquisition target approves the Acquisition.
6.30. Permitted Financial Contracts. The Borrower will not, and will
not permit any Subsidiary to, enter into any Financial Contracts other than
Financial Contracts complying with the provisions of this Section 6.30. The
Borrower may enter into Financial Contracts that constitute interest rate swaps
provided (i) they do not exceed an aggregate notional amount of 100% of the
Indebtedness that is projected to be incurred during the term of such Financial
Contract and (ii) they are for a term of three (3) years or less. The Borrower
may enter into Financial Contracts that constitute currency swap transactions of
Canadian Dollars provided (y) they do not exceed an aggregate notional amount of
100% of all Canadian Dollar loans reasonably projected to be outstanding from
Borrower to Newpark Canada, Inc. and any other Canadian Subsidiaries, together
with all investments by Borrower in such entities permitted under Section
6.14(v) during the term of such Financial Contract minus the aggregate principal
amount (stated in Canadian Dollars) of all Tranche B Loans reasonably projected
to be outstanding during the term of such Financial Contract, and (z) they are
for a term of three (3) years or less.
6.31. Material Foreign Subsidiary. Promptly upon acquiring a Material
Foreign Subsidiary, or promptly upon any Subsidiary becoming a Material Foreign
Subsidiary, Borrower shall, in the case of any Subsidiary that is a Canadian
entity, pledge at least 65% but just less than 66-2/3% of the capital stock on
such terms and conditions and with such priority as may be required by the
Administrative Agent, and in the case of any Subsidiary formed under the laws of
any other country, take such actions in order to pledge security and/or capital
stock or equity interest of such Subsidiary as the Administrative Agent shall
require.
6.32. SOLOCO Agreements. The Borrower shall comply with the material
terms and conditions of the SOLOCO Agreements and shall purchase at least the
minimum number of mats as may be required thereunder to maintain exclusive
license under the SOLOCO Agreements.
53
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Credit Extension, or any
certificate or information delivered in connection with this Agreement or any
other Loan Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan when due, or nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any Commitment Fee, LC Fee, or other
obligations under any of the Loan Documents within five days after the same
becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Article VI.
7.4. The breach by the Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within five days after
written notice from the Administrative Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries to pay when due
any Indebtedness aggregating in excess of $1,000,000.00 ("Material
Indebtedness"); or the default by the Borrower or any of its Subsidiaries in the
performance (beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event shall occur
or condition exist, the effect of which default or event is to cause, or to
permit the holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or any
Material Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6. The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or
54
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Borrower and its Subsidiaries which, when taken together
with all other Property of the Borrower and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such action occurs, constitutes a
Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $1,000,000.00 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $1,000,000.00 or any Reportable Event shall occur in
connection with any Plan.
7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $500,000.00 or
requires payments exceeding $1,000,000.00 per annum.
7.12. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $1,000,000.00.
55
7.13. The Borrower or any of its Subsidiaries shall (i) be the subject
of any proceeding or investigation pertaining to the release by the Borrower,
any of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.14. Any Change in Control shall occur.
7.15. The occurrence of any "default", as defined in any Loan Document
(other than this Agreement) or the breach of any of the terms or provisions of
any Loan Document (other than this Agreement), which default or breach continues
beyond any period of grace therein provided.
7.16. Nonpayment by the Borrower or any Subsidiary of any Rate
Management Obligation or any obligation under any Financial Contract when due or
the breach by the Borrower or any Subsidiary of any term, provision or condition
contained in any Financial Contract.
7.17. Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect.
7.18. Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, except as permitted by the terms of any Collateral
Document, or any Collateral Document shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of any Collateral Document, or the Borrower shall fail to
comply with any of the terms or provisions of any Collateral Document.
7.19. The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions") shall at any time not be true and
correct.
7.20. The Borrower or any Subsidiary shall fail to pay when due any
Operating Lease Obligation, obligation with respect to a Letter of Credit,
obligation under a Sale and Leaseback Transaction or Contingent Obligation.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration; Facility LC Collateral Account. (i) If any Default
described in Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations (i) of the Lenders to make Loans hereunder and the obligation and
power of the LC Issuer to issue Facility LCs shall automatically terminate and
the Obligations shall immediately become due and payable without
56
any election or action on the part of the Administrative Agent, the LC Issuer or
any Lender and the Borrower will be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay to the
Administrative Agent an amount in immediately available funds, which funds shall
be held in the Facility LC Collateral Account, equal to the difference of (x)
the amount of LC Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of all
rights and claims of third parties and has not been applied against the
Obligations (such difference, the "Collateral Shortfall Amount"). If any other
Default occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may (a) terminate or suspend the obligations of
the Lenders to make Loans hereunder and the obligation and power of the LC
Issuer to issue Facility LCs, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives, and (b) upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts payable under
this Agreement, make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Administrative
Agent determines that the Collateral Shortfall Amount at such time is greater
than zero, the Administrative Agent may make demand on the Borrower to pay, and
the Borrower will, forthwith upon such demand and without any further notice or
act, pay to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Collateral Account.
(iii) The Administrative Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account, apply such
funds first, to the payment of the LC Obligations, and then to the payment of
the other Obligations and any other amounts as shall from time to time have
become due and payable by the Borrower to the Lenders or the LC Issuer under the
Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall have any
right to withdraw any of the funds held in the Facility LC Collateral Account.
After all of the Obligations have been indefeasibly paid in full and the
Aggregate Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Administrative Agent to the Borrower
or paid to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans and
the obligation and power of the LC Issuer to issue Facility LCs hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
57
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the expiry
date of any Facility LC to a date after the Facility
Termination Date or postpone any regularly scheduled payment
of principal of any Loan or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of
payment of interest or fees thereon or Reimbursement
Obligations related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date or reduce the amount or
extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Aggregate
Commitment or of the Commitment of any Lender hereunder or the
commitment to issue Facility LCs, or permit the Borrower to
assign its rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release any Guarantor from its obligations under the Guaranty;
or, except as provided in the Collateral Documents, release,
or agree to subordinate the Lenders' Liens with respect to,
all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment of any provision relating to the LC Issuer shall be
effective without the written consent of the LC Issuer. The Administrative Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders, the
LC Issuer or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Credit Extension notwithstanding
the existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent, the LC Issuer and the Lenders until the Obligations
have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Administrative Agent, the LC Issuer
and the Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent, the LC Issuer and the Lenders relating to
the subject matter thereof other than the fee letter described in Section 10.13.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that
the parties hereto expressly agree that the Arranger shall enjoy the benefits of
the provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the
Administrative Agent and the Arranger for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Administrative Agent, which attorneys may be employees of the
Administrative Agent) paid or incurred by the Administrative Agent or the
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, distribution (including, without limitation, via the internet),
review, amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Administrative Agent, the Arranger and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Administrative Agent, the
Arranger, the LC Issuer and the Lenders, which attorneys may be
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employees of the Administrative Agent, the Arranger, the LC Issuer or the
Lenders) paid or incurred by the Administrative Agent, the Arranger, the LC
Issuer or any Lender in connection with the collection and enforcement of the
Loan Documents. Expenses being reimbursed by the Borrower under this Section
include, without limitation, costs and expenses incurred in connection with the
Reports described in the following sentence. The Borrower acknowledges that from
time to time Bank One may prepare and may distribute to the Lenders (but shall
have no obligation or duty to prepare or to distribute to the Lenders) certain
audit reports (the "Reports") pertaining to the Borrower's assets for internal
use by Bank One from information furnished to it by or on behalf of the
Borrower, after Bank One has exercised its rights of inspection pursuant to this
Agreement.
(ii) The Borrower hereby further agrees to indemnify the Administrative
Agent, the Arranger, the LC Issuer each Lender, their respective affiliates, and
each of their directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Administrative Agent, the Arranger, the LC Issuer or any Lender or any
affiliate is a party thereto) which any of them may pay or incur arising out of
or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Credit Extension hereunder except to the
extent that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of, or breach of the provisions of Section 9.11 of this Agreement by,
the party seeking indemnification. The obligations of the Borrower under this
Section 9.6 shall survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Borrower and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements.
9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. No liability of Lenders. The relationship between the Borrower on
the one hand and the Lenders, the LC Issuer and the Administrative Agent on the
other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Administrative
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Agent, the Arranger, the LC Issuer nor any Lender undertakes any responsibility
to the Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower's business or operations. The Borrower agrees
that neither the Administrative Agent, the Arranger, the LC Issuer nor any
Lender shall have liability to the Borrower (whether sounding in tort, contract
or otherwise) for losses suffered by the Borrower in connection with, arising
out of, or in any way related to, the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Administrative Agent, the Arranger, the LC
Issuer nor any Lender shall have any liability with respect to, and the Borrower
hereby waives, releases and agrees not to xxx for, any special, indirect,
consequential or punitive damages suffered by the Borrower in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, (vii)
permitted by Section 12.4, and (viii) to the extent such information has become
public other than through a breach of this Agreement by any Lender.
9.12. Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
9.13. Disclosure. The Borrower and each Lender hereby (i) acknowledge
and agree that Bank One and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with the
Borrower and its Affiliates and (ii) waive any liability of Bank One or such
Affiliate to the Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than liabilities
arising out of the gross negligence or willful misconduct of Bank One or its
Affiliates.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One, NA is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Administrative Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with
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the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-102 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any Default or Unmatured
Default; (e) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith; (f) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; or (g) the financial condition
of the Borrower or any guarantor of any of the Obligations or of any of the
Borrower's or any such guarantor's respective Subsidiaries. The Administrative
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Administrative Agent at such
time, but is voluntarily furnished
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by the Borrower to the Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document unless
it shall be requested in writing to do so by the Required Lenders. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or through employees, agents, and attorneys-in-fact and shall
not be answerable to the Lenders, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between the Administrative Agent and the Lenders and all matters pertaining to
the Administrative Agent's duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8. Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Administrative Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Administrative Agent in connection
with any dispute between the Administrative Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
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between two or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents, provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the
Administrative Agent and (ii) any indemnification required pursuant to Section
3.5(vii) shall, notwithstanding the provisions of this Section 10.8, be paid by
the relevant Lender in accordance with the provisions thereof. The obligations
of the Lenders under this Section 10.8 shall survive payment of the Obligations
and termination of this Agreement.
10.9. Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and its Loans
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, at any time when the
Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person. The Administrative
Agent, in its individual capacity, is not obligated to be remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.12. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives notice
of its intention to resign. The Administrative Agent may be removed at any time
with or without cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of
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the Borrower and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders within
thirty days after the resigning Administrative Agent's giving notice of its
intention to resign, then the resigning Administrative Agent may appoint, on
behalf of the Borrower and the Lenders, a successor Administrative Agent.
Notwithstanding the previous sentence, the Administrative Agent may at any time
without the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties
of the Administrative Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
10.13. Administrative Agent and Arranger Fees. The Borrower agrees to
pay to the Administrative Agent and the Arranger, for their respective accounts,
the fees agreed to by the Borrower, the Administrative Agent and the Arranger
pursuant to that certain letter agreement dated February 5, 2002, or as
otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
10.15. Execution of Collateral Documents. The Lenders hereby empower
and authorize the Administrative Agent to execute and deliver to the Borrower on
their behalf the Collateral Documents and all related financing statements and
any financing statements, agreements, documents or instruments as shall be
necessary or appropriate to effect the purposes of the Collateral Documents.
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10.16. Collateral Releases and Subordinations. The Lenders hereby
empower and authorize the Administrative Agent to execute and deliver to the
Borrower on their behalf any agreements, documents or instruments as shall be
necessary or appropriate to effect any releases or subordinations of Liens on
Collateral which shall be permitted by the terms hereof or of any other Loan
Document or on any Collateral on which any Lien permitted under Section 6.15 is
to be placed or which shall otherwise have been approved by the Required Lenders
(or, if required by the terms of Section 8.2, all of the Lenders) in writing.
10.17. Co-Agents, Documentation Administrative Agent, Syndication
Administrative Agent, etc. Neither any of the Lenders identified in this
Agreement as a "co-agent" nor the Documentation Administrative Agent or the
Syndication Administrative Agent shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing, none of such
Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to such
Lenders as it makes with respect to the Administrative Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Secured Obligations owing to
such Lender, whether or not the Secured Obligations, or any part thereof, shall
then be due.
11.2. Ratable Payments; Tranche A. Prior to the occurrence of any
Default or Unmatured Default, if any Tranche A Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Tranche A Credit Exposure
(other than payments received pursuant to Section 3.1, 3.2, 3.4, or 3.5) in a
greater proportion than that received by any other Tranche A Lender, such
Tranche A Lender agrees, promptly upon demand, to purchase a portion of the
Aggregate Tranche A Outstanding Credit Exposure held by the other Lenders so
that after such purchase each Lender will hold its Pro Rata Tranche A Share of
the Aggregate Tranche A Outstanding Credit Exposure. If any Tranche A Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Tranche A Shares of the Aggregate Tranche A Outstanding Credit Exposure. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
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11.3. Ratable Payments. Prior to the occurrence of any Default or
Unmatured Default in the case of payments under Sections 6.13 and 6.26, and upon
the occurrence of any Default or Unmatured Default in all other cases, if any
Lender, whether by setoff or otherwise, has payment made to it upon its
Outstanding Credit Exposure (other than payments received pursuant to Section
3.1, 3.2, 3.4, 3.5, or 8.1 (iii)) in a greater proportion than that received by
any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Aggregate Outstanding Credit Exposure held by the other Lenders
so that after such purchase each Lender will hold its Pro Rata Share of the
Aggregate Outstanding Credit Exposure. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their respective Pro Rata Shares of the Aggregate Outstanding
Credit Exposure. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
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12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Outstanding Credit
Exposure of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and
the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Credit
Extension or Commitment in which such Participant has an interest which
would require consent of all of the Lenders pursuant to the terms of
Section 8.2 or of any other Loan Document.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 and
11.3 as if each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit C or in
such other form as may be agreed to by the parties thereto. The consent
of the Borrower and the Administrative Agent and the LC Issuer shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof; provided,
however, that if a Default has occurred and is continuing, the consent
of the Borrower shall not be required. Such consent shall not be
unreasonably withheld or delayed. Each such assignment with respect to
a Purchaser which is not a Lender or an Affiliate thereof shall (unless
each of the Borrower and the Administrative Agent
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otherwise consents) be in an amount not less than the lesser of (i)
$5,000,000.00 or (ii) the remaining amount of the assigning Lender's
Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated).
12.3.2. Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of an assignment, together with any consents
required by Section 12.3.1, and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment (unless such fee is
waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The
assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable
assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by or on behalf of the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further
consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect
to the percentage of the Aggregate Commitment and Outstanding Credit
Exposure assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Administrative Agent and the Borrower shall, if
the transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender
and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
69
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Administrative Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below its signature hereto
or (z) in the case of any party, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Borrower in accordance with the provisions of this Section 13.1.
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
13.2. Change of Address. The Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent, the LC Issuer and the Lenders and each party has notified
the Administrative Agent by facsimile transmission or telephone that it has
taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS LOUISIANA, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
70
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR LOUISIANA
STATE COURT SITTING IN NEW ORLEANS, LOUISIANA IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE LC ISSUER
OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW ORLEANS, LOUISIANA.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT, THE
LC ISSUER, AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
71
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders, the LC
Issuer and the Administrative Agent have executed this Agreement as of the date
first above written.
BORROWER:
NEWPARK RESOURCES, INC.
By:
-------------------------------------------
Xxxx X. Xxxxxxxx, Xx.
Title:
----------------------------------------
0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxxxxx, Xx.,
Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
72
GUARANTORS:
EXCALIBAR MINERALS INC.,
MALLARD & MALLARD OF LA., INC.,
NEWPARK HOLDINGS, INC.,
SUPREME CONTRACTORS, L.L.C.,
NEWPARK DRILLING FLUIDS, LLC,
NEWPARK ENVIRONMENTAL SERVICES, L.L.C.,
NEWPARK ENVIRONMENTAL MANAGEMENT
COMPANY, L.L.C.,
NEWPARK TEXAS, L.L.C.,
EXCALIBAR MINERALS OF LA., L.L.C., and
SOLOCO, L.L.C.
By:
----------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
XXXXXX MILL, L.P.,
NEWPARK ENVIRONMENTAL SERVICES OF
TEXAS, L.P.,
NEWPARK SHIPHOLDING TEXAS, L.P.,
NID, L.P.,
SOLOCO TEXAS, L.P.,
NES PERMIAN BASIN, L.P. and
NEWPARK ENVIRONMENTAL SERVICES
MISSISSIPPI, L.P.
By: Newpark Holdings, Inc., the general
partner of each
By:
------------------------------------
Xxxx X. Xxxxxxxx, Xx., Treasurer
73
Tranche A Commitment
$30,000,000.00 BANK ONE, NA,
(Main Office, Chicago)
Individually as a Lender and as
Administrative Agent and as LC Issuer
By:
--------------------------------------
Title: Director, Capital Markets
29th Floor
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
74
Tranche A Commitment
$20,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------
Title:
------------------------------
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
With a Copy to:
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Ting-Xxx Xxx
Telephone: 000-000-0000
Fax: 000-000-0000
75
Tranche A Commitment
$9,500,000.00 ROYAL BANK OF CANADA
By:
------------------------------------
Tranche B Commitment Title: Manager
$5,500,000.00
Royal Bank of Canada
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
76
Tranche A Commitment
$15,000,000.00 HIBERNIA NATIONAL BANK
By:
------------------------------------
Title: Assistant Vice President
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
77
Tranche A Commitment
$10,000,000.00 COMERICA BANK
By:
------------------------------------
Title: Assistant Vice President
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: X. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
78
Tranche A Commitment
$10,000,000.00 WHITNEY NATIONAL BANK
By:
------------------------------------
Title:
---------------------------------
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a Copy to:
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
79
PRICING SCHEDULE
Attached
80
EXHIBIT A
FORM OF OPINION
Attached
81
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Attached
82
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
__________________ (the "Assignor") and __________________ (the "Assignee") is
dated as of ______________, 19__ . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Outstanding Credit Exposure, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set forth
in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Administrative
Agent) after this Assignment Agreement, together with any consents required
under the Credit Agreement, are delivered to the Administrative Agent. In no
event will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date are not made on the proposed
Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on
the Effective Date, the amount agreed to by the Assignor and the Assignee. On
and after the Effective Date, the Assignee shall be entitled to receive from the
Administrative Agent all payments of principal, interest, Reimbursement
Obligations and fees with respect to the interest assigned hereby. The Assignee
will promptly remit to the Assignor any interest on Loans and fees received from
the Administrative Agent which relate to the portion of the Commitment or
Outstanding Credit Exposure assigned to the Assignee hereunder for periods prior
to the Effective Date and not previously paid by the Assignee to the Assignor.
In the event that either party hereto receives any payment to which the other
party hereto is entitled under this Assignment Agreement, then the party
receiving such amount shall promptly remit it to the other party hereto.
83
5. RECORDATION FEE. The Assignor and Assignee each agree to pay
one-half of the recordation fee required to be paid to the Administrative Agent
in connection with this Assignment Agreement unless otherwise specified in Item
6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectibility of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information at it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) confirms that the execution and delivery of
this Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender, (vi)
agrees that its payment instructions and notice instructions are as set forth in
the attachment to Schedule 1, (vii) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets" under
ERISA, (viii) agrees to indemnify and hold the Assignor harmless against all
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees) and liabilities incurred by the Assignor in connection with or arising in
any manner from the Assignee's non-performance of the obligations assumed under
this Assignment Agreement, and (ix) if applicable, attaches the forms prescribed
by the Internal Revenue Service of the United States certifying that the
Assignee is
84
entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of
Illinois.
9. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
85
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ______________, 19
3. Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2* 3* 4*
-------- -------- -------- --------
a. Assignee's percentage
of each Facility purchased
under the Assignment
Agreement** ____% ____% ____% ____%
b. Amount of
each Facility
purchased
under the Assignment
Agreement*** $____ $____ $____ $____
4. Assignee's Commitment (or Outstanding
Credit Exposure
with respect to terminated
Commitments) purchased
hereunder: $_____________
5. Proposed Effective Date: ______________
6. Non-standard Recordation Fee
Arrangement N/A***
[Assignor/Assignee
to pay 100% of fee]
[Fee waived by Administrative Agent]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
86
ACCEPTED AND CONSENTED TO**** ACCEPTED AND CONSENTED TO****
BY [NAME OF AGENT] BY [NAME OF BORROWER]
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
* Insert specific facility names per Credit Agreement
** Percentage taken to 10 decimal places
*** If fee is split 50-50, pick N/A as option
**** Delete if not required by Credit Agreement
87
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: Telephone No.:
------------------------------ -----------------------
Fax No.: Telex No.:
--------------------------- ---------------------------
Answerback:
--------------------------
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
-----------------------------------------------
-----------------------------------------------
Account Name & Number for Wire Transfer:
----------------------------------------
----------------------------------------
Other Instructions:
-------------------------------------------------------------
--------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNOR:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: Telephone No.:
------------------------------ -----------------------
Fax No.: Telex No.:
--------------------------- ---------------------------
Answerback:
--------------------------
KEY OPERATIONS CONTACTS:
Booking Installation: Booking Installation:
--------------- ----------------
Name: Name:
------------------------------ --------------------------------
Telephone No.: Telephone No.:
--------------------- -----------------------
Fax No.: Fax No.:
--------------------------- -----------------------------
Telex No.: Telex No.:
------------------------- ---------------------------
Answerback: Answerback:
------------------------ --------------------------
88
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
-----------------------------------------------
-----------------------------------------------
Account Name & Number for Wire Transfer:
----------------------------------------
----------------------------------------
Other Instructions:
-------------------------------------------------------------
--------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNEE:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
89
BANK ONE INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: Name:
------------------------------ ------------------------------
Telephone No.: (312) Telephone No.: (312)
--------------------- ---------------------
Fax No.: (312) Fax No.: (312)
--------------------------- ---------------------------
Bank One Telex No.: 190201 (Answerback: FNBC UT)
-------------------------------
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
BANK ONE WIRE INSTRUCTIONS: Bank One, NA, ABA # 000000000
LS2 Incoming Account # 481152860000
Ref:
----------------
ADDRESS FOR NOTICES FOR BANK ONE: 0 Xxxx Xxx Xxxxx, Xxxxxxx, XX 00000
Attn: Agency Compliance Division,
Suite IL1-0353
Fax No. (000) 000-0000 or (000) 000-0000
90
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION;
BORROWING NOTICE; CONVERSION/CONTINUATION NOTICE
To Bank One, NA,
as Administrative Agent (the "Administrative Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated ____________________, _______ (as the same may
be amended or modified, the "Credit Agreement"), among
___________________________________ (the "Borrower"), the Lenders named
therein, the LC Issuer and the Administrative Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s)
-----------------------------------------------
Customer/Account Name
-----------------------------------------------------------
Transfer Funds To
---------------------------------------------------------------
---------------------------------------------------------------
For Account No.
-----------------------------------------------------------------
Reference/Attention To
----------------------------------------------------------
Authorized Officer (Customer Representative) Date
---------------------
------------------------------------------- -------------------------------
(Please Print) Signature
Bank Officer Name Date
---------------------------
------------------------------------------- -------------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
91
BORROWING REQUEST
______________, 200_
Bank One, NA
Attention:
-----------------
RE: NEWPARK RESOURCES, INC.
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to the Amended and
Restated Credit Agreement, dated as of January 31, 2002 (together with all
amendments, if any, from time to time made thereto, the "Credit Agreement"),
among Newpark Resources, Inc. (the "Borrower"), the Guarantors, the Lenders, and
Bank One, NA as Administrative Agent (the "Administrative Agent") and LC Issuer.
Unless otherwise defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that a [Tranche A Loan] [Tranche B Loan]
be made in the aggregate principal amount of [US][Canadian] $__________ on
__________, 200_ as a [Eurodollar Advance having an Interest Period of _______
months] [Euro-Canadian Advance having an Interest Period of __ months] [Floating
Rate Advance].
Please wire transfer the proceeds of the Borrowing to the account of
the Borrower at the financial institution indicated:
Amount to be Transferred Account Information
------------------------ -------------------
[US][Canadian]
$ --------------------------
--------------------------
Attention:
----------------
Following the funding of this Advance, the outstanding principal
balance of all Advances will be $___________.
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ___ day of ___________, _____.
NEWPARK RESOURCES, INC.
BY:
-------------------------------
ITS:
------------------------------
92
CONTINUATION/CONVERSION NOTICE
______________, 200_
Bank One, NA
Attention:
RE: NEWPARK RESOURCES, INC.
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to the
Amended and Restated Credit Agreement, dated as of January 31, 2002 (together
with all amendments, if any, from time to time made thereto, the "Credit
Agreement"), among Newpark Resources, Inc. (the "Borrower"), the Guarantors, the
Lenders, and Bank One, NA as Administrative Agent (the "Administrative Agent")
and LC Issuer. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that on _____________________,
(1) [US][Canadian] $______________ of the presently
outstanding principal amount of the [Tranche A Loans]/[Tranche B Loans]
originally made on __________________, [and [US][Canadian]
$_______________ of the presently outstanding principal amount of the
[Tranche A Loans]/[Tranche B Loans] originally made on
____________________],
(2) and all presently being maintained as [Floating Rate
Loans] [Eurodollar Rate Loans] [Euro-Canadian Loans],
(3) be [converted into] [continued as],
(4) [Eurodollar Rate Loans having an Interest Period of __
months] [Euro-Canadian Rate Loans having an Interest Period of ___
months] [Floating Rate Loans].
The Borrower has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein to
be made, by its duly Authorized Officer this ___ day of __________, _____.
NEWPARK RESOURCES, INC.
BY:
-------------------------------
ITS:
------------------------------
93
EXHIBIT X-0
XXXXXXX X XXXX
Xxxxxxx 00, 0000
Xxxxxxx Resources, Inc., a Delaware corporation (the "Borrower"),
promises to pay to the order of ____________________________________ (the
"Lender") the aggregate unpaid principal amount of all Tranche A Loans made by
the Lender to the Borrower pursuant to Article II of the Agreement (as
hereinafter defined), in immediately available funds at the main office of Bank
One, NA in Chicago,
Illinois, as Administrative Agent, together with interest on
the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Tranche A Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and principal amount of each Tranche A Loan, the applicable Type and
interest rate, the applicable Interest Period, and the date and amount of each
principal payment hereunder.
This Tranche A Note is one of the Tranche A Notes issued pursuant to,
and is entitled to the benefits of, the Amended and Restated Credit Agreement
dated as of January 31, 2002 (which, as it may be amended or modified and in
effect from time to time, is herein called the "Agreement"), among the Borrower,
the Guarantors, the lenders party thereto, including the Lender, and Bank One,
NA, as Administrative Agent and LC Issuer, to which Agreement reference is
hereby made for a statement of the terms and conditions governing this Tranche A
Note, including the terms and conditions under which this Note may be prepaid or
its maturity date accelerated. This Tranche A Note is secured pursuant to the
Collateral Documents and guaranteed pursuant to the Guaranty, all as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
NEWPARK RESOURCES, INC.
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
94
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
TRANCHE A NOTE OF ________________,
DATED ______________,
Principal
Amount of Interest Type of Maturity of Principal
Date Loan Rate Loan Interest Period Amount Paid Unpaid Balance
---- --------- -------- ------- --------------- ----------- --------------
95
EXHIBIT X-0
XXXXXXX X XXXX
Xxxxxxx 00, 0000
Xxxxxxx Resources, Inc., a Delaware corporation (the "Borrower"),
promises to pay to the order of ____________________________________ (the
"Lender") the aggregate unpaid principal amount of all Tranche B Loans made by
the Lender to the Borrower pursuant to Article II of the Agreement (as
hereinafter defined), in immediately available funds at the place specified
pursuant to Article II of the Agreement, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Tranche B Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and principal amount of each Tranche B Loan, the applicable Type and
interest rate, the applicable Interest Period, and the date and amount of each
principal payment hereunder.
This Tranche B Note is one of the Tranche B Notes issued pursuant to,
and is entitled to the benefits of, the Amended and Restated Credit Agreement
dated as of January 31, 2002 (which, as it may be amended or modified and in
effect from time to time, is herein called the "Agreement"), among the Borrower,
the Guarantors, the lenders party thereto, including the Lender, and Bank One,
NA, as Administrative Agent and LC Issuer, to which Agreement reference is
hereby made for a statement of the terms and conditions governing this Tranche B
Note, including the terms and conditions under which this Note may be prepaid or
its maturity date accelerated. This Tranche B Note is secured pursuant to the
Collateral Documents and guaranteed pursuant to the Guaranty, all as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
NEWPARK RESOURCES, INC.
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
96
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
TRANCHE B NOTE OF _________________,
DATED _____________,
Principal
Amount of Interest Type of Maturity of Principal
Date Loan Rate Loan Interest Period Amount Paid Unpaid Balance
---- --------- -------- ------- --------------- ----------- --------------
97
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See Sections 5.8 and 6.14)
Attached
98
SCHEDULE 2
INDEBTEDNESS AND LIENS
(See Sections 5.14, 6.11 and 6.15)
Attached
99
SCHEDULE 3
CONTINGENT OBLIGATIONS
(See Section 6.11)
Attached
100
SCHEDULE 4
LITIGATION
(See Section 5.7)
None
101
