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EXHIBIT 10.10
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of February 15, 2000
among
EARTHCARE COMPANY,
VARIOUS FINANCIAL INSTITUTIONS,
BANKBOSTON, N.A.,
as Syndication Agent,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC,
Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS........................................................ 1
1.1 Definitions.................................................... 1
1.2 Other Interpretive Provisions..................................12
SECTION 2 COMMITMENTS OF THE BANKS; BORROWING, CONVERSION AND
LETTER OF CREDIT PROCEDURES.......................................12
2.1 Commitments....................................................12
2.1.1 Loans..................................................12
2.1.2 L/C Commitment.........................................12
2.2 Loan Procedures................................................12
2.2.1 Various Types of Loans.................................12
2.2.2 Borrowing Procedures...................................13
2.2.3 Conversion and Continuation Procedures.................13
2.3 Letter of Credit Procedures....................................14
2.3.1 L/C Applications.......................................14
2.3.2 Participations in Letters of Credit....................14
2.3.3 Reimbursement Obligations..............................15
2.3.4 Limitation on Obligations of Issuing Banks.............15
2.3.5 Funding by Banks to Issuing Banks......................15
2.4 Commitments Several............................................16
2.5 Certain Conditions.............................................16
SECTION 3 NOTES EVIDENCING LOANS.............................................16
3.1 Notes..........................................................16
3.2 Recordkeeping..................................................16
SECTION 4 INTEREST...........................................................17
4.1 Interest Rates.................................................17
4.2 Interest Payment Dates.........................................17
4.3 Setting and Notice of Eurodollar Rates.........................17
4.4 Computation of Interest........................................17
SECTION 5 FEES...............................................................17
5.1 Non-Use Fee....................................................17
5.2 Letter of Credit Fees..........................................17
5.3 Administrative Agent's and Arranger's Fees.....................18
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SECTION 6 CHANGES IN THE COMMITMENT AMOUNT; PREPAYMENTS.....................18
6.1 Changes in the Commitment Amount...............................18
6.1.1 Optional Increase in the Commitment Amount.............18
6.1.2 Voluntary Reductions of the Commitment Amount..........18
6.2 Prepayments....................................................19
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES....................19
7.1 Making of Payments.............................................19
7.2 Application of Certain Payments................................19
7.3 Due Date Extension.............................................19
7.4 Setoff.........................................................20
7.5 Proration of Payments..........................................20
7.6 Taxes..........................................................20
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS...........20
8.1 Increased Costs................................................20
8.2 Basis for Determining Interest Rate Inadequate or Unfair.......20
8.3 Changes in Law Rendering Eurodollar Loans Unlawful.............20
8.4 Funding Losses.................................................21
8.5 Right of Banks to Fund through Other Offices...................21
8.6 Discretion of Banks as to Manner of Funding....................21
8.7 Mitigation of Circumstances; Replacement of Affected Bank......22
8.8 Conclusiveness of Statements; Survival of Provisions...........22
SECTION 9 WARRANTIES.........................................................22
9.1 Organization, etc..............................................22
9.2 Authorization; No Conflict.....................................22
9.3 Validity and Binding Nature....................................23
9.4 Financial Condition............................................23
9.5 No Material Adverse Change.....................................23
9.6 Litigation and Contingent Liabilities..........................23
9.7 Ownership of Properties; Liens.................................23
9.8 Subsidiaries...................................................23
9.9 Pension and Welfare Plans......................................24
9.10 Investment Company Act.........................................24
9.11 Public Utility Holding Company Act.............................24
9.12 Regulation U...................................................24
9.13 Taxes..........................................................24
9.14 Solvency, etc..................................................25
9.15 Environmental Matters..........................................25
9.16 Information....................................................25
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SECTION 10 COVENANTS.........................................................25
10.1 Reports, Certificates and Other Information.......................25
10.1.1 Audit Report...............................................25
10.1.2 Quarterly Reports..........................................26
10.1.3 Monthly Reports............................................26
10.1.4 Compliance Certificates....................................26
10.1.5 Reports to SEC and to Shareholders.........................26
10.1.6 Notice of Default, Litigation and ERISA Matters............27
10.1.7 Subsidiaries...............................................27
10.1.8 Management Reports.........................................27
10.1.9 Projections................................................27
10.1.10 Environmental Reports.....................................27
10.1.11 Other Information.........................................27
10.2 Books, Records and Inspections....................................27
10.3 Insurance.........................................................27
10.4 Compliance with Laws; Payment of Taxes and Liabilities............28
10.5 Maintenance of Existence, etc.....................................28
10.6 Financial Covenants...............................................28
10.6.1 Minimum Consolidated Net Worth.............................28
10.6.2 Minimum Interest Coverage..................................28
10.6.3 Leverage Ratio.............................................29
10.6.4 Senior Leverage Ratio......................................29
10.6.5 Debt to Capitalization Ratio...............................29
10.6.6 Capital Expenditures.......................................29
10.7 Limitations on Debt...............................................30
10.8 Liens.............................................................30
10.9 Operating Leases..................................................31
10.10 Restricted Payments...............................................31
10.11 Mergers, Consolidations, Sales ...................................31
10.12 Use of Proceeds ..................................................32
10.13 Further Assurances................................................32
10.14 Transactions with Affiliates......................................33
10.15 Employee Benefit Plans............................................33
10.16 Environmental Laws ..............................................33
10.17 Unconditional Purchase Obligations ...............................33
10.18 Inconsistent Agreements .........................................33
10.19 Business Activities...............................................33
10.20 Advances and Other Investments....................................33
10.21 Interest Rate Protection .........................................34
10.22 Amendments to Certain Agreements..................................34
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SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.........................35
11.1 Effectiveness.....................................................35
11.1.1 Notes......................................................35
11.1.2 Resolutions................................................35
11.1.3 Consents, etc..............................................35
11.1.4 Incumbency and Signature Certificates......................35
11.1.5 Guaranties.................................................35
11.1.6 Security Agreement.........................................35
11.1.7 Pledge Agreement...........................................36
11.1.8 Individual Pledge Agreement. The Individual Pledge Agreement executed by
Xxxxxx X. Xxxxxxxxx, Xx. and Xxxxxxx X. Xxxx, together with debentures
evidencing not less than $5,500,000 of the 1999 Subordinated Debt endorsed
to the Administrative Agent pursuant thereto.
11.1.9 Opinion of Counsel for the Company and the Guarantors......36
11.1.10 Closing Certificate.......................................36
11.1.11 Other.....................................................36
11.2 Conditions........................................................36
11.2.1 Compliance with Warranties, No Default, etc................36
11.2.2............................................................37
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT................................37
12.1 Events of Default.................................................37
12.1.1 Non-Payment of the Loans, etc..............................37
12.1.2 Non-Payment of Other Debt..................................37
12.1.3 Other Material Obligations.................................38
12.1.4 Bankruptcy, Insolvency, etc................................38
12.1.5 Non-Compliance with Provisions of This Agreement...........38
12.1.6 Warranties.................................................38
12.1.7 Pension Plans..............................................38
12.1.8 Judgments..................................................39
12.1.9 Invalidity of Guaranty, etc................................39
12.1.10 Invalidity of Collateral Documents, etc..................39
12.1.11 Change in Control........................................39
12.2 Effect of Event of Default........................................40
SECTION 13 THE ADMINISTRATIVE AGENT..........................................40
13.1 Appointment and Authorization.....................................40
13.2 Delegation of Duties..............................................41
13.3 Liability of Administrative Agent.................................41
13.4 Reliance by Administrative Agent..................................41
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13.5 Notice of Default.................................................42
13.6 Credit Decision...................................................42
13.7 Indemnification...................................................42
13.8 Administrative Agent in Individual Capacity.......................43
13.9 Successor Administrative Agent....................................44
13.10 Withholding Tax...................................................44
13.11 Collateral Matters................................................46
13.12 Syndication Agent.................................................46
SECTION 14 GENERAL...........................................................47
14.1 Waiver; Amendments................................................47
14.2 Confirmations.....................................................47
14.3 Notices...........................................................47
14.4 Computations......................................................48
14.5 Regulation U......................................................48
14.6 Costs, Expenses and Taxes.........................................48
14.7 Subsidiary References.............................................48
14.8 Captions..........................................................49
14.9 Assignments; Participations.......................................49
14.9.1 Assignments................................................49
14.9.2 Participations.............................................50
14.10 Governing Law.....................................................50
14.11 Counterparts......................................................51
14.12 Successors and Assigns............................................51
14.13 Indemnification by the Company....................................51
14.14 Forum Selection and Consent to Jurisdiction.......................52
14.15 Waiver of Jury Trial..............................................52
14.16 Amendment and Restatement.........................................53
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SCHEDULE 1.1 Pricing Schedule
SCHEDULE 2.1 Banks and Percentages
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.8 Subsidiaries
SCHEDULE 9.15 Environmental Matters
SCHEDULE 10.7 Existing Debt
SCHEDULE 10.8 Existing Liens
SCHEDULE 12.1.11 Key Executives
SCHEDULE 14.3 Addresses for Notices
EXHIBIT A Form of Note
(Section 3.1)
EXHIBIT B Form of Compliance Certificate
(Section 10.1.3)
EXHIBIT C Form of Subsidiary Guaranty
(Section 1)
EXHIBIT D Form of Security Agreement
(Section 1)
EXHIBIT E Form of Pledge Agreement
(Section 1)
EXHIBIT F Form of Individual Guaranty
(Section 1)
EXHIBIT G Form of Individual Pledge Agreement
(Section 1)
EXHIBIT H Form of Assignment Agreement
(Section 14.9)
EXHIBIT I Form of Increase Request
(Section 6.1.1)
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 15,
2000 (this "Agreement") is among EARTHCARE COMPANY, a Delaware corporation (the
"Company"), the financial institutions that are or may from time to time become
parties hereto (together with their respective successors and assigns, the
"Banks"), and BANK OF AMERICA, N.A. (in its individual capacity, "Bank of
America"), as administrative agent for the Banks.
WHEREAS, the Company (then known as Santi Group, Inc.), various
financial institutions and Bank of America (then known as Bank of America
National Trust and Savings Association), as agent, are parties to a Credit
Agreement dated as of June 26, 1998 (as amended prior to the date hereof, the
"Original Agreement"); and
WHEREAS, the parties hereto have agreed to amend and restate the
Original Agreement so as to increase the amount of the credit facility
thereunder and to make various other changes thereto;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto agree as follows:
SECTION 1 DEFINITIONS.
1.1 Definitions. When used herein the following terms shall have
the following meanings:
Adjusted Funded Debt means all Funded Debt other than, prior to the
Release Date, the New Subordinated Debt and the Pledged Subordinated Debt.
Administrative Agent means Bank of America in its capacity as
administrative agent for the Banks hereunder and any successor thereto in such
capacity.
Affected Bank means any Bank that has given notice to the Company (which
has not been rescinded) of (i) any obligation by the Company to pay any amount
pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances of
the nature described in Section 8.2 or 8.3.
Affiliate of any Person means (i) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person and (ii) any officer or director of such Person.
Agent-Related Persons means the Administrative Agent and any successor
administrative agent arising under Section 13.9, together with their respective
Affiliates (including, in the case of Bank of
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America, the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
Agreement - see the Preamble.
Arranger means Banc of America Securities LLC in its capacity as lead
arranger and sole book manager for the credit facility established hereunder
Assignee - see Section 14.9.1.
Assignment Agreement - see Section 14.9.1.
Bank - see the Preamble. References to the "Banks" shall include the
Issuing Bank; for purposes of clarification only, to the extent that Bank of
America (or any successor Issuing Bank) may have any rights or obligations in
addition to those of the other Banks due to its status as Issuing Bank, its
status as such will be specifically referenced.
Base Rate means at any time the greater of (a) the Federal Funds Rate
plus 0.5% and (b) the Prime Rate.
Bank of America - see the Preamble.
Business Day means any day on which Bank of America is open for
commercial banking business in Chicago, New York and Charlotte and, in the case
of a Business Day which relates to a Eurodollar Loan, on which dealings are
carried on in the interbank eurodollar market.
Capital Expenditures means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated balance
sheet of the Company, but excluding expenditures made in connection with the
replacement, substitution or restoration of assets to the extent financed (i)
from insurance proceeds (or other similar recoveries) paid on account of the
loss of or damage to the assets being replaced or restored or (ii) with awards
of compensation arising from the taking by eminent domain or condemnation of the
assets being replaced.
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Person.
Cash Equivalent Investment means, at any time, (a) any evidence of
Debt, maturing not more than one year after such time, issued or guaranteed by
the United States Government or any agency thereof, (b) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case (unless issued by a Bank or its holding company) rated at
least A-l by
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Standard & Poor's Ratings Group or P-l by Xxxxx'x Investors Service, Inc., (c)
any certificate of deposit (or time deposits represented by such certificates of
deposit) or bankers acceptance, maturing not more than one year after such time,
or overnight Federal Funds transactions that are issued or sold by a commercial
banking institution that is a member of the Federal Reserve System and has a
combined capital and surplus and undivided profits of not less than
$500,000,000, (d) any repurchase agreement entered into with any Bank (or other
commercial banking institution of the stature referred to in clause (c)) which
(i) is secured by a fully perfected security interest in any obligation of the
type described in any of clauses (a) through (c) and (ii) has a market value at
the time such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such Bank (or other commercial banking institution)
thereunder and (e) investments in short-term asset management accounts offered
by any Bank for the purpose of investing in loans to any corporation (other than
the Company or an Affiliate of the Company), state or municipality, in each case
organized under the laws of any state of the United States or of the District of
Columbia.
CERCLA - see Section 9.15.
Code means the Internal Revenue Code of 1986.
Collateral Documents means the Pledge Agreement, the Security Agreement
and any other agreement pursuant to which the Company or any Guarantor grants
collateral to the Administrative Agent for the benefit of the Banks.
Commitment Amount means $80,000,000 as changed from time to time
pursuant to Section 6.1.
Commitment means, as to any Bank, such Bank's commitment to make Loans,
and to issue or participate in Letters of Credit, under this Agreement.
Company - see the Preamble.
Computation Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Company and its
Subsidiaries for any period, the net income (or loss) of the Company and its
Subsidiaries for such period, excluding any extraordinary gains during such
period.
Consolidated Net Worth means, at any date, consolidated stockholders'
equity (excluding any equity attributed to any preferred stock which is
mandatorily redeemable at any time prior to eight years after the Effective
Date) of the Company and its Subsidiaries as at such date.
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Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414 of the Code or
Section 4001 of ERISA.
Covenant Change Date means the earlier of September 30, 2000 or the
Release Date.
Debt of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been or should be recorded as liabilities on a balance
sheet of such Person, (c) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable in the
ordinary course of business), (d) all indebtedness secured by a Lien on the
property of such Person, whether or not such indebtedness shall have been
assumed by such Person (it being understood that if such Person has not assumed
or otherwise become personally liable for any such indebtedness, the amount of
the Debt of such Person in connection therewith shall be limited to the lesser
of the face amount of such indebtedness or the fair market value of all property
of such Person securing such indebtedness), (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether or
not drawn) and banker's acceptances issued for the account of such Person
(including the Letters of Credit), (f) net Hedging Obligations of such Person
and (g) all Suretyship Liabilities of such Person.
Disposal - see the definition of "Release".
Dollar and the sign "$" mean lawful money of the United States of
America.
EBITDA means, for any Computation Period, Consolidated Net Income for
such Computation Period plus to the extent deducted in determining such
Consolidated Net Income, Interest Expense, income tax expense, depreciation and
amortization for such Computation Period; provided that EBITDA shall be
calculated on a pro forma basis (in accordance with Article 11 of Regulation S-X
of the SEC) giving effect to (a) any acquisition made by the Company or any
Subsidiary during such Computation Period so long as, and to the extent that,
(i) the Company delivers to the Administrative Agent (which shall promptly
deliver to each Bank) a summary in reasonable detail of the assumptions
underlying, and the calculations made, in computing EBITDA on a pro forma basis
and (ii) the Required Banks do not object to such assumptions and/or
calculations within 10 Business Days after receipt thereof; and (b) any
divestiture of a Subsidiary, division or other operating unit made during such
Computation Period.
Effective Date - see Section 11.1.
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Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
Environmental Laws means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authority, in each case
relating to environmental matters.
Equity Offering means the receipt by the Company after the Effective
Date of not less than $20,000,000 in Net Cash Proceeds from the issuance of (a)
preferred stock which has no required cash dividends or required redemptions for
at least eight years and/or (b) common stock.
ERISA means the Employee Retirement Income Security Act of 1974.
Eurocurrency Reserve Percentage means, with respect to any Eurodollar
Loan for any Interest Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the percentage in effect on each
day of such Interest Period, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor), for determining the aggregate maximum
reserve requirements applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other then applicable regulation of such Board of Governors
which prescribes reserve requirements applicable to "Eurocurrency Liabilities"
as presently defined in Regulation D.
Eurodollar Loan means any Loan which bears interest at a rate
determined by reference to the Eurodollar Rate (Reserve Adjusted).
Eurodollar Margin - see Schedule 1.1.
Eurodollar Office means with respect to any Bank the office or offices
of such Bank which shall be making or maintaining the Eurodollar Loans of such
Bank hereunder or such other office or offices through which such Bank
determines its Eurodollar Rate. A Eurodollar Office of any Bank may be, at the
option of such Bank, either a domestic or foreign office.
Eurodollar Rate means, with respect to any Eurodollar Loan for any
Interest Period, the rate per annum at which Dollar deposits in immediately
available funds are offered to the Eurodollar Office of Bank of America two
Business Days prior to the beginning of such Interest Period by major banks in
the interbank eurodollar market as at or about 10:00 A.M., Chicago time, for
delivery on the first day of such Interest Period, for the number of days
comprised therein and in an amount equal or comparable to the amount of the
Eurodollar Loan of Bank of America for such Interest Period.
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Eurodollar Rate (Reserve Adjusted) means, with respect to any
Eurodollar Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
Event of Default means any of the events described in Section 12.1.
Exemption Representation - see Section 7.6.
Federal Funds Rate means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor
publication, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
Financial Letter of Credit means any Letter of Credit determined by the
applicable Issuing Bank to be a "financial guaranty-type Standby Letter of
Credit" as defined in footnote 13 to Appendix A to the Risk Based Capital
Guidelines issued by the Comptroller of the Currency (or in any successor
regulation, guideline or ruling by any applicable banking regulatory authority).
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Company and its Subsidiaries,
which period shall be the 12-month period ending on December 31 of each year.
Floating Rate Loan means any Loan which bears interest at or by
reference to the Base Rate.
Floating Rate Margin - see Schedule 1.1.
Funded Debt means all Debt of the Company and its Subsidiaries,
excluding (i) contingent obligations in respect of undrawn letters of credit and
Suretyship Liabilities (except, in each case, to the extent constituting
Suretyship Liabilities in respect of Debt of a Person other than the Company or
any Subsidiary), (ii) Hedging Obligations and (iii) Debt of the Company to
Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries.
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GAAP means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
Group - see Section 2.2.1.
Guarantor means, at any time, (a) each Subsidiary that has executed a
counterpart of the Subsidiary Guaranty on or prior to such time (or is required
to execute a counterpart of the Subsidiary Guaranty at such time) and (b) so
long as the Release Date has not occurred, Xxxxxx X. Xxxxxxxxx, Xx. and Xxxxxxx
X. Xxxx.
Guaranty means each of the Subsidiary Guaranty and, so long as the
Release Date has not occurred, the Individual Guaranty.
Hazardous Substances - see Section 9.15.
Hedging Agreement means any interest rate swap, interest rate cap,
interest rate collar or similar agreement protecting against fluctuations in
interest rates, any currency swap, forward currency exchange agreement or
similar agreement protecting against fluctuations in currency exchange rates,
any commodity swap or similar agreement protecting against fluctuations in
commodity prices, any option to enter into any of the foregoing, and any
combination of any of the foregoing.
Hedging Obligations means, with respect to any Person, obligations of
such Person under Hedging Agreements.
Individual Guaranty means a Guaranty substantially in the form of
Exhibit F.
Individual Pledge Agreement means a Pledge Agreement substantially in
the form of Exhibit G.
Interest Coverage Ratio means, for any Computation Period, the ratio of
(a) EBITDA for such Computation Period to (b) the remainder of Interest Expense
minus PIK Interest for such Computation Period.
Interest Expense means, for any Computation Period, the consolidated
interest expense of the Company and its Subsidiaries for such Computation Period
(including all imputed interest on Capital Leases and before giving effect to
any capitalization of interest but excluding amortization of deferred financing
costs).
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Interest Period means, as to any Eurodollar Loan, the period commencing
on the date such Loan is borrowed or continued as, or converted into, a
Eurodollar Loan and ending on the date one, two, three or six months thereafter,
as selected by the Company pursuant to Section 2.2.3; provided that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period for a Eurodollar Loan that begins on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) the Company may not select any Interest Period for any
Loan which would extend beyond the scheduled Termination Date.
Investment means, relative to any Person, (a) any loan or advance made
by such Person to any other Person (excluding any commission, travel or similar
advances made to directors, officers and employees of the Company or any of its
Subsidiaries), (b) any Suretyship Liability of such Person, (c) any ownership or
similar interest held by such Person in any other Person and (d) deposits and
the like relating to prospective acquisitions of businesses.
Issuing Bank means Bank of America in its capacity as an issuer of
Letters of Credit hereunder and any other Bank which, with the written consent
of the Company and the Administrative Agent, is the issuer of one or more
Letters of Credit hereunder.
L/C Application means, with respect to any request for the issuance of
a Letter of Credit, a letter of credit application in the form being used by the
applicable Issuing Bank at the time of such request for the type of letter of
credit requested.
Letter of Credit - see Section 2.1.2.
Leverage Ratio means, for any Computation Period, the ratio of (a)
Adjusted Funded Debt as of the last day of such Computation Period to (b) EBITDA
for such Computation Period.
Lien means, with respect to any Person, any interest granted by such
Person in any real or personal property, asset or other right owned or being
purchased or acquired by such Person which secures payment or performance of any
obligation and shall include any mortgage, lien, encumbrance, charge or other
security interest of any kind, whether arising by contract, as a matter of law,
by judicial process or otherwise.
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Loan Documents means this Agreement, the Notes, the Guaranties, the L/C
Applications and the Collateral Documents.
Loans - see Section 2.1.1.
Margin Stock means any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the financial condition, operations, assets,
business, properties or prospects of the Company and its Subsidiaries taken as a
whole, or (b) a material adverse effect upon any substantial portion of the
collateral under the Collateral Documents or upon the legality, validity,
binding effect or enforceability against the Company or any Guarantor of any
applicable Loan Document.
Multiemployer Pension Plan means a multiemployer plan, as such term is
defined in Section 4001(a)(3) of ERISA, and to which the Company or any member
of the Controlled Group may have any liability.
Net Cash Proceeds means, with respect to any issuance of equity
securities, the aggregate cash proceeds received by the Company or any
Subsidiary pursuant to such issuance, net of the direct costs relating to such
issuance (including sales and underwriter's discounts and commissions and legal,
accounting and investment banking fees).
New Subordinated Debt means the 12% Subordinated Notes due 2008 issued
by the Company pursuant to the Debenture Agreement dated February 15, 2000, and
any additional convertible subordinated debentures issued in payment of interest
thereon.
1999 Subordinated Debt means the $14,750,000 of 10% Convertible
Subordinated Debentures due October 31, 2006 issued by the Company pursuant to
the Debenture Agreement dated October 19, 1999, and any additional convertible
subordinated debentures issued in payment of interest thereon.
Non-Financial Letter of Credit means any Letter of Credit other than a
Financial Letter of Credit.
Note - see Section 3.1.
Operating Lease means any lease of (or other agreement conveying the
right to use) any real or personal property by the Company or any Subsidiary, as
lessee, other than any Capital Lease.
Original Agreement - see the Recitals.
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PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer
Pension Plan), and to which the Company or any member of the Controlled Group
may have any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
Percentage means, with respect to any Bank, the percentage specified
opposite such Bank's name on Schedule 2.1 hereto, reduced (or increased) by any
subsequent assignment pursuant to Section 14.9.1 and any reallocation of
Percentages as a result of a non-pro-rata increase in the Commitment Amount
pursuant to Section 6.1.1.
Person means any natural person, corporation, partnership, trust,
limited liability company, association, governmental authority or unit, or any
other entity, whether acting in an individual, fiduciary or other capacity.
PIK Interest means any interest on Qualifying Subordinated Debt (as
defined below) which is paid by the issuance of additional Qualifying
Subordinated Debt and/or common stock of the Company. For purposes of the
foregoing, Qualifying Subordinated Debt means Subordinated Debt which has no
scheduled payments of principal or cash interest prior to the date which is 91
days after the scheduled Termination Date.
Pledge Agreement means a Restated Pledge Agreement substantially in the
form of Exhibit E.
Pledged Subordinated Debt means the $5,500,000 of 1999 Subordinated
Debt pledged to the Administrative Agent pursuant to the Individual Pledge
Agreement.
Prime Rate means, for any day, the rate of interest in effect for such
day as publicly announced from time to time by Bank of America in Charlotte as
its "prime rate." (The "prime rate" is a rate set by Bank of America based upon
various factors, including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.) Any change in the prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
RCRA - see Section 9.15.
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Release has the meaning specified in CERCLA and the term "Disposal" (or
"Disposed") has the meaning specified in RCRA; provided that in the event either
CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply as of the effective date of such
amendment; and provided, further, that to the extent that the laws of a state
wherein any affected property lies establish a meaning for "Release" or
"Disposal" which is broader than is specified in either CERCLA or RCRA, such
broader meaning shall apply.
Release Date means the first date on which (a) the Equity Offering has
been completed; (b) as of the last day of the most recent Fiscal Quarter, (i)
the ratio of Funded Debt as of such day to EBITDA for the Computation Period
ending on such day was equal to or less than 4.25 to 1.0, (ii) the Senior
Leverage Ratio was equal to or less than 3.25 to 1.0, (iii) the Interest
Coverage Ratio was equal to or greater than 2.75 to 1.0 and (iv) the ratio of
Funded Debt to the sum of Funded Debt plus Consolidated Net Worth was not
greater than 55.0%; and (c) no Event of Default or Unmatured Event of Default
exists.
Required Banks means Banks having Percentages aggregating 66-2/3% or
more; provided that at any time there are less than three Banks, "Required
Banks" shall mean all Banks.
SEC means the Securities and Exchange Commission.
Security Agreement means an Amended and Restated Security Agreement
substantially in the form of Exhibit D.
Senior Leverage Ratio means, for any Computation Period, the ratio of
(a) the remainder of (i) Funded Debt as of the last day of such Computation
Period minus Subordinated Debt as of such day to (b) EBITDA for such Computation
Period.
Stated Amount means, with respect to any Letter of Credit at any date
of determination, the maximum aggregate amount available for drawing thereunder
at any time during the then ensuing term of such Letter of Credit under any and
all circumstances, plus the aggregate amount of all unreimbursed payments and
disbursements under such Letter of Credit.
Subordinated Debt means (a) the 1999 Subordinated Debt, (b) the New
Subordinated Debt and (c) any other Debt of the Company which has maturities,
covenants, defaults and other terms, and which is subordinated to the
obligations of the Company and its Subsidiaries hereunder and under the other
Loan Documents in a manner, approved in writing by the Required Banks.
Subsidiary means, with respect to any Person, a corporation,
partnership, limited liability company or other entity of which such Person
and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares, partnership units or other equity interests as have more
than 50% of the ordinary voting power for the election of the members of the
board of directors or similar governing
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body of such entity. Unless the context otherwise requires, each reference to a
Subsidiary herein shall be a reference to a Subsidiary of the Company.
Subsidiary Guaranty means a Guaranty substantially in the form of
Exhibit C.
Suretyship Liability means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to or otherwise to invest in a
debtor, or otherwise to assure a creditor against loss) any indebtedness,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's obligation in respect of any Suretyship Liability shall (subject to any
limitation set forth therein) be deemed to be the principal amount of the debt,
obligation or other liability supported thereby.
Termination Date means the earlier to occur of (a) February 15, 2003 or
(b) such other date on which the Commitments shall terminate pursuant to Section
6 or 12.
Total Outstandings means at any time the sum of (a) the aggregate
principal amount of all outstanding Loans plus (b) the Stated Amount of all
Letters of Credit.
Type of Loan or Borrowing - see Section 2.2.1. The types of Loans or
borrowings under this Agreement are as follows: Floating Rate Loans or
borrowings and Eurodollar Loans or borrowings.
Unmatured Event of Default means any event that, if it continues
uncured, will, with lapse of time or notice or both, constitute an Event of
Default.
Welfare Plan means a "welfare plan", as such term is defined in Section
3(1) of ERISA.
1.2 Other Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "including" is not limiting and means "including
without limitation."
(ii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
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(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such statute
or regulation.
(e) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(f) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company, the Banks and the other parties thereto and are the products
of all parties. Accordingly, they shall not be construed against the
Administrative Agent or the Banks merely because of the Administrative Agent's
or Banks' involvement in their preparation.
2 COMMITMENTS OF THE BANKS; BORROWING, CONVERSION AND LETTER OF CREDIT
PROCEDURES.
2.1 Commitments. On and subject to the terms and conditions of
this Agreement, each of the Banks, severally and for itself alone, agrees to
make loans to, and to issue or participate in the issuance of letters of credit
for the account of, the Company as follows:
2.1.1 Loans. Each Bank will make loans on a revolving basis
("Loans") from time to time before the Termination Date in such Bank's
Percentage of such aggregate amounts as the Company may from time to time
request from all Banks; provided that the Total Outstandings will not at any
time exceed the Commitment Amount.
2.1.2 L/C Commitment. (a) The Issuing Banks will issue standby
letters of credit, in each case containing such terms and conditions as are
permitted by this Agreement and are reasonably satisfactory to the applicable
Issuing Bank and the Company (each, a "Letter of Credit"), at the request of and
for the account of the Company or any Subsidiary from time to time before the
Termination Date and (b) as more fully set forth in Section 2.3.5, each Bank
agrees to purchase a participation in each such Letter of Credit; provided that
the aggregate Stated Amount of all Letters of Credit shall not at any time
exceed the lesser of (i) $5,000,000 and (ii) the excess, if any, of the
Commitment Amount over the aggregate principal amount of all outstanding Loans.
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2.2 Loan Procedures.
2.2.1 Various Types of Loans. Each Loan shall be either a Floating
Rate Loan or a Eurodollar Loan (each a "type" of Loan), as the Company shall
specify in the related notice of borrowing or conversion pursuant to Section
2.2.2 or 2.2.3. Eurodollar Loans having the same Interest Period are sometimes
called a "Group" or collectively "Groups". Floating Rate Loans and Eurodollar
Loans may be outstanding at the same time, provided that (i) not more than eight
different Groups of Eurodollar Loans shall be outstanding at any one time, (ii)
the aggregate principal amount of each Group of Eurodollar Loans shall at all
times be at least $500,000 and an integral multiple of $100,000 and (iii) during
the 90 days immediately following the Effective Date, the Company may not select
any Interest Period for any Group of Eurodollar Loans which would end after the
date specified by the Administrative Agent in writing on the Effective Date as
the date on which the Administrative Agent plans to complete the primary
syndication of the credit facility established hereunder. All borrowings,
conversions and repayments of Loans shall be effected so that each Bank will
have a pro rata share (according to its Percentage) of all types and Groups of
Loans.
2.2.2 Borrowing Procedures. The Company shall give written notice or
telephonic notice (followed promptly by written confirmation thereof) to the
Administrative Agent of each proposed borrowing not later than (a) in the case
of a Floating Rate borrowing, 11:00 A.M., Chicago time, on the proposed date of
such borrowing, and (b) in the case of a Eurodollar borrowing, 9:00 A.M.,
Chicago time, at least two Business Days prior to the proposed date of such
borrowing. Each such notice shall be effective upon receipt by the
Administrative Agent, shall be irrevocable, and shall specify the date, amount
and type of borrowing and, in the case of a Eurodollar borrowing, the initial
Interest Period therefor. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Bank thereof. Not later than 1:00 p.m.,
Chicago time, on the date of a proposed borrowing, each Bank shall provide the
Administrative Agent at the office specified by the Administrative Agent with
immediately available funds covering such Bank's Percentage of such borrowing
and, so long as the Administrative Agent has not received written notice that
the conditions precedent set forth in Section 11 with respect to such borrowing
have not been satisfied, the Administrative Agent shall pay over the requested
amount to the Company on the requested borrowing date. Each borrowing shall be
on a Business Day. Each borrowing shall be in an aggregate amount of at least
$500,000 and an integral multiple of $100,000.
2.2.3 Conversion and Continuation Procedures. (a) Subject to the
provisions of Section 2.2.1, the Company may, upon irrevocable written notice to
the Administrative Agent in accordance with clause (b) below:
(i) elect, as of any Business Day, to convert any
outstanding Loan into a Loan of a different type; or
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(ii) elect, as of the last day of the applicable
Interest Period, to continue any Group of Eurodollar Loans
having an Interest Period expiring on such day (or any part
thereof in an aggregate amount not less than $500,000 or a
higher integral multiple of $100,000) for a new Interest
Period.
(b) The Company shall give written or telephonic (followed
promptly by written confirmation thereof) notice to the Administrative
Agent of each proposed conversion or continuation not later than (i) in
the case of conversion into Floating Rate Loans, 10:00 a.m., Chicago
time, on the proposed date of such conversion; and (ii) in the case of
a conversion into or continuation of Eurodollar Loans, 10:00 a.m.,
Chicago time, at least three Business Days prior to the proposed date
of such conversion or continuation, specifying in each case:
(1) the proposed date of conversion or continuation;
(2) the aggregate amount of Loans to be converted or
continued;
(3) the type of Loans resulting from the proposed
conversion or continuation; and
(4) in the case of conversion into, or continuation
of, Eurodollar Loans, the duration of the requested Interest
Period therefor.
(c) If upon expiration of any Interest Period applicable to
Eurodollar Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Eurodollar Loans, the Company
shall be deemed to have elected to convert such Eurodollar Loans into
Floating Rate Loans effective on the last day of such Interest Period.
(d) The Administrative Agent will promptly notify each Bank of
its receipt of a notice of conversion or continuation pursuant to this
Section 2.4 or, if no timely notice is provided by the Company, of the
details of any automatic conversion.
(e) Unless the Required Banks otherwise consent, during the
existence of any Event of Default or Unmatured Event of Default, the
Company may not elect to have a Floating Rate Loan converted into or
continued as a Eurodollar Loan.
2.3 Letter of Credit Procedures.
2.3.1 L/C Applications. The Company shall give notice to the
Administrative Agent and the applicable Issuing Bank of the proposed issuance of
each Letter of Credit on a Business Day which is at least three Business Days
(or such lesser number of days as the Administrative Agent and such Issuing Bank
shall agree in any particular instance) prior to the proposed date of issuance
of such Letter
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of Credit. Each such notice shall be accompanied by an L/C application, duly
executed by the Company (together with any Subsidiary for the account of which
the related Letter of Credit is to be issued) and in all respects satisfactory
to the Administrative Agent and the applicable Issuing Bank, together with such
other documentation as the Administrative Agent or such Issuing Bank may
reasonably request in support thereof, it being understood that each L/C
Application shall specify, among other things, the date on which the proposed
Letter of Credit is to be issued, the expiration date of such Letter of Credit
(which shall not be later than the Termination Date) and whether such Letter of
Credit is to be transferable in whole or in part. So long as the applicable
Issuing Bank has not received written notice that the conditions precedent set
forth in Section 11 with respect to the issuance of such Letter of Credit have
not been satisfied, such Issuing Bank shall issue such Letter of Credit on the
requested issuance date. Each Issuing Bank shall promptly advise the
Administrative Agent of the issuance of each Letter of Credit by such Issuing
Bank and of any amendment thereto, extension thereof or event or circumstance
changing the amount available for drawing thereunder.
2.3.2 Participations in Letters of Credit. Concurrently with the
issuance of each Letter of Credit, the applicable Issuing Bank shall be deemed
to have sold and transferred to each other Bank, and each other Bank shall be
deemed irrevocably and unconditionally to have purchased and received from such
Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such other Bank's Percentage, in such Letter of
Credit and the Company's reimbursement obligations with respect thereto. For the
purposes of this Agreement, the unparticipated portion of each Letter of Credit
shall be deemed to be the applicable Issuing Bank's "participation" therein.
Each Issuing Bank hereby agrees, upon request of the Administrative Agent or any
Bank, to deliver to such Bank a list of all outstanding Letters of Credit issued
by such Issuing Bank, together with such information related thereto as such
Bank may reasonably request.
2.3.3 Reimbursement Obligations. The Company hereby unconditionally
and irrevocably agrees to reimburse the applicable Issuing Bank for each payment
or disbursement made by such Issuing Bank under any Letter of Credit honoring
any demand for payment made by the beneficiary thereunder, in each case on the
date that such payment or disbursement is made. Any amount not reimbursed on the
date of such payment or disbursement shall bear interest from the date of such
payment or disbursement to the date that such Issuing Bank is reimbursed by the
Company therefor, payable on demand, at a rate per annum equal to the Base Rate
from time to time in effect plus the Floating Rate Margin from time to time in
effect plus, beginning on the third Business Day after receipt of notice from
the Issuing Bank of such payment or disbursement, 2%. The applicable Issuing
Bank shall notify the Company and the Administrative Agent whenever any demand
for payment is made under any Letter of Credit by the beneficiary thereunder;
provided, however, that the failure of such Issuing Bank to so notify the
Company shall not affect the rights of such Issuing Bank or the Banks in any
manner whatsoever.
2.3.4 Limitation on Obligations of Issuing Banks. In determining
whether to pay under any Letter of Credit, no Issuing Bank shall have any
obligation to the Company or any Bank other than to
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confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and appear to comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be taken
by an Issuing Bank under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence and willful misconduct, shall not
impose upon such Issuing Bank any liability to the Company or any Bank and shall
not reduce or impair the Company's reimbursement obligations set forth in
Section 2.3.3 or the obligations of the Banks pursuant to Section 2.3.5.
2.3.5 Funding by Banks to Issuing Banks. If an Issuing Bank makes
any payment or disbursement under any Letter of Credit and the Company has not
reimbursed such Issuing Bank in full for such payment or disbursement by 11:00
A.M., Chicago time, on the date of such payment or disbursement, or if any
reimbursement received by such Issuing Bank from the Company is or must be
returned or rescinded upon or during any bankruptcy or reorganization of the
Company or otherwise, each other Bank shall be obligated to pay to the
Administrative Agent for the account of such Issuing Bank, in full or partial
payment of the purchase price of its participation in such Letter of Credit, its
pro rata share (according to its Percentage) of such payment or disbursement
(but no such payment shall diminish the obligations of the Company under Section
2.3.3), and upon notice from the applicable Issuing Bank, the Administrative
Agent shall promptly notify each other Bank thereof. Each other Bank irrevocably
and unconditionally agrees to so pay to the Administrative Agent in immediately
available funds for the applicable Issuing Bank's account the amount of such
other Bank's Percentage of such payment or disbursement. If and to the extent
any Bank shall not have made such amount available to the Administrative Agent
by 2:00 P.M., Chicago time, on the Business Day on which such Bank receives
notice from the Administrative Agent of such payment or disbursement (it being
understood that any such notice received after noon, Chicago time, on any
Business Day shall be deemed to have been received on the next following
Business Day), such Bank agrees to pay interest on such amount to the
Administrative Agent for the applicable Issuing Bank's account forthwith on
demand for each day from the date such amount was to have been delivered to the
Administrative Agent to the date such amount is paid, at a rate per annum equal
to (a) for the first three days after demand, the Federal Funds Rate from time
to time in effect and (b) thereafter, the Base Rate from time to time in effect.
Any Bank's failure to make available to the Administrative Agent its Percentage
of any such payment or disbursement shall not relieve any other Bank of its
obligation hereunder to make available to the Administrative Agent such other
Bank's Percentage of such payment, but no Bank shall be responsible for the
failure of any other Bank to make available to the Administrative Agent such
other Bank's Percentage of any such payment or disbursement.
2.4 Commitments Several. The failure of any Bank to make a
requested Loan on any date shall not relieve any other Bank of its obligation
(if any) to make a Loan on such date, but no Bank shall be responsible for the
failure of any other Bank to make any Loan to be made by such other Bank.
2.5 Certain Conditions. Notwithstanding any other provision of
this Agreement, no Bank shall have an obligation to make any Loan, or to permit
the continuation of or any conversion into any
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Eurodollar Loan, and no Issuing Bank shall have any obligation to issue any
Letter of Credit, if an Event of Default or Unmatured Event of Default exists.
SECTION 3 NOTES EVIDENCING LOANS.
3.1 Notes. The Loans of each Bank shall be evidenced by a
promissory note (each a "Note") payable to the order of such Bank substantially
in the form set forth in Exhibit A.
3.2 Recordkeeping. Each Bank shall record in its records, or at
its option on the schedule attached to its Note, the date and amount of each
Loan made by such Bank, each repayment or conversion thereof and, in the case of
each Eurodollar Loan, the dates on which each Interest Period for such Loan
shall begin and end. The aggregate unpaid principal amount so recorded shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Note. The failure to so record any such amount or any error in so recording any
such amount shall not, however, limit or otherwise affect the obligations of the
Company hereunder or under any Note to repay the principal amount of the Loans
evidenced by such Note together with all interest accruing thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest on the
unpaid principal amount of each Loan for the period commencing on the date of
such Loan until such Loan is paid in full as follows:
(a) at all times while such Loan is a Floating Rate Loan,
at a rate per annum equal to the sum of the Base Rate from time to time
in effect plus the Floating Rate Margin from time to time in effect;
and
(b) at all times while such Loan is a Eurodollar Loan, at
a rate per annum equal to the sum of the Eurodollar Rate (Reserve
Adjusted) applicable to each Interest Period for such Loan plus the
Eurodollar Margin from time to time in effect;
provided, however, that upon request of the Required Lenders at any time an
Event of Default exists, the interest rate applicable to each Loan shall be
increased by 2%.
4.2 Interest Payment Dates. Accrued interest on each Floating Rate
Loan shall be payable in arrears on the last Business Day of each calendar month
and at maturity. Accrued interest on each Eurodollar Loan shall be payable on
the last day of each Interest Period relating to such Loan (and, in the case of
a Eurodollar Loan with a six-month Interest Period, on the three-month
anniversary of the first day of such Interest Period) and at maturity. After
maturity, accrued interest on all Loans shall be payable on demand.
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4.3 Setting and Notice of Eurodollar Rates. The applicable
Eurodollar Rate for each Interest Period shall be determined by the
Administrative Agent, and notice thereof shall be given by the Administrative
Agent promptly to the Company and each Bank. Each determination of the
applicable Eurodollar Rate by the Administrative Agent shall be conclusive and
binding upon the parties hereto, in the absence of demonstrable error. The
Administrative Agent shall, upon written request of the Company or any Bank,
deliver to the Company or such Bank a statement showing the computations used
by the Administrative Agent in determining any applicable Eurodollar Rate
hereunder.
4.4 Computation of Interest. All determinations of interest for
Floating Rate Loans when the Base Rate is determined by the Prime Rate shall be
made on the basis of a year of 365 or 366 days, as the case may be, and the
actual number of days elapsed. All other computations of interest shall be
computed for the actual number of days elapsed on the basis of a year of 360
days. The applicable interest rate for each Floating Rate Loan shall change
simultaneously with each change in the Base Rate.
SECTION 5 FEES.
5.1 Non-Use Fee. The Company agrees to pay to the Administrative
Agent for the account of each Bank a non-use fee, for the period from the
Effective Date to the Termination Date, at 0.5% of the daily average of the
unused amount of such Bank's Percentage of the Commitment Amount. For purposes
of calculating usage under this Section, the Commitment Amount shall be deemed
used to the extent of the aggregate principal amount of all outstanding Loans
plus the Stated Amount of all Letters of Credit. Such non-use fee shall be
payable in arrears on the last Business Day of each calendar quarter and on the
Termination Date for any period then ending for which such non-use fee shall
not have theretofore been paid. The non-use fee shall be computed for the
actual number of days elapsed on the basis of a year of 360 days.
5.2 Letter of Credit Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of the Banks pro rata according to their
respective Percentages a letter of credit fee for each Letter of Credit in an
amount equal to the rate per annum in effect from time to time pursuant to
Schedule 1.1 of the undrawn amount of such Letter of Credit (computed for the
actual number of days elapsed on the basis of a year of 360 days); provided
that the rate applicable to each Letter of Credit shall be increased by 2% at
any time that an Event of Default exists. Such letter of credit fee shall be
payable in arrears on the last Business Day of each calendar quarter and on the
Termination Date for the period from the date of the issuance of each Letter of
Credit to the date such payment is due or, if earlier, the date on which such
Letter of Credit expired or was terminated.
(b) The Company agrees to pay each Issuing Bank a fronting fee
for each Letter of Credit issued by such Issuing Bank in the amount separately
agreed to between the Company and such Issuing Bank.
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(c) In addition, with respect to each Letter of Credit, the
Company agrees to pay to the applicable Issuing Bank, for its own account, such
fees and expenses as such Issuing Bank customarily requires in connection with
the issuance, negotiation, processing and/or administration of letters of
credit in similar situations.
5.3 Administrative Agent's and Arranger's Fees. The Company
agrees to pay to the Administrative Agent and the Arranger such administrative
agent's fees and arranger's fees, respectively, as are mutually agreed to from
time to time by the Company, the Administrative Agent and the Arranger.
SECTION 6 CHANGES IN THE COMMITMENT AMOUNT; PREPAYMENTS.
6.1 Changes in the Commitment Amount.
6.1.1 Optional Increase in the Commitment Amount. The Company may,
from time to time after the Equity Offering and a "Successful Syndication" (as
defined in the letter agreement dated February 11, 2000 between the Company and
the Administrative Agent) have been completed, by means of a letter to the
Administrative Agent substantially in the form of Exhibit I, request that the
Commitment Amount be increased by (a) increasing the Commitment of one or more
Banks which have agreed to such increase and/or (b) adding one or more
commercial banks or other Persons as a party hereto with a Commitment in an
amount agreed to by any such commercial bank or other Person; provided that (i)
no commercial bank or other Person shall be added as a party hereto without the
written consent of the Administrative Agent (which shall not be unreasonably
withheld) and (ii) in no event shall the Commitment Amount exceed $80,000,000
without the written consent of all Banks. Any increase in the Commitment Amount
pursuant to this Section 6.1.1 shall be effective three Business Days after the
date on which the Administrative Agent has received and accepted the applicable
increase letter in the form of Annex 1 to Exhibit I (in the case of an increase
in the Commitment of an existing Bank) or assumption letter in the form of
Annex 2 to Exhibit I (in the case of the addition of a commercial bank or other
Person as a new Bank). The Administrative Agent shall promptly notify the
Company and the Banks of any increase in the Commitment Amount pursuant to this
Section 6.1.1 and of the Commitment and Percentage of each Bank after giving
effect thereto. The Company acknowledges that, in order to maintain Loans in
accordance with each Bank's Percentage, a reallocation of the Commitments as a
result of a non-pro-rata increase in the Commitment Amount may require
prepayment of all or portions of certain Loans on the date of such increase
(and any such prepayment shall be subject to the provisions of Section 8.4).
6.1.2 Voluntary Reductions of the Commitment Amount. The Company
may from time to time on at least five Business Days' prior written notice
received by the Agent (which shall promptly advise each Bank thereof)
permanently reduce the Commitment Amount to an amount not less than the Total
Outstandings. Any such reduction shall be in an amount not less than $5,000,000
or a higher integral multiple of $1,000,000. The Company may at any time on
like notice terminate the
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Commitments upon payment in full of all Loans and all other obligations of the
Company hereunder and cash collateralization in full, pursuant to documentation
in form and substance reasonably satisfactory to the Administrative Agent, of
all obligations arising with respect to Letters of Credit. All reductions of
the Commitment Amount shall reduce the amounts of the Commitments of the Banks
pro rata according to their respective Percentages.
6.2 Prepayments. The Company may from time to time prepay the
Loans in whole or in part, provided that the Company shall give the
Administrative Agent (which shall promptly advise each Bank) notice thereof not
later than 10:00 A.M., Chicago time, on the day of such prepayment (which shall
be a Business Day), specifying the Loans to be prepaid and the date and amount
of prepayment. Each partial prepayment shall be in a principal amount of
$100,000 or a higher integral multiple thereof. All prepayments shall be
applied to prepay the Loans of the Banks pro rata according to their respective
Percentages. Any prepayment of a Eurodollar Loan on a day other than the last
day of an Interest Period therefor shall include interest on the principal
amount being repaid and shall be subject to Section 8.4.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments of principal of or interest
on the Notes, and of all fees, shall be made by the Company to the
Administrative Agent in immediately available funds at the office specified by
the Administrative Agent not later than noon, Chicago time, on the date due;
and funds received after that hour shall be deemed to have been received by the
Administrative Agent on the next following Business Day. The Administrative
Agent shall promptly remit to each Bank its share of all such payments received
in collected funds by the Administrative Agent for the account of such Bank.
All payments under Section 8.1 shall be made by the Company directly to
the Bank entitled thereto.
7.2 Application of Certain Payments. Each payment of principal
shall be applied to such Loans as the Company shall direct by notice to be
received by the Administrative Agent on or before the date of such payment or,
in the absence of such notice, as the Administrative Agent shall determine in
its discretion. Concurrently with each remittance to any Bank of its share of
any such payment, the Administrative Agent shall advise such Bank as to the
application of such payment.
7.3 Due Date Extension. If any payment of principal or interest
with respect to any of the Notes, or of any fees, falls due on a day which is
not a Business Day, then such due date shall be extended to the immediately
following Business Day (unless, in the case of a Eurodollar Loan, such
immediately following Business Day is the first Business Day of a calendar
month, in which case such date shall be the immediately preceding Business Day)
and, in the case of principal, additional interest shall accrue and be payable
for the period of any such extension.
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7.4 Setoff. The Company agrees that the Administrative Agent and
each Bank have all rights of set-off and bankers' lien provided by applicable
law, and in addition thereto, the Company agrees that at any time any Event of
Default exists, the Administrative Agent and each Bank may apply to the payment
of any obligations of the Company hereunder, whether or not then due, any and
all balances, credits, deposits, accounts or moneys of the Company then or
thereafter with the Administrative Agent or such Bank.
7.5 Proration of Payments. If any Bank shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of offset or
otherwise, but excluding any payment pursuant to Section 8.7 or 14.9) on
account of principal of or interest on any Note (or on account of its
participation in any Letter of Credit) in excess of its pro rata share of
payments and other recoveries obtained by all Banks on account of principal of
and interest on Notes (or such participation) then held by them, such Bank
shall purchase from the other Banks such participation in the Notes (or sub-
participation in Letters of Credit) held by them as shall be necessary to cause
such purchasing Bank to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Bank,
the purchase shall be rescinded and the purchase price restored to the extent
of such recovery.
7.6 Taxes. (a) All payments of principal of, and interest on, the
Loans and all other amounts payable hereunder shall be made free and clear of
and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Bank's net income or receipts
(all non-excluded items being called "Taxes"). If any withholding or deduction
from any payment to be made by the Company hereunder is required in respect of
any Taxes pursuant to any applicable law, rule or regulation, then the Company
will:
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(iii) (except to the extent such withholding or deduction
would not be required if such Bank's Exemption Representation were
true) pay to the Administrative Agent for the account of the Banks
such additional amount or amounts as is necessary to ensure that the
net amount actually received by each Bank will equal the full amount
such Bank would have received had no such withholding or deduction
been required.
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Moreover, if any Taxes are directly asserted against the Administrative Agent
or any Bank with respect to any payment received by the Administrative Agent or
such Bank hereunder, the Administrative Agent or such Bank may pay such Taxes
and the Company will (except to the extent such Taxes are payable by a Bank and
would not have been payable if such Bank's Exemption Representation were true)
promptly pay such additional amounts (including any penalty, interest and
expense) as is necessary in order that the net amount received by such Person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such Person would have received had such Taxes not been
asserted.
(b) If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, for
the account of the respective Banks, the required receipts or other required
documentary evidence, the Company shall indemnify the Banks for any incremental
Taxes, interest or penalties that may become payable by any Bank as a result of
any such failure. For purposes of this Section 7.6, a distribution hereunder by
the Administrative Agent or any Bank to or for the account of any Bank shall be
deemed a payment by the Company.
(c) Each Bank represents and warrants (such Bank's "Exemption
Representation") to the Company and the Administrative Agent that, as of the
date of this Agreement (or, in the case of an Assignee, the date it becomes a
party hereto), it is entitled to receive payments hereunder without any
deduction or withholding for or on account of any Taxes imposed by the United
States of America or any political subdivision or taxing authority thereof.
(d) Upon the request from time to time of the Company or the
Administrative Agent, each Bank that is organized under the laws of a
jurisdiction other than the United States of America shall execute and deliver
to the Company and the Administrative Agent one or more (as the Company or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents,
appropriately completed, as may be applicable to establish the extent, if any,
to which a payment to such Bank is exempt from withholding or deduction of
Taxes.
(e) If, and to the extent that, any Bank shall obtain a credit,
relief or remission for, or repayment of, any Taxes indemnified or paid by the
Company pursuant to this Section 7.6, such Bank agrees to promptly notify the
Company thereof and thereupon enter into negotiations in good faith with the
Company to determine the basis on which an equitable reimbursement of such
Taxes can be made to the Company.
8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the adoption
of any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
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administration thereof, or compliance by any Bank (or any Eurodollar Office of
such Bank) with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency
(A) shall subject any Bank (or any Eurodollar Office of
such Bank) to any tax, duty or other charge with respect to its
Eurodollar Loans, its Note or its obligation to make Eurodollar Loans,
or shall change the basis of taxation of payments to any Bank of the
principal of or interest on its Eurodollar Loans or any other amounts
due under this Agreement in respect of its Eurodollar Loans or its
obligation to make Eurodollar Loans (except for changes in the rate of
tax on the overall net income of such Bank or its Eurodollar Office
imposed by the jurisdiction in which such Bank's principal executive
office or Eurodollar Office is located); or
(B) shall impose, modify or deem applicable any reserve
(including any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to Section 4), special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by any Bank (or any Eurodollar
Office of such Bank); or
(C) shall impose on any Bank (or its Eurodollar Office)
any other condition affecting its Eurodollar Loans, its Note or its
obligation to make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D of the Board of Governors of the Federal Reserve System,
to impose a cost on) such Bank (or any Eurodollar Office of such Bank) of
making or maintaining any Eurodollar Loan, or to reduce the amount of any sum
received or receivable by such Bank (or its Eurodollar Office) under this
Agreement or under its Note with respect thereto, then within 10 days after
demand by such Bank (which demand shall be accompanied by a statement setting
forth the basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the Administrative
Agent), the Company shall pay directly to such Bank such additional amount as
will compensate such Bank for such increased cost or such reduction.
(b) If any Bank shall reasonably determine that the adoption or
phase-in of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Bank or any Person controlling such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's or such controlling Person's capital
as a consequence of such Bank's obligations hereunder or under any Letter of
Credit to a level below that which such Bank or such controlling Person could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or such controlling Person's policies with respect to
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capital adequacy) by an amount deemed by such Bank or such controlling Person
to be material, then from time to time, within 10 days after demand by such
Bank (which demand shall be accompanied by a statement setting forth the basis
for such demand and a calculation of the amount thereof in reasonable detail, a
copy of which shall be furnished to the Administrative Agent), the Company
shall pay to such Bank such additional amount or amounts as will compensate
such Bank or such controlling Person for such reduction.
(c) Notwithstanding the foregoing provisions of this Section 8.1,
(i) if any Bank fails to notify the Company of any event or circumstance which
will entitle the Bank to compensation pursuant to this Section 8.1 within 120
days after such Bank obtains knowledge of such event or circumstance, then such
Bank shall not be entitled to compensation from the Company for any amount
arising prior to the date which is 120 days before the date on which such Bank
notifies the Company of such event or circumstance; and (ii) no Bank shall not
make a claim for compensation under this Section 8.1 unless such Bank is then
making a claim against a substantial portion of the other borrowers from such
Bank which have language in the applicable borrowing agreement similar to that
found in the foregoing provisions of this Section 8.1.
8.2 Basis for Determining Interest Rate Inadequate or Unfair. If
with respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are
not being offered to the Administrative Agent in the interbank
eurodollar market for such Interest Period, or the Administrative
Agent otherwise reasonably determines (which determination, if made in
good faith, shall be binding and conclusive on the Company) that by
reason of circumstances affecting the interbank eurodollar market
adequate and reasonable means do not exist for ascertaining the
applicable Eurodollar Rate; or
(b) Banks having an aggregate Percentage of 40% or more
advise the Administrative Agent that the Eurodollar Rate (Reserve
Adjusted) as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of maintaining or
funding such Eurodollar Loans for such Interest Period (taking into
account any amount to which such Banks may be entitled under Section
8.1) or that the making or funding of Eurodollar Loans has become
impracticable as a result of an event occurring after the date of this
Agreement which in the opinion of such Banks materially affects such
Loans;
then the Administrative Agent shall promptly notify the other parties thereof
and, so long as such circumstances shall continue, (i) no Bank shall be under
any obligation to make or convert into Eurodollar Loans and (ii) on the last
day of the current Interest Period for each Eurodollar Loan, such Loan shall,
unless then repaid in full, automatically convert to a Floating Rate Loan.
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8.3 Changes in Law Rendering Eurodollar Loans Unlawful. In the
event that any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it (or in the good faith judgment of any
Bank cause a substantial question as to whether it is) unlawful for any Bank to
make, maintain or fund Eurodollar Loans, then such Bank shall promptly notify
each of the other parties hereto and, so long as such circumstances shall
continue, (a) such Bank shall have no obligation to make or convert into
Eurodollar Loans (but shall make Floating Rate Loans concurrently with the
making of or conversion into Eurodollar Loans by the Banks which are not so
affected, in each case in an amount equal to such Bank's pro rata share of all
Eurodollar Loans which would be made or converted into at such time in the
absence of such circumstances) and (b) on the last day of the current Interest
Period for each Eurodollar Loan of such Bank (or, in any event, on such earlier
date as may be required by the relevant law, regulation or interpretation),
such Eurodollar Loan shall, unless then repaid in full, automatically convert
to a Floating Rate Loan. Each Floating Rate Loan made by a Bank which, but for
the circumstances described in the foregoing sentence, would be a Eurodollar
Loan (an "Affected Loan") shall remain outstanding for the same period as the
Group of Eurodollar Loans of which such Affected Loan would be a part absent
such circumstances.
8.4 Funding Losses. The Company hereby agrees that upon demand by
any Bank (which demand shall be accompanied by a statement setting forth the
basis for the amount being claimed, a copy of which shall be furnished to the
Administrative Agent), the Company will indemnify such Bank against any net
loss or expense which such Bank may sustain or incur (including any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain any Eurodollar Loan), as
reasonably determined by such Bank, as a result of (a) any payment, prepayment
or conversion of any Eurodollar Loan of such Bank on a date other than the last
day of an Interest Period for such Loan (including any conversion pursuant to
Section 8.3) or (b) any failure of the Company to borrow or convert any Loan on
a date specified therefor in a notice of borrowing or conversion pursuant to
this Agreement. For this purpose, all notices to the Administrative Agent
pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right of Banks to Fund through Other Offices. Each Bank may,
if it so elects, fulfill its commitment as to any Eurodollar Loan by causing a
foreign branch or affiliate of such Bank to make such Loan, provided that in
such event for the purposes of this Agreement such Loan shall be deemed to have
been made by such Bank and the obligation of the Company to repay such Loan
shall nevertheless be to such Bank and shall be deemed held by it, to the
extent of such Loan, for the account of such branch or affiliate.
8.6 Discretion of Banks as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Bank shall be entitled to
fund and maintain its funding of all or any part of its Loans in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder shall be made as if such Bank had actually funded
and
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maintained each Eurodollar Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Affected Bank.
(a) Each Bank shall promptly notify the Company and the Administrative Agent of
any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in such Bank's good
faith judgment, otherwise disadvantageous to such Bank) to mitigate or avoid,
(i) any obligation by the Company to pay any amount pursuant to Section 7.6 or
8.1 or (ii) the occurrence of any circumstances of the nature described in
Section 8.2 or 8.3 (and, if any Bank has given notice of any such event
described in clause (i) or (ii) above and thereafter such event ceases to
exist, such Bank shall promptly so notify the Company and the Administrative
Agent). Without limiting the foregoing, each Bank will designate a different
funding office if such designation will avoid (or reduce the cost to the
Company of) any event described in clause (i) or (ii) of the preceding sentence
and such designation will not, in such Bank's sole good faith judgment, be
otherwise disadvantageous to such Bank.
(b) At any time any Bank is an Affected Bank, the Company may
replace such Affected Bank as a party to this Agreement with one or more other
bank(s) or financial institution(s) reasonably satisfactory to the
Administrative Agent (and upon notice from the Company such Affected Bank shall
assign pursuant to an Assignment Agreement, and without recourse or warranty,
its Commitment, its Loans, its Note, its participation in Letters of Credit,
and all of its other rights and obligations hereunder to such replacement
bank(s) or other financial institution(s) for a purchase price equal to the sum
of the principal amount of the Loans so assigned, all accrued and unpaid
interest thereon, its ratable share of all accrued and unpaid fees, any amounts
payable under Section 8.4 as a result of such Bank receiving payment of any
Eurodollar Loan prior to the end of an Interest Period therefor and all other
obligations owed to such Affected Bank hereunder).
8.8 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Bank pursuant to Section 8.1, 8.2, 8.3 or
8.4 shall be conclusive absent demonstrable error. Banks may use reasonable
averaging and attribution methods in determining compensation under Sections
8.1 and 8.4, and the provisions of such Sections shall survive repayment of the
Loans, cancellation of the Notes, cancellation or expiration of the Letters of
Credit and any termination of this Agreement.
SECTION 9 WARRANTIES.
To induce the Administrative Agent and the Banks to enter into this
Agreement and to induce the Banks to make Loans and issue or purchase
participations in Letters of Credit hereunder, the Company warrants to the
Administrative Agent and the Banks that:
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9.1 Organization, etc. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; each Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation; and the
Company and each Subsidiary is duly qualified to do business in each
jurisdiction where the nature of its business makes such qualification
necessary (except in those instances in which the failure to be qualified or in
good standing does not have a Material Adverse Effect) and has full power and
authority to own its property and conduct its business as presently conducted
by it.
9.2 Authorization; No Conflict. The execution and delivery by the
Company of this Agreement and each other Loan Document to which it is a party,
the borrowings hereunder, the execution and delivery by each Subsidiary of each
Loan Document to which it is a party and the performance by each of the Company
and each Subsidiary of its obligations under each Loan Document to which it is
a party are within the corporate powers of the Company and each Subsidiary,
have been duly authorized by all necessary corporate action on the part of the
Company and each Subsidiary (including any necessary shareholder action), have
received all necessary governmental approval (if any shall be required), and do
not and will not (a) violate any provision of law or any order, decree or
judgment of any court or other government agency which is binding on the
Company or any Subsidiary, (b) contravene or conflict with, or result in a
breach of, any provision of the Certificate of Incorporation, By-Laws or other
organizational documents of the Company or any Subsidiary or of any agreement,
indenture, instrument or other document which is binding on the Company or any
Subsidiary or (c) result in, or require, the creation or imposition of any Lien
on any property of the Company or any Subsidiary (other than Liens arising
under the Loan Documents).
9.3 Validity and Binding Nature. Each of this Agreement and each
other Loan Document to which the Company is a party is the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting the enforceability of creditors' rights generally and to general
principles of equity; and each Loan Document to which any Subsidiary is a party
is, or upon the execution and delivery thereof by such Subsidiary will be, the
legal, valid and binding obligation of such Subsidiary, enforceable against
such Subsidiary in accordance with its terms, subject to bankruptcy, insolvency
and similar laws affecting the enforceability of creditors' rights generally
and to general principles of equity.
9.4 Financial Condition. The audited consolidated financial
statements of the Company and its Subsidiaries dated December 31, 1998 and the
unaudited consolidated financial statements of the Company and its Subsidiaries
dated September 30, 1999, copies of which have been furnished prior to the
Effective Date to each Bank which is a party hereto on the Effective Date:
(i) were prepared in accordance with GAAP consistently
applied throughout the periods covered thereby, except as otherwise
expressly noted therein; and
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(ii) fairly present in all material respects the
financial condition of the Company and its Subsidiaries as of the
dates thereof and the results of operations for the periods covered
thereby (subject, in the case of the unaudited financial statements,
to the absence of footnotes and to normal year-end adjustments).
9.5 No Material Adverse Change. Since December 31, 1998, there
has been no material adverse change in the financial condition, operations,
assets, business, properties or prospects of the Company and its Subsidiaries
taken as a whole.
9.6 Litigation and Contingent Liabilities. No litigation
(including derivative actions), arbitration proceeding, labor controversy or
governmental investigation or proceeding is pending or, to the Company's
knowledge, threatened against the Company or any Subsidiary which might
reasonably be expected to have a Material Adverse Effect, except as set forth
in Schedule 9.6. Other than any liability incident to such litigation or
proceedings, neither the Company nor any Subsidiary has any material contingent
liabilities not listed in such Schedule 9.6.
9.7 Ownership of Properties; Liens. Each of the Company and each
Subsidiary owns good and, in the case of real property, marketable title to all
of its properties and assets, real and personal, tangible and intangible, of
any nature whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges and material claims
(including material infringement claims with respect to patents, trademarks,
copyrights and the like) except as permitted pursuant to Section 10.8.
9.8 Subsidiaries. The Company has no Subsidiaries except those
listed in Schedule 9.8.
9.9 Pension and Welfare Plans. (a) During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement or the making of any Loan hereunder, (i) no steps have been
taken to terminate any Pension Plan and (ii) no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a lien
under Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could result in the incurrence
by the Company of any material liability, fine or penalty. The Company has no
contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part
6 of Subtitle B of Title I of ERISA.
(b) All contributions (if any) have been made to any
Multiemployer Pension Plan that are required to be made by the Company or any
other member of the Controlled Group under the terms of the plan or of any
collective bargaining agreement or by applicable law; neither the Company nor
any member of the Controlled Group has withdrawn or partially withdrawn from
any Multiemployer Pension Plan, incurred any withdrawal liability with respect
to any such plan, received notice of any claim or demand for withdrawal
liability or partial withdrawal liability from any such plan, and no condition
has occurred which, if continued, might result in a withdrawal or partial
withdrawal from any
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such plan; and neither the Company nor any member of the Controlled Group has
received any notice that any Multiemployer Pension Plan is in reorganization,
that increased contributions may be required to avoid a reduction in plan
benefits or the imposition of any excise tax, that any such plan is or has been
funded at a rate less than that required under Section 412 of the Code, that
any such plan is or may be terminated, or that any such plan is or may become
insolvent.
9.10 Investment Company Act. Neither the Company 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.
9.11 Public Utility Holding Company Act. Neither the Company 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.
9.12 Regulation U. The Company is not engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
9.13 Taxes. Each of the Company and each Subsidiary has filed all
tax returns and reports required by law to have been filed by it and has paid
all taxes and governmental charges thereby shown to be owing, except any such
taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
9.14 Solvency, etc. On the Effective Date (or, in the case of any
Subsidiary which becomes a Guarantor after the Effective Date, on the date such
Person becomes a Guarantor), and immediately prior to and after giving effect
to the issuance of each Letter of Credit and each borrowing hereunder and the
use of the proceeds thereof, (a) each of the Company's and each Subsidiary's
assets will exceed its liabilities and (b) each of the Company and each
Subsidiary will be solvent, will be able to pay its debts as they mature, will
own property with fair saleable value greater than the amount required to pay
its debts and will have capital sufficient to carry on its business as then
constituted.
9.15 Environmental Matters.
(a) No Violations. Except as set forth on Schedule 9.15, neither
the Company nor any Subsidiary, nor any operator of the Company's or any
Subsidiary's properties, is in violation, or alleged violation, of any
judgment, decree, order, law, permit, license, rule or regulation pertaining to
environmental matters, including those arising under the Resource Conservation
and Recovery Act ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 or any other Environmental Law which (i) in any
single case, requires expenditures in any three-year period of
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$500,000 or more by the Company and its Subsidiaries in penalties and/or for
investigative, removal or remedial actions or (ii) individually or in the
aggregate otherwise might reasonably be expected to have a Material Adverse
Effect.
(b) Notices. Except as set forth on Schedule 9.15, neither the
Company nor any Subsidiary has received notice from any third party, including
any Federal, state or local governmental authority: (a) that any one of them
has been identified by the U.S. Environmental Protection Agency as a
potentially responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X; (b) that any hazardous
waste, as defined by 42 U.S.C. ss.6903(5), any hazardous substance as defined
by 42 U.S.C. ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.9601(33) or any toxic substance, oil or hazardous material or other chemical
or substance regulated by any Environmental Law, excluding household hazardous
waste (all of the foregoing, "Hazardous Substances"), which any one of them has
generated, transported or disposed of has been found at any site at which a
Federal, state or local agency or other third party has conducted a remedial
investigation, removal or other response action pursuant to any Environmental
Law; (c) that the Company or any Subsidiary must conduct a remedial
investigation, removal, response action or other activity pursuant to any
Environmental Law; or (d) of any Environmental Claim.
(c) Handling of Hazardous Substances. Except as set forth on
Schedule 9.15, (i) no portion of the real property or other assets of the
Company or any Subsidiary has been used for the handling, processing, storage
or disposal of Hazardous Substances except in accordance in all material
respects with applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on such
properties; (ii) in the course of any activities conducted by the Company, any
Subsidiary or the operators of any real property of the Company or any
Subsidiary, no Hazardous Substances have been generated or are being used on
such properties except in accordance in all material respects with applicable
Environmental Laws; (iii) there have been no Releases or threatened Releases of
Hazardous Substances on, upon, into or from any real property or other assets
of the Company or any Subsidiary, which Releases singly or in the aggregate
might reasonably be expected to have a material adverse effect on the value of
such real property or assets; (iv) to the Company's actual knowledge, there
have been no Releases on, upon, from or into any real property in the vicinity
of the real property or other assets of the Company or any Subsidiary which,
through soil or groundwater contamination, may have come to be located on, and
which might reasonably be expected to have a material adverse effect on the
value of, the real property or other assets of the Company or any Subsidiary;
and (v) any Hazardous Substances generated by the Company and its Subsidiaries
have been transported offsite only by properly licensed carriers and delivered
only to treatment or disposal facilities maintaining valid permits as required
under applicable Environmental Laws, which transporters and facilities have
been and are, to the best of the Company's knowledge, operating in compliance
with such permits and applicable Environmental Laws.
(d) Investigations. Except as set forth on Schedule 9.15, the
Company and its Subsidiaries have taken reasonable steps to investigate the
past and present condition and usage of the real property
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of the Company and its Subsidiaries and the operations conducted by the Company
and its Subsidiaries with regard to environmental matters.
9.16 Information. All information heretofore or contemporaneously
herewith furnished in writing by the Company or any Subsidiary to any Bank for
purposes of or in connection with this Agreement and the transactions
contemplated hereby is, and all written information hereafter furnished by or
on behalf of the Company or any Subsidiary to any Bank pursuant hereto or in
connection herewith will be, true and accurate in every material respect on the
date as of which such information is dated or certified, and none of such
information is or will be incomplete by omitting to state any material fact
necessary to make such information not misleading in light of the circumstances
under which made (it being recognized by the Administrative Agent and the Banks
that (a) any projections and forecasts provided by the Company are based on
good faith estimates and assumptions believed by the Company to be reasonable
as of the date of the applicable projections or assumptions and that actual
results during the period or periods covered by any such projections and
forecasts will likely differ from projected or forecasted results and (b) any
information provided by the Company or any Subsidiary with respect to any
Person or assets acquired or to be acquired by the Company or any Subsidiary
shall, for all periods prior to the date of such acquisition, be limited to the
knowledge of the Company or the acquiring Subsidiary after reasonable inquiry).
SECTION 10 COVENANTS.
Until the expiration or termination of the Commitments and thereafter
until all obligations of the Company hereunder and under the other Loan
Documents are paid in full and all Letters of Credit have been terminated, the
Company agrees that, unless at any time the Required Banks shall otherwise
expressly consent in writing, it will:
10.1 Reports, Certificates and Other Information. Furnish to the
Administrative Agent (with sufficient copies to provide one to each Bank):
10.1.1 Audit Report. Promptly when available and in any event within
90 days after the close of each Fiscal Year: (a) a copy of the annual audit
report of the Company and its Subsidiaries for such Fiscal Year, including
therein consolidated balance sheets of the Company and its Subsidiaries as of
the end of such Fiscal Year and consolidated statements of earnings and cash
flow of the Company and its Subsidiaries for such Fiscal Year certified without
qualification by Xxxxxx Xxxxxxxx or other independent auditors of recognized
standing selected by the Company and reasonably acceptable to the Required
Banks, together with a written statement from such accountants to the effect
that in making the examination necessary for the signing of such annual audit
report by such accountants, they have not become aware of any Event of Default
or Unmatured Event of Default that has occurred and is continuing or, if they
have become aware of any such event, describing it in reasonable detail and (b)
consolidating balance sheets of the Company and its Subsidiaries as of the end
of such Fiscal Year and consolidating statements of earnings for the Company
and its Subsidiaries for such Fiscal Year, certified
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by the chief financial officer, chief accounting officer, controller, treasurer
or Vice President, Finance of the Company.
10.1.2 Quarterly Reports. Promptly when available and in any event
within 45 days after the end of each Fiscal Quarter (except the last Fiscal
Quarter) of each Fiscal Year, consolidated and consolidating balance sheets of
the Company and its Subsidiaries as of the end of such Fiscal Quarter, together
with consolidated and consolidating statements of earnings and consolidated
statements of cash flow for such Fiscal Quarter and for the period beginning
with the first day of such Fiscal Year and ending on the last day of such
Fiscal Quarter, certified by the chief financial officer, chief accounting
officer, controller, treasurer or Vice President, Finance of the Company.
10.1.3 Monthly Reports. Promptly when available and in any event
within 30 days after the end of each of the first two months of each Fiscal
Quarter, consolidated and consolidating balance sheets of the Company and its
Subsidiaries as of the end of such month, together with consolidated and
consolidating statements of earnings for such month and for the period
beginning with the first day of the Fiscal Year and ending on the last day of
such month, certified by the chief financial officer, chief accounting officer,
controller, treasurer or Vice President, Finance of the Company.
10.1.4 Compliance Certificates. Contemporaneously with the
furnishing of a copy of each annual audit report pursuant to Section 10.1.1 and
of each set of quarterly statements pursuant to Section 10.1.2, (a) a duly
completed compliance certificate in the form of Exhibit B, with appropriate
insertions, dated the date of such annual report or such quarterly statements
and signed by the chief financial officer, chief accounting officer,
controller, treasurer or Vice President, Finance of the Company, containing a
computation of each of the financial ratios and restrictions set forth in
Section 10.6 and to the effect that such officer has not become aware of any
Event of Default or Unmatured Event of Default that has occurred and is
continuing or, if there is any such event, describing it and the steps, if any,
being taken to cure it; and (b) an updated organizational chart listing all
Subsidiaries and the locations of their businesses.
10.1.5 Reports to SEC and to Shareholders. Promptly upon the filing
or sending thereof, copies of all regular, periodic or special reports of the
Company or any Subsidiary filed with the SEC (excluding exhibits thereto,
provided that the Company shall promptly deliver any such exhibit to the
Administrative Agent or any Bank upon request therefor); copies of all
registration statements of the Company or any Subsidiary filed with the SEC
(other than on Form S-8); and copies of all proxy statements or other
communications made to shareholders generally concerning material developments
in the business of the Company or any Subsidiary.
10.1.6 Notice of Default, Litigation and ERISA Matters. Promptly
upon becoming aware of any of the following, written notice describing the same
and the steps being taken by the Company or the Subsidiary affected thereby
with respect thereto:
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(a) the occurrence of an Event of Default or an
Unmatured Event of Default;
(b) any litigation, arbitration or governmental
investigation or proceeding not previously disclosed by the Company to
the Banks which has been instituted or, to the knowledge of the
Company, is threatened against the Company or any Subsidiary or to
which any of the properties of any thereof is subject which, if
adversely determined, might reasonably be expected to have a Material
Adverse Effect;
(c) the institution of any steps by any member of the
Controlled Group or any other Person to terminate any Pension Plan, or
the failure of any member of the Controlled Group to make a required
contribution to any Pension Plan (if such failure is sufficient to
give rise to a lien under Section 302(f) of ERISA) or to any
Multiemployer Pension Plan, or the taking of any action with respect
to a Pension Plan which could result in the requirement that the
Company furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan
or Multiemployer Pension Plan which could result in the incurrence by
any member of the Controlled Group of any material liability, fine or
penalty (including any claim or demand for withdrawal liability or
partial withdrawal from any Multiemployer Pension Plan), or any
material increase in the contingent liability of the Company with
respect to any post-retirement Welfare Plan benefit, or any notice
that any Multiemployer Pension Plan is in reorganization, that
increased contributions may be required to avoid a reduction in plan
benefits or the imposition of an excise tax, that any such plan is or
has been funded at a rate less than that required under Section 412 of
the Code, that any such plan is or may be terminated, or that any such
plan is or may become insolvent;
(d) any cancellation (without replacement) or material
change in any insurance maintained by the Company or any Subsidiary;
(e) any event (including any violation of any
Environmental Law or the assertion of any Environmental Claim) which
might reasonably be expected to have a Material Adverse Effect; or
(f) any setoff, claims (including any Environmental
Claim), withholding or other defense to which any of the collateral
granted under any Collateral Document, or the Banks' rights with
respect to any such collateral, are subject.
10.1.7 Subsidiaries. Promptly upon any change in the list of its
Subsidiaries from that set forth on Schedule 9.8 (or in the most recent notice
pursuant to this Section), notification of such change.
10.1.8 Management Reports. Promptly upon the request of the
Administrative Agent or any Bank (acting through the Administrative Agent),
copies of all detailed financial and management reports
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submitted to the Company by independent auditors in connection with each annual
or interim audit made by such auditors of the books of the Company.
10.1.9 Projections. As soon as practicable and in any event within
60 days after the commencement of each Fiscal Year, financial projections for
the Company and its Subsidiaries for such Fiscal Year prepared in a manner
consistent with those projections delivered by the Company to the
Administrative Agent prior to the Effective Date.
10.1.10 Environmental Reports. As soon as practicable and in any
event within 30 days following the acquisition of International Petroleum
Corporation and its Subsidiaries (collectively, "IPC"), all environmental
reports and related information prepared with respect to the real property or
other assets of IPC.
10.1.11 Other Information. From time to time such other information
concerning the Company and its Subsidiaries as the Administrative Agent or any
Bank (acting through the Administrative Agent) may reasonably request.
10.2 Books, Records and Inspections. Keep, and cause each
Subsidiary to keep, its books and records in accordance with sound business
practices sufficient to allow the preparation of financial statements in
accordance with GAAP; permit, and cause each Subsidiary to permit, any Bank or
the Administrative Agent or any representative thereof upon reasonable prior
notice to inspect the properties and operations of the Company and of such
Subsidiary; and permit, and cause each Subsidiary to permit, at any reasonable
time and with reasonable notice (or at any time without notice if an Event of
Default exists), any Bank or the Administrative Agent or any representative
thereof to visit any or all of its offices, to discuss its financial matters
with its officers and its independent auditors (and the Company hereby
authorizes such independent auditors to discuss such financial matters with any
Bank or the Administrative Agent or any representative thereof whether or not
any representative of the Company or any Subsidiary is present), and to examine
(and, at the expense of the Company or the applicable Subsidiary, photocopy
extracts from) any of its books or other corporate records.
10.3 Insurance. Maintain, and cause each Subsidiary to maintain,
with responsible insurance companies, such insurance as may be required by any
law or governmental regulation or court decree or order applicable to it and
such other insurance, to such extent and against such hazards and liabilities,
as is customarily maintained by companies similarly situated; and, upon request
of the Administrative Agent (or any Bank acting through the Administrative
Agent), furnish to the Administrative Agent or such Bank a certificate setting
forth in reasonable detail the nature and extent of all insurance maintained by
the Company and its Subsidiaries.
10.4 Compliance with Laws; Payment of Taxes and Liabilities. (a)
Comply, and cause each Subsidiary to comply, in all material respects with all
applicable laws (including Environmental Laws), rules, regulations, decrees,
orders, judgments, licenses and permits; and (b) pay, and cause each
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Subsidiary to pay, prior to delinquency, all taxes and other governmental
charges against it or any of its property, as well as claims of any kind which,
if unpaid, might become a Lien on any of its property; provided that the
foregoing shall not require the Company or any Subsidiary to pay any such tax
or charge so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves with
respect thereto in accordance with GAAP.
10.5 Maintenance of Existence, etc. Maintain and preserve, and
(subject to Section 10.11) cause each Subsidiary to maintain and preserve, (a)
its existence and good standing in the jurisdiction of its incorporation and
(b) its qualification and good standing as a foreign corporation in each
jurisdiction where the nature of its business makes such qualification
necessary (except in those instances in which the failure to be qualified or in
good standing does not have a Material Adverse Effect).
10.6 Financial Covenants.
10.6.1 Minimum Consolidated Net Worth. Not permit Consolidated Net
Worth at any time to be less than the sum of (a) $31,250,000 plus (b) 75% of
the sum of Consolidated Net Income for each Fiscal Quarter, beginning with the
Fiscal Quarter ending December 31, 1999 and ending with the most recently-ended
Fiscal Quarter for which the Company has delivered financial statements
(provided that, if Consolidated Net Income is less than zero for any Fiscal
Quarter, for purposes of this Section 10.6.1 Consolidated Net Income will be
deemed to be zero for such quarter) plus (c) 75% of the Net Cash Proceeds of
any equity issued by the Company or any of its Subsidiaries (on a consolidated
basis) after the Effective Date.
10.6.2 Minimum Interest Coverage. Not permit the Interest Coverage
Ratio for any Computation Period to be less than the applicable ratio set forth
below:
COMPUTATION INTEREST
PERIOD ENDING: COVERAGE RATIO
-------------- --------------
12/31/99 to Covenant Change Date 2.50 to 1.0
Covenant Change Date through 12/31/00 2.75 to 1.0
Thereafter 3.00 to 1.0.
10.6.3 Leverage Ratio. Not permit the Leverage Ratio as of the last
day of any Computation Period to exceed the applicable ratio set forth below:
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COMPUTATION LEVERAGE
PERIOD ENDING: RATIO
-------------- ---------
12/31/99 to Covenant Change Date 4.50 to 1.0
Covenant Change Date through 12/31/00 4.25 to 1.0
Thereafter 4.00 to 1.0.
10.6.4 Senior Leverage Ratio. Not permit the Senior Leverage Ratio
as of the last day of any Computation Period to exceed the applicable ratio set
forth below:
COMPUTATION SENIOR
PERIOD ENDING: LEVERAGE RATIO
-------------- --------------
12/31/99 to Covenant Change Date 3.70 to 1.0
Covenant Change Date through 12/31/00 3.25 to 1.0
Thereafter 3.00 to 1.0.
10.6.5 Debt to Capitalization Ratio. Not permit the ratio of (a)
Adjusted Funded Debt to (b) the sum of Funded Debt plus Consolidated Net Worth
at any time to exceed the applicable percentage set forth below during any
period set forth below:
DEBT TO
CAPITALIZATION
PERIOD: PERCENTAGE
------- --------------
12/31/99 to Covenant Change Date 60%
Covenant Change Date through 12/31/00 55%
Thereafter 50%.
10.6.6 Capital Expenditures. The Company will not permit the
aggregate amount of all Capital Expenditures (excluding amounts, if any, paid
to consummate acquisitions permitted by Section 10.11(c) which constitute
Capital Expenditures) made by the Company and its Subsidiaries in any Fiscal
Year to exceed the product of 1.5 multiplied by the depreciation and
amortization of the Company and its Subsidiaries during the prior Fiscal Year
(calculated on a pro forma basis giving effect to acquisitions and sales and
other dispositions made subsequent to such prior Fiscal Year).
10.7 Limitations on Debt. Not, and not permit any Subsidiary to,
create, incur, assume or suffer to exist any Debt, except:
(a) obligations in respect of the Loans, the L/C Applications and
the Letters of Credit;
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(b) unsecured Debt of the Company which represents all or part of
the purchase price payable in connection with a transaction permitted
by Section 10.11(c); provided that the aggregate principal amount of
all such unsecured Debt shall not at any time exceed $5,000,000;
(c) Debt secured by Liens permitted by subsection 10.8(c) or (d),
and refinancings of any such Debt so long as the terms applicable to
such refinanced Debt are no less favorable to the Company or the
applicable Subsidiary than the terms in effect immediately prior to
such refinancing, provided that the aggregate amount of all such Debt
at any time outstanding shall not exceed $2,000,000;
(d) Debt arising under Capital Leases in an aggregate amount not
at any time exceeding $1,000,000;
(e) Debt of Subsidiaries owed to the Company;
(f) unsecured Debt of the Company to Subsidiaries;
(g) Subordinated Debt; and
(h) Debt arising under Hedging Agreements entered into in the
ordinary course of business as bona fide hedging transactions
(including any Hedging Agreement entered into pursuant to
Section 10.21) and not for speculative purposes.
10.8 Liens. Not, and not permit any Subsidiary to, create or
permit to exist any Lien on any of its real or personal properties, assets or
rights of whatsoever nature (whether now owned or hereafter acquired), except:
(a) Liens for taxes or other governmental charges not at the time
delinquent or thereafter payable without penalty or being contested in
good faith by appropriate proceedings and, in each case, for which it
maintains adequate reserves;
(b) Liens arising in the ordinary course of business (such as (i)
Liens of carriers, warehousemen, mechanics and materialmen and other
similar Liens imposed by law and (ii) Liens incurred in connection
with worker's compensation, unemployment compensation and other types
of social security (excluding Liens arising under ERISA) or in
connection with surety bonds, bids, performance bonds and similar
obligations) for sums not overdue or being contested in good faith by
appropriate proceedings and not involving any deposits or advances or
borrowed money or the deferred purchase price of property or services,
and, in each case, for which it maintains adequate reserves;
(c) Liens identified in Schedule 10.8;
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(d) subject to the limitation set forth in Section 10.7(c),(i)
Liens existing on property at the time of the acquisition thereof by
the Company or any Subsidiary (and not created in contemplation of
such acquisition) and (ii) Liens that constitute purchase money
security interests on any property securing debt incurred for the
purpose of financing all or any part of the cost of acquiring such
property, provided that any such Lien attaches to such property within
60 days of the acquisition thereof and such Lien attaches solely to
the property so acquired;
(e) attachments, appeal bonds, judgments and other similar Liens,
for sums not exceeding $250,000 arising in connection with court
proceedings, provided the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;
(f) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any
material respect with the ordinary conduct of the business of the
Company or any Subsidiary; and
(g) Liens in favor of the Administrative Agent pursuant to the
Loan Documents.
10.9 Operating Leases. Not permit the aggregate amount of all
rental payments made (or scheduled to be made) under Operating Leases by the
Company and its Subsidiaries (on a consolidated basis) in any Fiscal Year to
exceed $1,000,000.
10.10 Restricted Payments. Not, and not permit any Subsidiary to,
(a) declare or pay any dividends on any of its capital stock (other than stock
dividends), (b) purchase or redeem any such stock or any warrants, units,
options or other rights in respect of such stock, (c) make any other
distribution to shareholders (d) prepay, purchase, redeem or defease any
Subordinated Debt, (e) make any payment on or in respect of any Subordinated
Debt (other than scheduled payments of interest made in the form of additional
Subordinated Debt or common stock), or (f) set aside funds for any of the
foregoing; provided that (i) any Subsidiary may declare and pay dividends to
the Company or to any other wholly-owned Subsidiary, (ii) the Company may
convert 1999 Subordinated Debt and/or New Subordinated Debt into common stock
of the Company in accordance with the terms of such Subordinated Debt, and
(iii) so long as no Event of Default or Unmatured Event of Default exists and
the Release Date has occurred, the Company may prepay principal of and/or cash
interest on New Subordinated Debt with Net Cash Proceeds from any issuance of
equity.
10.11 Mergers, Consolidations, Sales. Not, and not permit any
Subsidiary to, be a party to any merger or consolidation, or purchase or
otherwise acquire all or substantially all of the assets or any stock of any
class of, or any partnership or joint venture interest in, any other Person, or
sell, transfer, convey or lease all or any substantial part of its assets, or
sell or assign with or without recourse any receivables, except for (a) any
such merger or consolidation, sale, transfer, conveyance, lease or
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assignment of or by any wholly-owned Subsidiary into the Company or into, with
or to any other wholly-owned Subsidiary; (b) any such purchase or other
acquisition by the Company or any wholly-owned Subsidiary of the assets or
stock of any wholly-owned Subsidiary; (c) any such purchase or other
acquisition by the Company or any wholly-owned Subsidiary of the assets or
stock of any other Person where (1) such assets (in the case of an asset
purchase) are for use, or such Person (in the case of a stock purchase) is
engaged in the processing, collection, handling and disposal of non-hazardous
liquid or solid waste or similar non-hazardous waste-related business
activities; (2) immediately before or after giving effect to such purchase or
acquisition, no Event of Default or Unmatured Event of Default shall have
occurred and be continuing; (3) either (i) (x) the aggregate consideration to
be paid by the Company and its Subsidiaries (including any Debt assumed or
issued in connection therewith, the amount thereof to be calculated in
accordance with GAAP) in connection with such purchase or other acquisition (or
any series of related acquisitions) is not greater than $10,000,000 and (y) the
aggregate consideration to be paid in cash or by the assumption or issuance of
Debt by the Company and its Subsidiaries in connection with such purchase or
acquisition (or any series of related acquisitions) is not greater than
$7,000,000 or (ii) the Required Banks have consented to such purchase or
acquisition; and (4) the Company is in pro forma compliance with all the
financial ratios and restrictions set forth in Section 10.6; and (d) sales and
dispositions of assets (including the stock of Subsidiaries) so long as the net
book value of all assets sold or otherwise disposed of in any Fiscal Year does
not exceed $750,000.
10.12 Use of Proceeds. Use the proceeds of the Loans solely for
working capital, for acquisitions permitted by Section 10.11, for capital
expenditures and for other general corporate purposes; and not use or permit
any proceeds of any Loan to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of "purchasing or carrying"
any Margin Stock.
10.13 Further Assurances. Take, and cause each Subsidiary to take,
such actions as are necessary, or as the Administrative Agent (or the Required
Banks acting through the Administrative Agent) may reasonably request, from
time to time (including the execution and delivery of guaranties, security
agreements, pledge agreements, financing statements and other documents, the
filing or recording of any of the foregoing, and the delivery of stock
certificates and other collateral with respect to which perfection is obtained
by possession) to ensure that (i) the obligations of the Company hereunder and
under the other Loan Documents are secured by substantially all of the assets
(other than real property and, unless the Required Banks (acting through the
Administrative Agent) otherwise request in writing, any motor vehicle subject
to a statute requiring notation on a certificate of title to perfect a security
interest in such vehicle) of the Company and guaranteed by all Subsidiaries
(including, promptly upon the acquisition or creation thereof, any Subsidiary
acquired or created after the date hereof) by execution of a counterpart of the
Subsidiary Guaranty and (ii) the obligations of each Subsidiary under the
Subsidiary Guaranty are secured by substantially all of the assets (other than
real property and, unless the Required Banks (acting through the Administrative
Agent) otherwise request in writing, any motor vehicle subject to a statute
requiring notation on a certificate of title to perfect a security interest in
such vehicle) of such Subsidiary.
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10.14 Transactions with Affiliates. Not, and not permit any
Subsidiary to, enter into, or cause, suffer or permit to exist any transaction,
arrangement or contract with any of its other Affiliates (other than the Company
and its Subsidiaries) which is on terms which are less favorable than are
obtainable from any Person which is not one of its Affiliates.
10.15 Employee Benefit Plans. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.
10.16 Environmental Laws. Conduct, and cause each Subsidiary to
conduct, its operations and keep and maintain its property in material
compliance with all Environmental Laws (other than Immaterial Laws).
10.17 Unconditional Purchase Obligations. Not, and not permit any
Subsidiary to, enter into or be a party to any contract for the purchase of
materials, supplies or other property or services, if such contract requires
that payment be made by it regardless of whether or not delivery is ever made of
such materials, supplies or other property or services; provided that the
foregoing shall not prohibit the Company or any Subsidiary from entering into
options for the purchase of particular assets or businesses.
10.18 Inconsistent Agreements. Not, and not permit any Subsidiary
to, enter into any agreement containing any provision which (a) would be
violated or breached by any borrowing, or the obtaining of any Letter of Credit,
by the Company hereunder or by the performance by the Company or any Subsidiary
of any of its obligations hereunder or under any other Loan Document or (b)
would prohibit the Company or any Subsidiary from granting to the Administrative
Agent, for the benefit of the Banks, a Lien on any of its assets.
10.19 Business Activities. Not, and not permit any Subsidiary to,
engage in any line of business other than the processing, collection, handling
and disposal of non-hazardous liquid or solid waste or similar non-hazardous
waste-related business activities.
10.20 Advances and Other Investments. Not, and not permit any
Subsidiary to, make, incur, assume or suffer to exist any Investment in any
other Person, except (without duplication) the following:
(a) equity Investments existing on the Effective Date in wholly-owned
Subsidiaries identified in Schedule 9.8;
(b) equity Investments in Subsidiaries acquired after the Effective
Date in transactions permitted as acquisitions of stock or assets
pursuant to Section 10.11;
(c) in the ordinary course of business, contributions by the Company to
the capital of any of its Subsidiaries, or by any such Subsidiary to
the capital of any of its Subsidiaries;
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(d) in the ordinary course of business, Investments by the Company in
any Subsidiary or by any of the Subsidiaries in the Company, by way of
intercompany loans, advances or guaranties, all to the extent permitted
by Section 10.7;
(e) Suretyship Liabilities permitted by Section 10.7;
(f) good faith deposits made in connection with prospective
acquisitions of stock or assets permitted by Section 10.11;
(g) loans to officers and employees not exceeding (i) $100,000 in the
aggregate to any single individual or (ii) $250,000 in the aggregate
for all such individuals;
(h) Cash Equivalent Investments;
(i) bank deposits in the ordinary course of business; provided that the
aggregate amount of all such deposits (excluding (x) amounts in payroll
accounts or for accounts payable, in each case to the extent that
checks have been issued to third parties, and (y) amounts maintained
(in the ordinary course of business consistent with past practice) in
accounts of any Person which is acquired by the Company or a Subsidiary
in accordance with the terms hereof during the 45 days following the
date of such acquisition) which are maintained with any bank other than
a Bank shall not at any time exceed (x) in the case of such deposits
with any single bank, $100,000 for three consecutive Business Days and
(y) in the case of all such deposits, $500,000 for three consecutive
Business Days;
(j) Investments in SeptiShield in an aggregate amount not exceeding
$1,000,000 (or, after the Release Date, $2,000,000) in any Fiscal Year;
and
(k) other investments in an aggregate amount not exceeding $3,000,000;
provided, however, that no Investment otherwise permitted by clause (b), (c),
(d), (e), (f), (g), (j) or (k) shall be permitted to be made if, immediately
before or after giving effect thereto, any Event of Default or Unmatured Event
of Default shall have occurred and be continuing and (ii) no investments shall
be made in SeptiShield other than those permitted by clause (j).
10.21 Interest Rate Protection. Within 90 days following the
Effective Date, enter into one or more Hedging Agreements with counterparties
reasonably satisfactory to the Administrative Agent effectively fixing or
capping the interest rates (at rates reasonably satisfactory to the
Administrative Agent) on not less than 50% of the Commitment Amount for a period
of not less than 18 months.
10.22 Amendments to Certain Agreements. Not amend or otherwise
modify any document or agreement evidencing, or governing the terms of, any
Subordinated Debt (including the Debenture
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Agreement pursuant to which the 1999 Subordinated Debt was issued and the
Debenture Agreement pursuant to which the New Subordinated Debt was issued) in
any manner which is adverse to the Banks.
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
11.1 Effectiveness. This Agreement shall become effective, and all
loans and letters of credit outstanding under the Original Agreement shall be
deemed to be Loans made and Letters of Credit issued hereunder, on the date (the
"Effective Date") on which (a) each of the conditions precedent specified in
Section 11.2 shall have been satisfied and (b) the Administrative Agent shall
have received (i) all amounts which are then due and payable pursuant to Section
5 and (to the extent billed) Section 14.6; (ii) evidence, reasonably
satisfactory to the Administrative Agent, that the Company has received not less
than $20,000,000 of cash proceeds from the issuance of New Subordinated Debt;
and (iii) all of the following, each duly executed and dated the Effective Date
(or such earlier date as shall be satisfactory to the Administrative Agent), in
form and substance satisfactory to the Administrative Agent, and each (except
for the Notes, of which only the originals shall be signed) in sufficient number
of signed counterparts to provide one for each Bank:
11.1.1 Notes. The Notes.
11.1.2 Resolutions. Certified copies of resolutions of the Board of
Directors of the Company authorizing or ratifying the execution, delivery and
performance by the Company of this Agreement, the Notes and the other Loan
Documents to which the Company is a party; and certified copies of resolutions
of the Board of Directors of each Subsidiary authorizing or ratifying the
execution, delivery and performance by such Subsidiary of each Loan Document to
which such Subsidiary is a party.
11.1.3 Consents, etc. Certified copies of all documents evidencing
any necessary corporate action, consents and governmental approvals (if any)
required for the execution, delivery and performance by the Company and each
Subsidiary of the documents referred to in this Section 11.
11.1.4 Incumbency and Signature Certificates. A certificate of the
Secretary or an Assistant Secretary of the Company and each Subsidiary
certifying the names of the officer or officers of such entity authorized to
sign the Loan Documents to which such entity is a party, together with a sample
of the true signature of each such officer (it being understood that the
Administrative Agent and each Bank may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein).
11.1.5 Guaranties. The Subsidiary Guaranty executed by each
Subsidiary and the Individual Guaranty executed by Xxxxxx X. Xxxxxxxxx, Xx. and
Xxxxxxx X. Xxxx.
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11.1.6 Security Agreement. The Security Agreement executed by the
Company and each Subsidiary, together with evidence, satisfactory to the
Administrative Agent, that all filings necessary to perfect the Administrative
Agent's Lien on all collateral granted under the Security Agreement have been
duly made and are in full force and effect.
11.1.7 Pledge Agreement. The Restated Pledge Agreement signed by the
Company and each Subsidiary that as of the Effective Date has one or more
Subsidiaries, together with all stock certificates, stock powers and other items
required to be delivered in connection therewith.
11.1.8 Individual Pledge Agreement. The Individual Pledge Agreement
executed by Xxxxxx X. Xxxxxxxxx, Xx. and Xxxxxxx X. Xxxx, together with
debentures evidencing not less than $5,500,000 of the 1999 Subordinated Debt
endorsed to the Administrative Agent pursuant thereto.
11.1.9 Opinion of Counsel for the Company and the Guarantors. The
opinion of Xxxxx & Xxxxx, A Professional Corporation, counsel to the Company and
the Guarantors.
11.1.10 Closing Certificate. A certificate of the Chief Executive
Officer, the President or any Vice President of the Company to the effect that
(i) all representations and warranties of the Company and the Guarantors in this
Agreement and the other Loan Documents are true and correct in all material
respects on the Effective Date; and (ii) no Event of Default or Unmatured Event
of Default exists or will result from the transactions contemplated to occur on
the proposed Effective Date.
11.1.11 Other. Such other documents as the Administrative Agent or any
Bank may reasonably request.
11.2 Conditions. The obligation (a) of each Bank to make each Loan
and (b) of each Issuing Bank to issue each Letter of Credit is subject to the
following further conditions precedent that:
11.2.1 Compliance with Warranties, No Default, etc. Both before and
after giving effect to any borrowing and the issuance of any Letter of Credit
(but, if any Event of Default of the nature referred to in Section 12.1.2 shall
have occurred with respect to any other Debt, without giving effect to the
application, directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct:
(a) the representations and warranties of the Company
and the Guarantors set forth in this Agreement (excluding Sections 9.6,
9.8, and 9.15) and the other Loan Documents shall be true and correct
in all material respects with the same effect as if then made (except
to the extent stated to relate to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
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(b) except as disclosed by the Company to the
Administrative Agent and the Banks pursuant to Section 9.6,
(i) no litigation (including derivative actions),
arbitration proceeding, labor controversy or governmental
investigation or proceeding shall be pending or, to the
knowledge of the Company, threatened against the Company or
any of its Subsidiaries which might reasonably be expected to
have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Agreement, the
Notes or any other Loan Document; and
(ii) no development shall have occurred in any
litigation (including derivative actions), arbitration
proceeding, labor controversy or governmental investigation or
proceeding disclosed pursuant to Section 9.6 which might
reasonably be expected to have a Material Adverse Effect; and
(c) no Event of Default or Unmatured Event of Default
shall have then occurred and be continuing, and neither the Company nor
any of its Subsidiaries shall be in violation of any law or
governmental regulation or court order or decree where such violation
or violations singly or in the aggregate might reasonably be expected
to have a Material Adverse Effect.
11.2.2 Confirmatory Certificate. If requested by the Administrative
Agent or any Bank (acting through the Administrative Agent), the Administrative
Agent shall have received (in sufficient counterparts to provide one to each
Bank) a certificate dated the date of such requested Loan or Letter of Credit
and signed by a duly authorized representative of the Company as to the matters
set out in Section 11.2.1 (it being understood that each request by the Company
for the making of a Loan or the issuance of a Letter of Credit shall be deemed
to constitute a warranty by the Company that the conditions precedent set forth
in Section 11.2.1 will be satisfied at the time of the making of such Loan or
the issuance of such Letter of Credit), together with such other documents as
the Administrative Agent or any Bank (acting through the Administrative Agent)
may reasonably request in support thereof.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 Events of Default. Each of the following shall constitute an
Event of Default under this Agreement:
12.1.1 Non-Payment of the Loans, etc. Default in the payment when due
of the principal of any Loan; default and continuance thereof for five days
after notice from the Administrative Agent, in the payment when due of any
reimbursement obligation with respect to any Letter of Credit; or default, and
continuance thereof for five days, in the payment when due of any interest, fee
or other amount payable by the Company hereunder or under any other Loan
Document.
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12.1.2 Non-Payment of Other Debt. Any default shall occur under the
terms applicable to any Debt of the Company or any Subsidiary in an aggregate
amount (for all such Debt so affected) exceeding $100,000 and such default shall
(a) consist of the failure to pay such Debt when due (subject to any applicable
grace period), whether by acceleration or otherwise, or (b) accelerate the
maturity of such Debt or permit the holder or holders thereof, or any trustee or
agent for such holder or holders, to cause such Debt to become due and payable
prior to its expressed maturity.
12.1.3 Other Material Obligations. Default in the payment when due,
or in the performance or observance of, any material obligation of, or condition
agreed to by, the Company or any Subsidiary with respect to any material
purchase or lease of goods or services where such default, singly or in the
aggregate with other such defaults might reasonably be expected to have a
Material Adverse Effect (except only to the extent that the existence of any
such default is being contested by the Company or such Subsidiary in good faith
and by appropriate proceedings and appropriate reserves have been made in
respect of such default).
12.1.4 Bankruptcy, Insolvency, etc. The Company or any Subsidiary
becomes insolvent or generally fails to pay, or admits in writing its inability
or refusal to pay, debts as they become due; or the Company or any Subsidiary
applies for, consents to, or acquiesces in the appointment of a trustee,
receiver or other custodian for the Company or such Subsidiary or any property
thereof, or makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for the Company or any Subsidiary or for a
substantial part of the property of any thereof and is not discharged within 60
days; or any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of a Subsidiary), is commenced in respect of the
Company or any Subsidiary, and if such case or proceeding is not commenced by
the Company or such Subsidiary, it is consented to or acquiesced in by the
Company or such Subsidiary, or remains for 60 days undismissed; or the Company
or any Subsidiary takes any corporate action to authorize, or in furtherance of,
any of the foregoing.
12.1.5 Non-Compliance with Provisions of This Agreement. (a) Failure
by the Company to comply with or to perform any covenant set forth in Sections
10.5 through 10.15; or (b) failure by the Company to comply with or to perform
any other provision of this Agreement (and not constituting an Event of Default
under any of the other provisions of this Section 12) and continuance of such
failure for 30 days after notice thereof to the Company from the Administrative
Agent or any Bank.
12.1.6 Warranties. Any warranty made by the Company herein is
breached or is false or misleading in any material respect, or any schedule,
certificate, financial statement, report, notice or other writing furnished by
the Company to the Administrative Agent or any Bank in connection herewith is
false or misleading in any material respect on the date as of which the facts
therein set forth are stated or certified.
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12.1.7 Pension Plans. (i) Institution of any steps by the Company or
any other Person to terminate a Pension Plan if as a result of such termination
the Company could be required to make a contribution to such Pension Plan, or
could incur a liability or obligation to such Pension Plan, in excess of
$250,000; (ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA; or (iii) there
shall occur any withdrawal or partial withdrawal from a Multiemployer Pension
Plan and the withdrawal liability (without unaccrued interest) to Multiemployer
Pension Plans as a result of such withdrawal (including any outstanding
withdrawal liability that the Company and the Controlled Group have incurred on
the date of such withdrawal) exceeds $250,000.
12.1.8 Judgments. Final judgments which exceed an aggregate of
$250,000 shall be rendered against the Company, or any Subsidiary and shall not
have been paid, discharged or vacated or had execution thereof stayed pending
appeal within 30 days after entry or filing of such judgments.
12.1.9 Invalidity of Guaranty, etc. Either Guaranty shall cease to be
in full force and effect with respect to any Guarantor (other than (a) in the
case of an Individual Guarantor, as a result of the occurrence of the Release
Date, and (b) in the case of a Subsidiary, as a result of a transaction
permitted hereunder), any Guarantor shall fail (subject to any applicable grace
period) to comply with or to perform any applicable provision of the Guaranty to
which such Guarantor is a party, or any Guarantor (or any Person by, through or
on behalf of such Guarantor) shall contest in any manner the validity, binding
nature or enforceability of the Guaranty to which such Guarantor is a party.
12.1.10 Invalidity of Collateral Documents, etc. Any Collateral
Document shall cease to be in full force and effect with respect to the Company
or any applicable Guarantor, the Company or any Guarantor shall fail (subject to
any applicable grace period) to comply with or to perform any applicable
provision of any Collateral Document to which such Person is a party, or the
Company or any Guarantor (or any Person by, through or on behalf of the Company
or such Guarantor) shall contest in any manner the validity, binding nature or
enforceability of any Collateral Document.
12.1.11 Change in Control. (a) Any Person or group of Persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, but
excluding the executive managers of the Company as of the Effective Date) shall
acquire beneficial ownership (within the meaning of Rule 13d-3 promulgated under
such Act) of 20% or more of the outstanding shares of common stock of the
Company; (b) during any 24-month period, individuals who at the beginning of
such period constituted the Company's Board of Directors (together with any new
directors whose election by the Company's Board of Directors or whose nomination
for election by the Company's shareholders was approved by a vote of at least
two-thirds of the directors who either were directors at beginning of such
period or whose election or nomination was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company; or (c)
a period of 60 consecutive days shall have elapsed during which any of the
individuals named in Schedule 12.1.11 shall have ceased to hold executive
offices with the Company at least equal in seniority to such individual's
present offices, as set out in such Schedule 12.1.11, excluding any such
individual who has been replaced by another
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individual or individuals reasonably satisfactory to the Required Banks (it
being understood that any such replacement individual shall be deemed added to
Schedule 12.1.11 on the date of approval thereof by the Required Banks).
12.2 Effect of Event of Default. If any Event of Default described
in Section 12.1.4 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and the Notes and all other obligations
hereunder shall become immediately due and payable and the Company shall become
immediately obligated to deliver to the Administrative Agent cash collateral in
an amount equal to the outstanding face amount of all Letters of Credit, all
without presentment, demand, protest or notice of any kind; and, if any other
Event of Default shall occur and be continuing, the Administrative Agent (upon
written request of the Required Banks) shall declare the Commitments (if they
have not theretofore terminated) to be terminated and/or declare all Notes and
all other obligations hereunder to be due and payable and/or demand that the
Company immediately deliver to the Administrative Agent cash collateral in
amount equal to the outstanding face amount of all Letters of Credit, whereupon
the Commitments (if they have not theretofore terminated) shall immediately
terminate and/or all Notes and all other obligations hereunder shall become
immediately due and payable and/or the Company shall immediately become
obligated to deliver to the Administrative Agent cash collateral in an amount
equal to the face amount of all Letters of Credit, all without presentment,
demand, protest or notice of any kind. The Administrative Agent shall promptly
advise the Company of any such declaration, but failure to do so shall not
impair the effect of such declaration. Notwithstanding the foregoing, the effect
as an Event of Default of any event described in Section 12.1.1 or Section
12.1.4 may be waived by the written concurrence of all of the Banks, and the
effect as an Event of Default of any other event described in this Section 12
may be waived by the written concurrence of the Required Banks. Any cash
collateral delivered hereunder shall be held by the Administrative Agent
(without liability for interest thereon) and applied to obligations arising in
connection with any drawing under a Letter of Credit. After the expiration or
termination of all Letters of Credit, such cash collateral shall be applied by
the Administrative Agent to any remaining obligations hereunder and any excess
shall be delivered to the Company or as a court of competent jurisdiction may
elect.
SECTION 13 THE ADMINISTRATIVE AGENT.
13.1 Appointment and Authorization. (a) Each Bank hereby
irrevocably (subject to Section 13.9) appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Bank,
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and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
(b) Each Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit issued by it and the documents associated
therewith. Each Issuing Bank shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this Section 13 with respect to any acts
taken or omissions suffered by such Issuing Bank in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term "Administrative Agent", as used in this Section 13, included such
Issuing Bank with respect to such acts or omissions and (ii) as additionally
provided in this Agreement with respect to the Issuing Banks.
13.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
13.3 Liability of Administrative Agent. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the Company or
any Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Company or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
13.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation 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 (including counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Banks as it
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deems appropriate and, if it so requests, confirmation from the Banks of their
obligation to indemnify the Administrative Agent against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
13.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Event of Default or
Unmatured Event of Default except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for
the account of the Banks, unless the Administrative Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". The Administrative Agent will notify the
Banks of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default
as may be requested by the Required Banks in accordance with Section 12;
provided, however, that unless and until the Administrative Agent has received
any such request, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Banks.
13.6 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the Administrative
Agent, the Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial or other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
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13.7 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata, from and against any
and all Indemnified Liabilities; provided, however, that no Bank shall be liable
for any payment to the Agent-Related Person of any portion of the Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including reasonable fees of attorneys for the
Administrative Agent (including the allocable costs of internal legal services
and all disbursements of internal counsel)) incurred by the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive repayment of the Loans, cancellation
of the Notes, cancellation or expiration of the Letters of Credit, any
foreclosure under, or any modification, release or discharge of, any or all of
the Collateral Documents, any termination of this Agreement and the resignation
or replacement of the Administrative Agent.
For the purposes of this Section 13.7, "Indemnified Liabilities" shall
mean: any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
reasonable fees of attorneys for the Administrative Agent (including the
allocable costs of internal legal services and all disbursements of internal
counsel)) of any kind or nature whatsoever which may at any time (including at
any time following repayment of the Loans and the termination, resignation or
replacement of the Administrative Agent or the replacement of any Bank) be
imposed on, incurred by or asserted against any Agent-Related Person in any way
relating to or arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or any action taken
or omitted by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding (including
(a) any case, action or proceeding before any court or other governmental
authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its creditors generally
or any substantial portion of its creditors; undertaken under U.S. Federal,
state or foreign law, including the Bankruptcy Code, and including any appellate
proceeding) related to or arising out of this Agreement or the Commitments or
the use of the proceeds thereof, whether or not any Agent-Related Person, any
Bank or any of their respective officers, directors, employees, counsel, agents
or attorneys-in-fact is a party thereto.
13.8 Administrative Agent in Individual Capacity. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
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with the Company and its Subsidiaries and Affiliates as though Bank of America
were not the Administrative Agent, the Issuing Bank hereunder and without notice
to or consent of the Banks. The Banks acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to their Loans, Bank of America
and its Affiliates shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though Bank of America were not the
Administrative Agent and the Issuing Bank, and the terms "Bank" and "Banks"
include Bank of America and its Affiliates, to the extent applicable, in their
individual capacities.
13.9 Successor Administrative Agent. The Administrative Agent may,
and at the request of the Required Banks shall, resign as Administrative Agent
upon 30 days' notice to the Banks. If the Administrative Agent resigns under
this Agreement, the Required Banks shall, with (so long as no Event of Default
exists) the consent of the Company (which shall not be unreasonably withheld or
delayed), appoint from among the Banks a successor administrative agent for the
Banks. If no successor administrative agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Banks and the Company, a successor
administrative agent from among the Banks. Upon the acceptance of its
appointment as successor administrative agent hereunder, such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 13 and Sections 14.6 and
14.13 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Banks
appoint a successor administrative agent as provided for above. Notwithstanding
the foregoing, however, Bank of America may not be removed as the Administrative
Agent at the request of the Required Banks unless Bank of America shall also
simultaneously be replaced as an "Issuing Bank" hereunder pursuant to
documentation in form and substance reasonably satisfactory to Bank of America.
13.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees to deliver to the Administrative
Agent:
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(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, properly completed Internal Revenue Service ("IRS")
Forms 1001 and W-8 before the payment of any interest in the
first calendar year and before the payment of any interest in
each third succeeding calendar year during which interest may
be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade
or business of such Bank, two properly completed and executed
copies of IRS Form 4224 before the payment of any interest is
due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may
be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Bank agrees to promptly notify the Administrative Agent
of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Bank sells, assigns, grants a participation in, or
otherwise transfers all or part of the obligations of the Company to
such Bank, such Bank agrees to notify the Administrative Agent of the
percentage amount in which it is no longer the beneficial owner of such
obligations of the Company hereunder. To the extent of such percentage
amount, the Administrative Agent will treat such Bank's IRS Form 1001
as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers all
or part of the obligations of the Company to such Bank hereunder, such
Bank agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Administrative Agent may withhold from
any interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such reduction. If
the forms or other documentation required by subsection (a) of this
Section are not delivered to the Administrative Agent, then the
Administrative Agent
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may withhold from any interest payment to such Bank not providing such
forms or other documentation an amount equivalent to the applicable
withholding tax.
(e) If the IRS or any other governmental authority of the
United States or any other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to
or for the account of any Bank (because the appropriate form was not
delivered or was not properly executed, or because such Bank failed to
notify the Administrative Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Bank shall indemnify the
Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under
this Section, together with all costs and expenses (including
reasonable fees of attorneys for the Administrative Agent (including
the allocable costs of internal legal services and all disbursements of
internal counsel)). The obligation of the Banks under this subsection
shall survive repayment of the Loans, cancellation of the Notes,
cancellation or expiration of the Letters of Credit, any termination of
this Agreement and the resignation or replacement of the Administrative
Agent.
13.11 Collateral Matters. The Banks irrevocably authorize the
Administrative Agent, at its option and in its discretion, (a) to release any
Lien on any property granted to or held by the Administrative Agent under any
Collateral Document (i) upon termination of the Commitments and payment in full
of all Loans and all other obligations of the Company hereunder and the
expiration or termination of all Letters of Credit; (ii) which is sold or to be
sold or disposed of as part of or in connection with any disposition permitted
hereunder; or (iii) subject to Section 14.1, if approved, authorized or ratified
in writing by the Required Banks; (b) to subordinate any Lien on any property
granted to or held by the Administrative Agent under any Collateral Document to
the holder of any Lien on such property which is permitted by subsection
10.8(d); and (c) to release any Subsidiary from its obligations under the
Subsidiary Guaranty if such entity ceases to be a Subsidiary as a result of a
transaction permitted hereunder. In addition, the Banks irrevocably authorize
the Administrative Agent, at any time on or after the Release Date, to release
Xxxxxx X. Xxxxxxxxx, Xx. and Xxxxxxx X. Xxxx from any obligation under the
Individual Guaranty, under any Collateral Document executed pursuant thereto and
under the Individual Pledge Agreement (and to release all collateral granted
under or in connection with the foregoing). Upon request by the Administrative
Agent at any time, the Required Banks will confirm in writing the Administrative
Agent's authority to release or subordinate its interest in particular types or
items of property, or to release any Subsidiary from its obligations under the
Subsidiary Guaranty, pursuant to this Section 13.11.
13.12 Syndication Agent. No Bank identified on the cover page, the
first page or the signature pages of this Agreement or otherwise herein as being
the "Syndication Agent" shall have any
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right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Banks. Each Bank acknowledges that it has not
relied, and will not rely, on any Person so identified in deciding to enter into
this Agreement or in taking or refraining from taking any action hereunder or
pursuant hereto.
SECTION 14 GENERAL.
14.1 Waiver; Amendments. No delay on the part of the Administrative
Agent or any Bank in the exercise of any right, power or remedy shall operate as
a waiver thereof, nor shall any single or partial exercise by any of them of any
right, power or remedy preclude other or further exercise thereof, or the
exercise of any other right, power or remedy. No amendment, modification or
waiver of, or consent with respect to, any provision of this Agreement or the
Notes shall in any event be effective unless the same shall be in writing and
signed and delivered by Banks having an aggregate Percentage of not less than
the aggregate Percentage expressly designated herein with respect thereto or, in
the absence of such designation as to any provision of this Agreement or the
Notes, by the Required Banks, and then any such amendment, modification, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. No amendment, modification, waiver or consent shall
change the Percentage of any Bank without the consent of such Bank. No
amendment, modification, waiver or consent shall (i) extend or increase the
amount of the Commitments, (ii) extend the date for payment of any principal of
or interest on the Loans or any fees payable hereunder, (iii) reduce the
principal amount of any Loan, the rate of interest thereon or any fees payable
hereunder, (iv) release any Guarantor from such Guarantor's obligations under
the applicable Guaranty or all or substantially all of the collateral granted
under the Collateral Documents or (v) reduce the aggregate Percentage required
to effect an amendment, modification, waiver or consent without, in each case,
the consent of all Banks. No provisions of Section 13 or other provision of this
Agreement affecting the Administrative Agent in its capacity as such shall be
amended, modified or waived without the consent of the Administrative Agent. No
provision of this Agreement relating to the rights or duties of an Issuing Bank
in its capacity as such shall be amended, modified or waived without the consent
of such Issuing Bank.
14.2 Confirmations. The Company and each Bank agree from time to
time, upon written request received by it from the other, to confirm to the
other in writing (with a copy of each such confirmation to the Administrative
Agent) the aggregate unpaid principal amount of the Loans held by such Bank.
14.3 Notices. Except as otherwise provided in Sections 2.2, 2.4 and
4.3, all notices hereunder shall be in writing (including facsimile
transmission) and shall be sent to the applicable party at its address shown on
Schedule 14.3 or at such other address as such party may, by written notice
received by the other parties, have designated as its address for such purpose.
Notices sent by facsimile transmission shall be deemed to have been given when
sent; notices sent by mail shall be deemed to have been given three Business
Days after the date when sent by registered or certified mail,
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postage prepaid; and notices sent by hand delivery or overnight courier service
shall be deemed to have been given when received. For purposes of Sections 2.2,
2.4 and 4.3, the Administrative Agent shall be entitled to rely on telephonic
instructions from any person that the Administrative Agent in good faith
believes is an authorized officer or employee of the Company, and the Company
shall hold the Administrative Agent and each other Bank harmless from any loss,
cost or expense resulting from any such reliance.
14.4 Computations. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP, consistently applied; provided that if the Company
notifies the Administrative Agent that the Company wishes to amend any covenant
in Section 10 to eliminate or to take into account the effect of any change in
GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Company that the Required Banks wish to amend Section 10 for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Company and the Required Banks.
14.5 Regulation U. Each Bank represents that it in good faith is
not relying, either directly or indirectly, upon any Margin Stock as collateral
security for the extension or maintenance by it of any credit provided for in
this Agreement.
14.6 Costs, Expenses and Taxes. The Company agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Administrative Agent and
the Arranger (including the reasonable fees and charges of counsel for the
Administrative Agent and the Arranger and of local counsel, if any, who may be
retained by said counsel) in connection with the preparation, execution,
delivery and administration of this Agreement, the other Loan Documents and all
other documents provided for herein or delivered or to be delivered hereunder or
in connection herewith (including any amendments, supplements or waivers to any
Loan Documents), and all reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees, court costs and other legal expenses and allocated
costs of staff counsel) incurred by the Administrative Agent and each Bank after
an Event of Default in connection with the enforcement of this Agreement, the
other Loan Documents or any such other documents. Each Bank agrees to reimburse
the Administrative Agent for such Bank's pro rata share (based on its respective
Percentage) of any such costs and expenses of the Administrative Agent not paid
by the Company. In addition, the Company agrees to pay, and to save the
Administrative Agent, the Arranger and the Banks harmless from all liability
for, (a) any stamp or other taxes (excluding income taxes and franchise taxes
based on net income) which may be payable in connection with the execution and
delivery of this Agreement, the borrowings hereunder, the issuance of the Notes
or the execution and delivery of any other Loan Document or any other document
provided for herein or delivered or to be delivered hereunder or in connection
herewith and (b) any fees of the Company's
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auditors in connection with any reasonable exercise by the Administrative Agent
and the Banks of their rights pursuant to Section 10.2. All obligations provided
for in this Section 14.6 shall survive repayment of the Loans, cancellation of
the Notes, cancellation or expiration of the Letters of Credit and any
termination of Agreement.
14.7 Subsidiary References. The provisions of this Agreement
relating to Subsidiaries shall apply only during such times as the Company has
one or more Subsidiaries.
14.8 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
14.9 Assignments; Participations.
14.9.1 Assignments. Any Bank may, with the prior written consents of
the Company (so long as no Event of Default or Unmatured Event of Default
exists) and the Administrative Agent (which consents shall not be unreasonably
delayed or withheld and shall not be required in the case of an assignment by a
Lender to one of its affiliates or to another existing Lender), at any time
assign and delegate to one or more commercial banks or other Persons (any Person
to whom such an assignment and delegation is to be made being herein called an
"Assignee"), all or any fraction of such Bank's Loans and Commitment (which
assignment and delegation shall be of a constant, and not a varying, percentage
of all the assigning Bank's Loans and Commitment) in a minimum aggregate amount
equal to the lesser of (i) the amount of the assigning Bank's remaining
Commitment and (ii) $2,500,000; provided that (a) no assignment and delegation
may be made to any Person if, at the time of such assignment and delegation, the
Company would be obligated to pay any greater amount under Section 7.6 or
Section 8 to the Assignee than the Company is then obligated to pay to the
assigning Bank under such Sections (and if any assignment is made in violation
of the foregoing, the Company will not be required to pay the incremental
amounts) and (b) the Company and the Administrative Agent shall be entitled to
continue to deal solely and directly with such Bank in connection with the
interests so assigned and delegated to an Assignee until the date when all of
the following conditions shall have been met:
(x) five Business Days (or such lesser period of time as the
Administrative Agent and the assigning Bank shall agree) shall have
passed after written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee, shall have been given to the Company and the
Administrative Agent by such assigning Bank and the Assignee;
(y) the assigning Bank and the Assignee shall have executed
and delivered to the Company and the Administrative Agent an assignment
agreement substantially in the form of Exhibit H (an "Assignment
Agreement"), together with any documents required to be delivered
thereunder, which Assignment Agreement shall have been consented to by
the Company and
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the Administrative Agent (to the extent applicable) and accepted by the
Administrative Agent; and
(z) the assigning Bank or the Assignee shall have paid the
Administrative Agent a processing fee of $3,500.
From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Bank hereunder, and (y) the assigning Bank, to the
extent that rights and obligations hereunder have been assigned and delegated by
it pursuant to such Assignment Agreement, shall be released from its obligations
hereunder. If the Assignee was not previously a party hereto, then within five
Business Days after effectiveness of any Assignment Agreement, the Company shall
execute and deliver to the Administrative Agent (for delivery to the Assignee) a
new Note in favor of the Assignee. Any attempted assignment and delegation not
made in accordance with this Section 14.9.1 shall be null and void.
Notwithstanding the foregoing provisions of this Section 14.9.1 or any
other provision of this Agreement, any Bank may at any time assign all or any
portion of its Loans and its Note to a Federal Reserve Bank (but no such
assignment shall release any Bank from any of its obligations hereunder).
14.9.2 Participations. Any Bank may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to
such Bank, the Note held by such Bank, the Commitment of such Bank, the direct
or participation interest of such Bank in any Letter of Credit or any other
interest of such Bank hereunder (any Person purchasing any such participating
interest being herein called a "Participant"); provided that any Bank selling
any such participating interest shall give notice thereof to the Company. In the
event of a sale by a Bank of a participating interest to a Participant, (x) such
Bank shall remain the holder of its Note for all purposes of this Agreement, (y)
the Company and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
hereunder and (z) all amounts payable by the Company shall be determined as if
such Bank had not sold such participation and shall be paid directly to such
Bank. No Participant shall have any direct or indirect voting rights hereunder
except with respect to any of the events (excluding the events described in
clause (v) thereof) described in the fourth sentence of Section 14.1. Each Bank
agrees to incorporate the requirements of the preceding sentence into each
participation agreement which such Bank enters into with any Participant. The
Company agrees that if amounts outstanding under this Agreement and the Notes
are due and payable (as a result of acceleration or otherwise), each Participant
shall be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement, any Note and with respect to any
Letter of Credit to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement or such Note;
provided that such right of setoff shall be subject to the obligation of each
Participant to share with the Banks, and the Banks agree to share with
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each Participant, as provided in Section 7.5. The Company also agrees that each
Participant shall be entitled to the benefits of Section 7.6 and Section 8 as if
it were a Bank (provided that no Participant shall receive any greater
compensation pursuant to Section 7.6 or Section 8 than would have been paid to
the participating Bank if no participation had been sold).
14.10 Governing Law. This Agreement and each Note shall be a
contract made under and governed by the internal laws of the State of Illinois.
Whenever possible each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement. All obligations of the Company and rights of the
Administrative Agent and the Banks expressed herein or in any other Loan
Document shall be in addition to and not in limitation of those provided by
applicable law.
14.11 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
14.12 Successors and Assigns. This Agreement shall be binding upon
the Company, the Banks and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the Banks
and the Administrative Agent and the successors and assigns of the Banks and the
Administrative Agent.
14.13 Indemnification by the Company. (a) In consideration of the
execution and delivery of this Agreement by the Administrative Agent and the
Banks and the agreement to extend the Commitments provided hereunder, the
Company hereby agrees to indemnify, exonerate and hold the Administrative Agent,
the Arranger, each Bank, each of their respective Affiliates and each officer,
director, employee and agent of any of the foregoing (each a "Bank Party") free
and harmless from and against any and all actions, causes of action, suits,
losses, liabilities, damages and expenses, including reasonable attorneys' fees
and charges and, without duplication, allocated costs of staff counsel
(collectively, for purposes of this Section 14.13, the "Indemnified
Liabilities"), incurred by any Bank Party as a result of, or arising out of, or
relating to (i) any tender offer, merger, purchase of stock, purchase of assets
or other similar transaction financed or proposed to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan, (ii) the use,
handling, release, emission, discharge, transportation, storage, treatment or
disposal of any hazardous substance at any property owned, leased or operated by
the Company or any Subsidiary, (iii) any violation of any Environmental Law with
respect to conditions at any property owned, leased or operated by the Company
or any Subsidiary or the operations conducted thereon, (iv) the investigation,
cleanup or remediation of offsite locations at which the Company or any
Subsidiary or their respective predecessors are alleged to have directly or
indirectly disposed of hazardous substances or (v) the execution, delivery,
performance or enforcement of this Agreement or any other Loan Document by any
of the Bank Parties, except for any
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Indemnified Liabilities arising on account of any such Bank Party's gross
negligence or willful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Nothing set
forth above shall be construed to relieve any Bank Party from any obligation it
may have under this Agreement.
(b) All obligations provided for in this Section 14.13 shall
survive repayment of the Loans, cancellation of the Notes, cancellation or
expiration of the Letters of Credit, any foreclosure under, or any modification,
release or discharge of, any or all of the Collateral Documents and any
termination of this Agreement.
14.14 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE COMPANY HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE COMPANY HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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14.15 WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
14.16 Amendment and Restatement. This Agreement amends and restates
the Original Agreement in its entirety and, after the Effective Date, the
Original Agreement shall be of no further force or effect (except for any
provision thereof which by its terms survives termination thereof).
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Delivered at Chicago, Illinois, as of the day and year first above written.
EARTHCARE COMPANY
By
------------------------------------------
Title
--------------------------------------
BANK OF AMERICA, N.A., as Administrative Agent
By
------------------------------------------
Title
--------------------------------------
BANK OF AMERICA, N.A., as Issuing Bank and as
a Bank
By
------------------------------------------
Title
--------------------------------------
BANKBOSTON, N.A., as Syndication Agent and as
a Bank
By
------------------------------------------
Title
--------------------------------------
S-1
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SCHEDULE 1.1
PRICING SCHEDULE
The Floating Rate Margin, the Eurodollar Margin and the rate per annum
applicable for letter of credit fees for Financial Letters of Credit and
Non-Financial Letters of Credit, respectively, shall be determined in accordance
with the table below and the other provisions of this Schedule 1.1.
----------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
----------------------------------------------------------------------------------------------
Eurodollar Margin 2.250% 2.500% 2.750% 3.000% 3.250%
----------------------------------------------------------------------------------------------
Floating Rate Margin 1.000% 1.250% 1.500% 1.750% 2.000%
----------------------------------------------------------------------------------------------
Rate for
Non-Financial LC Fee 1.125% 1.250% 1.375% 1.500% 1.625%
----------------------------------------------------------------------------------------------
Rate for
Financial LC Fee 2.250% 2.500% 2.750% 3.000% 3.250%
----------------------------------------------------------------------------------------------
Each of the percentages in the above table shall (i) decrease by 0.25%
(or, in the case of the rate for the Non-Financial LC Fee, by 0.125%) on the
Business Day following completion of the Equity Offering; (ii) shall temporarily
increase by 0.25% (or, in the case of the rate for the Non-Financial LC Fee, by
0.125%) on July 15, 2000 if the Equity Offering has not been completed by such
date; and (iii) shall temporarily increase by an additional 0.25% (or, in the
case of the rate for the Non-Financial LC Fee, by an additional 0.125%) on
August 15, 2000 if the Equity Offering has not been completed by such date; it
being understood that the increases in items (ii) and (iii) above shall be
disregarded when decreasing percentages pursuant to item (i) above.
Level I applies when the Leverage Ratio is less than 2.50 to 1.0.
Level II applies when the Leverage Ratio is equal to or greater than
2.50 to 1.0 but less than 3.00 to 1.0.
Level III applies when the Leverage Ratio is equal to or greater than
3.00 to 1.0 but less than 3.50 to 1.0.
Level IV applies when the Leverage Ratio is equal to or greater than
3.50 to 1.0 but less than 4.00 to 1.0.
Level V applies when the Leverage Ratio is equal to or greater than
4.00 to 1.0.
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Initially, the applicable Level shall be Level V. The applicable Level
shall be adjusted, to the extent applicable, 45 days (or, in the case of the
last Fiscal Quarter of any Fiscal Year, 90 days) after the end of each Fiscal
Quarter, beginning with the Fiscal Quarter ending June 30, 2000, based on the
Leverage Ratio as of the last day of such Fiscal Quarter; provided that if the
Company fails to deliver the financial statements required by Section 10.1.1 or
10.1.2, as applicable, and the related certificate required by Section 10.1.3 by
the 45th day (or, if applicable, the 90th day) after any Fiscal Quarter, Level V
shall apply until such financial statements are delivered.
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SCHEDULE 2.1
BANKS AND PERCENTAGES
Amount of
Bank Commitment Percentage
---- ----------- ----------
Bank of America, N.A. $30,000,000 50%
Bank Boston, N.A. $30,000,000 50%
TOTALS $60,000,000 100%
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SCHEDULE 12.1.11
KEY EXECUTIVES
Name Current Office(s)
---- -----------------
Xxxxxx X. Xxxxxxxxx, Xx. Chairman, Chief Executive Officer
Xxxxxxx X. Xxxx Vice Chairman
Xxxxx Xxxxxx President, Chief Operating Officer
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SCHEDULE 14.3
ADDRESSES FOR NOTICES
EARTHCARE COMPANY.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
Telephone: 000-000-0000
Facsimile: 000-000-0000
BANK OF AMERICA, N.A.,
as Administrative Agent
Agency Management Services
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.,
as Issuing Bank and as a Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANKBOSTON, N.A.,
as Syndication Agent and as a Bank
000 Xxxxxxx Xxxxxx 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
1
