EXHIBIT 10.1
================================================================================
Credit Agreement
Dated as of March 27, 2003
among
Insituform Technologies, Inc.,
Bank of America, N.A.
as Administrative Agent,
and
Letter of Credit Issuing Lender
and
The Other Financial
Institutions Party Hereto
================================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS......................................................... 1
1.01 Defined Terms............................................................................. 1
1.02 Use of Certain Terms...................................................................... 23
1.03 Accounting Terms.......................................................................... 24
1.04 Rounding.................................................................................. 24
1.05 Exhibits and Schedules.................................................................... 24
1.06 References to Agreements and Laws......................................................... 24
1.07 Currency Equivalents Generally............................................................ 24
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT................................................. 24
2.01 Amount and Terms of Commitments........................................................... 24
2.02 Borrowings, Conversions and Continuations of Loans........................................ 25
2.03 Letters of Credit......................................................................... 27
2.04 Prepayments............................................................................... 31
2.05 Not used.................................................................................. 31
2.06 Reduction or Termination of Commitments................................................... 31
2.07 Principal and Interest.................................................................... 31
2.08 Fees...................................................................................... 32
2.09 Computation of Interest and Fees.......................................................... 33
2.10 Making Payments........................................................................... 33
2.11 Funding Sources........................................................................... 34
2.12 Swing Line Loan Settlement After Default.................................................. 34
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY................................................... 35
3.01 Taxes..................................................................................... 35
3.02 Illegality................................................................................ 36
3.03 Inability to Determine Offshore Rates..................................................... 36
3.04 Increased Cost and Reduced Return; Capital Adequacy....................................... 36
3.05 Breakfunding Costs........................................................................ 37
3.06 Matters Applicable to all Requests for Compensation....................................... 37
3.07 Survival.................................................................................. 38
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT............................................. 38
4.01 Conditions of Initial Extension of Credit................................................. 38
4.02 Conditions to all Extensions of Credit.................................................... 39
4.03 Conditions for a Domestic Subsidiary Becoming a Guarantor................................. 40
SECTION 5. REPRESENTATIONS AND WARRANTIES........................................................... 40
5.01 Organization and Existence................................................................ 41
5.02 Authorization............................................................................. 41
5.03 Due Execution............................................................................. 41
5.04 Enforceability of Obligations............................................................. 41
5.05 Burdensome Obligations.................................................................... 41
5.06 Legal Restraints.......................................................................... 41
5.07 Labor Disputes............................................................................ 41
i
5.08 No Material Proceedings................................................................... 42
5.09 Material Licenses......................................................................... 42
5.10 Compliance with Material Laws............................................................. 42
5.11 Initial Financial Statements.............................................................. 42
5.12 No Change in Condition.................................................................... 43
5.13 No Defaults............................................................................... 43
5.14. Tax Liabilities; Governmental Charges..................................................... 43
5.15 Pension Benefit Plans..................................................................... 43
5.16 Employee Benefit Plans.................................................................... 44
5.17 State of Property......................................................................... 44
5.18 Subsidiaries.............................................................................. 44
5.19 Margin Stock.............................................................................. 44
5.20 Hostile Securities Transactions........................................................... 44
5.21 Investment Company Act, Etc............................................................... 44
5.22 Filings................................................................................... 44
5.23 Broker's Fees............................................................................. 45
5.24 Indebtedness Outstanding on Closing Date.................................................. 45
5.25 Projections............................................................................... 45
5.26 Full Disclosure........................................................................... 45
5.27 Use of Proceeds........................................................................... 45
5.28 Bonding Capacity.......................................................................... 45
SECTION 6. AFFIRMATIVE COVENANTS.................................................................... 45
6.01 Financial Statements...................................................................... 45
6.02 Certificates, Notices and Other Information............................................... 46
6.03 Use of Proceeds........................................................................... 49
6.04 Corporate Existence....................................................................... 49
6.05 Maintenance of Property and Leases........................................................ 49
6.06 Insurance................................................................................. 49
6.07 Payment of Taxes and Other Obligations.................................................... 49
6.08 Compliance With Laws...................................................................... 49
6.09 Accounting System......................................................................... 50
6.10 Additional Guarantors..................................................................... 50
6.11 Audits by Administrative Agent and Lenders................................................ 50
6.12 Access to Officers and Auditors........................................................... 51
6.13 Further Assurances........................................................................ 51
SECTION 7. NEGATIVE COVENANTS....................................................................... 51
7.01 Indebtedness.............................................................................. 51
7.02 Prepayments............................................................................... 51
7.03 Security Interests........................................................................ 52
7.04 Acquisitions.............................................................................. 52
7.05 Sale of Property.......................................................................... 52
7.06 Restricted Payments....................................................................... 52
7.07 Mergers and Consolidations................................................................ 53
7.08 Change of Business........................................................................ 53
7.09 Transactions With Affiliates.............................................................. 53
ii
7.10 Conflicting Agreements, Etc............................................................... 53
7.11 Sale and Leaseback Transactions; Operating Leases......................................... 53
7.12 Fiscal Year............................................................................... 53
7.13 Transactions.............................................................................. 54
7.14 Termination of Pension Benefit Plan....................................................... 54
7.15 Financial Covenants....................................................................... 54
7.16 Limitation on Operations of Non-Borrower Parties.......................................... 54
SECTION 8. EVENTS OF DEFAULT AND REMEDIES........................................................... 54
8.01 Events of Default......................................................................... 54
8.02 Remedies Upon Event of Default............................................................ 57
SECTION 9. ADMINISTRATIVE AGENT..................................................................... 58
9.01 Appointment and Authorization of Administrative Agent..................................... 58
9.02 Delegation of Duties...................................................................... 59
9.03 Liability of Administrative Agent......................................................... 59
9.04 Reliance by Administrative Agent.......................................................... 59
9.05 Notice of Default......................................................................... 60
9.06 Credit Decision; Disclosure of Information by Administrative Agent........................ 60
9.07 Indemnification of Administrative Agent................................................... 61
9.08 Administrative Agent in Individual Capacity............................................... 61
9.09 Successor Administrative Agent............................................................ 61
SECTION 10. MISCELLANEOUS........................................................................... 62
10.01 Amendments; Consents...................................................................... 62
10.02 Transmission and Effectiveness of Communications and Signatures........................... 63
10.03 Attorney Costs, Expenses and Taxes........................................................ 64
10.04 Binding Effect; Assignment................................................................ 65
10.05 Set off................................................................................... 66
10.06 Sharing of Payments....................................................................... 66
10.07 No Waiver; Cumulative Remedies............................................................ 67
10.08 Usury..................................................................................... 67
10.09 Counterparts.............................................................................. 68
10.10 Integration............................................................................... 68
10.11 Nature of Lenders' Obligations............................................................ 68
10.12 Survival of Representations and Warranties................................................ 68
10.13 Indemnity by Borrowers.................................................................... 68
10.14 Nonliability of Lenders................................................................... 69
10.15 No Third Parties Benefited................................................................ 70
10.16 Severability.............................................................................. 70
10.17 Confidentiality........................................................................... 70
10.18 Further Assurances........................................................................ 71
10.19 Headings.................................................................................. 71
10.20 Time of the Essence....................................................................... 71
10.21 Foreign Lenders........................................................................... 71
10.22 Compelled Return of Payments or Proceeds.................................................. 72
10.23 Governing Law............................................................................. 72
10.24 Waiver of Right to Trial by Jury.......................................................... 73
iii
10.25 Oral Agreements........................................................................... 73
10.26 Credit Agreement.......................................................................... 73
EXHIBITS
FORM OF:
A Request for Extension of Credit
B Compliance Certificate
C Promissory Note
D Master Guaranty
E Instrument of Joinder
F Assignment and Acceptance
G Swing Line Note
SCHEDULES
1.01 List of Outstanding Letters of Credit
2.01 Commitments and Pro Rata Shares
4.01(b) Guarantors as of Closing Date
5.08 Certain Proceedings
5.18 Subsidiaries as of Closing Date
5.24 Existing Indebtedness, Liens and Negative Pledges and Note
Purchase Agreement-2003
7.02(e) Indebtedness that may be Prepaid
10.02 Notice Addresses and Lending office
iv
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of March 27,
2003 by and among INSITUFORM TECHNOLOGIES, INC., a Delaware corporation
("Company" or "Borrower"), each lender from time to time party hereto
(collectively, "Lenders" and individually, a "Lender"), and BANK OF AMERICA,
N.A., as Administrative Agent and Issuing Lender.
RECITAL
Lenders and Issuing Lender have agreed to make available a revolving
multicurrency credit facility to Company which Company may from time to time
designate, upon the terms and conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements hereto
contained, the parties hereto covenant and agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquiring Person" means a "person" or "group of persons" within the
meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended.
"Administrative Agent" means Bank of America, N.A., in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as Administrative Agent hereafter may designate by written
notice to Company and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
(including any successor agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as Administrative Agent), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Affiliate" means, with respect to any Person (a) any other Person who
is a partner, director or executive officer of such Person; and (b) any other
Person which, directly or indirectly, is in control of, is controlled by or is
under common control with such Person, and any partner, director or executive
officer of such other Person. For purposes of this Agreement, control of a
Person by another Person shall be deemed to exist if such other Person has the
power, directly or indirectly, either to (i) vote twenty percent (20%) or more
of the securities having the power to vote in an election of directors of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
"Agreement" means this Credit Agreement, as amended, restated,
extended, supplemented or otherwise modified in writing from time to time.
"Applicable Amount" means the following amounts per annum, based upon
the Leverage Ratio calculated in accordance with Section 7.15(c) and as set
forth in the most recent Compliance Certificate received by Administrative Agent
pursuant to Section 6.02(c); provided, however, that, until Administrative Agent
receives the Compliance Certificate for the fiscal quarter ending March 31,
2003, such amounts shall be those indicated on the Compliance Certificate for
the fiscal year ending December 31, 2002 (but such pricing level on the basis of
such Certificate shall in no event be lower than 3):
APPLICABLE AMOUNT (IN BASIS POINTS PER ANNUM)
--------------------------------------------------------------------------------------------------------------------
OFFSHORE
PRICING LEVERAGE COMMITMENT RATE STANDBY LETTERS OF BASE RATE
LEVEL RATIO FEE LOANS CREDIT LOANS
--------------------------------------------------------------------------------------------------------------------
1 <1.00:1 20.00 75.00 75.00 00
--------------------------------------------------------------------------------------------------------------------
2 <1.50:1 but
> than = to 1.00:1 20.00 100.00 100.00 00
--------------------------------------------------------------------------------------------------------------------
3 <2.00:1 but
> than = to 1.50:1 25.00 125.00 125.00 00
--------------------------------------------------------------------------------------------------------------------
4 > than = to 2.00:1 30.00 150.00 150.00 00
--------------------------------------------------------------------------------------------------------------------
Offshore Rate Loans and Base Rate Loans shall bear interest at a per
annum rate equal to (a) the Offshore Rate and Base Rate determined in accordance
with Section 2.02 plus (b) the Applicable Amount set forth above opposite the
Leverage Ratio then applicable in accordance with the next sentence (subject to
the provisions of the first sentence of this definition). The Applicable Amount
shall be in effect from the date the most recent Compliance Certificate is
received by Administrative Agent to but excluding the date the next Compliance
Certificate is received; provided, however, that if Company fails to timely
deliver the Compliance Certificate next due, the Applicable Amount from the date
such Compliance Certificate was due to but excluding the date such Compliance
Certificate is received by Administrative Agent shall be that indicated for the
highest pricing level set forth above (i.e., Level 4), and, thereafter, the
pricing level indicated by such Compliance Certificate when received.
"Applicable Payment Date" means, (a) as to any Offshore Rate Loan, the
last day of the relevant Interest Period, any date that such Loan is prepaid or
converted in whole or in part and the Maturity Date; provided, however, that if
any Interest Period for an Offshore Rate Loan exceeds three months, interest
shall also be paid on the date which falls every three months after the
beginning of such Interest Period; and (b) as to any Base Rate Loan and any
other Obligations, the last Business Day of each calendar quarter and the
Maturity Date; provided, further, that interest accruing at the Default Rate
shall be payable from time to time upon demand of Administrative Agent.
"Applicable Time" means St. Louis, Missouri time.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel.
"Bank of America" means Bank of America, N.A.
"Base Rate" means a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its
"prime rate." Such 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 such 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.
"Base Rate Loan" means a Loan which bears interest based on the Base
Rate.
"Borrower" means the Company.
"Borrower Party" means Company and each Guarantor.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
"Borrowing Date" means the date that a Loan is made, which shall be a
Business Day.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or the local lending office of
Administrative Agent set forth in Schedule 10.02 are authorized or required by
law to close, and, if the applicable Business Day relates to:
(a) An Obligation denominated in Dollars, any such day on
which dealings are carried on in the applicable offshore Dollar market;
(b) An Obligation denominated in the euro, any such day
which is:
(i) For payments or purchases of the euro, a
TARGET Business Day; and
(ii) For all other purposes, including without
limitation the giving and receiving of notices hereunder, a
TARGET Business Day on which banks are generally open for
business in London and in any other principal financial center
as Administrative Agent may from time to time determine for
this purpose; and
(c) an Obligation denominated in any other Offshore
Currency, a day on which commercial banks are open for foreign exchange
business in London, England, and on which dealings in the relevant
Offshore Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursement of or payment
in such Offshore Currency will be made or received hereunder.
A "TARGET Business Day" is a day when TARGET (Trans-European Automated
Real-time Gross settlement Express Transfer system), or any successor thereto,
is scheduled to be open for business.
"Capital Expenditure" means an expenditure for an asset that must be
depreciated or amortized under GAAP, for goodwill, or for any asset that under
GAAP must be treated as a capital asset, including payments under Capital
Leases. An expenditure for purposes of this definition includes any deferred or
seller financed portion of the purchase price of an asset and the original
capitalized amount of a Capital Lease. Capital Expenditure shall exclude
expenditures up to the amount of $10,000,000 made during any consecutive four
(4)-fiscal quarter period by Company or a Domestic Subsidiary for the purchase
of tunneling equipment (including expenditures in the way of progress payments
made to the manufacturer of the item to the extent such payments are
capitalized), provided such item or items of equipment are the subject of a sale
and leaseback transaction which removes the item or items of equipment as an
asset on the consolidated balance sheet of the Company and its Subsidiaries
within twelve (12) months from the later to occur of (a) the date of the
acquisition of such item of equipment and (b) the last expenditure made as a
progress payment to the manufacturer and before the Company or Subsidiary takes
possession of such item.
"Capital Lease" means any lease that has been or should be capitalized
under GAAP.
"Change of Control" means the earliest to occur of: (a) the date a
tender offer or exchange offer results in an Acquiring Person, directly or
indirectly, beneficially owning 50% or more of the Voting Stock of Company then
outstanding, or (b) the date an Acquiring Person becomes, directly or
indirectly, the beneficial owner of 50% or more of the Voting Stock of Company
then outstanding, or (c) the date of a merger or statutory share exchange
between Company and any other Person, a consolidation of Company with any other
Person or an acquisition of any other Person by Company, if immediately after
such event, the Acquiring Person shall hold 50% or more of the Voting Stock of
Company outstanding immediately after giving effect to such merger, statutory
share exchange, consolidation or acquisition, or (d) the replacement (other than
solely by reason of retirement, death or disability) of 50% or more of the
members of the Board of Directors of Company over a one year period from the
directors who constituted such Board of Directors at the beginning of such
period and such replacement shall not have been approved by a vote of at least a
majority of the Board of Directors of Company then still in office who either
were members of such Board of Directors at the beginning of such one year period
or whose election as members of the Board of Directors was previously so
approved.
"Charter Documents" means the articles or certificates of incorporation
and bylaws of a corporation; the certificate of limited partnership and
partnership agreement of a limited partnership; the partnership agreement of a
general partnership; the articles of organization and operating agreement of a
limited liability company; or the indenture of a trust, or comparable documents
for other entities.
"Closing Date" means the date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01.
"Cobra" means the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, for each Lender, the amount set forth opposite such
Lender's name on Schedule 2.01, as such amount may be reduced or adjusted from
time to time in accordance with the terms of this Agreement (collectively, the
"combined Commitments").
"Commonly Controlled Entity" means a Person which is under common
control with another Person within the meaning of Section 414(b) or (c) of the
Code.
"Company" has the meaning set forth in the introductory paragraph
hereto.
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Responsible Officer of Company.
"Consolidated EBITDA" means, for the period of four fiscal quarters
ending on any date of determination for Company and its Subsidiaries on a
consolidated basis, an amount equal to the sum of (a) Consolidated Net Income
From Continuing Operations, (b) Consolidated Interest Expenses, (c) the amount
of taxes, based on or measured by income, used or included in the determination
of such Consolidated Net Income From Continuing Operations, (d) the amount of
depreciation and amortization expense deducted in determining such Consolidated
Net Income From Continuing Operations, (e) losses on the sale or other
disposition of assets other than in the ordinary course of business if included
in the calculation of Consolidated Net Income From Continuing Operations, (f)
non-recurring expenses if included in the calculation of Consolidated Net Income
From Continuing Operations, minus (g) gains on the sale or other disposition of
assets other than in the ordinary course of business if included in the
calculation of Consolidated Net Income From Continuing Operations, (h) gains on
the sale or other disposition of assets in the ordinary course of business if
included in the calculation of Consolidated Net Income from Continuing
Operations to the extent such gains exceed $2,000,000 in any consecutive four
(4)-fiscal quarter period, and (i) non-recurring income if included in the
calculation of Consolidated Net Income From Continuing Operations, all as
accrued in such period. Administrative Agent reserves the right from time to
time to disallow the inclusion of specific items of non-recurring expenses and
non-recurring income in (f) and (i) above.
"Consolidated Fixed Charges" for any period means on a consolidated
basis (in each case, eliminating all offsetting debits and credits between
Company and its Subsidiaries and all other items to be eliminated in the course
of the preparation of consolidated financial statements of Company and its
Subsidiaries in accordance with GAAP), without duplication, the sum of (a) all
Rentals (other than Rentals on Capital Leases) payable during such period by
Company and its Subsidiaries, (b) all Consolidated Interest Expenses, (c) all
scheduled payments of principal of Consolidated Funded Indebtedness (excluding
the payment on the Closing Date of (i) the principal outstanding under the
Multicurrency Credit Agreement referenced in Section 10.26 hereof, and (ii) of
the Loans at the Maturity Date and including the principal component due on
Capital Leases), it being understood that scheduled payments of principal of
Consolidated Funded Indebtedness shall not include voluntary prepayments or
mandatory prepayments required pursuant to Section 2.04, and (d) any cash
dividends paid.
"Consolidated Funded Indebtedness" means, as of any date of
determination, without duplication, for Company and its Subsidiaries on a
consolidated basis, the sum of (a) the outstanding principal amount of all
obligations and liabilities, whether current or long-term, for borrowed money
(including the principal amount of Indebtedness hereunder), (b) liabilities in
respect of standby letters of credit and letters of credit or instruments
serving a similar function issued or accepted for its account by banks,
insurance companies and financial institutions supporting obligations owing to
unrelated third parties (valued (i) in the case of letters of credit supporting
financial obligations, at the face amount of such letters of credit and (ii) in
the case of other letters of credit, at the amount drawn on such letters of
credit at such time and not reimbursed), (c) that unamortized portion of
obligations with respect to Capital Leases that are capitalized in the
consolidated balance sheet of Company and its Subsidiaries, and (d) all
Restricted Guaranty Obligations with respect to Indebtedness of the type
specified in subsections (a) and (c) above of Persons other than Company or any
Subsidiary.
"Consolidated Interest Expenses" means, for any period, without
duplication, for Company and its Subsidiaries on a consolidated basis, the sum
of all (a) interest (including capitalized interest and the interest component
on Rentals on Capital Leases) and all amortization of debt discount and expense
on any particular Indebtedness (including payment-in-kind, zero coupon and other
like securities) for which such calculations are being made, (b) expenses, fees
and commissions for letters of credit and bankers' acceptances and (c) the net
interest cost of Swaps.
"Consolidated Net Income" means, for any period, for Company and its
Subsidiaries on a consolidated basis, the net income of Company and its
Subsidiaries.
"Consolidated Net Income From Continuing Operations" means, for any
period, for Company and its Subsidiaries on a consolidated basis, the net income
of Company and its Subsidiaries from their respective continuing operations.
"Consolidated Tangible Net Worth" means, as of any date of
determination, without duplication, and on a consolidated basis for the Company
and its Subsidiaries, the value of total assets (including leaseholds and
leasehold improvements and reserves against assets but excluding goodwill,
patents, trademarks, trade names, unamortized debt discount and expense,
capitalized or deferred research and development costs, deferred marketing
expenses, and other like intangibles), less total liabilities, including but not
limited to accrued and deferred income taxes, all determined in accordance with
GAAP.
"Consolidated Total Assets" means, as of any date of determination,
without duplication, total assets of the Company and its Subsidiaries determined
on a consolidated basis.
"Consolidated Total Indebtedness" means, as of any date of
determination, without duplication, all Indebtedness of Company and its
Subsidiaries after eliminating all offsetting debits and credits between Company
and its Subsidiaries and all other items to be eliminated in the course of the
preparation of consolidated financial statements of Company and its Subsidiaries
in accordance with GAAP.
"Continuation" and "Continue" mean, with respect to any Offshore Rate
Loan, the continuation of such Offshore Rate Loan as an Offshore Rate Loan on
the last day of the Interest Period for such Loan.
"Contract" means any contract, note, bond, indenture, deed, mortgage,
deed of trust, security agreement, pledge, hypothecation agreement, assignment,
or other agreements or undertaking, or any security.
"Conversion" and "Convert" means, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"Covered Person" means Company and each of its presently existing or
future acquired, organized or created Subsidiaries separately. The words
"Covered Persons" refer to the Company and its presently existing or future
acquired, organized or created Subsidiaries collectively.
"Currency Calculation Date" means, with respect to any (a) Borrowing,
Conversion, Continuation or payment of Offshore Currency Loans, the date of such
Borrowing, Conversion, Continuation, or payment, as applicable, and (b)
outstanding Offshore Currency Loans, any Applicable Payment Date relevant
thereto, the last Business Day of each month or any additional and more frequent
dates as Administrative Agent may, in its sole discretion or at the direction of
the Requisite Lenders, select from time to time.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Default" means any of the events listed in Section 8.01, without
giving effect to any requirement for the giving of notice, for the lapse of
time, or both, or for the happening of any other condition, event or act.
"Default Rate" means an interest rate equal to the Base Rate plus 2%
per annum; provided, however, that with respect to Offshore Rate Loans, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Amount) otherwise applicable to such Offshore Rate Loans plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.
"Designated Deposit Account" means a deposit account maintained by
Company with Bank of America, as from time to time designated by Company to
Administrative Agent by Requisite Notice.
"DOL" means the United States Department of Labor.
"Dollar" and $ means lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of Company organized under
the laws of the United States or a state of the United States existing on the
Closing Date or created or acquired after the Closing Date.
"Eligible Assignee" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender; (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary; (d) another Lender; (e) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act of
1933, as amended) which extends credit or buys loans as one of its businesses,
including but not limited to, insurance companies, mutual funds and lease
financing companies; or (f) other lenders or institutional investors consented
to in writing in advance by Administrative Agent and Company. No Borrower Party
or any Affiliate of a Borrower Party shall be an Eligible Assignee.
"EMU Legislation" means (a) the Treaty on European Union (the Treaty of
Rome of March 25, 1957, as amended by the Single European Act of 1986 and the
Maastricht Treaty (which was signed at Maastricht on February 1, 1992 and came
into force on November 1, 1993)), and (b) legislative measures of the European
Council (including without limitation European Council regulations) for the
introduction of, changeover to or operation of the euro, in each case as amended
or supplemented from time to time.
"Environmental Law" means the Resource Conservation and Recovery Act,
the Comprehensive Environmental Response, Compensation and Liability Act, the
Clean Water Act, the Clear Air Act, or any other Law pertaining to environmental
quality or remediation of Hazardous Material.
"Equivalent Amount" means, as of any Currency Calculation Date, the
amount determined by reference to the following table:
IF THE NOTIONAL
AMOUNT IS THE EQUIVALENT AMOUNT IN DOLLARS THE EQUIVALENT AMOUNT IN
DENOMINATED IN: IS: ANOTHER OFFSHORE CURRENCY IS:
-------------------------------------------------------------------------------------------------------
Dollars Such amount The amount of such Offshore
Currency that can be purchased with
Dollars at the Spot Rate for delivery
on Currency Calculation Date
--------------------------------------------------------------------------------------------------------
An Offshore The amount of Dollars that can be Such amount
Currency purchased with such Offshore
Currency at the Spot Rate for delivery
on Currency Calculation Date
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means as to any Person, any trade or business
(irrespective of whether incorporated) which is a member of a group of which
such Person is a member and thereafter treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code or applicable Treasury Regulations.
"euro" means the single currency of Participating Member States.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate Loan shall
be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage and the Offshore
Base Rate by Administrative Agent in good faith shall be conclusive in the
absence of manifest error.
"Event of Default" means any of the events listed in Section 8.01 as to
which any requirement for the giving of notice, for the lapse of time, or both,
or for the happening of any further condition, event or act has been satisfied.
"Existing Credit Facility" means that certain Loan Agreement dated as
of March 30, 2000, as amended, between Company and Bank of America.
"Extension of Credit" means (a) the Borrowing, Conversion or
Continuation of any Loans, or (b) a Letter of Credit Action wherein a new Letter
of Credit is issued or which has the effect of increasing the amount of,
extending the maturity of, or making a material modification to an outstanding
Letter of Credit or the reimbursement of drawings thereunder (collectively the
"Extension of Credit").
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by Administrative Agent.
"Fee Letter" means the letter agreement of even date with this
Agreement between Company and Administrative Agent.
"Final Payment" means payment in full of the Loans, all unpaid interest
accrued thereon and all commitments fees, accompanied by the cancellation or
termination of all Commitments and expiration of all undrawn outstanding Letters
of Credit for which Company has not provided a back-to-back letter of credit in
favor of Issuing Lender in form and substance reasonably satisfactory to Issuing
Lender covering all Letter of Credit Usage with respect thereto issued by a
financial institution (a) whose long-term senior unsecured indebtedness is rated
at least A by Standard & Poor's Rating Services, a division of the The
XxXxxx-Xxxx Companies, Inc., at least A2 by Xxxxx'x
Investors Service, Inc., or an equivalent rating by any other credit rating
agency of recognized national standing, and (b) which would qualify as an
Eligible Assignee.
"Financial Statements" means the most recent of the Initial Financial
Statements and the financial statements of the Company that are furnished to
Administrative Agent as required in Section 6.01; provided, however, that for
purposes of calculating any amount or financial ratio hereunder as of a date or
for a period not entirely covered by the most recent and prior such financial
statements furnished to Administrative Agent, the term "Financial Statements"
shall be deemed to include the financial statements of the Company that cover
such periods as have been filed by the Company with the Securities and Exchange
Commission.
"FRB" means the Board of Governors of the Federal Reserve System and
any successor thereto or to the functions thereof.
"GAAP" means generally accepted accounting principles set forth 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 such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either
Company or Requisite Lenders shall so request, Administrative Agent, Lenders and
Company shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to
the approval of Requisite Lenders), provided that, until so amended, (a) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (b) Company shall provide to Administrative Agent and
Lenders financial statements and other documents required under this Agreement
or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
"Governmental Authority" means the federal government of the United
States; the government of any foreign country that is recognized by the United
States or is a member of the United Nations; any state of the United States; any
local government or municipality within the territory or under the jurisdiction
of any of the foregoing; any department, agency, division, or instrumentality of
any of the foregoing; and any court, arbitrator, or board of arbitrators whose
orders or judgments are enforceable by or within the territory of any of the
foregoing.
"Guarantor" means each Domestic Subsidiary of Company, except
Mississippi Textiles Corporation and Insituform (Netherlands) B.V., Inc., and
any other Person executing a Guaranty of the Obligations (collectively, the
"Guarantors").
"Guaranty" means, with respect to any Person, without duplication, any
obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing (including, without limitation, having recourse
obligations for the Guaranties of another Person) any indebtedness, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or
obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of any other Person to make
payment of the Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Guaranty Obligation" means as to any Person, (a) any guaranty by such
Person of any obligation of another Person; (b) any Security Interest in any
property of such Person that secures any obligation of another Person; (c) any
enforceable contractual requirement that such Person (i) purchase an obligation
of another Person or any property that is security for such obligation, (ii)
advance or contribute funds to another Person for the payment of an obligation
of such other Person or to maintain the working capital, net worth or solvency
of such other Person as required in any documents evidencing an obligation of
such other Person, (iii) purchase property, securities or services from another
Person for the purpose of assuring the beneficiary of any obligation of such
other Person that such other Person has the ability to timely pay or discharge
such obligation, (iv) grant a Security Interest in any property of such Person
to secure any obligation of another person, or (v) otherwise assure or hold
harmless the beneficiary of any obligation of another Person against loss in
respect thereof; and (d) any other contractual requirement enforceable against
such Person that has the same substantive effect as any of the foregoing. The
term "Guaranty Obligation" does not, however, include the endorsement by a
Person of instruments for deposit or collection in the ordinary course of
business or the liability of a general partner or a partnership for obligations
of such partnership. The amount of any Guaranty Obligation of a Person shall be
deemed to be the stated or determinable amount of the obligation in respect of
which such Guaranty Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Hazardous Material" means any hazardous, radioactive, toxic, solid or
special waste, material substance or constituent thereof, or any other such
substance (as defined under any applicable law or regulation), including
Asbestos or asbestos containing hazardous constituents which are not considered
to be waste under the applicable Environmental Law or which are considered to be
waste but are transported, handled or disposed of in accordance with the
applicable Environmental Law or which are considered to be waste but are
transported, handled or disposed or in accordance with the applicable
Environmental Law, or asbestos or asbestos containing material which is not
friable.
"Indebtedness" means, with respect to any Person, at any time, without
duplication;
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities created
or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of all Capital Leases;
(d) all liabilities for borrowed money secured by any
other Lien with respect to any property owned by such Person (whether
or not it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letter of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions valued (i) in the
case of letters of credit supporting obligations for borrowed money, at
the face amount of such letters of credit and (ii) in the case of other
letters of credit, at the amount drawn on such letters of credit at
such time and not reimbursed;
(f) obligations of such Person under Swaps; and
(g) any Guaranty of such Person with respect to
liabilities of a type described in any clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person
of the character described in clauses (a) through (g) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP, but shall not include
Unfunded Pension Liabilities of any Plan of Company and its Subsidiaries.
"Indemnified Liabilities" has the meaning set forth in Section 9.12.
"Indemnitees" has the meaning set forth in Section 9.12.
"Initial Financial Statements" means the financial statements of
Company referred to in Section 5.11.
"Instrument of Joinder" means the Instrument of Joinder substantially
in the form of Exhibit E executed and delivered by any Subsidiary of Borrower,
as contemplated by Section 4.03 and any amendments or supplements thereto.
"Intercreditor Agreement" means that certain Amended and Restated
Intercreditor Agreement dated as of March 30, 2000, by and among Bank of America
and the other lenders party thereto, as further amended, supplemented or
otherwise modified from time to time.
"Interest Period" means for each Offshore Rate Loan, (a) initially, the
period commencing on the date such Offshore Rate Loan is disbursed or Continued
or Converted into such Offshore Rate Loan and (b) thereafter, the period
commencing on the last day of the preceding Interest Period, and ending, in each
case, on the earlier of (i) the scheduled Maturity Date, (ii) one, two, three or
six months as requested by a Borrower; provided that:
(x) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(y) any Interest Period which begins on the last Business
Day of a calendar month (or 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
(z) unless Administrative Agent otherwise consents, there
may not be more than four (4) Interest Periods for Offshore Rate Loans
in effect at any time.
"Investments" means, without duplication, all investments, in cash or
by delivery of property, made directly or indirectly in any property or assets
or in any Person, whether by acquisition of shares of capital stock,
Indebtedness or other obligations or securities or by loan, advance, capital
contribution or otherwise.
"IRS" means the United States Internal Revenue Service.
"Issuing Lender" means Bank of America, or any successor issuing lender
hereunder.
"Laws" or "Law" means all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorization and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" means each lender from time to time party hereto and, as the
context requires, Issuing Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
hereunder, including, without limitation, the Letters of Credit outstanding on
the Closing Date and listed on Schedule 1.01 hereto. A Letter of Credit may be a
commercial letter of credit or a standby letter of credit.
"Letter of Credit Action" means the issuance, supplement, amendment,
renewal, extension modification or other action relating to a Letter of Credit
hereunder.
"Letter of Credit Application" means an application for a Letter of
Credit Action from time to time in general use by Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit
account at Bank of America in which Borrower shall grant a security interest to
Issuing Lender as security for Letter of Credit Usage by Borrower and with
respect to which Borrower agrees to execute and deliver from time to time, on
the date hereafter required, such documentation as Administrative Agent or
Issuing Lender may reasonably request to further assure and confirm such
security interest.
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Commitment and $30,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Commitment.
"Letter of Credit Usage" means, as at any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit not reimbursed by
Borrower or converted into Loans.
"Leverage Ratio" means, as of the end of any fiscal quarter, for
Company and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four fiscal quarters ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement (in the nature of compensating balances, cash collateral accounts or
security interests), encumbrance, lien (statutory or other), charge, or
preference, priority or other security interests or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable Laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Loan" means any advance made as provided in Section 2.01
(collectively, the Loans").
"Loan Documents" means this Agreement, any Compliance Certificate, the
Master Guaranty, the Intercreditor Agreement, any Letter of Credit Application,
any Request for Extension of Credit and any Note, certificate, any fee letter,
and other instrument, document or agreement from time to time delivered in
connection with this Agreement.
"Master Guaranty" means the continuing guaranty of the Obligations to
be executed and delivered by the Guarantors, substantially in the form of
Exhibit D, and any amendments or supplements thereto.
"Material Adverse Effect" means with respect to any event or occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration, investigation or proceeding), a material adverse effect on the
business, operations, revenues, financial condition or property of Company and
its Subsidiaries taken as a whole, without reference to the ability of Company
to timely pay or perform Company's obligations generally, or the ability of
Company to pay or perform any of the Obligations.
"Material Agreement" means as to any Person, any Contract to which such
Person is a part or by which such Person is bound which, if violated or
breached, would have a Material Adverse Effect.
"Material Law" means any Law whose violation by a Person would have a
Material Adverse Effect.
"Material License" means (a) as to any Person, any license, permit or
consent from a Governmental Authority or other Person and any registration and
filing with a Governmental Authority or other Person which if not obtained, held
or made would have a Material Adverse effect, and (b) as to any Person who is a
party to this Agreement or any of the other Loan Documents, any license, permit
or consent from a Governmental Authority or other Person and any registration or
filing with a Governmental Authority or other Person that is necessary for the
execution or performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan Document.
"Material Obligation" means as to any Person, an obligation of such
Person which if not fully and timely paid or performed would have a Material
Adverse Effect.
"Material Proceeding" means any litigation, investigation or other
proceeding by or before any Governmental Authority (a) which involves any of the
Loan Documents or any of the transactions contemplated thereby, or involves a
Covered Person as a party or any property of Covered Person, and its reasonably
likely to have a Material Adverse Effect, or (b) in which there has been issued
an injunction, writ, temporary restraining order or any other order of any
nature which purports to restrain or enjoin the making of any Loan, the
consummation of any other transaction contemplated by the Loan Documents, or the
enforceability of any provision of any of the Loan Documents.
"Maturity Date" means (a) March 31, 2006 or (b) such earlier date upon
which the Commitment may be terminated in accordance with the terms of this
Agreement.
"Minimum Amount" means, with respect to each of the following actions,
the minimum amount and any multiples in excess thereof set forth opposite such
action:
-------------------------------------------------------------------------------------------
MULTIPLES IN EXCESS
TYPE OF ACTION MINIMUM AMOUNT THEREOF
-------------------------------------------------------------------------------------------
Borrowing or prepayment of,
or Conversion into, Base Rate
Loans $ 500,000 $ 50,000
-------------------------------------------------------------------------------------------
Borrowing, prepayment or
Continuation of, or Conversion
into, Dollar-denominated
Offshore Rate Loans $ 1,000,000 $ 100,000
-------------------------------------------------------------------------------------------
Borrowing, prepayment or
Continuation of, or Conversion Equivalent Amount Equivalent Amount
into, Offshore Currency Loans of $1,000,000 of $100,000
-------------------------------------------------------------------------------------------
Letter of Credit Action None None
-------------------------------------------------------------------------------------------
Reduction in Commitment $ 1,000,000 $ 500,000
"Minority Interests" means, without duplication, any shares of stock of
any class of a Subsidiary (other than directors' qualifying shares as required
by law) that are not owned by Company and/or one or more of its Subsidiaries.
Minority Interests shall be valued by valuing Minority Interests constituting
preferred stock at the voluntary or involuntary liquidating value of such
preferred stock, whichever is greater, and by valuing Minority Interests
constituting common stock at the book value of common stock, additional paid-in
capital and retained earnings applicable thereto adjusted, if necessary, to
reflect any changes from the book value of such common stock required by the
foregoing method of valuing Minority Interests in preferred stock.
"Multi-Employer Plan" means a Pension Benefit Plan which is a
multi-employer plan as defined in Section 4001(a)(3) of ERISA.
"Note" means a promissory note made by Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C,
and a Swing Line Note.
"Note Xxxxxxxx Xxxxxxxxx-0000" means the Note Purchase Agreement dated
as of February 14, 1997, as amended to and including the Closing Date, among
Company and other parties signatory thereto under which Company issued certain
7.88% Senior Notes, Series A, due February 14, 2007, of $110,000,000 aggregate
principal amount; provided, however, that, except with respect to Section
8.01(f) of this Agreement ( which is a cross default to other Indebtedness,
including the Note Purchase Agreement-1997 as in effect from time to time),
after the Closing Date no amendments to, or waivers of, the terms, conditions
and definitions of the Note Purchase Agreement-1997 referred to or incorporated
by reference herein shall be deemed to amend or waive such terms, conditions and
definitions for purposes of this Agreement unless Requisite Lenders separately
agree or consent thereto hereunder. The terms, conditions and definitions
referred to or incorporated by reference herein will survive termination,
restatement or cancellation of the Note Purchase Agreement-1997 for purposes of
this Agreement (other than Section 8.01(f)).
"Note Purchase Agreement-2003" means the Note Purchase Agreement to be
entered into among Company and other parties signatory thereto under which
Company will issue notes conforming to the parameters described in Section
10.01(b) and consistent with the description set forth on Schedule 5.24;
provided, however, that, except with respect to Section 8.01(f) of this
Agreement (which is a cross default to other Indebtedness, including the Note
Purchase Agreement-2003 as in effect from time to time), after the Closing Date
no amendments to, or waivers of, the terms, conditions and definitions of the
Note Purchase Agreement-2003 referred to or incorporated by reference herein
shall deemed to amend or waive such terms, conditions and definitions for
purposes of this Agreement unless Requisite Lenders separately agree or consent
thereto hereunder. The terms, conditions and definitions referred to or
incorporated by reference herein will survive termination, restatement or
cancellation of the Note Purchase Agreement for purposes of this Agreement
(other than Section 8.01(f)).
"Obligations" means all advances to, and debts, liabilities
(contractual or tortious), obligations, covenants and duties of, any Borrower
Party arising under any Loan Document and Swaps entered into with a Lender,
whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest that accrues after the commencement of
any proceeding under any Debtor Relief Laws by or against any Borrower Party or
any Subsidiary or Affiliate of any Borrower Party.
"Offshore Currency" means British Pounds Sterling, the euro, and any
additional currency permitted in accordance with Section 2.02(f).
"Offshore Currency Loan" means any Offshore Rate Loan denominated in an
Offshore Currency.
"Offshore Base Rate" has the meaning set forth in the definition of
Offshore Rate.
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the per annum rate of
interest (rounded upward to the next 1/100th of 1%) determined in good faith by
Administrative Agent as follows:
Offshore Base Rate
Offshore Rate = ------------------------------------------- } as defined below.
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page of
the Telerate Screen that displays an average British Bankers
Association Interest Settlement Rate for deposits in the applicable
currency (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to the
rate determined in good faith by Administrative Agent to be the offered
rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in
the applicable currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined in good faith by Administrative Agent as the rate of
interest at which deposits in the applicable currency (for delivery on
the first day of such Interest Period) in same day funds in the
approximate amount of the applicable Offshore Rate Loans and with a
term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore Dollar market at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period.
"Offshore Rate Loan" means a Loan bearing interest based on the
Offshore Rate, which may be denominated in U.S. Dollars or an Offshore Currency.
Offshore Rate Loans include Offshore Currency Loans.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Outstanding Obligations" means, as of any date, and giving effect to
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, the sum of (a) the aggregate
outstanding principal amount of all Loans (including Swing Line Loans), and (b)
all Letter of Credit Usage.
"Overnight Rate" means, for any day, (a) with respect to payments in
Dollars, the Federal Funds Rate and (b) with respect to payments in Offshore
Currencies, the rate of interest per annum at which overnight deposits in the
applicable Offshore Currency, in an amount approximately equal to the amount
with respect to which such rate is being determined, would be offered for such
day by Bank of America's principal office in London to major banks in the London
or other applicable offshore interbank market.
"Participating Member State" means each country which from time to time
becomes a Participating Member State as described in EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Benefit Plan" means any pension or profit-sharing plan which
is covered by Title I of ERISA and in respect of which a Person or a Commonly
Controlled Entity of such Person is an "employer" as defined in Section 3(5) of
ERISA.
"Permitted Acquisition" means any acquisition of stock or other equity
interest in a Person, or of all or a material part of the assets of a Person,
with respect to which all of the following requirements have been satisfied:
(a) the Person is engaged in a line of business
substantially the same as any line of business conducted by Company or
any of its Subsidiaries on the Closing Date or reasonably related, or
ancillary or complementary, thereto or in furtherance thereof
(including, without limitation, any business providing materials or
services to Company or any of its Subsidiaries or any business to which
Company or any of its Subsidiaries furnishes materials or services);
(b) the acquisition is not hostile from the point of view
of such Person;
(c) no Default or Event of Default is (unless waived)
continuing;
(d) no Default or Event of Default will occur or is
reasonably likely to occur as a consequence of the acquisition;
(e) the acquisition will not involve cash consideration
in excess of $50,000,000;
(f) upon giving effect to the acquisition, (i) the pro
forma Leverage Ratio is less than 2:1, and (ii) the pro forma sum of
(A) cash and cash equivalents, plus (B) the amount of availability to
Borrower for advances of Loans, is not less than $15,000,000;
(g) the total aggregate consideration (including cash,
stock and other non-cash considerations, and assumption of
Indebtedness) paid by Company and its Subsidiaries for all acquisitions
during any consecutive four (4)-fiscal quarter period does not exceed
$50,000,000; and
(h) the total aggregate consideration (including cash,
stock and other non-cash considerations, and assumption of
Indebtedness) paid by Company and its Subsidiaries for all acquisitions
from the Closing Date to the date of determination does not exceed
$150,000,000.
"Permitted Indebtedness" means:
(a) Obligations;
(b) Indebtedness existing as of the date of the Agreement
(but not renewals or extensions thereof) all as listed on Schedule
5.24, and the Note Xxxxxxxx Xxxxxxxxx-0000;
(c) unsecured trade accounts payable and other normal
accruals incurred in the ordinary course of business and which are not
more than 120 days past due;
(d) Rentals under Capital Leases to the extent such
Rentals in the aggregate are less than $1,000,000 in any consecutive
four (4)-fiscal quarter period;
(e) other Indebtedness not otherwise permitted herein in
an amount not to exceed $8,000,000 in the aggregate at any one time
outstanding; and
(f) advances between Subsidiaries and Company and between
and among Subsidiaries to the extent not prohibited by Section 7.16.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by
a Borrower Party or by any trade or business (whether or not incorporated) under
common control with a Borrower Party as defined in Section 4001(b) of ERISA and
insured by the Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Regulation D," "Regulation U" and "Regulation X" means, respectively,
Regulation D, Regulation U and Regulation X issued by the FRB.
"Rentals" means and includes, as of any date of determination, without
duplication, all fixed payments (including as such all payments which the lessee
is obligated to make to the lessor on termination of the lease or surrender of
the property) payable by Company or a Subsidiary, as lessee or sublessee under a
lease of real or personal property, all in accordance with GAAP, having an
original term of one year or more, but shall be exclusive of any amounts
required to be paid by Company or a Subsidiary (whether or not designated as
rents or additional rents) on account of maintenance, repairs, insurance, taxes
and similar charges. Fixed rents under any so-called "percentage leases" shall
be computed solely on the basis of the minimum rents, if any, required to be
paid by the lessee regardless of sales volume or gross revenues.
"Reportable Event" means a reportable event as defined in Title IV of
ERISA or the regulations thereunder.
"Request for Extension of Credit" means, unless otherwise specified
herein, (a) a written request substantially in the form of Exhibit A, and (b)
with respect to a Letter of Credit Action, a Letter of Credit Application, in
each case duly completed and signed by a Responsible Officer of Company and
delivered by Requisite Notice.
"Requisite Lenders" means, as of any date of determination: (a) if the
Commitments are then in effect, Lenders having in the aggregate two-thirds or
more of the combined Commitments then in effect and (b) if the Commitments have
then been terminated and there are Outstanding Obligations, Lenders holding
Outstanding Obligations aggregating two-thirds or more of such Outstanding
Obligations.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable written notice to the intended recipient or (b) except with respect
to Letter of Credit Action (which must be in writing), irrevocable telephonic
notice to the intended recipient, promptly followed by a written notice to such
recipient. Such notices shall be (i) delivered to such recipient at the address
or telephone number specified on Schedule 10.02 or as otherwise designated by
such recipient by Requisite Notice to Administrative Agent, and (ii) if made by
any Borrower Party, given or made by a Responsible Officer of such Borrower
Party. Any written notice delivered in connection with any Loan Document shall
be in the form, if any, prescribed herein or therein. Any notice sent by other
than hardcopy shall be promptly confirmed by a telephone call to the recipient
and, if requested by Administrative Agent, by a manually signed hardcopy
thereof.
"Requisite Time" means, with respect to any of the actions listed
below, the time and date set forth below opposite such action:
APPLICABLE
TYPE OF ACTION TIME DATE OF ACTION
-----------------------------------------------------------------------------------------------------
Delivery of Request for Extension
of Credit for, or notice for:
- Borrowing or prepayment of, or 10:00 a.m. Same date as such borrowing,
Conversion into, Base Rate prepayment or Conversion
Loan
- Borrowing, prepayment or 10:00 a.m. 3 Business Days prior to such
Continuation of, or Conversion borrowing, prepayment
into, Dollar-denominated Continuation or Conversion
Offshore Rate Loan
- Borrowing of, prepayment of, 10:00 a.m. 5 Business Days prior to such
Continuation of, or Conversion borrowing or prepayment
into offshore Currency Loan
- Requests for new Offshore 10:00 a.m. 10 Business Days prior to
Currencies proposed Extension of Credit (or
such lesser time which is
acceptable to Lenders)
- Letter of Credit Action 10:00 a.m. 5 Business Days prior to such
action (or such lesser time which is
acceptable to Issuing Lender)
- Voluntary reduction in or a 10:00 a.m. 2 Business Days prior to such
termination of Commitment reduction or termination
- Payments by Lenders or a 11:00 a.m. On date payment is due
Borrower to Administrative
Agent
"Responsible Officer" means, as to any Person that is not an
individual, partnership or trust, the Chairman of the Board of Directors, the
President, the chief executive officer, the chief operating officer, the chief
financial officer, the Treasurer, any Assistant to the Treasurer, or any Vice
President in charge of a principal business unit; as to any partnership, any
individual who is a general partner thereof or any individual who has general
management or administrative authority over all or any principal unit of the
partnership's business; and as to any trust, any individual who is a trustee.
"Restricted Guaranty Obligations" means, as to any Person, all of its
Guaranty Obligations except (a) Guaranty Obligations undertaken in the ordinary
course of business to secure bids or contracts or performance bonds related to
work to be performed by Company or any Subsidiary or any joint venture in which
Company or any Subsidiary participates; (b) all Guaranty Obligations with
respect to trade indebtedness incurred in the ordinary course of business,
whether payable directly or by reimbursement in connection with any letter of
credit facility; and (c) all Guaranty Obligations with respect to Security
Interests permitted under Section 7.03(a) through (e).
"Restricted Payment" means (a) any cash dividend, (b) any acquisition,
redemption or retirement of any outstanding stock, (c) any retirement or
prepayment of debt securities before their regularly scheduled maturity dates,
(d) any loan or advance that is made to a Person in such Person's capacity as a
shareholder, and (e) any "Restricted Payment" as defined in a Note Purchase
Agreement.
"Xxxxxxxx-Xxxxx Act" means the federal Xxxxxxxx-Xxxxx Act of 2002.
"Security Interest" means as to any item of tangible or intangible
property, any interest therein or right with respect thereto that secures an
obligation or Guaranty Obligation , whether such interest or right is created
under a Contract, or by operation of law or statute (such as but not
limited to a statutory lien for work or materials), or as a result of a
judgment, or which arises under any form of preferential or title retention
agreement or arrangement (including a conditional sale agreement or a lease)
that has substantially the same economic effect as any of the foregoing.
"Spot Rate" for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with another
currency through its FX Trading Office at approximately 10:00 a.m. (St. Louis
time) on the date two Business Days prior to the Currency Calculation Date.
"Subsequent Participant" means each country that adopts the euro as its
lawful currency after January 1, 1999.
"Subsidiary" means, as to any Person, a corporation with respect to
which more than 50% of the outstanding shares of stock of each class having
ordinary voting power (other than stock having such power only by reason of the
happening of a contingency) is at the time owned by such Person or by one or
more Subsidiaries of such Person, other than a corporation which has no
significant assets and is not actively engaged in a trade or business.
"Swaps" means, with respect to any Person, without duplication, payment
obligations with respect to interest rate swaps or options, currency swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
equity or equity index swaps or options, bond or bond price index swaps or
options or forward bond index transactions, or forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency swap transactions, currency options,
spot contracts, any transaction subject to the terms of or governed by any form
of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, and
similar obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the purposes of this
Agreement, the amount of the obligation under any Swap shall, unless otherwise
expressly set forth herein, be the amount determined in respect thereof as of
the end of the then most recently ended fiscal quarter of such Person, based on
the assumption that such Swap had terminated at the end of such fiscal quarter,
and in making such determination, if any agreement relating to such Swap
provides for the netting of amounts payable by and to such Person thereunder or
if any such agreement provides for the simultaneous payment of amounts by and to
such Person, then in each such case, the amount of such obligation shall be the
net amount so determined.
"Swap Termination Value" means, in respect of any one or more Swaps,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swaps, (a) for any date on or after the date such
Swaps have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the xxxx-to-market value(s)
for such Swaps, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swaps (which may
include any Lender).
"Swing Line Commitment" shall mean $5,000,000.00.
"Swing Line Loan" and "Swing Line Loans" shall have the meanings
ascribed thereto in Section 2.01(d).
"Swing Line Note" shall have the meaning ascribed thereto in Section
2.01(d).
"Total Assets" means the total assets of Company and its Subsidiaries,
as shown on a consolidated basis on the most recent annual Financial Statements.
"Type" of Loan means the designation of whether such Loan is a Base
Rate Loan or an Offshore Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" means, when used in a geographical sense, all the
states of the United States of America and the District of Columbia; and when
used in a legal jurisdictional sense, the government of the country that is the
United States of America.
"United States Assets" means the identifiable United States assets of
Company and its Subsidiaries, as shown on the most recent annual Financial
Statements.
"Voting Stock" means capital stock of any class or classes of a
corporation, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect the majority of the corporate directors (or
Persons performing similar functions), irrespective of whether or not at the
time capital stock of any such class or classes shall have or might have special
voting power or rights by reason of the occurrence of any contingency.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary, 100% of
all the equity shares (except directors' qualifying shares) and voting interests
of which are owned by any one or more of Company and Company's other
Wholly-Owned Subsidiaries at such time.
"2001 Form 10-K" means Company's Annual Report as Form 10-K for the
year ended December 31, 2001, as amended, filed with the Securities and Exchange
Commission.
1.02 USE OF CERTAIN TERMS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to the Loan Documents as a whole and
not to any particular provision thereof. The term "including" is by way of
example and not limitation. References herein to a Section, subsection or clause
shall, unless the context otherwise requires, refer to the appropriate Section,
subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is conjunctive.
The term "shall" is mandatory; the term "may" is permissive.
1.03 ACCOUNTING TERMS. Subject to the definition of GAAP herein,
all accounting terms not specifically or completely defined in this Agreement
shall be construed in conformity with, and all financial data required to be
submitted by this Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the financial statements contained in the
2001 Form 10-K, except as otherwise specifically prescribed herein.
1.04 ROUNDING. Any financial ratios required to be maintained by
Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.05 EXHIBITS AND SCHEDULES. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall include all amendments, restatements,
extensions, supplements and other modifications thereto (unless prohibited by
any Loan Document), and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.07 CURRENCY EQUIVALENTS GENERALLY. Except for purposes of
financial statements delivered by Borrower Parties hereunder or calculating
financial covenants hereunder, the applicable amount of any currency for
purposes of the Loan Documents shall be the Equivalent Amount thereof determined
on each Currency Calculation Date from time to time by Administrative Agent.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 AMOUNT AND TERMS OF COMMITMENTS.
(a) Subject to the terms and conditions set forth herein, each
Lender severally agrees to make, Convert and Continue loans (each such loan, a
"Loan") to Borrower in Dollars and Offshore Currencies in such amounts as
Borrower may from time to time request on any Business Day during the period
from the Closing Date to the Maturity Date, in an aggregate amount not to exceed
at any time outstanding the amount set forth on Schedule 2.01 (such amount as
the same may be reduced under Section 2.06 or as a result of one or more
assignments hereunder, such Lender's "Commitment"); provided, however, that,
after giving effect to any Borrowing, all Outstanding Obligations of each Lender
shall not exceed such Lender's Commitment and all Outstanding Obligations of all
Lenders shall not exceed the combined Commitments. This is a revolving credit
and subject to the foregoing, and the other terms and conditions hereof,
Borrower may borrow, Convert, Continue, prepay and reborrow Loans as set forth
herein without premium or penalty.
(b) Loans made by each Lender shall be evidenced by one or more
Notes. Each such Lender may attach schedules to its Note(s) and endorse thereon
the date, amount, applicable currency and maturity of its Loans and payments
with respect thereto. Such Notes and records shall be conclusive absent manifest
error of the amount of such Loan and payments thereon . Any failure so to record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of Borrower to pay any amount owing with respect to the Loans.
(c) Not used.
(d) Swing Line Commitment. Subject to the terms and conditions set
forth in this Agreement and so long as no Default or Event of Default has
occurred and is continuing (provided, however, that Bank of America, N.A. shall
have no liability to any other Lender for making a Swing Line Loan to Borrower
after the occurrence or during the continuance of any Default or Event of
Default unless Bank of America, N.A. has previously received notice in writing
from Borrower or any other Lender of the occurrence of such Default or Event of
Default), Bank of America, N.A. agrees to make such loans to Borrower
(individually, a "Swing Line Loan" and collectively, the "Swing Line Loans") as
Borrower may from time to time request pursuant to Section 2.02. Each Swing Line
Loan shall be for an aggregate principal amount of at least $100,000 or any
larger multiple of $10,000. The aggregate principal amount of Swing Line Loans
outstanding under this Agreement as of any date shall not exceed the amount of
the Swing Line Commitment; provided, however, that in no event shall all
Outstanding Obligations of all Lenders on any given day exceed the combined
Commitments. All Swing Line Loans shall be Base Rate Loans and all Swing Line
Loans together with all accrued and unpaid interest thereon and all fees and
other amounts owing by Borrowers to Bank of America with respect thereto, shall
be due and payable on the earlier of (i) the demand of Bank of America, N.A. and
(ii) seven (7) days after the date of the extension of the Swing Line Loan. The
Swing Line Loans of Bank of America, N.A. to a Borrower shall be evidenced by a
Swing Line Note of such Borrower payable to the order of Bank of America, N.A.
in a principal amount equal to the amount of the Swing Line Commitment, which
Swing Line Note shall be in substantially the form of Exhibit G attached hereto
and incorporated herein by reference (with appropriate insertions) (as the same
may from time to time be amended, modified extended, renewed or restated, the
"Swing Line Note"). The Swing Line Commitment and the making of Swing Line Loans
is a discretionary, uncommitted facility and Bank of America may terminate or
suspend the Swing Line Commitment at any time in its sole discretion upon notice
to Borrower, which notice may be given before or after Borrower requests a Swing
Line Loan.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Loans in a Minimum Amount therefor by delivering a Request for
Extension of Credit therefor by Requisite Notice to Administrative Agent not
later than the Requisite Time therefor. All Borrowings, Conversions and
Continuations shall constitute Base Rate Loans unless properly and timely
otherwise designated as set forth in the prior sentence. Loans may only be
Converted into or Continued as Loans denominated in the same currency as
originally borrowed.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro Rata Share
thereof by Requisite Notice. If any Lender is unable in good faith to fund an
Offshore Currency Loan in a requested Offshore Currency, it shall promptly
notify Administrative Agent (who shall notify Company and the other Lenders),
and such Request for Extension of Credit shall be deemed withdrawn.
Administrative Agent shall promptly upon Borrower's request notify the
applicable Borrower and Lenders of the interest rate applicable to any Loans
proposed by Borrower upon determination of same. In the case of a Borrowing of
Loans, each Lender shall make the funds for its Loan available in the currency
of such Loan to Administrative Agent at Administrative Agent's Office not later
than the Requisite Time therefor on the Business Day specified in such Request
for Extension of Credit. Upon satisfaction of the applicable conditions set
forth in Section 4.02, (and if the initial Extension of Credit hereunder,
Section 4.01), all funds so received shall be made available to the Borrower in
like funds received.
(c) Administrative Agent shall promptly notify Company and Lenders
of the interest rate applicable to any Loan other than a Base Rate Loan upon
determination of same in accordance with this Agreement.
(d) Except as otherwise provided herein, an Offshore Rate Loan may
be Continued or Converted only on the last day of the Interest Period for such
Offshore Rate Loan. During the existence of a Default or Event of Default, no
Loans may be requested as, Converted into or Continued as Offshore Rate Loans
without the consent of Requisite Lenders and Requisite Lenders may demand that
any or all of the then outstanding Offshore Rate Loans be Converted immediately
into Base Rate Loans.
(e) If a Loan is to be made to Borrower on the same date that
another Loan in the same currency is due and payable by Borrower, Borrower or
Lenders, as the case may be, shall, upon the request of Administrative Agent,
make available to Administrative Agent the net amount of funds giving effect to
both such Loans and the effect for purposes of this Agreement shall be the same
as if separate transfers of funds had been made with respect to each such Loan.
In the absence of such a request, separate transfers of funds shall be made with
respect to each such Loan.
(f) Borrower may from time to time request Extensions of Credit
(other than for Swing Line Loans, all of which shall be made in Dollars) in
currencies other than those listed in the definition of Offshore Currency so
long as such currency is freely traded in the offshore interbank foreign
exchange markets and freely transferable and freely convertible into Dollars.
Borrower shall request any such additional currency by Requisite Notice to
Administrative Agent (who shall promptly notify each Lender) not later than the
Requisite Time therefor. Each Lender shall notify Administrative Agent (who
shall promptly notify Company) whether it will, in its sole discretion, make an
Extension of Credit in such requested currency. If all Lenders consent to such
currency, such currency shall thereafter be deemed for all purposes an Offshore
Currency hereunder available for Extensions of Credit.
(g) Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU Legislation and without prejudice to (i) the
liabilities for indebtedness of each Borrower Party to Lenders under or pursuant
to this Agreement or (ii) Lenders' Commitments, any reference in this Agreement
to a minimum amount (or an integral multiple thereof) in a national currency of
a Subsequent Participant to be paid to or by Administrative Agent shall
immediately, upon it becoming a Subsequent Participant, be replaced by a
reference to such reasonably
comparable and convenient amount (or an integral multiple thereof) in the euro
unit as Administrative Agent may specify in good faith.
2.03 LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT. Subject to the terms and
conditions set forth in this Agreement, until the Maturity Date, Issuing Lender
shall take such Letter of Credit Actions denominated in Dollars or Offshore
Currencies as Borrower may from time to time request; provided, however, that
(i) the Equivalent Amount in Dollars of the Outstanding Obligations of each
Lender shall not exceed such Lender's Commitment, (ii) the Equivalent Amount in
Dollars of the Outstanding Obligations of all Lenders shall not exceed the
combined Commitments at any time, and (iii) all Letter of Credit Usage shall not
exceed the Letter of Credit Sublimit at any time. Subject to subsection (f)
below and, unless consented to by Issuing Lender and Requisite Lenders, no
Letter of Credit (other than Letter of Credit #705264 in the face amount of
$25,000 in favor of City of Chicago, Department of Transportation) may expire
more than 12 months after the date of its issuance or last renewal; provided,
however, that no Letter of Credit shall expire more than 12 months after the
Maturity Date. If any Letter of Credit Usage remains outstanding after the
Maturity Date, Borrower shall, not later than such date, deposit cash in an
amount equal to such Letter of Credit Usage in a Letter of Credit Cash
Collateral Account. Letters of Credit issued and outstanding under the Existing
Credit Facility on the Closing Date shall be deemed validly issued and
outstanding Letters of Credit with the same terms and maturity under this
Agreement as under the Existing Credit Facility.
(b) REQUESTING LETTER OF CREDIT ACTIONS. Borrower may irrevocably
request a Letter of Credit Action in a Minimum Amount therefor by delivering a
Letter of Credit Application therefor to Issuing Lender, with a copy to
Administrative Agent (who shall notify Lenders), by Requisite Notice not later
than the Requisite Time therefor. Each Letter of Credit Action shall be in a
form acceptable to Issuing Lender in its reasonable discretion. Unless
Administrative Agent notifies Issuing Lender that such Letter of Credit Action
is not permitted hereunder, or Issuing Lender notifies Administrative Agent that
it has determined in good faith that such Letter of Credit Action is contrary to
any Laws or policies of Issuing Lender, Issuing Lender shall, upon satisfaction
of the applicable conditions set forth in Section 4.02 with respect to any
Letter of Credit Action constituting an Extension of Credit, effect such Letter
of Credit Action. This Agreement shall control in the event of any conflict with
any Letter of Credit Application, including without limitation, any definition
of "Default" or "Event of Default" in any such Letter of Credit Application,
which shall be deemed superseded by the definitions thereof in this Agreement.
Any requirement therein or in any provision of this Agreement to grant a
security interest shall be subject to the prohibitions contained in Section 7.03
hereof and in Section 10.5 of the Note Purchase Agreement-1997 and to any
equivalent provision in the Note Purchase Agreement-2003. Upon the issuance of a
Letter of Credit, each Lender shall be deemed to have purchased from Issuing
Lender a risk participation therein in an amount equal to such Lender's Pro Rata
Share times the amount of such Letter of Credit.
(c) REIMBURSEMENT OF PAYMENTS UNDER LETTERS OF CREDIT. Borrower
shall reimburse Issuing Lender through Administrative Agent for any payment that
Issuing Lender makes under a Letter of Credit on or before the date of such
payment; provided, however, that if the conditions precedent set forth in
Section 4.02 can be satisfied, Borrower may request a Borrowing of Loans to
reimburse Issuing Lender for such payment pursuant to Section 2.02, or, failing
to make such
request, Borrower shall be deemed to have requested a Borrowing of Base Rate
Loans on such payment date pursuant to subsection (e) below.
(d) FUNDING BY LENDERS WHEN ISSUING LENDER NOT REIMBURSED. Upon
any drawing under a Letter of Credit, Issuing Lender shall notify Administrative
Agent and Company. If Borrower fails to timely make the payment required
pursuant to subsection (c) above, Issuing Lender shall notify Administrative
Agent of such fact and the amount of such unreimbursed payment. Administrative
Agent shall promptly notify each Lender of its Pro Rata Share of such amount by
Requisite Notice. Each Lender shall make funds in an amount equal its Pro Rata
Share of such amount available to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time therefor on the Business Day specified
by Administrative Agent, and Administrative Agent shall remit the funds so
received to Issuing Lender. The obligation of each Lender to so reimburse
Issuing Lender shall be absolute and unconditional and shall not be affected by
the occurrence of a Default or Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of Borrower to reimburse Issuing Lender for the amount of any payment
not made by Borrower under any Letter of Credit, together with interest as
provided herein.
(e) NATURE OF LENDERS' FUNDING. If the conditions precedent set
forth in Section 4.02 can be satisfied (except for the giving of a Request for
Extension of Credit) on any date Borrower is obligated to, but fails to,
reimburse Issuing Lender for a drawing under a Letter of Credit, the funding by
Lenders pursuant to the previous subsection shall be deemed to be a Borrowing of
Base Rate Loans (without regard to the Minimum Amount therefor) deemed requested
by Borrower. If the conditions precedent set forth in Section 4.02 cannot be
satisfied on the date Borrower is obligated to, but fails to, reimburse Issuing
Lender for a drawing under a Letter of Credit, the funding by Lenders pursuant
to the previous subsection shall be deemed to be a funding by each Lender of its
risk participation in such Letter of Credit, and each Lender making such funding
shall thereupon acquire a pro rata participation, to the extent of its
reimbursement, in the claim of Issuing Lender against Borrower in respect of
such payment and shall share, in accordance with that pro rata participation, in
any payment made by Borrower with respect to such claim. Any amounts made
available by a Lender under its risk participation shall be payable by Borrower
upon demand of Administrative Agent, and shall bear interest at a rate per annum
equal to the Default Rate.
(f) SPECIAL PROVISIONS RELATING TO EVERGREEN LETTERS OF CREDIT.
Borrower may request Letters of Credit that have automatic extension or renewal
provisions ("evergreen" Letters of Credit) so long as Issuing Lender consents in
its sole and absolute discretion thereto and has the right to not permit any
such extension or renewal at least annually within a notice period to be agreed
upon at the time each such Letter of Credit is issued. Once an evergreen Letter
of Credit is issued, unless Administrative Agent has notified Issuing Lender
that Requisite Lenders have elected not to permit such extension or renewal, the
Borrower Parties, Administrative Agent and Lenders shall be deemed to have
authorized (but may not require) Issuing Lender to, in its sole and absolute
discretion, permit the renewal of such evergreen Letter of Credit at any time to
a date not later than the Maturity Date, and, unless directed by Issuing Lender,
Borrower shall not be required to request such extension or renewal. Issuing
Lender may, in its sole and absolute discretion, elect not to permit an
evergreen Letter of Credit to be extended or renewed at any time.
(g) OBLIGATIONS ABSOLUTE. The obligation of Borrower to pay to
Issuing Lender the amount of any payment made by Issuing Lender under any Letter
of Credit issued for its account
shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, Borrower's obligation shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) any amendment or waiver of or any consent to
departure from such Letter of Credit, this Agreement, or any other
agreement or instrument relating hereto or thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against Issuing Lender,
Administrative Agent or any Lender, any beneficiary of such Letter of
Credit (or any persons or entities for whom any such beneficiary may be
acting) or any other Person, whether in connection with such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever so long as any such
document appeared to comply with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under such
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of such Letter
of Credit; or any payment made by Issuing Lender under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Laws;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any property purported to be
represented by documents presented in connection with such Letter of
Credit or for any difference between any such property and the
character, quality, quantity, condition, or value of such property as
described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of property as described in documents presented
in connection with such Letter of Credit or the existence, nature and
extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with such Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any property;
(x) any error in the transmission of any message relating
to such Letter of Credit not caused by Issuing Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any correspondent of
Issuing Lender in connection with such Letter of Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith determines
that the document appears to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal effect of any contract
or document referred to in any document submitted to Issuing Lender in
connection with such Letter of Credit; and
(xiv) any other circumstances whatsoever where Issuing
Lender has acted in good faith.
In addition, Borrower will promptly examine a copy of each Letter of
Credit and amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Issuing Lender in writing. Borrower shall be conclusively
deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(h) ROLE OF ISSUING LENDER. Each Lender and Borrower agree that,
in paying any drawing under a Letter of Credit, Issuing Lender shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. No
Administrative Agent-Related Person nor any of the respective correspondents,
participants or assignees of Issuing Lender shall be liable to any Lender for
any action taken or omitted in connection herewith at the request or with the
approval of Lenders or Requisite Lenders, as applicable; any action taken or
omitted in the absence of gross negligence or willful misconduct; or the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit. Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit. No Administrative Agent-Related Person, nor any of the
respective correspondents, participants or assignees of Issuing Lender, shall be
liable or responsible for any of the matters described in subsection (g) above.
In furtherance and not in limitation of the foregoing, Issuing Lender may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and Issuing Lender shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(i) APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly
agreed by Issuing Lender and Borrower when a Letter of Credit is issued and
subject to applicable laws, performance under Letters of Credit by Issuing
Lender, its correspondents, and beneficiaries will be governed by (i) with
respect to standby Letters of Credit, the rules of the "International Standby
Practices 1998" ("ISP98") or such later revision as may be published by the
Institute of International Banking Law & Practice, subject to applicable laws,
and (ii) with respect to commercial Letters of Credit, the rules of the Uniform
Customs and Practice for Documentary Credits, as published in its most recent
version by the International Chamber of Commerce (the "ICC") on the date any
commercial Letter of Credit is issued, and including the ICC decision published
by the Commission on Banking Technique and Practice on April 6, 1998 regarding
the European single currency (euro).
(j) LETTER OF CREDIT FEE. With respect to each Letter of Credit,
Company shall pay to Administrative Agent for the account of Issuing Lender an
upfront fee equal to such amount as is required by Issuing Lender pursuant to
the Fee Letter. With respect to standby Letters of Credit, Company shall pay to
Administrative Agent on each March 31, June 30, September 30 and December 31, in
arrears, for the account of each Lender in accordance with its Pro Rata Share, a
Letter of Credit fee equal to the Applicable Amount for such Letter of Credit
times the actual daily maximum amount available to be drawn under each Letter of
Credit since the later of the Closing Date and the previous Applicable Payment
Date. If there is any change in the Applicable Amount during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable Amount
separately for each period during such quarter that such Applicable Amount was
in effect.
(k) DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO ISSUING LENDER.
Company shall pay directly to Issuing Lender, upon demand, for its sole account
its customary documentary and processing charges in accordance with its standard
schedule, as from time to time in effect, for any Letter of Credit Action or
other occurrence relating to a Letter of Credit for which such charges are
customarily made.
2.04 PREPAYMENTS. Upon Requisite Notice to Administrative Agent not
later than the Requisite Time therefor, Borrower may at any time and from time
to time voluntarily prepay Loans in part in the Minimum Amount therefor or in
full without premium or penalty. Administrative Agent will promptly notify each
Lender thereof and of such Lender's Pro Rata Share of such prepayment. Borrower
may, upon notice to Bank of America, specifying that Borrower is paying the
Swing Line Loans, prepay without penalty or premium the Swing Line Loans in
whole at any time or in part from time to time, by paying the principal amount
and all interest due and payable to be paid. If for any reason the Outstanding
Obligations exceed the combined Commitments as in effect or as reduced or
because of any limitation set forth in this Agreement or otherwise, Borrower
shall immediately prepay its Loans in an amount sufficient to eliminate such
excess. Any prepayment of an Offshore Rate Loan shall be accompanied by all
accrued interest thereon, together with the costs set forth in Section 3.05.
2.05 NOT USED.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. Upon Requisite Notice
to Administrative Agent not later than the Requisite Time therefor, Company may
at any time and from time to time, without premium or penalty, permanently and
irrevocably reduce the Commitments in a Minimum Amount therefor to an amount not
less than the Outstanding Obligations at such time or terminate the Commitments.
Any such reduction or termination shall be accompanied by payment of all accrued
and unpaid commitment fees with respect to the portion of the Commitments being
reduced or terminated. Administrative Agent shall promptly notify Lenders of any
such request for reduction or termination of the Commitments. Each Lender's
Commitment shall be reduced by an amount equal to such Lender's Pro Rata Share
times the amount of such reduction.
2.07 PRINCIPAL AND INTEREST.
(a) Except as otherwise provided hereunder, if not sooner paid,
Borrower agrees to pay the outstanding principal amount of each Loan on the
Maturity Date.
(b) Subject to subsection (c) below, and unless otherwise
specified herein, Borrower shall pay interest on the unpaid principal amount of
each Loan (before and after default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Laws) from the date borrowed until paid in full (whether by
acceleration or otherwise) on each Applicable Payment Date at a rate per annum
equal to the interest rate determined in accordance with the definition of such
type of Loan, plus, to the extent applicable in each case, the Applicable Amount
for such type of Loan. Administrative Agent shall invoice Company for the amount
of interest due on any Base Rate Loan on the due date thereof.
(c) If any amount payable by any Borrower Party under any Loan
Document is not paid when due (without regard to any applicable grace periods),
it shall thereafter bear interest (after as well as before entry of judgment
thereon to the extent permitted by law) at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be payable upon demand.
(d) So long as no Event of Default has occurred and is continuing,
each Swing Line Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Swing Line Loan is made until it
becomes due, at a rate per annum equal to the Base Rate. So long as any Event of
Default has occurred and is continuing, each Swing Line Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Swing Line Loan is made until it becomes due, at a rate per annum equal to Two
Percent (2%) over and above the Base Rate. Such interest shall be payable when
the Swing Loan Note is paid or matures. From and after its due date, whether by
reason of acceleration upon demand or otherwise, each Swing Line Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to Two Percent (2%) over and above the Base Rate.
2.08 FEES.
(a) COMMITMENT FEE. Company shall pay to Administrative Agent for
the account of each Lender pro rata according to its Pro Rata Share, a
Commitment fee equal to the Applicable Amount times the actual daily amount by
which the combined Commitments exceed the Outstanding Obligations (excluding the
outstanding balances of Swing Line Loans). The commitment fee shall accrue at
all times from the Closing Date until the Maturity Date and shall be payable
quarterly in arrears on each March 31, June 30, September 30 and December 31.
The commitment fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Amount during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Amount separately for each
period during such quarter that such Applicable Amount was in effect. The
commitment fee shall accrue at all times, including at any time during which one
or more conditions in Section 4 are not met.
(b) AGENCY FEES. An agency fee for the services to be performed by
Administrative Agent hereunder shall be payable to Administrative Agent in the
amount and at such times as are specified in the Fee Letter.
(c) OTHER FEES. Company shall pay any additional fees from time to
time agreed upon by each Lender and Company which are set forth in the Fee
Letter.
2.09 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be calculated on the basis of a year of 365 or 366 days, as the case
may be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, which results in a higher yield to Lenders
than a method based on a year of 365 or 366 days. Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall
bear interest for one day.
2.10 MAKING PAYMENTS.
(a) Except as otherwise provided herein, all payments by Borrower
or any Lender hereunder shall be made to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time for such type of payment. All
payments received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in the currency of such extension of credit (or, with the consent of
Administrative Agent in each instance, the Equivalent Amount in Dollars of the
Applicable Offshore Currency). All payments by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions set
forth herein, Administrative Agent shall promptly make any amounts received in
accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrower, by crediting the Designated Deposit
Account, and (ii) if payable to any Lender, by wire transfer to such Lender at
its Lending Office. If such conditions are not so satisfied, Administrative
Agent shall return any funds it is holding to the Lenders making such funds
available, without interest.
(c) Subject to the definition of "Interest Period," if any payment
to be made by any Borrower Party shall come due on a day other than a Business
Day, payment shall instead be considered due on the next succeeding Business
Day, and such extension of time shall be reflected in computing interest and
fees.
(d) Unless Company or any Lender has notified Administrative Agent
prior to the date any payment to be made by it is due, that it does not intend
to remit such payment, Administrative Agent may, in its sole and absolute
discretion, assume that Borrower or such Lender, as the case may be, has timely
remitted such payment and may, in its sole and absolute discretion and in
reliance thereon, make available such payment to the Person entitled thereto. If
such payment was not in fact remitted to Administrative Agent in immediately
available funds, then:
(i) if Borrower failed to make such payment, each Lender
shall forthwith on demand repay to Administrative Agent the amount of
such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date
such amount was made available by Administrative Agent to such Lender
to the date such amount is repaid to Administrative Agent at the
Overnight Rate; and
(ii) if any Lender failed to make such payment,
Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender . If such
Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent promptly
shall notify Borrower, and Borrower shall pay such corresponding amount
to Administrative Agent. Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by Administrative Agent to Borrower to the date such
corresponding amount is recovered by Administrative Agent, (A) from
such Lender at a rate per annum equal to the daily Overnight Rate, and
(B) from Borrower, at a rate per annum equal to the interest rate
applicable to such Borrowing. Nothing herein shall be deemed to relieve
any Lender from its obligation to fulfill its Commitment or to
prejudice any rights which Administrative Agent or Borrower may have
against any Lender as a result of any default by such Lender hereunder.
(e) If Administrative Agent or any Lender is required at any time
to return to Borrower, or to a trustee, receiver, liquidator, custodian, or any
official under any proceeding under Debtor Relief Laws, any portion of a payment
made by Borrower, each Lender shall, on demand of Administrative Agent, return
its share of the amount to be returned, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum equal to the
daily Federal Funds Rate.
2.11 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.12 SWING LINE LOAN SETTLEMENT AFTER DEFAULT. Upon the occurrence
of any Event of Default or the demand for payment under the Swing Line Loans by
Bank of America, N.A., unless otherwise requested by Bank of America, N.A., the
Administrative Agent shall promptly notify the other Lenders in writing of the
aggregate principal amount of all Swing Line Loans from Bank of America, N.A.
then outstanding, and each of the other Lenders hereby irrevocably agrees to
immediately purchase from Bank of America, N.A. with immediately available funds
its ratable share of the amount of all such Swing Line Loans (based on such
Lender's pro rata share of the combined Commitments), plus accrued and unpaid
interest calculated on such pro rata share of such principal amount at a rate
per annum equal to the Base Rate. Following such advance by each Lender to Bank
of America, N.A. of its pro rata share of any such Swing Line Loans pursuant to
the preceding sentence, each such Lender shall thereafter receive its pro rata
share of all principal payments, interest payments, fees and other amounts due
with respect to such Swing Line Loans as and when paid by Borrower to Bank of
America, N.A. hereunder. Bank of America, N.A. agrees that it will not make any
Swing Line Loan to Borrower after Bank of America, N.A. has received notice in
writing from Borrower or any other Lender that a Default or Event of Default has
occurred and is continuing, without the prior written consent of the Requisite
Banks.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of
Administrative Agent and each Lender, taxes imposed on or measured by its net
income or branch profits or franchise taxes imposed on it (in lieu of net income
or branch profits taxes), by the United States of America or by the jurisdiction
(or any political subdivision thereof) under the Laws of which Administrative
Agent or such Lender, as the case may be, is organized, in which its principal
office is located or in which it maintains a lending office, and any other taxes
withheld because such Lender failed to timely deliver the forms required
pursuant to Section 10.21 (all such non-excluded taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and liabilities
being hereinafter referred to as "Taxes"). If Borrower shall be required by any
Laws to deduct any Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section),
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) Borrower shall make
such deductions, (iii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, Borrower shall
furnish Administrative Agent (who shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If Borrower shall be required by the Laws of any jurisdiction
outside the United States to deduct any Taxes from or in respect of any sum
payable under any Loan Document to Administrative Agent or any Lender, Borrower
shall also pay to such Lender or Administrative Agent (for the account of such
Lender), at the time interest is paid, such additional amount that the
respective Lender specifies as necessary to preserve the after-tax yield (after
factoring in United States (federal and state) taxes imposed on or measured by
net income) such Lender would have received if such deductions (including
deductions applicable to additional sums payable under this Section) had not
been made.
(d) Borrower agrees to indemnify Administrative Agent and each
Lender for the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by Administrative Agent and such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto.
3.02 ILLEGALITY. If the introduction of any Laws or any change in
any Laws or in the interpretation or administration thereof has made it
unlawful, or any central bank or other Governmental Authority has asserted that
it is unlawful, for any Lender or its applicable Lending Office to make,
maintain or fund Offshore Rate Loans, or materially restricts the authority of
such Lender to purchase or sell, or to take deposits of, Dollars or the
applicable Offshore Currency in the applicable offshore interbank market, or to
determine or charge interest rates based upon the Offshore Rate, then, on notice
thereof by such Lender to Company through Administrative Agent, any obligation
of such Lender to make Offshore Rate Loans shall be suspended until the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, Borrower shall, upon demand from such Lender (with a copy to
Administrative Agent), prepay or Convert all Offshore Rate Loans of such Lender,
either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Offshore
Rate Loans. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE OFFSHORE RATES. If, in connection with
any Request for Extension of Credit involving any Offshore Rate Loan, (a)
deposits in Dollars or the applicable Offshore Currency are not being offered to
banks in the applicable offshore market in the amount and for the Interest
Period of the requested Offshore Rate Loan, (b) adequate and reasonable means do
not exist for determining the underlying interest rate for such Offshore Rate
Loan, or (c) such underlying interest rate does not adequately and fairly
reflect the cost to Lenders of funding such Offshore Rate Loan, Administrative
Agent will promptly notify Company and all Lenders. Thereafter, the obligation
of Lenders to make or maintain such Offshore Rate Loan shall be suspended until
such circumstances have ceased to exist, whereupon Administrative Agent shall
revoke such notice. Upon receipt of such notice, Borrower may revoke any pending
request for a Borrowing of Offshore Rate Loans or, failing that, be deemed to
have converted such request into a request for a Borrowing of Base Rate Loans in
the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If, due to either the introduction of or any change in or in
the interpretation of any Law or the compliance with any guideline or request of
general applicability from any central bank or other Governmental Authority
(whether or not having the force of law):
(i) subjects any Lender to any Tax, duty, or other charge
with respect to any Offshore Rate Loans or its obligation to make
Offshore Rate Loans, or change the basis on which taxes are imposed on
any amounts payable to such Lender under this Agreement in respect of
any Offshore Rate Loans;
(ii) shall impose or modify any reserve, special deposit,
or similar requirement (other than the reserve requirement utilized in
the determination of the Offshore Rate) relating to Offshore Rate Loans
or other assets of, or any deposits with or other liabilities or
commitments of, any Lender (including its Commitment) with respect
thereto; or
(iii) shall impose on any Lender or on the offshore Dollar
interbank market any other condition affecting Offshore Rate Loans
under this Agreement or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Offshore Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any change in or the interpretation of any Laws have the
effect of reducing the rate of return on the capital of any Lender or compliance
by any Lender (or its Lending Office) or any corporation controlling any Lender
as a consequence of any Lender's obligation hereunder (taking into consideration
its policies with respect to capital adequacy and such Lender's desired return
on capital), then from time to time upon demand of such Lender (with a copy to
Administrative Agent), Borrower shall pay to such Lender such additional amounts
as will compensate such Lender for such reduction.
3.05 BREAKFUNDING COSTS. Upon demand of any Lender (with a copy to
Administrative Agent) from time to time, Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, Continue or Convert any Loan
other than a Base Rate Loan on the date or in the amount notified by Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Borrower shall also pay any customary administrative fees charged by such Lender
in connection with the foregoing.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) Each Lender or Administrative Agent claiming compensation
under this Section 3 shall in each case furnish a certificate to Company that
states in reasonable detail in good faith the additional amount or amounts to be
paid to it hereunder and the basis therefor. Any such certificate shall be
conclusive in the absence of clearly demonstrable error. In determining such
amount, Administrative Agent or any Lender may use any reasonable averaging and
attribution methods. For purposes of this Section 3, a Lender shall be deemed to
have funded each Offshore Rate Loan at the Offshore Base Rate used in
determining the Offshore Rate for such Loan by a matching deposit or other
borrowing in the offshore Dollar interbank market, whether or not such Offshore
Rate Loan was in fact so funded.
3.07 SURVIVAL. All of Borrower's obligations under this Section 3
shall survive termination of the Commitments and payment in full of all
Obligations.
SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of
each Lender to make its initial Extension of Credit hereunder is subject to
satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with
respect to immaterial matters, Administrative Agent's receipt of the following,
each of which shall be originals or facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of
the signing Borrower Party, each dated on, or in the case of third-party
certificates, recently before the Closing Date and each in form and substance
reasonably satisfactory to Administrative Agent and its legal counsel:
(i) AGREEMENT. Executed counterparts of this Agreement,
sufficient in number for distribution to Administrative Agent, Lenders
and Borrower;
(ii) NOTES. Notes duly executed and delivered by Borrower
in favor of each Lender, each in a principal amount equal to such
Lender's Commitment;
(iii) MASTER GUARANTY. The Master Guaranty duly executed
and delivered by each Guarantor.
(iv) RESOLUTIONS; INCUMBENCY.
(A) Copies of the resolutions of the board of
directors or the executive committee of the board of directors
of each Borrower Party approving and authorizing the
execution, delivery and performance by such Borrower Party of
the Loan Documents to which it is a party, certified as of the
Closing Date by the Secretary or an Assistant Secretary of
such Borrower Party; and
(B) A certificate of the Secretary or Assistant
Secretary of each Borrower Party, certifying the names and
true signatures of the officers of each Borrower Party
authorized to execute and deliver the Loan Documents to which
it is a party.
(v) ARTICLES OF INCORPORATION; BY-LAWS AND GOOD STANDING.
Each of the following documents:
(A) the articles or certificate of incorporation
of each Borrower Party as in effect on the Closing Date,
certified by the Secretary of State of the State of
incorporation of each Borrower Party as of a recent date and
by the Secretary or Assistant Secretary of each Borrower Party
as of the Closing Date and the bylaws of each Borrower Party
as in effect on the Closing Date, certified by the Secretary
or Assistant Secretary of each Borrower Party as of the
Closing Date and
(B) a good standing certificate for Company from
the Secretary of State of Delaware and the State of Missouri
as of a recent date.
(vi) AMENDMENT TO NOTE PURCHASE AGREEMENT-1997. Evidence
that Company has amended the Note Purchase Agreement-1997 (or other
evidence satisfactory to Administrative Agent) to provide that the
Obligations of the Guarantors under the Master Guaranty do not create a
default under that Agreement.
(vii) NOT USED.
(viii) LEGAL OPINION. An opinion of Xxxxxxxx & Xxxxxx,
counsel to the Borrower Parties, and addressed to each Lender and
Issuing Lender in form and substance heretofore approved by
Administrative Agent.
(ix) PAYMENT OF FEES. Company shall have paid all accrued
and unpaid fees, costs and expenses to the extent then due and payable
on the Closing Date, together with reasonable attorney fees, costs and
expenses to the extent invoiced prior to or on the Closing Date.
(x) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that: (i) the
representations and warranties contained in Section 5 are true and
correct in all material respects on and as of such date, as though made
on and as of such date; (ii) no Default or Event of Default exists on
the Closing Date and (iii) since December 31, 2001, there has been no
change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect.
(xi) OTHER DOCUMENTS. Such other assurances, certificates,
documents, consents or opinions as Administrative Agent, Issuing Lender
or Requisite Lenders reasonably may require.
(b) The representations and warranties of any Borrower Party
contained in Section 5, or which are contained in the Master Guaranty, any
Compliance Certificates or any other material certificate furnished at any time
under or in connection with any Loan Document shall be correct in all material
respects on and as of the Closing Date except to the extent such representations
and warranties specifically refer to an earlier date.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) Administrative Agent shall have received and reviewed, with
results reasonably satisfactory to it, information confirming that Company and
its Subsidiaries are taking all reasonably necessary and appropriate steps to
comply with the Xxxxxxxx-Xxxxx Act and the implementing regulations thereunder.
4.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT. In addition to any
applicable conditions precedent set forth elsewhere in this Section 4 or in
Section 2, the obligation of each Lender to honor any Request for Extension of
Credit is subject to the following conditions precedent:
(a) the representations and warranties of any Borrower Party
contained in Section 5, or which are contained in the Master Guaranty, any
Compliance Certificates or any other material certificate furnished at any time
under or in connection with any Loan Document shall be correct in all material
respects on and as of the date of such Extension of Credit, except to the extent
that such representations and warranties specifically refer to an earlier date.
(b) no Default or Event of Default exists, or would result from
such proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request for
Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as Administrative Agent or Requisite Lenders
reasonably may require.
Each Request for Extension of Credit by Borrower shall be deemed to be
a representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of such Extension of Credit.
4.03 CONDITIONS FOR A DOMESTIC SUBSIDIARY BECOMING A GUARANTOR. As
a condition precedent to a Domestic Subsidiary becoming a Guarantor under the
Master Guaranty, Administrative Agent shall have received the following with
respect to such Subsidiary, in form and substance satisfactory to Administrative
Agent:
(a) With respect to all such Subsidiaries, the items referred to
in Section 4.01(a)(iv) and, to the extent not previously delivered, the items
referred in Section 4.01(a)(v).
(b) With respect to all Subsidiaries, the opinion of the general
counsel or assistant general counsel of Company (or such other counsel
designated by Company and reasonably acceptable to Administrative Agent), in
form reasonably acceptable to Administrative Agent, as to (i) such Subsidiary's
obligations under the Loan Documents to which it will be a party being the
legal, valid, binding and enforceable obligation of such Subsidiary and (ii) the
execution, delivery and performance of such Loan Documents by such Subsidiary
(A) being authorized by all necessary corporate, company or partnership action,
as applicable, (B) not violating any law, decree, judgment or, to the knowledge
of such counsel, contractual obligation to which such Subsidiary is a party or
by which it or its assets are bound, and (C) not requiring any government
approvals, consents, registrations or filings.
(c) Exhibit A to the Master Guaranty duly executed by such
Domestic Subsidiary, whereby such Domestic Subsidiary agrees to be bound by the
terms and conditions of the Master Guaranty and, if the Intercreditor Agreement
remains in effect, an acknowledgement to be bound by the Intercreditor Agreement
in accordance with the terms thereof and each Note Purchase Agreement.
(d) Such other opinions or documents as Administrative Agent or
any Lender may reasonably request.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants to Administrative Agent
and Lenders that:
5.01 ORGANIZATION AND EXISTENCE. Each Covered Person is duly
organized and existing in good standing under the laws of the jurisdiction of
its organization, is duly qualified to do business and is in good standing in
every jurisdiction where the nature or extent of its business or properties
require it to be qualified to do business, except where the failure to so
qualify will not have a Material Adverse Effect. Each Covered Person has the
power and authority to own its properties and carry on its business as now being
conducted.
5.02 AUTHORIZATION. Each Borrower Party is duly authorized to
execute and perform every Loan Document to which such Borrower Party is a party,
and each Borrower is duly authorized to borrow hereunder, and the Loan Documents
to which it is a party have been duly authorized by all requisite corporate (or,
if not a corporation, comparable) action of Borrower Party. No consent, approval
or authorization of, or declaration or filing with, any Governmental Authority,
and no consent of any other Person, is required in connection with any Borrower
Party's execution, delivery or performance of this Agreement and the other Loan
Documents, except for those already duly obtained or explicitly contemplated
hereunder.
5.03 DUE EXECUTION. Every Loan Document to which a Borrower Party
is a party has been executed on behalf of such Borrower Party by a legally
competent Person duly authorized to do so.
5.04 ENFORCEABILITY OF OBLIGATIONS. Each of the Loan Documents to
which a Borrower Party is a party constitutes the legal, valid and binding
obligation of such Borrower Party, enforceable against such Borrower Party in
accordance with its terms, except to the extent that the enforceability thereof
against such Borrower Party may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by equitable principles of general application.
5.05 BURDENSOME OBLIGATIONS. No Covered Person is a party to or
bound by any Contract or is subject to any provision in the Charter Documents of
such Covered Person which would, if performed by such Covered Person, result in
a Default or Event of Default either immediately or upon the elapsing of time.
5.06 LEGAL RESTRAINTS. The execution of any Loan Document by a
Borrower Party will not violate or constitute a default under the Charter
Documents of such Borrower Party, any Material Agreement of such Borrower Party,
or any Material Law, and will not, except as expressly contemplated or permitted
in this Agreement, result in any Security Interest being imposed on any of such
Borrower Party's property. The performance by any Borrower Party of its
obligations under any Loan Document to which it is a party will not violate or
constitute a default under the Charter Documents of such Borrower Party, any
Material Agreement of such Borrower Party, or any Material Law, and will not,
except as expressly contemplated or permitted in this Agreement, result in any
Security Interest being imposed on any of such Borrower Party's property.
5.07 LABOR DISPUTES. There is no pending or, to Company's
knowledge, threatened, strike, work stoppage, material unfair labor practice
claim or other material labor dispute against or affecting any Covered Person or
its employees, which is reasonably likely to have a Material Adverse Effect.
5.08 NO MATERIAL PROCEEDINGS. There are no Material Proceedings
pending or, to the best knowledge of Company, threatened, other than as
described in item Schedule 5.08, copies of which have been furnished to
Administrative Agent.
5.09 MATERIAL LICENSES. All Material Licenses have been obtained or
exist for each Covered Person.
5.10 COMPLIANCE WITH MATERIAL LAWS. Each Covered Person is in
compliance with all Material Laws. Without limiting the generality of the
foregoing:
(a) GENERAL COMPLIANCE WITH ENVIRONMENTAL LAWS. The operations and
employee compensation practices of every Covered Person comply in all material
respects with all applicable Environmental Laws, the failure to comply with
which is reasonably likely to have a Material Adverse Effect.
(b) PROCEEDINGS. None of the operations of any Covered Person are
the subject of any judicial or administrative complaint, order or proceeding
alleging the violation of any applicable Environmental Laws.
(c) INVESTIGATIONS REGARDING HAZARDOUS MATERIALS. None of the
operations of any Covered Person are the subject of investigation by any
Governmental Authority regarding the improper transportation, storage, disposal,
generation or release into the environment of any Hazardous Material.
(d) NOTICES AND REPORTS REGARDING HAZARDOUS MATERIALS. No notice
or report under any Environmental Law indicating a past or present spill or
release into the environment of any Hazardous Material from any property owned
or operated by a Covered Person has been filed within the immediately preceding
four fiscal years of such Covered Person, or is required to be filed by any
Covered Person, to the extent such spill or release had or will have a Material
Adverse Effect.
(e) HAZARDOUS MATERIALS ON REAL PROPERTY. No Covered Person, nor
to Company's knowledge, any other Person, has at any time transported, stored,
disposed of, generated or released any Hazardous Material on the surface, below
the surface, or within the boundaries of any real property owned or operated by
such Covered Person, which event is reasonably likely to have a Material Adverse
Effect. Company has no knowledge of any Hazardous Material on the surface, below
the surface, or within the boundaries of any real property owned or operated by
such Covered Person, which is reasonably likely to have a Material Adverse
Effect. No property of such Covered Person is subject to a Security Interest in
favor of any Governmental Authority for any liability under any Environmental
Law or damages arising from or costs included by such Governmental Authority in
response to a spill or release of Hazardous Material into the environment.
5.11 INITIAL FINANCIAL STATEMENTS. The Financial Statements of
Company as of December 31, 2001 and as of September 30, 2002, as delivered to
Administrative Agent by Company, are complete and correct in all material
respects, have been prepared in accordance with
GAAP, and fairly reflect the financial condition, results of operations and cash
flows of Company as of the date and for the periods stated therein.
5.12 NO CHANGE IN CONDITION. Since September 30, 2002, there has
been no change which is reasonably likely to have a Material Adverse Effect.
5.13 NO DEFAULTS. No Covered Person has breached or violated or has
defaulted under any Material Agreement, or has defaulted with respect to any
Material Obligation of such Covered Person. No Default or Event of Default
exists.
5.14. TAX LIABILITIES; GOVERNMENTAL CHARGES. Each Covered Person has
filed or caused to be filed all tax reports and returns required to be filed by
it with any Governmental Authority, except where extensions have been properly
obtained or where failure to file is not reasonably likely to have a Material
Adverse Effect. Each Covered Person has paid or made adequate provision for
payment of all Taxes of such Covered Person, except (a) Taxes which are being
diligently contested in good faith by appropriate proceedings and as to which
such Covered Person has established adequate reserves in conformity with GAAP or
(b) where failure to pay is not reasonably likely to have a Material Adverse
Effect. No Security Interests for any such Taxes has been filed and no claims
are being asserted with respect to any such Taxes which, if adversely
determined, are reasonably likely to have a Material Adverse Effect. There are
no material unresolved issues concerning any liability of a Covered Person for
any Taxes which, if adversely determined, are reasonably like to have a Material
Adverse Effect.
5.15 PENSION BENEFIT PLANS. All Pension Benefit Plans maintained by
each Covered Person or an ERISA Affiliate of such Covered Person qualify under
Section 401 of the Code and are in compliance in all material respects with the
provisions of ERISA. Except with respect to events or occurrences which do not
have and are not reasonably likely to have a Material Adverse Effect:
(a) PROHIBITED TRANSACTIONS. None of such Pension Benefit Plans
has participated in, engaged in or been a party to any non exempt prohibited
transaction as defined in ERISA or the Code, and no officer, director or
employee of a Covered Person or of an ERISA Affiliate of such Covered Person has
committed a breach of any of the responsibilities or obligations imposed upon
fiduciaries by Title I of ERISA.
(b) CLAIMS. Other than normal claims for benefits, there are no
claims, pending or threatened, involving any such Pension Benefit Plan by a
current or former employee (or beneficiary thereof) of such Covered Person or
ERISA Affiliate of such Covered Person, nor is there any reasonable basis to
anticipate any claims involving any such Pension Benefit Plan which would likely
be successfully maintained against such Covered Person or ERISA Affiliate of
such Covered Person.
(c) REPORTING AND DISCLOSURE REQUIREMENTS. There are no violations
of any reporting or disclosure requirements with respect to any such Pension
Benefit Plan and none of such Pension Benefit Plans has violated any applicable
Law, including ERISA and the Code.
(d) ACCUMULATED FUNDING DEFICIENCY. No such Pension Benefit Plan
has (i) incurred an accumulated funding deficiency (within the meaning of
Section 412(a) of the Code), whether or not waived; (ii) been a Pension Benefit
Plan with respect to which a Reportable Event (to the extent that the reporting
of such events to the PBGC within thirty days of the occurrence has not been
waived) has occurred and is continuing; or (iii) been a Pension Benefit Plan
with respect to which there exist conditions or events which have occurred that
present a significant risk of termination of such Pension Benefit Plan by the
PBGC.
(e) MULTI EMPLOYER PLAN. No Covered Person or ERISA Affiliate of
such Covered Person has received notice that any Multi Employer Plan to which
any Covered Person contributes or is obligated to contribute is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
and no such Multi Employer Plan is reasonably expected to be in reorganization
or to be terminated within the meaning of Title IV of ERISA.
5.16 EMPLOYEE BENEFIT PLANS. N Covered Person or ERISA Affiliate of
such Covered Person maintains an employee benefit plan that has a liability
which, if enforced or collected, would have a Material Adverse Effect. Each
Covered Person and ERISA Affiliate of such Covered Person has complied in all
material respects with the applicable requirements of Section 4980B of the Code
pertaining to continuation coverage as mandated by COBRA.
5.17 STATE OF PROPERTY. Each Covered Person has good and marketable
or merchantable title to all real and personal property purported to be owned by
it or reflected in the Initial Financial Statements, except for property sold in
the ordinary course of business after the date of the Initial Financial
Statements and except for any defects in title which are not reasonably likely
to have a Material Adverse Effect. There are no Security Interests on any of the
property purported to be owned by any Covered Person except Security Interests
permitted under this Agreement.
5.18 SUBSIDIARIES. As of the Closing Date, Company has no
Subsidiaries other than the Subsidiaries listed in Schedule 5.18, and all
Domestic Subsidiaries other than Mississippi Textiles Corporation and Insituform
(Netherlands) B.V., Inc. are Guarantors. After the Closing Date, all Domestic
Subsidiaries other than Mississippi Textiles Corporation and Insituform
(Netherlands) B.V., Inc. are Guarantors within the time period set forth in
Section 6.10.
5.19 MARGIN STOCK. Company is not engaged and will not engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U), and none of the proceeds of any Loan will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation U.
None of the transactions contemplated by any Permitted Acquisition will violate
Regulation U of the FRB.
5.20 HOSTILE SECURITIES TRANSACTIONS. No proceeds of any Loan will
be used to acquire from any Person any security in a transaction that is hostile
from the point of view of such Person.
5.21 INVESTMENT COMPANY ACT, ETC. No Borrower Party is an
investment company registered or required to be registered under the Investment
Company Act of 1940, as amended, or a company controlled (within the meaning of
such Investment Company Act) by such an investment company or an affiliated
person of, or promoter or principal underwriter for, an investment company, as
such terms are defined in the Investment Company Act of 1940, as amended. No
Borrower Party is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act or the Interstate Commerce Act.
5.22 FILINGS. All registration statements, reports, proxy
statements and other documents, if any, required to be filed by Company with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, have been filed,
and such filings are complete and accurate in all material respects and contain
no untrue statements of material fact or omit to state any material facts
required to be stated therein or necessary in order to make the statements there
in not misleading in light of the circumstances in which made.
5.23 BROKER'S FEES. No broker or finder is entitled to compensation
for services rendered with respect to the loan transactions contemplated by this
Agreement and the other Loan Documents.
5.24 INDEBTEDNESS OUTSTANDING ON CLOSING DATE. Schedule 5.24 lists,
as of the Closing Date, all outstanding Indebtedness of Company and its
Subsidiaries in excess of $1,000,000, all Liens on property of Company and its
Subsidiaries securing Indebtedness in excess of $1,000,000 and all contractual
obligations undertaken by the Company and its Subsidiaries in connection with
Indebtedness in excess of $1,000,000 restricting Liens on property of Company
and its Subsidiaries.
5.25 PROJECTIONS. Notwithstanding anything in the Loan Documents to
the contrary, no Borrower Party shall be construed as having made any
representation, warranty or covenant with respect to any projection or forecast,
or the achievement thereof, except that whenever Company or its Subsidiaries
shall from time to time deliver projections in connection with any Loan
Document, to the best knowledge of Company when delivered, the assumptions set
forth in such projections are reasonable and consistent with each other and with
all facts known to Company at such time, and such projections are reasonably
based on such assumptions.
5.26 FULL DISCLOSURE. Company has disclosed to Administrative Agent
and each Lender all information regarding the business, operations, property,
financial condition, or business prospects of itself and every Covered Person
which is reasonably likely to have a Material Adverse Effect.
5.27 USE OF PROCEEDS. None of the proceeds of the Loans will be
used directly or indirectly to fund a personal loan to or for the benefit of a
director or executive officer of Borrower or a Guarantor.
5.28 BONDING CAPACITY. Company and its Subsidiaries have in place
and available to it and them surety and performance bonds adequate in amount and
credit quality to continue in the ordinary course of their business as presently
projected over the course of the next eighteen (18) months.
SECTION 6.
AFFIRMATIVE COVENANTS
Until Final Payment, Company shall, and shall (except in the case of
Company's reporting covenants under Sections 6.01 and 6.02), cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to Administrative Agent and to
each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of Company (unless Company has timely filed a Form 12b-25 with
the Securities and Exchange Commission with respect to such fiscal year, in
which case such period shall be 105 days after the close of such fiscal year),
year-end consolidated and consolidating Financial Statements of Company and its
Subsidiaries (to include balance sheet, income statement and statement of cash
flows), setting forth in each case in comparable form the figures for the
previous year, all in reasonable detail and containing an audit report without
qualification (except the qualification Pricewaterhouse Coopers LLP does not
express any opinion with respect to the financial statements of the Company and
its Subsidiaries for fiscal years 2000 and 2001) with respect to such
consolidated statements by Pricewaterhouse Coopers, LLP or such other
independent certified public accounting firm selected by Company and
satisfactory to Requisite Lenders, and certified by the officers of the Company
as required by the Xxxxxxxx-Xxxxx Act.
(b) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the end
of each fiscal quarter of Company (unless Company has timely filed a Form 12b-25
with the Securities and Exchange Commission with respect to such fiscal quarter,
in which case such period shall be 50 days after the close of such fiscal
quarter), unaudited consolidated and consolidating Financial Statements of
Company and its Subsidiaries (to include balance sheet, income statement and
statement of cash flows) for the most recent quarter not covered by the latest
year-end Financial Statements required hereunder to be delivered to
Administrative Agent.
6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION. Deliver to
Administrative Agent with a copy to each Lender in form and detail reasonably
satisfactory to Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of the independent certified
public accounting firm that examined such consolidated Financial Statements to
the effect that they have reviewed and are familiar with this Agreement and
that, in examining such consolidated Financial Statements, nothing came to their
attention that caused them to believe that an event or condition that
constitutes a Default or Event of Default has occurred or existed insofar as
such conditions or events relate to accounting matters, except for those, if
any, described in reasonable detail in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), or as promptly as available thereafter, the
management letter and report on internal controls delivered by such independent
certified public accounting firm in connection with their audit of such
financials;
(c) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of Company;
(d) promptly after their preparation, copies of any and all (i)
proxy statement, financial statements and reports which Company makes available
to its stockholders generally, and (ii) reports, registration statements and
prospectuses, if any, filed by Company with any securities exchange or the
Securities and Exchange Commission or any Governmental Authority succeeding to
any of its functions;
(e) within the 60 days following the first day of each fiscal year
of Company, projected or forecasted consolidated balance sheets, statements of
income and expense, and statements of cash flows for Company and its
Subsidiaries (including any Subsidiary then proposed to be acquired, organized
or created in connection with a Permitted Acquisition and to continue in
existence after consummation thereof) as of the end of and for each fiscal
quarter in such fiscal year in such reasonable detail as Administrative Agent or
any Lender may require;
(f) within forty-five (45) days after the end of each fiscal
quarter, a job status report for each project of Company and its Subsidiaries
containing such detail and information as are satisfactory to Administrative
Agent;
(g) promptly upon any Responsible Officer of Company becoming
aware of the occurrence thereof, notice of any Default or Event of Default;
(h) promptly after the receipt thereof, a copy of, any (i) notice
that any violation of any Environmental Law may have been committed or is about
to be committed by any Covered Person, which violation is reasonably likely to
have a Material Adverse Effect, (ii) notice that any administrative or judicial
complaint or order has been filed or is about to be filed against any Covered
Person alleging violations of any Environmental Law or requiring such Covered
Person to take any action in connection with the release of any Hazardous
Material into the Environment, (iii) notice from a Governmental Authority or
private Person alleging that a Covered Person may be liable or responsible for
costs associated with a response to or cleanup of a release of Hazardous
Material into the environment or any damages caused thereby, which costs or
damages are reasonably likely to be in excess of $500,000, (iv) notice that a
Covered Person is subject to federal, state or local investigation regarding the
improper transportation, storage, disposal, generation or release into the
environment of any Hazardous Material, which event is reasonably likely to have
a Material Adverse Effect, or (v) notice that any properties or assets of a
Covered Person are subject to a Security Interest in favor of any Governmental
Authority for any liability under any Environmental Law or damages arising from
or costs incurred by such Governmental Authority in response to a release of
Hazardous Material into the environment;
(i) promptly after the occurrence thereof, notice of (i) the
failure of any Covered Person or ERISA Affiliate of such Covered Person to make
any required installment or any other required payment to any Pension Benefit
Plan in sufficient amount to comply with ERISA and the Code on or before the due
date for such installment or payment, which event is reasonably likely to have a
Material Adverse Effect; (ii) the occurrence of any Reportable Event, or a
Prohibited Transaction or Accumulated Funding Deficiency (as those terms are
defined in ERISA), with respect to any Pension Benefit Plan maintained or
contributed to by a Covered Person or ERISA Affiliate of such Covered Person,
(iii) receipt by a Covered Person or ERISA Affiliate of such Covered Person of
any notice from a Multiemployer Plan regarding the imposition of withdrawal
liability, which event is reasonably likely to have a Material Adverse Effect;
and (iv) receipt by a Covered Person or ERISA Affiliate of such Covered Person
of any notice of the institution, or a Covered Person's expectancy of the
institution, of any proceeding or receipt by such Covered Person or ERISA
Affiliate of such Covered Person of any notice of the taking, or such Covered
Person's expectancy of the taking, of any other action which may result in the
termination of any Pension Benefit Plan maintained or contributed to by such
Covered Person or ERISA Affiliate of such Covered Person, or the withdrawal or
partial withdrawal by a Covered Person or ERISA Affiliate of such Covered Person
from any Pension Benefit Plan, and the filing or receipt by Covered Person or
ERISA Affiliate of
such Covered Person of any such notice and filing or receipt of all subsequent
reports or notices under ERISA with or from the IRS, the PBGC, or the DOL
relating to the same, which event is reasonably likely to have a Material
Adverse Effect; and, in addition to such notice, deliver to Administrative Agent
a certificate of a Responsible Officer of Company, setting forth details as to
such events and the action that the affected Covered Person or ERISA Affiliate
of such Covered Person proposes to take with respect thereto. For purposes of
this Section, a Covered Person and any ERISA Affiliate of such Covered Person
hall be deemed to know all facts known by the administrator of any Plan of which
such Covered Person or any ERISA Affiliate of such Covered Person is the plan
sponsor;
(j) promptly after the occurrence thereof, notice of any default
or event of default, or the occurrence of any event which would with the passage
of time, giving of notice or otherwise, constitute a default or event of default
with respect to any Indebtedness in excess of $5,000,000;
(k) promptly after becoming aware thereof, notice of any pending
or threatened strike, work stoppage, material unfair labor practice claim or
other material labor dispute affecting a Covered Person which is reasonably
likely to have a Material Adverse Effect;
(l) notice of any change in the name, state of incorporation, or
form of organization of any Borrower Party at least 15 days prior to such
change;
(m) promptly after any Responsible Officer becomes aware thereof,
notice of the cancellation of or refusal to extend a performance or payment bond
or surety contract to Company or a Subsidiary in connection with work to be
performed by Company or any Subsidiary or any joint venture in which Company or
any Subsidiary participates, and notice of the face amount of claims against
such performance or payment bonds or surety contracts to the extent such claims
in the aggregate exceed $500,000 at any one time;
(n) promptly after any Responsible Officer becomes aware thereof,
notice of any event that has or is reasonably likely to have a Material Adverse
Effect;
(o) promptly after any Responsible Officer becomes aware thereof,
commencement of any Material Proceeding;
(p) promptly after any Responsible Officer becomes aware thereof,
notice of an actual, alleged, or potential violation of any Material Law
applicable to a Covered Person.
(q) promptly after the occurrence thereof, notice of any loss,
including loss as a consequence of condemnation proceedings, or damage to any
part of the assets of a Covered Person, if the uninsured portions of such loss,
damage or proceeding is reasonably likely to be in excess of $1,000,000;
(r) promptly after the request of Administrative Agent or any
Lender, a copy of each annual report or other filing or notice filed with
respect to each Pension Benefit Plan of any Covered Person or any ERISA
Affiliate;
(s) promptly after the request of Administrative Agent or any
Lender, a copy of each federal, state, or local tax return or report filed by
Company; and
(t) promptly after the request of Administrative Agent or any
Lender, such additional information about the business, operations, revenues,
financial condition, property, or business prospects of any Borrower Party as
Administrative Agent or any Lender may, from time to time, reasonably request.
6.03 USE OF PROCEEDS. Use all proceeds of the Loans solely for
working capital, general corporate purposes and to fund payment of amounts due
from Company or any Subsidiary in connection with Permitted Acquisitions.
6.04 CORPORATE EXISTENCE. Except as a result of a transaction
permitted by Section 7.07, maintain its existence in good standing and shall
maintain in good standing its right to transact business in those states in
which it is now or hereafter doing business, except where the failure to so
qualify is not reasonably likely to have a Material Adverse Effect, and obtain
and maintain all Material Licenses for such Covered Person.
6.05 MAINTENANCE OF PROPERTY AND LEASES. Maintain in good condition
and working order, and repair and replace as required, all buildings, equipment,
machinery, fixtures and other real and personal property whose useful economic
life has not elapsed and which is necessary for the ordinary conduct of the
business of such Covered Person, and maintain in good standing and free of
defaults all of its leases of buildings, equipment, machinery, fixtures and
other real and personal property whose useful economic life has not elapsed and
which is necessary for the ordinary conduct of the business of such Covered
Person.
6.06 INSURANCE. At all times keep insured or cause to be kept
insured, with financially sound and reputable insurers, all property owned by it
of a character usually insured by others carrying on businesses similar to that
of such Covered Person in such manner and to such extent and covering such risks
as such properties are usually insured, and at all times carry insurance, with
financially sound and reputable insurers, against liability on account of damage
to persons or property (including product liability insurance and insurance
required under all applicable workers' compensation laws) and covering all other
liabilities common to such Covered Person's business, in such manner and to such
extent as such coverage is usually carried by others conducting businesses
similar to that of such Covered Person.
6.07 PAYMENT OF TAXES AND OTHER OBLIGATIONS. Promptly pay and
discharge or cause to be paid and discharged, as and when due, all taxes
lawfully assessed or imposed on it, and all taxes lawfully assessed upon any of
its property, or upon the income or profits therefrom, and all claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like Persons
for labor, materials, supplies, storage or other items or services which if
unpaid might be or become a Security Interest or charge upon any of its
property; provided, however, that a Covered Person may diligently contest in
good faith by appropriate proceedings the validity of any such taxes or claims
if Company has established adequate reserves therefor in conformity with GAAP on
the books of such Covered Person, and no Security Interest, other than a
Permitted Security Interest, results from such non-payment.
6.08 COMPLIANCE WITH LAWS. Comply with all Material Laws. Without
limiting the generality of the foregoing:
(a) ENVIRONMENTAL LAWS. Comply and shall use commercially
reasonable efforts to ensure compliance by all tenants, subtenants and other
occupants of the property of such Covered Person, if any, with all Environmental
Laws whose violation is reasonably likely to have a Material Adverse Affect.
(b) PENSION BENEFIT PLANS. Shall, and shall cause each ERISA
Affiliate of such Covered Person to, at all times make prompt payments or
contributions to meet the minimum funding standards under ERISA and the Code
with respect to any Pension Benefit Plan maintained by such Covered Person or
ERISA Affiliate of such Covered Person, and shall comply with all reporting and
disclosure requirements and all provisions of the Code and ERISA applicable to
any Pension Benefit Plan maintained by such Covered Person or ERISA Affiliate to
such Covered Person, if non compliance therewith is reasonably likely to have a
Material Adverse Affect.
(c) DISCOVERY AND CLEAN UP OF HAZARDOUS MATERIAL. Upon receiving
notice of any violation of Environmental Laws or any similar notice described in
Section 6.02, or upon otherwise discovering Hazardous Material on any property
owned or operated by such Covered Person which is in violation of, or which is
reasonably likely to result in liability under, any Environmental Law which is
reasonably likely to have a Material Adverse Effect, shall: (i) promptly take
such acts as may be necessary to prevent danger or harm to the affected property
or any person therein as a result of such Hazardous Material, and (ii) take all
necessary steps to initiate and expeditiously complete all removal, remedial,
response, corrective and other action to eliminate any such environmental
problems, and keep Administrative Agent informed of such actions and the results
thereof.
6.09 ACCOUNTING SYSTEM. Maintain a system of accounting
established and administered in accordance with GAAP.
6.10 ADDITIONAL GUARANTORS. Cause each Domestic Subsidiary other
than Mississippi Textiles Corporation and Insituform (Netherlands) B.V., Inc. to
become a Guarantor by complying, within 90 days of becoming a Domestic
Subsidiary, with the applicable provisions of Section 4.03 on its part to be
performed in such cases. Each and every obligation and condition under this
Agreement with respect to the delivery of the Master Guaranty or a Domestic
Subsidiary becoming a Guarantor hereunder shall be subject to the prior or
contemporaneous execution and delivery by Administrative Agent and all Lenders
of such agreements as are contemplated by Section 9.8(e) of the Note Purchase
Agreement-1997 and the equivalent provision, if any, in the Note Xxxxxxxx
Xxxxxxxxx-0000, on their part to be performed in such cases. Upon Final Payment,
the Master Guaranty shall terminate and be of no further force or effect, except
with respect to provisions thereof which by their terms survive the termination
thereof, subject to reinstatement as contemplated in Section 10.23.
6.11 AUDITS BY ADMINISTRATIVE AGENT AND LENDERS. Permit
Administrative Agent and each Lender or Persons authorized by and acting on
behalf of Administrative Agent and each Lender at any time and from time to time
during normal business hours to audit the books and records, and inspect any of
the property, of each Covered Person from time to time upon reasonable prior
notice to such Covered Person, and in the course thereof permit Administrative
Agent and each Lender or such Persons to make copies or abstracts of such books
and records and discuss the affairs, finances and books and records of such
Covered Person with its accountants, bonding and surety companies, officers and
employees. Company shall cause each Covered Person to cooperate with
Administrative Agent and each Lender and such Persons in the conduct of such
audits and shall deliver to Administrative Agent and such Lender any instrument
necessary for Administrative Agent and each Lender to obtain records from any
service bureau maintaining records for such Covered Person. The reasonable
expenses of Administrative Agent and each Lender incurred in conducting the
foregoing audits and inspections, after a Default or Event of Default, shall be
reimbursed by Company to Administrative Agent and Lenders.
6.12 ACCESS TO OFFICERS AND AUDITORS. Permit Administrative Agent
and each Lender and Persons authorized by them, upon reasonable prior notice and
during normal business hours, to discuss the affairs, finances and accounts of
such Covered Person with its officers and independent auditors as often as they
may reasonably request, and direct such officers and independent auditors to
cooperate with them and make full disclosure to them of these matters that they
may deem relevant to the continuing ability of Company timely to pay and perform
the Obligations.
6.13 FURTHER ASSURANCES. Execute and deliver to Administrative
Agent or each Lender such documents and agreements, and shall take or cause to
be taken such actions, as Administrative Agent or any Lender may from time to
time reasonably request to carry out the terms and conditions of this Agreement
and the other Loan Documents.
SECTION 7.
NEGATIVE COVENANTS
Until Final Payment, Company shall not, nor shall it permit (except
with respect to Section 7.15) any Covered Person to directly or indirectly:
7.01 INDEBTEDNESS. Create, incur, assume, or allow to exist any
Indebtedness unless and only to the extent that:
(a) no Default or Event of Default is (unless waived) continuing
or will occur or has occurred or is reasonably likely to occur as a consequence
thereof; and
(b) it is Permitted Indebtedness.
7.02 PREPAYMENTS. Voluntarily prepay any Indebtedness other than:
(a) the Obligations in accordance with the terms of the Loan
Documents;
(b) trade payables in the ordinary course of business;
(c) required prepayments of the 7.88% Senior Notes, Series A, Due
February 14, 2007 of $110,000,000 aggregate original principal amount that were
issued by Company under the Note Purchase Agreement-1997;
(d) required prepayments of the senior notes that are issued by
Company pursuant to the Note Purchase Agreement-2003;
(e) the Indebtedness listed on Schedule 7.02(e); and
(f) any other Indebtedness up to the aggregate amount of
prepayments of $5,000,000 during the term of this Agreement.
7.03 SECURITY INTERESTS. Create, incur, assume or allow to exist
any Security Interest upon all or any part of its property, real or personal,
now owned or hereafter acquired, except Security Interests:
(a) for taxes, assessments or governmental charges not delinquent
or being diligently contested in good faith and by appropriate proceedings and
for which adequate book reserves in accordance with GAAP are maintained;
(b) arising out of pledges and deposits in connection with
workers' compensation insurance, unemployment insurance, old age pensions, or
other social security or retirement benefits legislation;
(c) arising out of deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds, and other obligations of like nature
arising in the ordinary course of business;
(d) imposed by any Law, such as mechanics', workmen's,
materialmen's, landlords', carriers', or other like Security Interests arising
in the ordinary course of business which secure payment of obligations which are
not past due or which are being diligently contested in good faith by
appropriate proceedings and for which adequate book reserves in accordance with
GAAP are maintained;
(e) in favor of Administrative Agent on behalf of Lenders;
(f) that are "Liens" securing Permitted Indebtedness in an amount
of up to $6,000,000.
7.04 ACQUISITIONS. Acquire all or a material part of the assets of
a Person, regardless of the form of the transaction, except in a Permitted
Acquisition.
7.05 SALE OF PROPERTY. Sell, assign, lease, transfer, abandon or
otherwise dispose of any of its property (including without limitation, any
shares of capital stock of a Subsidiary owned by Company or another Subsidiary)
except for (a) sales of fixed assets which are obsolete, worn-out or otherwise
not used or useable in the ordinary course of its business, so long as the net
proceeds thereof are used solely to purchase replacement fixed assets of
comparable quality and function or to pay or prepay any Permitted Lien
encumbering the assets being sold, (b) equipment leased pursuant to a sale and
leaseback transaction provided the transaction does not create a Default or
Event of Default hereunder, (c) sales or transfers generating net proceeds which
in the aggregate during the term of this Agreement do not exceed $25,000,000,
provided however, that to the extent aggregate sales or transfers generate net
proceeds in excess of $5,000,000, such excess must be applied by Company to the
reduction of the outstanding balance of either the Loans or the Note Purchase
Agreement-2003 or the Note Purchase Agreement-1997, (d) sale of inventory in the
ordinary course of business, or (e) sale or transfer of assets between or among
Covered Persons, provided such a sale or transfer does not cause a Default or
Event of Default hereunder.
7.06 RESTRICTED PAYMENTS. (a) Directly or indirectly declare or
make, or incur any liability to make, any Restricted Payment if the same would
result in a Default or Event of Default,
and (b) directly or indirectly declare or make, or incur any liability to make,
any payment for the acquisition, redemption or retirement of any outstanding
stock of Company if the same would exceed in the aggregate during any
consecutive four (4)-fiscal quarter period an amount of $12,000,000.
7.07 MERGERS AND CONSOLIDATIONS. Merge or consolidate with or be a
party to a merger with any other Person, or sell, lease or otherwise dispose of
all or substantially all of its assets except in a Permitted Acquisition or as
permitted in Section 7.05, provided, however, (i) in any merger or consolidation
involving Company, Company shall be the surviving or continuing corporation,
(ii) in any merger or consolidation involving a Wholly-Owned Subsidiary, the
continuing or surviving corporation shall be a Wholly-Owned Subsidiary, and
(iii) in any merger or consolidation involving a Subsidiary, the continuing or
surviving corporation shall be a Subsidiary.
7.08 CHANGE OF BUSINESS. Engage in any business other than
substantially as conducted on the Closing Date by Company or any of its
Subsidiaries or a business reasonably related thereto or in furtherance thereof.
7.09 TRANSACTIONS WITH AFFILIATES. Enter into or be a party to any
material transaction or arrangement, including the purchase, sale or exchange of
property of any kind or the rendering of any service material to the operations
of Company and the Subsidiaries taken as a whole, with any Affiliate, or make
any loans or advances to any Affiliate except:
(a) transactions with another Covered Person; and
(b) transactions in the ordinary course of business and pursuant
to the reasonable requirements of its business and on fair and reasonable terms
substantially as favorable to it as those which it could obtain in a comparable
arm's length transaction with a non-Affiliate.
7.10 CONFLICTING AGREEMENTS, ETC. Enter into any agreement, engage
in any transaction, acquire or create any Subsidiary, or transfer assets to any
Subsidiary (whether or not it is actively engaged in a trade or business) that
would immediately or in a reasonably foreseeable time result in a Default or
Event of Default; or enter into any agreement that would immediately or in a
reasonably foreseeable time, if fully complied with or performed by it, result
in a Default or Event of Default.
7.11 SALE AND LEASEBACK TRANSACTIONS; OPERATING LEASES.
(a) Enter into any agreement or arrangement with any Person
providing for Company or a Covered Person to lease or rent property that Company
or a Covered Person has or will sell or otherwise transfer to such Person,
except (i) upon terms no less favorable than in an arms-length transaction in
which Company or such Covered Person will receive a cash payment upon such sale
or transfer equal to the fair market value of such property; and (ii) in
compliance with sub-section (b) below.
(b) Enter into Operating Leases which, provide for rental
obligations for the remaining terms of the Operating Leases at any time in the
aggregate in excess of $60,000,000, compliance to be measured as of the Closing
Date and at the end of each fiscal year of Company.
7.12 FISCAL YEAR. Change its fiscal year.
7.13 TRANSACTIONS HAVING A MATERIAL ADVERSE EFFECT ON A COVERED
PERSON. Enter into any transaction which has or is reasonably likely to have a
Material Adverse Effect.
7.14 TERMINATION OF PENSION BENEFIT PLAN. Terminate or amend, or
permit any ERISA Affiliate of any Covered Person to terminate or amend, any
Pension Benefit Plan maintained by such Covered Person or ERISA Affiliate of
such Covered Person if such termination or amendment would result in any
liability to such Covered Person or ERISA Affiliate of such Covered Person under
ERISA which is reasonably likely to have a Material Adverse Effect or any
increase in current liability for the plan year for which such Covered Person or
ERISA Affiliate of such Covered Person is required to provide security to such
Pension Benefit Plan under the Code which is reasonably likely to have a
Material Adverse Effect.
7.15 FINANCIAL COVENANTS.
(a) MINIMUM FIXED CHARGE COVERAGE RATIO. Until Final Payment
permit, as at the end of each fiscal quarter, the ratio of (A) Consolidated
EBITDA plus Rentals (other than Rentals under Capital Leases) less Capital
Expenditures (plus cash proceeds from the sale of assets that must be treated as
a capital asset under GAAP), less taxes based on or measured by income, used or
included in the determination of Consolidated Net Income from Continuing
Operations, all for the four (4)-consecutive fiscal quarter period ending at
such date, to (B) Consolidated Fixed Charges, all for such four consecutive
fiscal quarter period, to be less than 1.10 to 1.
(b) MINIMUM CONSOLIDATED TANGIBLE NET WORTH. Until Final Payment
permit, as at the end of each fiscal quarter, Consolidated Tangible Net Worth to
be less than the sum of (a) $90,000,000, plus (b) 50% of Consolidated Net Income
computed on a cumulative basis for each of the elapsed fiscal quarters ending
after December 31, 2002; provided that notwithstanding that Consolidated Net
Income for any such elapsed fiscal quarter may be a deficit figure, no reduction
as a result thereof shall be made on the sum to be maintained pursuant hereto,
plus (c) 50% of the net cash proceeds received by a Covered Person from the
issuance of any capital stock or other equity interests.
(c) MAXIMUM LEVERAGE RATIO. Until Final Payment permit, as at the
end of each fiscal quarter, the ratio of Consolidated Funded Indebtedness to
Consolidated EBITDA to exceed 2.25 to 1. In connection with any calculation of
Indebtedness for purposes of determining compliance with this subsection, there
shall be excluded from such calculation of Consolidated Funded Indebtedness an
amount (if positive) equal to the sum of (i) the aggregate amount of all Loans
as of the end of such fiscal quarter, minus (ii) the aggregate amount of all
Loans as of the last business day of the month immediately following the end of
such fiscal quarter.
7.16 LIMITATION ON OPERATIONS OF NON-BORROWER PARTIES. Permit (a)
Company and Guarantors to own at any time less than 75% of Consolidated Total
Assets and (b) as of the last day of each fiscal quarter, the portion of
Consolidated EBITDA attributed to Company and Guarantors for the consecutive
four (4)-fiscal quarter period then ended to be less than 75% of Consolidated
EBITDA for such period.
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any one or more of the following events
shall constitute an Event of Default:
(a) PAYMENT OF PRINCIPAL. Borrower fails to pay any principal on
any Outstanding Obligation (other than fees) as and on the date when due; or
(b) PAYMENT OF INTEREST, FEES AND OTHER AMOUNTS. Any Borrower
Party fails to pay (i) any interest on any Outstanding Obligation within five
days after the date when due or (ii) any other fees or amount due under any Loan
Document within five days after notice from Administrative Agent that the same
is due; or
(c) REPORTING, AUDITS AND ACCESS COVENANTS AND CERTAIN NEGATIVE
COVENANTS. Any default occurs in the observance or performance of any agreement
contained in Section 6.01, 6.02(a), (b), (c), (f) or (i), 6.11, 6.12, 7.01,
7.04, 7.06, 7.07, 7.08, 7.12, 7.14, 7.15; or
(d) OTHER DEFAULTS. Any Borrower Party defaults in the performance
of or compliance with any term contained in any Loan Document (other than those
otherwise referred to in this Section 8) and such default is not remedied within
30 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving written notice of such
default from Administrative Agent or any Lender; or
(e) REPRESENTATIONS AND WARRANTIES. Any representation or warranty
contained in Section 5, or which is contained in the Master Guaranty, any
Compliance Certificate or any other material certificate furnished at any time
under or in connection with any Loan Document proves to have been incorrect in
any material respect when made or deemed made; or
(F) CROSS DEFAULT.
(i) Any Borrower Party (x) defaults in any payment when due of
principal of or interest on any Indebtedness (other than Indebtedness hereunder)
having an aggregate principal amount in excess of $10,000,000 which default
continues unwaived beyond any applicable grace period or (y) defaults in the
observance or performance of any other agreement or condition relating to any
Indebtedness (other than Indebtedness hereunder) in excess of $10,000,000 which
default continues unwaived beyond any applicable grace period or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur, the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, Indebtedness having an aggregate
principal amount in excess of $10,000,000 to be demanded or become due
(automatically or otherwise) prior to its stated maturity, or any Guaranty
Obligation with respect to Indebtedness in such amount to become payable or cash
collateral in respect thereof to be demanded; or
(ii) the occurrence under any Swaps of an Early Termination Date
(as defined in such Swaps) resulting from (x) any event of default under such
Swaps as to which Company or any Subsidiary is the Defaulting Party (as defined
in such Swaps) or (y) the occurrence of any Termination Event under such Swap
Contract (as defined therein) as to which Company or any Subsidiary is an
Affected Party (as so defined) as a result of which, in either event, the Swap
Termination Value owed by Company or such Subsidiary is greater than
$10,000,000; or
(g) BANKRUPTCY; INSOLVENCY; ETC. Any Borrower Party (i) fails to
pay, or admits in writing its inability to pay, its debts generally as they
become due, or otherwise becomes insolvent (however evidenced); (ii) makes a
general assignment for the benefit of creditors; (iii) files a petition in
bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any
tribunal for any receiver or any trustee of any Borrower Party or any
substantial part of its property; (iv) commences any proceeding relating to any
Borrower Party under any reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; (v) has commenced against it any such proceeding which
remains undismissed for a period of 60 days, or by any act indicates its consent
to, approval of, or acquiescence in any such proceeding or the appointment of
any receiver of or any trustee for it or any substantial part of its property,
or allows any such receivership or trusteeship to continue undischarged for a
period of 60 days; or (vi) takes any corporate action to authorize any of the
foregoing; or
(h) JUDGMENTS; ATTACHMENT; ETC. Any one or more judgments or
orders is entered against a Covered Person or any attachment or other levy is
made against the property of a Covered Person with respect to a claim or claims
involving in the aggregate liabilities (not paid or fully covered by insurance,
less the amount of deductibles satisfactory to Requisite Lenders) greater than
$3,000,000 becomes final and non-appealable and is not fully discharged within
45 days thereafter, or if timely appealed is not fully bonded and collection
thereof stayed pending the appeal; or
(i) PENSION BENEFIT TERMINATION, ETC. Any termination by the PBGC
of a Pension Benefit Plan of Company or an ERISA Affiliate of Company or the
appointment by the appropriate United States District Court of a trustee to
administer any Pension Benefit Plan of Company or an ERISA Affiliate of Company
or to liquidate any Pension Benefit Plan of Company or an ERISA Affiliate of
Company; or any event which constitutes grounds either for the termination of
any Pension Benefit Plan of Company or an ERISA Affiliate of Company by PBGC or
for the appointment by the appropriate United States District Court of a trustee
to administer or liquidate any Pension Benefit Plan of Company or an ERISA
Affiliate of Company has occurred and is continuing for 30 days after Company
has notice of any such event; or any voluntary termination of any Pension
Benefit Plan of Company or an ERISA Affiliate of Company which is a defined
benefit pension plan as defined in Section 3(35) of ERISA while such defined
benefit pension plan has an accumulated funding deficiency, unless
Administrative Agent has been notified of such intent to voluntarily terminate
such plan and Requisite Lenders have given their consent and agreed that such
event shall not constitute an Event of Default; or the plan administrator of any
Pension Benefit Plan of Company or an ERISA Affiliate of Company applies under
Section 412(d) of the Code for a waiver of the minimum funding standards of
Section 412(1) of the Code and Requisite Lenders determine that the substantial
business hardship upon which the application for such waiver is based could
subject Company or any ERISA Affiliate of Company to a liability in excess of
$3,000,000; or
(j) LIQUIDATION OR DISSOLUTION. Except as permitted by this
Agreement, any Borrower Party files a certificate of dissolution under
applicable state law or is liquidated or dissolved, or has commenced against it
any action or proceeding for its liquidation or dissolution which is not
dismissed within 60 days, or takes any corporate action in furtherance thereof;
or
(k) SEIZURE OF ASSETS. Any property of any Borrower Party which,
in the aggregate, exceeds $10,000,000 is nationalized, expropriated, seized or
otherwise appropriated, or custody or control of such property or of any Covered
Person is assumed by any Governmental Authority,
unless the same is being contested in good faith by appropriate proceedings
diligently pursued and a stay of enforcement is in effect; or
(l) RACKETEERING PROCEEDING. There is filed against a Covered
Person any Criminal action, suit or proceeding under any federal or state
racketeering statute (including, without limitation, the Racketeer Influenced
and Corrupt Organization Act of 1970), which action, suit or proceeding is not
dismissed within 120 days and could result in the confiscation or forfeiture of
property of such Covered Person that results or is reasonably likely to result
in a Material Adverse Effect; or
(m) LOAN DOCUMENTS. Any Loan Document ceases to be in full force
and effect or is terminated, revoked or declared void or invalid; or any
Borrower Party denies any further liability under any Loan Document to which it
is a party, or asserts that any such Loan Document is unenforceable or void; or
(n) QUALIFIED AUDIT REPORT. Any of the fiscal year-end Financial
Statements required under Section 6.01 to be delivered to Administrative Agent
contains an audit report which is qualified (other than as permitted in Section
6.01); or
(o) MATERIAL ADVERSE CHANGE. There occurs any event which is
reasonably likely to result in any Borrower Party being unable to make payments
of principal or interest as required hereunder; or
(p) CHANGE IN CONTROL. There occurs a Change in Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of Administrative Agent or Lenders provided for elsewhere in
this Agreement, or the other Loan Documents, or by applicable Law, or in equity,
or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default other than an Event of Default described in Section 8.01(g):
(i) Requisite Lenders may request Administrative Agent
to, and Administrative Agent thereupon shall, terminate the Commitments
and/or declare all or any part of the unpaid principal of all Loans,
all interest accrued and unpaid thereon and all other amounts payable
under the Loan Documents to be immediately due and payable, whereupon
the same shall become and be immediately due and payable, without
protest, presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by each Borrower Party; and
(ii) Issuing Lender may, with the approval of
Administrative Agent on behalf of Requisite Lenders, but subject to
Section 2.03(b), demand immediate payment by Borrower of an amount
equal to the aggregate amount of all outstanding Letter of Credit Usage
to be held in a Letter of Credit Cash Collateral Account.
(b) Upon the occurrence of any Event of Default described in
Section 8.01(g):
(i) the Commitments (including the Swing Line Commitment)
and all other obligations of Administrative Agent, Bank of America or
other Lenders shall automatically
terminate without notice to or demand upon any Borrower Party, which
are expressly waived by Borrower;
(ii) the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under the Loan
Documents shall be immediately due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by each Borrower Party; and
(iii) subject to Section 2.03(b), an amount equal to the
aggregate amount of all outstanding Letter of Credit Usage shall be
immediately due and payable to Issuing Lender without notice to or
demand upon any Borrower Party, which are expressly waived by each
Borrower Party, to be held in a Letter of Credit Cash Collateral
Account.
(c) Upon the occurrence of any Event of Default, Lenders and
Administrative Agent, or any of them, without notice to (except as expressly
provided for in any Loan Document) or demand, which are expressly waived by each
Borrower Party (except as to notices expressly provided for in any Loan
Document), may proceed to (but only with the consent of Requisite Lenders)
protect, exercise and enforce their rights and remedies under the Loan Documents
against any Borrower Party and such other rights and remedies as are provided by
Law or equity.
(d) Except as permitted by Section 10.05, no Lender may exercise
any rights or remedies with respect to the Obligations without the consent of
Requisite Lenders in their sole and absolute discretion. The order and manner in
which Administrative Agent's and Lenders' rights and remedies are to be
exercised shall be as determined by Requisite Lenders in their sole and absolute
discretion. Regardless of how a Lender may treat payments for the purpose of its
own accounting, for the purpose of computing the Obligations hereunder, payments
shall be applied first, to costs and expenses (including Attorney Costs)
incurred by Administrative Agent and each Lender, second, to the payment of
accrued and unpaid interest on the Loans to and including the date of such
application, third, to the payment of the unpaid principal of the Loans, and
fourth, to the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case paid pro
rata to each Lender in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all Lenders, without priority or preference among
Lenders. No application of payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable and the Loan
Documents, or prevent the exercise, or continued exercise, of rights or remedies
of Administrative Agent and Lenders hereunder or thereunder or at Law or in
equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09)
appoints, designates and authorizes 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, Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender, 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 Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith until
such time and except for as long as Administrative Agent may agree at the
request of Requisite Lenders to act for such Issuing Lender with respect
thereto; provided, however, that Issuing Lender shall have all of the benefits
and immunities (i) provided to Administrative Agent in this Section 9 with
respect to any acts taken or omissions suffered by Issuing Lender in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Section 9
included Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to Issuing Lender.
9.02 DELEGATION OF DUTIES. 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. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or attorney in fact
that it selects in the absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Administrative
Agent-Related Person shall (a) 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 in connection with its duties expressly set
forth herein), or (b) be responsible in any manner to any Lender for an recital,
statement, representation or warranty made by any Borrower Party 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 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 any Borrower Party or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Administrative Agent-Related
Person shall be under any obligation to any Lender 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 any Borrower Party or any Subsidiary or
Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, 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 any Borrower Party), independent accountants
and other experts selected by Administrative Agent. Administrative Agent shall
be fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of Requisite
Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. 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 Requisite Lenders or all
Lenders, if required hereunder, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of Lenders. Where this
Agreement expressly permits or prohibits an action unless Requisite Lenders
otherwise determine, and in all other instances, Administrative Agent may, but
shall not be required to, initiate any solicitation for the consent or a vote of
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
9.05 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". Administrative Agent will
notify Lenders of its receipt of any such notice. Administrative Agent shall
take such action with respect to such Default or Event of Default as may be
directed by Requisite Lenders in accordance with Section 8; provided, however,
that unless and until Administrative Agent has received any such direction,
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Administrative Agent-Related Person has
made any representation or warranty to it, and that no act by Administrative
Agent hereinafter taken, including any consent to and acceptance of any
assignment or review of the affairs of any Borrower Party or any of its
Subsidiaries or Affiliates, shall be deemed to constitute any representation or
warranty by any Administrative Agent-Related Person to any Lender as to any
matter, including whether Administrative Agent-Related Persons have disclosed
material information in their possession. Each Lender, including any Lender by
assignment, represents to Administrative Agent that it has, independently and
without reliance upon any Administrative 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 any Borrower Party and its Subsidiaries
and Affiliates, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its written decision to enter into
this Agreement and to extend credit to any Borrower Party hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Administrative 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 any Borrower
Party and its Subsidiaries and Affiliates. Except for notices, reports and other
documents expressly required to be furnished to Lenders by Administrative Agent
herein, Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any Borrower Party or any of its Subsidiaries or Affiliates
which may come into the possession of any Administrative Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of any Borrower Party and without limiting the obligation of any
Borrower Party to do so), pro rata, and hold harmless each Administrative
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Administrative Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of Requisite Lender shall be deemed to constitute gross negligence or
willful misconduct for purposes of this Section. Without limitation of the
foregoing, each Lender shall reimburse Administrative Agent upon demand for its
ratable share of any costs or out of pocket expenses (including Attorney Costs)
incurred by 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 Administrative Agent is not reimbursed for such expenses by or on behalf of
any Borrower Party. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of Administrative
Agent.
9.08 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
with any Borrower Party and its Subsidiaries and Affiliates as though Bank of
America were not Administrative Agent or Issuing Lender hereunder and without
notice to or consent of Lenders. Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
any Borrower Party or its Affiliates (including information that may be subject
to confidentiality obligations in favor of any Borrower Party or such Affiliate)
and acknowledge that Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not Administrative Agent or Issuing
Lender.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may, and
at the request of Requisite Lenders shall, resign as Administrative Agent upon
30 days' notice to Lenders. If Administrative Agent resigns under this
Agreement, Requisite Lenders shall appoint from among Lenders a successor
administrative agent for Lenders which successor administrative agent shall be
subject to the prior written consent of Company at all times other than during
the existence of an Event of Default (which approval of Company shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of Administrative
Agent, Administrative Agent may appoint, after consulting with Lenders and
Company, a successor administrative agent from among Lenders, subject to the
prior written consent of Company at all times other than during the existence of
an Event of Default (which approval of Company shall not be unreasonably
withheld or delayed). 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 9 and Sections 10.03 and 10.13 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 Lenders shall perform all of the duties of Administrative Agent hereunder
until such time, if any, as Requisite Lenders appoint a successor agent as
provided for above. Notwithstanding the foregoing, however, Bank of America may
not be removed as Administrative Agent at the request of Requisite Lenders
unless Bank of America shall also simultaneously be replaced as "Issuing Lender"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to Bank of America.
SECTION 10.
MISCELLANEOUS
10.01 AMENDMENTS; CONSENTS. (a) No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by any Borrower Party therefrom shall be effective unless in
writing signed by Borrower and Requisite Lenders and acknowledged by
Administrative Agent, and each such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. Except as
otherwise expressly provided herein, without the approval in writing of
Administrative Agent and all Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective to:
(i) Reduce the amount of principal or required principal
payments or prepayments of any Outstanding Obligations;
(ii) Reduce the rate of interest payable on any
Outstanding Obligations or the amount of any fee or other amount
payable to any Lender under the Loan Documents (unless consented to by
each Lender entitled to receive such fee or other amount), including in
each case, any change in the way any financial covenant used to
determine the Applicable Amount is calculated;
(iii) Waive an Event of Default consisting of the failure
of Borrower to pay when due principal, interest or any commitment fee;
(iv) Postpone any date fixed for any payment of principal
of, prepayment of principal of, or any installment of interest on, any
Loan or any installment of any commitment fee, to extend the term of,
or increase the amount of, any Lender's Commitment or the Swing Line
Commitment (it being understood that a waiver of any Event of Default
not referred to in subsection (iii) above shall require only the
consent of Required Lenders) or modify the Pro Rata Share of any
Lender;
(v) Amend the definition of "Requisite Lenders" or the
provisions of Section 4, Section 9, this Section 10.01 or Section
10.06; or
(vi) Amend any provision of this Agreement that expressly
requires the consent or approval of all Lenders;
provided, however, that (x) no amendment, waiver or consent shall, unless in
writing and signed by Issuing Lender in addition to Requisite Lenders or all
Lenders, as the case may be, affect the rights or duties of Issuing Lender, (y)
no amendment, waiver or consent shall, unless in writing and signed by
Administrative Agent in addition to Requisite Lenders or all Lenders as the case
may be, affect the rights or duties of Administrative Agent, and (z) any fee
letters may be amended, or rights or privileges thereunder waived, in a writing
executed by the parties thereto. Any amendment, modification, supplement,
termination, waiver or consent pursuant to this Section shall apply equally to,
and shall be binding upon, all Lenders and Administrative Agent.
(b) Each Lender acknowledges and agrees that the Note Purchase
Agreement-2003 has not been executed and the notes thereunder issued as of the
date of this Agreement. The Note Purchase Agreement-2003 is listed as a
Permitted Indebtedness on Schedule 5.24. Provided the terms of the Note Purchase
Agreement-2003 conform to the parameters set forth below, each Lender authorizes
the Administrative Agent to sign and deliver any necessary or appropriate
amendment to the Intercreditor Agreement to provide for substantially the same
limitations and restrictions, as among the Lenders and the note purchasers
signatory to the Note Xxxxxxxx Xxxxxxxxx-0000, as are provided in the
Intercreditor Agreement.
Parameters
- Maximum Principal Amount of Notes: $65,000,000
- No scheduled principal payments prior to the Maturity Date
hereunder
10.02 TRANSMISSION AND EFFECTIVENESS OF COMMUNICATIONS AND
SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in any Loan
Document, notices, requests, demands, directions, agreements and documents
delivered in connection with the Loan Documents (collectively, "communications")
shall be transmitted by Requisite Notice to the number
and address set forth on Schedule 10.02, may be delivered by the following modes
of delivery, and shall be effective as follows:
MODE OF DELIVERY EFFECTIVE ON EARLIER OF ACTUAL RECEIPT AND:
---------------- -------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S. mail first
class postage pre-paid
Personal delivery When received
Telephone When conversation completed
Electronic Mail When received
provided, however, that communications delivered to Administrative Agent
pursuant to Section 2 shall not be effective until actually received by
Administrative Agent.
(b) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. Administrative
Agent and Lenders shall be entitled to rely and act on any communications
purportedly given by or on behalf of any Borrower Party even if (i) such
communications (A) were not made in a manner specified herein, (B) were
incomplete or (C) were not preceded or followed by any other notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from
any subsequent related communications provided for herein. Company shall
indemnify Administrative Agent and Lenders from any loss, cost, expense or
liability as a result of relying on any communications permitted herein.
(c) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such document and signatures shall, subject to applicable Law, have the same
force and effect as hard-copies with manual signatures and shall be binding on
all Borrower Parties and Administrative Agent and Lenders. Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually signed hardcopy thereof; provided, however, that the failure to request
or deliver any such manually signed hardcopy shall not affect the effectiveness
of any facsimile document or signature.
(d) EFFECTIVENESS OF ELECTRONIC MAIL. Electronic mail may be used
to distribute routine communications, such as financial statements and other
information and to distribute agreements and other documents to be signed by
Lenders; provided, however, that no Request for Extension of Credit or executed
or legally-binding notice, agreement, waiver, amendment or other communication
may be sent by electronic mail.
10.03 ATTORNEY COSTS, EXPENSES AND TAXES. Company agrees (a) to pay
or reimburse Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of any
amendment, waiver, consent, supplement or modification requested by Company to,
any Loan Documents, and any other documents prepared in connection therewith,
including all Attorney Costs, and (b) after the occurrence of a Default or
Event of Default (whether or not waived) or in connection with transactions
requested by Company, to pay or reimburse Administrative Agent and each Lender
for all costs and expenses incurred in connection with any refinancing,
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement, or preservation of any rights under any
Loan Documents, and any other documents prepared in connection herewith or
therewith, or in connection with any refinancing, or restructuring of any such
documents in the nature of a "workout" or of any insolvency or bankruptcy
proceeding, including Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out of pocket expenses incurred by
Administrative Agent and the cost of independent public accountants and other
outside experts retained by Administrative Agent or any Lender. The agreements
in this Section shall survive repayment of all Obligations.
10.04 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which a
Borrower Party is a party will be binding upon and inure to the benefit of each
Borrower Party, Administrative Agent, Lenders and their respective successors
and assigns, except that, no Borrower Party may assign its rights hereunder or
thereunder or any interest herein or therein without the prior written consent
of all Lenders and any such attempted assignment shall be void. Any Lender may
at any time pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall
release such Lender from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its Commitment
and/or Extensions of Credit; provided that (i) such assignment, if not to a
Lender or an Affiliate of the assigning Lender, shall be subject to the prior
written consent of Company at all times other than during the existence of a
Default or Event of Default and by Administrative Agent, and Issuing Lender
(which approval of Company shall not be unreasonably withheld or delayed), (ii)
a copy of a duly signed and completed Assignment and Acceptance shall be
delivered to Administrative Agent, (iii) except in the case of an assignment (A)
to an Affiliate of the assigning Lender or to another Lender or (B) of the
entire remaining Commitment of the assigning Lender, the portion of the
Commitment assigned shall not be less than $5,000,000, (iv) the effective date
of any such assignment shall be as specified in the Assignment and Acceptance,
but not earlier than the date which is five Business Days after the date
Administrative Agent has received the Assignment and Acceptance and (v) such
assignee Lender shall become a "Creditor" under and as defined in the
Intercreditor Agreement by executing and delivering a counterpart thereof and
complying with the provisions thereof. Upon obtaining any consent required as
set forth in the prior sentence and payment of the requisite fee described
below, the assignee named therein shall be a Lender for all purposes of this
Agreement, with the Pro Rata Share therein set forth and, to the extent of such
Pro Rata Share, the assigning Lender shall be released from its further
obligations under this Agreement. Borrower agrees that it shall execute and
deliver upon request (against delivery by the assigning Lender to Borrower of
any Note) to such assignee Lender, one or more Notes evidencing such assignee
Lender's Loans, and to the assigning Lender, if requested, one or more Notes
evidencing Loans under any Commitment retained by the assigning Lender.
Administrative Agent's consent to any assignment shall not be deemed to
constitute any representation or warranty by any Administrative Agent-Related
Person as to any matter. For purposes hereof, each mutual fund that is an
Affiliate of a Lender shall a deemed to be
a single Eligible Assignee, whether or not such fund is managed by the same fund
manager as other mutual funds that are Affiliates of the same Lender.
(c) After receipt of a completed Assignment and Acceptance, and
receipt of an assignment fee of $3,500 from such Eligible Assignee (including in
the case of assignments to Affiliates of assigning Lenders), Administrative
Agent shall, promptly following the effective date thereof, provide to Company
and Lenders a revised Schedule 10.02 giving effect thereto.
(d) Each Lender may from time to time, without the consent of any
other Person, grant participations to one or more other Person (including
another Lender) all or any portion of its Pro Rata Share of its Commitment
and/or Extensions of Credit; provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose except, if the participation
agreement so provides, for the purposes of Section 3 (but only to the extent
that the cost of such benefits to Company does not exceed the cost which Company
would have incurred in respect of such Lender absent the participation) and
subject to Sections 10.05 and 10.06, (iv) Borrower, Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (v)
the participation agreement shall not restrict an increase in the combined
Commitments or in the granting Lender's Commitment or Pro Rata Share, so long as
the amount of the participation interest is not increased, and (vi) the consent
of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents; provided, however,
that the assigning Lender may, in any agreement with a participant, give such
participant the right to consent to any matter which (A) extends the Maturity
Date as to such participant or any other date upon which any payment of money is
due to such participant, (B) reduces the rate of interest owing to such
participant, any fee or any other monetary amount owing to such participant, or
(C) reduces the amount of any installment of principal owing to such
participant. Any Lender that sells a participation to any Person that is a
"foreign corporation, partnership or trust" within the meaning of the Code shall
include in its participation agreement with such Person a covenant by such
Person that such Person will comply with the provisions of Section 10.21 as if
such Person were a Lender and provide that Administrative Agent and Borrower
shall be third party beneficiaries of such covenant.
10.05 SET OFF. In addition to any rights and remedies of
Administrative Agent and Lenders or any assignee or participant of any Lender or
any Affiliate thereof (each a, "Proceeding Party") provided by law, upon the
occurrence and during the continuance of any Event of Default, each Proceeding
Party is authorized at any time and from time to time, without prior notice to
any Borrower Party, any such notice being waived by Borrower Parties to the
fullest extent permitted by law, to proceed directly, by right of set off,
banker's lien or otherwise, against any assets of the Borrower Parties which may
be in the hands of such Proceeding Party (including all general or special, time
or demand, provisional or other deposits and other indebtedness owing by such
Proceeding Party to or for the credit or the account of Borrower) and apply such
assets against the Obligations, irrespective of whether such Proceeding Party
shall have made any demand therefor and although such Obligations may be
unmatured. Each Lender agrees promptly to notify Company and Administrative
Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such set off and application.
10.06 SHARING OF PAYMENTS. Each Lender agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against any
Borrower Party or otherwise, receives payment of the Obligations held by it that
is ratably more than any other Lender receives in payment of the Obligations
held by such other Lender, then, subject to applicable Laws: (a) such Lender
exercising the right of setoff, banker's lien or counterclaim or otherwise
receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all Lenders share
any payment obtained in respect of the Obligations ratably in accordance with
each Lender's share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by a Borrower Party or any Person claiming through or
succeeding to the rights of a Borrower Party, the purchase of a participation
shall be rescinded and the purchase price thereof shall be restored to the
extent of the recovery, but without interest. Each Lender that purchases a
participation in the Obligations pursuant to this Section shall from and after
the purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the
Obligation purchased to the same extent as though the purchasing Lender were the
original owner of the Obligations purchased. Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in an
Obligation so purchased may exercise any and all rights of setoff, banker's lien
or counterclaim with respect to the participation as fully as if Lender were the
original owner of the Obligation purchased.
10.07 NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure by any Lender or Administrative Agent to exercise,
and no delay by any Lender or Administrative Agent in exercising, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
under any Loan Document preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law. Any decision by Administrative Agent or any Lender
not to require payment of any interest (including Default Interest), fee, cost
or other amount payable under any Loan Document or to calculate any amount
payable by a particular method on any occasion shall in no way limit or be
deemed a waiver of Administrative Agent's or such Lender's right to require full
payment thereof, or to calculate an amount payable by another method that is not
inconsistent with this Agreement, on any other or subsequent occasion.
(c) Except with respect to Section 9.09, the terms and conditions
of Section 9 are for the sole benefit of Administrative Agent and Lenders.
10.08 USURY. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "Maximum Rate"). If Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excessive
interest shall be applied to the principal of the Outstanding Obligations or, if
it exceeds the unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations.
10.09 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 INTEGRATION. This Agreement, together with the other Loan
Document is and any letter agreements referred to herein, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter hereof.
In the event of any conflict between the provisions of this Agreement and those
of any other Loan Document, the provisions of this Agreement shall control and
govern; provided that the inclusion of supplemental rights or remedies in favor
of Administrative Agent or Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.11 NATURE OF LENDERS' OBLIGATIONS. Nothing contained in this
Agreement or any other Loan Document and no action taken by Administrative Agent
or Lenders or any of them pursuant hereto or thereto may, or may be deemed to,
make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Extension of Credit pursuant hereto is several
and not joint or joint and several. A default by any Lender will not increase
the Pro Rata Share attributable to any other Lender.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document,
certificate or statement delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery thereof. Such
representations and warranties have been or will be relied upon by
Administrative Agent and each Lender, notwithstanding any investigation made by
Administrative Agent or any Lender or on their behalf.
10.13 INDEMNITY BY BORROWERS.
(a) Borrower agrees to indemnify, save and hold harmless each
Administrative Agent-Related Person and each Lender and their respective
Affiliates, directors, officers, agents, attorneys and employees (collectively
the "Indemnitees") from and against: (i) any and all claims, demands, actions or
causes of action that are asserted against any Indemnitee by any Person (other
than Administrative Agent or any Lender) relating directly or indirectly to a
claim, demand, action or
cause of action that such Person asserts or may assert against any Borrower
Party, any of their Affiliates or any of their officers or directors; (ii) any
and all claims, demands, actions or causes of action (other than by
Administrative Agent or any Lender) arising out of or relating to, the Loan
Documents, any predecessor loan documents, the Commitments, the use or
contemplated use of the proceeds of any Loan, or the relationship of any
Borrower Party, Administrative Agent and Lenders under this Agreement; (iii) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action described in
subsection (i) or (ii) above; and (iv) any and all liabilities, losses, costs or
expenses (including Attorney Costs) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action
or proceeding, or as a result of the preparation of any defense in connection
with any foregoing claim, demand, action, cause of action or proceeding, in all
cases, whether or not arising out of the negligence of an Indemnitee, except as
aforesaid, whether or not an Indemnitee is a party to such clam, demand, action,
cause of action or proceeding (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Indemnitee shall be entitled to indemnification
for any loss caused by its own gross negligence or willful misconduct or for any
loss asserted against it by another Indemnitee. The foregoing indemnity shall
not extend to any indirect or consequential damages except to the extent such
damages are recoverable under a third-party claim against an Indemnitee. The
agreements in this Section shall survive repayment of all Obligations.
(b) Promptly after receipt by an Indemnitee of a notice of the
commencement of any action or proceeding that may give rise to indemnification
hereunder, such Indemnitee will notify Administrative Agent, who shall promptly
notify Company. Company shall have the right to undertake, conduct and control
through counsel of its own choosing (which counsel shall be reasonably
acceptable to the Indemnitees) and at the sole expense of Company, the conduct
and settlement of any Indemnified Liabilities, and the Indemnitees shall
cooperate with Company in connection therewith; provided that Company shall
permit any Indemnitee to participate in such conduct and settlement through
counsel chosen by such Indemnitee, but the fees and expenses of such counsel
shall be borne by such Indemnitee. Notwithstanding the foregoing, if the
interests of Company and any Indemnitee become adverse in any such claim or
course of action, such Indemnitee shall have the right to employ its own
counsel, and the reasonable fees and expenses of such counsel shall be at
Company's costs and expense. Borrower shall not be liable for any settlement of
any claim or action effected without its prior written consent, such consent not
to be unreasonably withheld.
10.14 NONLIABILITY OF LENDERS. Borrower acknowledges and agrees
that:
(a) Any inspections of any property of any Borrower Party made by
or through Administrative Agent or Lenders are for purposes of administration of
the Loan Documents only, and Borrower is not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to Administrative Agent or Lenders pursuant to the
Loan Documents, neither Administrative Agent nor Lenders shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by Administrative Agent or Lenders;
(c) The relationship between Borrower and Administrative Agent and
Lenders is, and shall at all times remain, solely that of borrowers and lenders;
neither Administrative Agent nor any Lender shall under any circumstance be
deemed to be in a relationship of confidence or trust or a fiduciary
relationship with Borrower or its Affiliates, or to owe any fiduciary duty to
Borrower or its Affiliates; neither Administrative Agent nor any Lender
undertakes or assumes any responsibility or duty to Borrower or its Affiliates
to select, review, inspect, supervise, pass judgment upon or inform Borrower or
its Affiliates of any matter in connection with their property or the operations
of Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by Administrative Agent or any Lender in connection with
such matters is solely for the protection of Administrative Agent and Lenders
and neither Borrower nor any other Person is entitled to rely thereon; and
(d) Neither Administrative Agent nor any Lender shall be
responsible or liable to any Person for any loss, damage, liability or claim of
any kind relating to injury or death to Persons or damage to property caused by
the actions, inaction or negligence of Borrower and/or its Affiliates, and
Borrower hereby indemnifies and holds Administrative Agent and Lenders harmless
from any such loss, damage, liability or claim subject to the procedures and
limitations governing indemnification under Section 10.13.
10.15 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, Administrative Agent and Lenders in connection with the Extensions of
Credit, and is made for the sole benefit of Borrower, Administrative Agent and
Lenders, and Administrative Agent's and Lenders' successors and assigns. Except
as provided in Sections 10.04 and 10.13, no other Person shall have any rights
of any nature hereunder or by reason hereof.
10.16 SEVERABILITY. Any provision of the Loan Documents that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17 CONFIDENTIALITY. Administrative Agent and each Lender shall
use any confidential non-public information concerning the Borrower Parties and
their Subsidiaries that is furnished to Administrative Agent or such Lender by
or on behalf of the Borrower Parties and their Subsidiaries in connection with
the Loan Documents (collectively, "Confidential Information") solely for the
purpose of evaluating and providing products and services to them and
administering and enforcing the Loan Documents, and it will hold the
Confidential Information in confidence. Notwithstanding the foregoing,
Administrative Agent and each Lender may disclose Confidential Information (a)
to their affiliates or any of their affiliates' directors, officers, employees,
auditors, counsel, advisors, or representatives (collectively, the
"Representatives") whom it determines need to know such information for the
purposes set forth in this Section; (b) to any bank or financial institution or
other entity to which such Lender has assigned or desires to assign an interest
or participation in the Loan Documents or the Obligations, provided that any
such foregoing recipient of such Confidential Information agrees to keep such
Confidential Information confidential as specified herein; (c) to any
governmental agency or regulatory body having or claiming to have authority to
regulate or oversee any aspect of Administrative Agent's or such Lender's
business or that of their
Representatives in connection with the exercise of such authority or claimed
authority; (d) to the extent necessary or appropriate to effect or preserve
Administrative Agent's or such Lender's or any of their Affiliates' security (if
any) for any Obligation or to enforce any right or remedy or in connection with
any claims asserted by or against Administrative Agent or such Leader or any of
their Representatives; and (e) pursuant to any subpoena or any similar legal
process. For purposes hereof, the term "Confidential Information" shall not
include information that (x) is in Administrative Agent's or a Lender's
possession prior to its being provided by or on behalf of the Borrower Parties,
provided that such information is not known by Administrative Agent or such
Lender to be subject to another confidentiality agreement with, or other legal
or contractual obligation of confidentiality to, a Borrower Party, (y) is or
becomes publicly available (other than through a breach hereof by Administrative
Agent or such Lender), or (z) becomes available to Administrative Agent or such
Lender on a nonconfidential basis, provided that the source of such information
was not known by Administrative Agent or such Lender to be bound by a
confidentiality agreement or other legal or contractual obligation of
confidentiality with respect to such information.
10.18 FURTHER ASSURANCES. Each Borrower Party shall, and shall cause
it Subsidiaries to, at their expense and without expense to Lenders or
Administrative Agent, do, execute and deliver such further acts and documents as
any Lender or Administrative Agent from time to time reasonably requires for the
assuring and confirming unto Lenders or Administrative Agent of the rights
hereby created or intended now or hereafter so to be, or for carrying out the
intention or facilitating the performance of the terms of any Loan Document.
10.19 HEADINGS. Section headings in this Agreement and the other
Loan Documents are included for convenience of reference only and are not part
of this Agreement or the other Loan Documents for any other purpose.
10.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents
10.21 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code shall deliver to
Administrative Agent and Company, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two duly signed completed copies of either Form W-8BEN or any successor
thereto (relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Borrower pursuant to
this Agreement) or Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by Borrower pursuant to this Agreement) of
the IRS or such other evidence satisfactory to Borrower and Administrative Agent
that no withholding under the federal income tax laws is required with respect
to such Person. Thereafter and from time to time, each such Person shall (a)
promptly submit to Administrative Agent and Company such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrower and
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Person by Borrower pursuant
to this Agreement, and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that Borrower make any deduction or
withholding for taxes from amounts
payable to such Person. If such Persons fails to deliver the above forms or
other documentation, then Administrative Agent or Borrower may withhold from any
interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. If any Governmental Authority asserts that Administrative Agent or
Borrower did not properly withhold any tax or other amount from payments made in
respect of such Person, such Person shall indemnify Administrative Agent
therefor, including all penalties and interest and costs and expenses (including
Attorney Costs) of Administrative Agent and Borrower. The obligation of Lenders
under this Section shall survive the payment of all Obligations and the
resignation or replacement of Administrative Agent.
10.22 COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If Administrative
Agent or any Lender is for any reason compelled to surrender any payment from
Borrower because such payment is for any reason invalidated, declared
fraudulent, set aside, or determined to be void or voidable as a preference, an
impermissible setoff, or a diversion of trust funds, then each Loan Document and
the Obligations to which such payment was applied or intended to be applied
shall be revived with respect thereto as if such application was never made; and
Borrower shall be liable to pay to Administrative Agent and Lenders, and shall
indemnify Administrative Agent and Lenders for, and hold Administrative Agent
and Lenders harmless from, any loss with respect to, the amount of such payment
surrendered. This Section shall be effective notwithstanding any contrary action
Administrative Agent or any Lender may take in reliance upon its receipt of any
such payment. Any such contrary action so taken by Administrative Agent or any
Lender shall be without prejudice to Administrative Agent's and Lender's rights
under this Agreement and shall be deemed to have been conditioned upon the
application of such payment having become final and indefeasible. The provisions
of this Section shall survive termination of the Commitment, the expiration of
the Letters of Credit and the payment and satisfaction of all Obligations.
10.23 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF MISSOURI
SITTING IN THE COUNTY OF ST. LOUIS OR OF THE UNITED STATES FOR THE EASTERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER PARTY, ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
10.24 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.25 ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (LENDERS) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH,
TOGETHER WITH THE LOAN DOCUMENTS, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
10.26 CREDIT AGREEMENT. This Agreement supercedes in its entirety
the Multicurrency Credit Agreement dated as of March 30, 2000.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP CFO
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as
a Lender, and Issuing Lender
By: /s/
-------------------------------------------
Name:
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/
-------------------------------------------
Name:
Title: Vice President
COMMERCE BANK, N.A., as
a Lender
By: /s/ Xxxx Xxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Vice President
