EXHIBIT 10.102
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EZCORP, INC.
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF OCTOBER 13, 2006
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS AGENT
AND
ISSUING BANK
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions............................................. 1
Section 1.1 Definitions............................................. 1
Section 1.2 Other Definitional Provisions........................... 19
ARTICLE II Revolving Credit Loan and Swing Loan.................... 20
Section 2.1 Revolving Credit Commitments............................ 20
Section 2.2 Revolving Credit Notes.................................. 20
Section 2.3 Repayment of Revolving Credit Loan...................... 20
Section 2.4 Interest................................................ 20
Section 2.5 Revolving Credit Loan Borrowing Procedure............... 21
Section 2.6 Conversions and Continuations........................... 21
Section 2.7 Swing Loans............................................. 22
Section 2.8 Use of Proceeds......................................... 23
Section 2.9 Fees.................................................... 23
Section 2.10 Determination of Eurodollar Margin and Commitment Fee
Rate.................................................... 23
Section 2.11 Reduction or Termination of Commitments................. 24
ARTICLE III Letters of Credit....................................... 25
Section 3.1 Letters of Credit....................................... 25
Section 3.2 Procedure for Issuing Letters of Credit................. 26
Section 3.3 Presentment and Reimbursement........................... 26
Section 3.4 Payment................................................. 27
Section 3.5 Letter of Credit Fee.................................... 27
Section 3.6 Obligations Absolute.................................... 27
Section 3.7 Limitation of Liability................................. 28
ARTICLE IV Payments................................................ 29
Section 4.1 Method of Payment....................................... 29
Section 4.2 Voluntary Prepayment.................................... 29
Section 4.3 Mandatory Prepayments................................... 29
Section 4.4 Pro Rata Treatment...................................... 30
Section 4.5 Non-Receipt of Funds by the Agent....................... 31
Section 4.6 Taxes................................................... 32
Section 4.7 Mitigation Obligations; Replacement of Lenders.......... 34
Section 4.8 Computation of Interest................................. 34
Section 4.9 Proceeds of Collateral and Collections under the
Guaranty................................................ 35
ARTICLE V Yield Protection........................................ 36
Section 5.1 Increased Costs......................................... 36
Section 5.2 Limitation on Types of Advances......................... 37
Section 5.3 Illegality.............................................. 38
Section 5.4 Treatment of Affected Advances.......................... 38
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TABLE OF CONTENTS
(CONTINUED)
Page
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Section 5.5 Compensation............................................ 39
Section 5.6 Additional Costs in Respect of Letters of Credit........ 39
ARTICLE VI Conditions Precedent.................................... 39
Section 6.1 Initial Extension of Credit............................. 39
Section 6.2 All Extensions of Credit................................ 41
ARTICLE VII Representations and Warranties.......................... 41
Section 7.1 Existence............................................... 41
Section 7.2 Financial Statements.................................... 41
Section 7.3 Action; No Breach....................................... 42
Section 7.4 Operation of Business................................... 42
Section 7.5 Litigation and Judgments................................ 42
Section 7.6 Rights in Properties; Liens............................. 42
Section 7.7 Enforceability.......................................... 43
Section 7.8 Approvals............................................... 43
Section 7.9 Debt.................................................... 43
Section 7.10 Taxes................................................... 43
Section 7.11 Use of Proceeds; Margin Securities...................... 43
Section 7.12 ERISA................................................... 43
Section 7.13 Disclosure.............................................. 44
Section 7.14 Subsidiaries............................................ 44
Section 7.15 Agreements.............................................. 44
Section 7.16 Compliance with Laws.................................... 44
Section 7.17 Investment Company Act.................................. 44
Section 7.18 Public Utility Holding Company Act...................... 44
Section 7.19 Environmental Matters................................... 45
ARTICLE VIII Positive Covenants...................................... 46
Section 8.1 Reporting Requirements.................................. 46
Section 8.2 Maintenance of Existence; Conduct of Business........... 48
Section 8.3 Maintenance of Properties............................... 48
Section 8.4 Taxes and Claims........................................ 48
Section 8.5 Insurance............................................... 48
Section 8.6 Inspection Rights; Audits............................... 48
Section 8.7 Keeping Books and Records............................... 48
Section 8.8 Compliance with Laws.................................... 49
Section 8.9 Compliance with Agreements.............................. 49
Section 8.10 Further Assurances...................................... 49
Section 8.11 ERISA................................................... 50
Section 8.12 Landlord's Waivers or Subordinations.................... 50
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TABLE OF CONTENTS
(CONTINUED)
Page
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ARTICLE IX Negative Covenants...................................... 50
Section 9.1 Debt.................................................... 50
Section 9.2 Limitation on Liens..................................... 51
Section 9.3 Mergers, Etc............................................ 52
Section 9.4 Restricted Payments..................................... 52
Section 9.5 Investments............................................. 53
Section 9.6 Limitation on Issuance of Capital Stock................. 53
Section 9.7 Transactions With Affiliates............................ 53
Section 9.8 Disposition of Assets................................... 54
Section 9.9 Nature of Business...................................... 54
Section 9.10 Environmental Protection................................ 54
Section 9.11 Accounting.............................................. 55
Section 9.12 Prepayment of Debt...................................... 55
Section 9.13 Pay-Day Advance Loans................................... 55
ARTICLE X Financial Covenants..................................... 55
Section 10.1 Consolidated Net Worth.................................. 55
Section 10.2 Senior Leverage Ratio................................... 55
Section 10.3 Total Leverage Ratio.................................... 55
Section 10.4 Fixed Charge Coverage Ratio............................. 55
ARTICLE XI Default................................................. 56
Section 11.1 Events of Default....................................... 56
Section 11.2 Remedies................................................ 58
Section 11.3 Performance by the Agent................................ 59
ARTICLE XII The Agent............................................... 59
Section 12.1 Appointment and Authority............................... 59
Section 12.2 Rights as a Lender...................................... 59
Section 12.3 Exculpatory Provisions.................................. 60
Section 12.4 Reliance by Agent....................................... 60
Section 12.5 Delegation of Duties.................................... 61
Section 12.6 Resignation of Agent.................................... 61
Section 12.7 Non-Reliance on Agent and Other Lenders................. 61
Section 12.8 Sharing of Payments, Etc................................ 62
Section 12.9 Indemnification......................................... 62
Section 12.10 Several Commitments..................................... 63
Section 12.11 Agent May File Proofs of Claim.......................... 63
Section 12.12 Collateral and Guaranty Matters......................... 64
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TABLE OF CONTENTS
(CONTINUED)
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ARTICLE XIII Miscellaneous........................................... 64
Section 13.1 Expenses; Indemnity; Damage Waiver...................... 64
Section 13.2 Limitation of Liability................................. 66
Section 13.3 No Duty................................................. 66
Section 13.4 No Fiduciary Relationship............................... 66
Section 13.5 Equitable Relief........................................ 66
Section 13.6 No Waiver; Cumulative Remedies.......................... 67
Section 13.7 Successors and Assigns.................................. 67
Section 13.8 Survival................................................ 70
Section 13.9 Amendments, Etc......................................... 70
Section 13.10 Maximum Interest Rate................................... 71
Section 13.11 Notices................................................. 71
Section 13.12 Governing Law; Venue; Service of Process................ 73
Section 13.13 Binding Arbitration..................................... 74
Section 13.14 Counterparts............................................ 76
Section 13.15 Severability............................................ 76
Section 13.16 Headings................................................ 76
Section 13.17 Construction............................................ 76
Section 13.18 Independence of Covenants............................... 76
Section 13.19 Treatment of Certain Information; Confidentiality....... 76
Section 13.20 USA Patriot Act Notice.................................. 77
Section 13.21 WAIVER OF JURY TRIAL.................................... 77
Section 13.22 ENTIRE AGREEMENT........................................ 78
Section 13.23 Amendment and Restatement............................... 78
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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A Form of Revolving Credit Note
B Form of Swing Note
C Advance Request Form
D Letter of Credit Request Form
E Form of Assignment and Assumption
INDEX TO SCHEDULES
Schedule Description of Schedule
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1.1(a) Commitments
1.1(c) Pay-Day Advance Loan Documents
1.1(d) Real Property
7.14 List of Subsidiaries
9.1 Existing Debt
9.2 Existing Liens
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (the "Agreement"), dated
as of October 13, 2006, is among EZCORP, INC., a Delaware corporation (the
"Borrower"), each of the banks or other lending institutions which is or which
may from time to time become a signatory hereto or any successor or assignee
thereof (individually, a "Lender" and, collectively, the "Lenders"), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as agent for
itself and the other Lenders (in such capacity, together with its successors in
such capacity, the "Agent") and as the Issuing Bank (hereinafter defined).
RECITALS
A. The Borrower, the Agent, the Issuing Bank and certain banks or other
lending institutions party thereto have entered into that certain Third Amended
and Restated Credit Agreement dated as of April 8, 2004, as amended through the
date hereof (as amended, the "Existing Credit Agreement").
B. The Borrower has requested and the Agent, the Issuing Bank and the
Lenders have agreed to restructure the existing revolving credit facility,
standby letter of credit subfacility and swing-line subfacility, and to amend
and modify the Existing Credit Agreement upon the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"AAA" is defined in Section 13.13(b).
"Accumulated Other Comprehensive Income" means, at any particular
time, the amount shown in the equity section of the Borrower's
consolidated balance sheet.
"Act" is defined in Section 13.20.
"Adjusted Eurodollar Rate" means, for any Eurodollar Advance for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined by the Agent to be
equal to the Eurodollar Rate for such Eurodollar Advance for such
Interest Period.
"Adjustment Date" is defined in Section 2.10.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Agent.
"Advance" means an advance of funds by the Lenders or any of them
to the Borrower pursuant to Article II (inclusive of the Revolving
Credit Loan and the Swing Loan) and the Continuation or Conversion
thereof pursuant to Section 2.6 and Article V hereof.
"Advance Request Form" means a certificate, in substantially the
form of Exhibit C hereto, properly completed and signed by the
Borrower requesting an Advance.
"Affiliate" means, as to any Person, any other Person (a) that
directly or indirectly, through one or more intermediaries, controls
or is controlled by, or is under common control with, such Person; (b)
that directly or indirectly beneficially owns or holds 5% or more of
any class of voting stock of such Person; or (c) 5% or more of the
voting stock of which is directly or indirectly beneficially owned or
held by the Person in question. The term "control" means the
possession, directly or indirectly, of the power to direct or cause
direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, or otherwise;
provided, however, in no event shall the Agent or any Lender be deemed
an Affiliate of the Borrower or any of its Subsidiaries.
"Agent" has the meaning set forth in the introductory paragraph
of this Agreement.
"Agreement" has the meaning set forth in the introductory
paragraph of this Agreement, as the same may from time to time be
amended, restated, supplemented or modified.
"Applicable Lending Office" means for each Lender and each Type
of Advance, the lending office of such Lender (or of an Affiliate of
such Lender) designated for such Type of Advance below its name on the
signature pages hereof or such other office of such Lender (or of an
Affiliate of such Lender) as such Lender may from time to time specify
to the Borrower and the Agent as the office by which its Advances of
such Type are to be made and maintained.
"Applicable Percentage" means with respect to any Lender, the
percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
"Applicable Rate" means: (a) during the period that an Advance is
a Base Rate Advance, the Base Rate, plus the Base Rate Margin, and (b)
during the period that an Advance is a Eurodollar Advance, the
Adjusted Eurodollar Rate, plus the Eurodollar Margin.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of
any party whose consent is
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required by Section 13.7) and accepted by the Agent pursuant to
Section 13.7, in substantially the form of Exhibit E hereto or any
other form approved by the Agent.
"Average Inventory" means Inventory calculated by dividing the
total of all ending Inventory for each month for the most recent 13
months by 13.
"Base Rate" means as of any date of determination, a rate per
annum equal to the greater of (a) the Prime Rate in effect on such
day, or (b) the sum of the Federal Funds Rate in effect on such day
plus 0.5%. Any change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate,
respectively, without notice to the Borrower.
"Base Rate Advances" means Advances that bear interest at rates
based upon the Base Rate.
"Base Rate Margin" means 0.00% per annum.
"Borrower" is defined in the introductory paragraph of this
Agreement.
"Borrower Security Agreement" means that certain Third Amended
and Restated Borrower Security Agreement dated as of the date hereof,
executed by the Borrower in favor of the Agent for the benefit of the
Lenders, in form and substance satisfactory to the Agent and Lenders,
as the same may be amended, restated, supplemented, or modified from
time to time.
"Xxxxx Law" means the Xxxxx Handgun Violence Prevention Act
Section 102(s)(1), 18 U.S.C.A. Section 922(s)(1) (West Supp. 2003).
"Business Day" means (a) any day on which commercial banks are
not authorized or required to close in Austin, Texas and (b) with
respect to all borrowings, payments, Conversions, Continuations,
Interest Periods, and notices in connection with Eurodollar Advances,
any day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Capital Expenditures" means, for any period, all expenditures of
the Borrower and its Subsidiaries which are classified as additions to
property, plant and equipment on the consolidated statement of cash
flows of the Borrower in accordance with GAAP, including all such
expenditures so classified as "recurring capital expenditures" and all
such expenditures associated with Capital Lease Obligations, but
excluding all such expenditures used to acquire fixed assets from a
Target in connection with a Permitted Acquisition.
"Capital Lease Obligation" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease
of (or other agreement conveying the right to use) real and/or
personal property, which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person
under GAAP. For purposes of this Agreement, the amount of such Capital
Lease Obligations shall be the capitalized amount thereof, determined
in accordance with GAAP.
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"Cash Equivalent Investment" means, as to any Person, (a)
securities issued or directly and fully guaranteed or insured by the
United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than six months from the date
of acquisition, (b) time deposits and certificates of deposit of any
commercial bank having, or which is the principal banking subsidiary
of a bank holding company having, a long-term unsecured debt rating of
at least "AAA" or the equivalent thereof from Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc. or "Aaa" or the equivalent
thereof from Xxxxx'x Investors Service, Inc. with maturities of not
more than six months from the date of acquisition by such Person, (c)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (a) above
entered into with any bank meeting the qualifications specified in
clause (b) above, (d) commercial paper issued by any Person
incorporated in the United States rated at least A-1 or the equivalent
thereof by Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. or at least P-1 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and in each case maturing not more than six months after
the date of acquisition by such Person and (e) investments in money
market funds substantially all of whose assets are comprised of
securities of the types described in clauses (a) through (d) above.
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect
of any law, rule, regulation (including Regulation D) or treaty, (b)
any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"Code" means the Internal Revenue Code of 1986, as amended, and
the regulations promulgated and rulings and decisions issued
thereunder.
"Collateral" means the property in which Liens have been granted
to the Agent for the benefit of the Lenders pursuant to the Borrower
Security Agreement, the Subsidiary Security Agreement, the Real
Property Security Documents, or any other agreement, document, or
instrument executed by the Borrower or a Guarantor in accordance with
Section 8.10, whether such Liens are now existing or hereafter arise.
"Commitment" means, as to each Lender, the obligation of such
Lender to purchase participations (or with respect to the Swing Lender
or the Issuing Bank, hold other interests in) the Swing Loan and in
Letters of Credit as described in Articles II and III hereunder, and
the Revolving Credit Commitment.
"Commitment Fee" is defined in Section 2.9.
"Commitment Fee Rate" has the meaning set forth in Section 2.10.
"Communications" is defined in Section 13.11(b)(iii).
"Compliance Certificate" is defined in Section 8.1(c).
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"Consolidated Net Income" means, at any particular time, the
aggregate net income or loss of the Borrower and its consolidated
Subsidiaries determined on a consolidated basis as determined in
accordance with GAAP.
"Consolidated Net Worth" means, at any particular time, all
amounts which, in conformity with GAAP, would be included as
stockholders' equity on a consolidated balance sheet of the Borrower
and the Subsidiaries; provided, however, there shall be excluded
therefrom (a) any amount at which shares of capital stock of the
Borrower appear as an asset on the Borrower's balance sheet, and (b)
the Accumulated Other Comprehensive Income.
"Consumer Obligations" is defined in Section 9.8(c).
"Continue," "Continuation," and "Continued" shall refer to the
continuation pursuant to Section 2.6 of a Eurodollar Advance as a
Eurodollar Advance from one Interest Period to the next Interest
Period.
"Contribution and Indemnification Agreement" means that certain
Third Amended and Restated Contribution and Indemnification Agreement
dated as of the date hereof executed by the Borrower and the
Guarantors, in form and substance satisfactory to the Agent and the
Lenders, as the same may be amended, restated, supplemented or
modified from time to time.
"Convert," "Conversion," and "Converted" shall refer to a
conversion pursuant to Section 2.6 or Article V of one Type of Advance
into another Type of Advance.
"CSO LC Issuer" means, with respect to any CSO LC, the Borrower
or a Guarantor that issued such CSO LC.
"CSO LC" means, any letter of credit issued by a CSO LC Issuer to
an unaffiliated third party lender for the account of a borrower of a
consumer loan in connection with the CSO Program.
"CSO LC Disbursement" means a disbursement by a CSO LC Issuer to
an unaffiliated third party lender in connection with a drawing under
a CSO LC.
"CSO LC Liabilities" means, at any time, the sum of that portion
of the aggregate amounts available to be drawn of all outstanding CSO
LCs equal to the principal amounts of the consumer notes supported by
such CSO LCs.
"CSO Program" means the credit services organization program
implemented by the Borrower or any Guarantor in compliance with
applicable provisions of law, including without limitation in those
instances where Texas law is applicable, the Texas Finance Code and
Sections 302 and 393 thereof.
"Debt" means as to any Person at any time (without duplication):
(a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, notes, debentures, or
other similar instruments, (c) all obligations of such Person to pay
the deferred purchase price of property or services, except trade
5
accounts payable of such Person arising in the ordinary course of
business that are not past due by more than 90 days, (d) all Capital
Lease Obligations of such Person, (e) all Debt or other obligations of
others Guaranteed by such Person, (f) all obligations secured by a
Lien existing on property owned by such Person, whether or not the
obligations secured thereby have been assumed by such Person or are
non-recourse to the credit of such Person, (g) all reimbursement
obligations of such Person (whether contingent or otherwise) in
respect of letters of credit, bankers' acceptances, surety or other
bonds and similar instruments, and (h) all liabilities of such Person
in respect of unfunded vested benefits under any Plan.
"Default" means an Event of Default or the occurrence of an event
or condition which with notice or lapse of time or both would become
an Event of Default.
"Default Rate" means the lesser of (a) the Maximum Rate or, (b)
the sum of the Base Rate in effect from day to day plus 5% per annum.
"Deposit and Cash Management Services" means the deposit and/or
cash management products and services provided by a Lender in
connection with any deposit or other accounts of the Borrower or any
of its Subsidiaries, including without limitation, the extensions of
credit made by a Lender to or for the account of the Borrower or any
of its Subsidiaries in the ordinary course of business in connection
therewith.
"Disposition" is defined in Section 9.8.
"Dollars" and "$" mean lawful money of the United States of
America.
"EBITDA" means, for any period of determination, Consolidated Net
Income, plus, to the extent that any of the following were deducted in
calculating such Consolidated Net Income, interest expense, tax
expenses, and depreciation and amortization. EBITDA will exclude all
extraordinary items of income and loss and any gain or loss on the
sale of assets. In the event a Permitted Acquisition shall have been
consummated prior to the end of the period for which EBITDA is
calculated, but during the period covered by the calculation, the
Borrower shall include the historical EBITDA (as calculated in
accordance with this definition) of the Target in connection with a
Permitted Acquisition for the time period covered by the calculation.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a
Lender, (c) an Approved Fund, and (d) any other Person (other than a
natural person) approved by the Agent, and, unless a Default has
occurred and is continuing at the time any assignment is effected, in
accordance with Section 13.7, the Borrower, such approval not to be
unreasonably withheld or delayed by the Borrower; provided, however,
that neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Environmental Laws" means any and all federal, state, and local
laws, regulations, and requirements pertaining to health, safety, or
the environment, as such laws, regulations, and requirements may be
amended or supplemented from time to time.
"Environmental Liabilities" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses,
damages, punitive damages, consequential
6
damages, treble damages, costs, and expenses, (including, without
limitation, all reasonable fees, disbursements and expenses of
counsel, expert and consulting fees and costs of investigation and
feasibility studies), fines, penalties, sanctions, and interest
incurred as a result of any claim or demand, by any Person, whether
based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute, including any Environmental Law,
permit, order or agreement with any Governmental Authority or other
Person, arising from environmental, health or safety conditions or the
Release or threatened Release of a Hazardous Material into the
environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and published
interpretations thereunder.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as the Borrower, which is
under common control (within the meaning of Section 414(c) of the
Code) with the Borrower, or which is otherwise affiliated with the
Borrower (within the meaning of Section 414(m) or Section 414(o) of
the Code).
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time
"Eurodollar Advances" means Advances the interest rates on which
are determined on the basis of the rates referred to in the definition
of "Adjusted Eurodollar Rate" in this Section 1.1.
"Eurodollar Margin" is defined in Section 2.10.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Loans, an interest rate per annum equal to the rate per
annum obtained by dividing (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period for a period equal to
such Interest Period (provided that, if for any reason such rate is
not available, the term "Eurodollar Rate" shall mean, for any Interest
Period for all Eurodollar Advances, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates) by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. Each determination by the Agent pursuant to
this definition shall be conclusive absent manifest error.
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Loans means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
7
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurodollar Loans is determined) having a term equal to such Interest
Period.
"Event of Default" is defined in Section 11.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Excluded Foreign Subsidiary" means any Subsidiary of the
Borrower organized under the laws of any jurisdiction outside the
United States in respect of which either (a) the pledge of all the
ownership or equity interest of such Subsidiary as Collateral, (b) the
pledge by such Subsidiary of all of its assets as Collateral or (c)
the guarantee by such Subsidiary of the Obligations, would, in the
good faith judgment of the Borrower and acceptable to the Agent,
result in adverse tax consequences to the Borrower.
"Excluded Taxes" means, with respect to the Agent, any Lender,
the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by
any other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request
by the Borrower under Section 4.7), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new lending
office) or is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to comply with
Section 4.6(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section
4.6(a).
"Existing Credit Agreement" is defined in the recitals of this
Agreement.
"Existing Debt" means the Debt listed on Schedule 9.1.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/16 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 of New York on the Business Day next succeeding such day,
provided that (a) if the day for which such rate is to be determined
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 such rate
is not so published on such next succeeding Business Day, the Federal
Funds Rate for any day
8
shall be the average rate charged to Xxxxx Fargo Bank, National
Association on such day on such transactions as determined by the
Agent.
"Fiscal Quarter" means any three-month period ending December 31,
March 31, June 30, or September 30.
"Fiscal Year" means each 12-month period ending September 30 of
each year.
"Fixed Charge Coverage Ratio" means, for each Fiscal Quarter, the
quotient determined by dividing (a) the sum of EBITDA, plus Rental
Expense, minus Capital Expenditures, minus dividends paid in cash by
the Borrower, minus taxes paid in cash by the Borrower and its
consolidated Subsidiaries, in each case for the period of such Fiscal
Quarter, plus the three prior Fiscal Quarters, by (b) the sum of the
aggregate interest expense, the current portion of long-term Debt
(excluding the current portion of the outstanding balance under the
Revolving Credit Commitments) and Rental Expense of the Borrower and
its consolidated Subsidiaries, in each case for the period of such
Fiscal Quarter plus the three prior Fiscal Quarters.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
resident for tax purposes. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course of its business.
"Funded Debt" means, at any particular time, the sum of the
following, calculated on a consolidated basis for the Borrower and the
Subsidiaries in accordance with GAAP: (a) all obligations for borrowed
money, including but not limited to senior bank debt, senior notes and
subordinated debt, (b) all obligations relating to the deferred
purchase price of property and services, (c) all Capital Lease
Obligations, (d) all obligations as a reimbursement obligor with
respect to an issued letter of credit or similar instrument (whether
drawn or undrawn), (e) all CSO LC Liabilities of a CSO LC Issuer, and
(f) all obligations under a Guarantee of borrowed money, or any other
type of direct or contingent obligation other than Guarantees
permitted under Section 9.1(g).
"GAAP" means generally accepted accounting principles, applied on
a consistent basis, as set forth in Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and/or in statements of the Financial Accounting Standards
Board and/or their respective successors and which are applicable in
the circumstances as of the date in question. Accounting principles
are applied on a "consistent basis" when the accounting principles
applied in a current period are comparable in all material respects to
those accounting principles applied in a preceding period.
"Governmental Authority" means the government of the United
States of America or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
9
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or the
European Central Bank).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for the purpose
of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect the obligee against
loss in respect thereof (in whole or in part), provided that the term
Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"Guarantor" means collectively, (a) each and every domestic
Subsidiary of the Borrower in existence as of the date hereof which
include but are not limited to those Subsidiaries listed on Schedule
7.14 and (b) each and every Significant Subsidiary formed or acquired
on or after the date hereof (which are listed on Schedule 7.14 as the
same may be amended from time to time in accordance with Section 8.10)
that executes a supplement to the Guaranty in accordance with Section
8.10.
"Guaranty" means that certain Third Amended and Restated Guaranty
Agreement dated as of the date hereof, executed by the Guarantors in
favor of the Agent and the Lenders, in form and substance satisfactory
to the Agent and the Lenders, as the same has been or may be amended,
restated, supplemented, or otherwise modified from time to time.
"Hazardous Material" means any substance, product, waste,
pollutant, material, chemical, contaminant, constituent, or other
material which is or becomes listed, regulated, or addressed under any
Environmental Law.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" is defined in Section 13.1(b).
"Information" is defined in Section 13.19.
"Interest Period" means the period commencing, with respect to
any Eurodollar Advances, on the date such Eurodollar Advances are made
or Converted from Advances of another Type or, in the case of each
subsequent, successive Interest Period applicable to a Eurodollar
Advance, the last day of the next preceding Interest Period with
respect to such Advance, and ending on the numerically corresponding
day in the first, second, third or sixth calendar month thereafter, as
the Borrower may select as provided in Section 2.5 or 2.6 hereof,
except that each such Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last
10
Business Day of the first, second, third or sixth calendar month
thereafter, as the case may be. Notwithstanding the foregoing: (a)
each Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day or, if such
succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day; (b) any Interest Period for
Eurodollar Advances under the Revolving Credit Loan which would
otherwise extend beyond the Termination Date shall end on the
Termination Date and the provisions of Section 5.5 shall apply; and
(c) no Interest Period for any Eurodollar Advances shall have a
duration of less than one month, and, if the Interest Period for any
Eurodollar Advances would otherwise be a shorter period, such Advances
shall not be available hereunder.
"Inventory" means at any particular time, inventory (as defined
in the UCC) of the Borrower or any of the Subsidiaries including,
without limitation, all materials and goods held by or for the benefit
of the Borrower or any of the Subsidiaries for sale, lease or
consumption.
"Issuing Bank" means, with respect to any Letter of Credit, Xxxxx
Fargo Bank, National Association.
"LC Participation" means, with respect to any Lender, at any
time, the amount of participating interest held by such Lender (or in
the case of the Issuing Bank, other interests) in respect of a Letter
of Credit.
"Leased Location" means any location which is leased by the
Borrower or any Subsidiary and at which the Borrower or the applicable
Subsidiary maintains Collateral.
"Lender" is defined in the introductory paragraph of this
Agreement.
"Letter of Credit" means, any standby letter of credit issued by
the Issuing Bank for the account of the Borrower pursuant to Article
III.
"Letter of Credit Disbursement" means a disbursement by the
Issuing Bank to the beneficiary of a Letter of Credit in connection
with a drawing thereunder.
"Letter of Credit Liabilities" means, at any time, the sum of (a)
the aggregate amounts available to be drawn of all outstanding Letters
of Credits and (b) the aggregate amount of all Letter of Credit
Disbursements for which the Issuing Bank has not been reimbursed by
the Borrower.
"Letter of Credit Request Form" means, a certificate, in
substantially the form of Exhibit D hereto, properly completed and
signed by the Borrower requesting issuance of a Letter of Credit.
"Lien" means any lien, mortgage, security interest, tax lien,
financing statement, pledge, charge, hypothecation, assignment,
preference, priority, or other encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or
title retention agreement), whether arising by contract, operation of
law, or otherwise.
11
"Litigation Fund Account" means a litigation fund account
established and maintained by the Borrower or any Subsidiary to secure
the Borrower's and/or its Subsidiaries' obligations to be incurred
with County Bank of Rehoboth Beach, Delaware in connection with
Pay-Day Advance Loans, such obligations to be established and governed
by the Pay-Day Advance Loan Documents.
"Loan Documents" means this Agreement, the Notes, the Guaranty,
the Contribution and Indemnification Agreement, the Borrower Security
Agreement, the Subsidiary Security Agreement, the Real Property
Security Documents and all other promissory notes, security
agreements, assignments, deeds of trust, guaranties, and other
instruments, documents, and agreements now or hereafter executed and
delivered pursuant to or in connection with this Agreement, as such
instruments, documents, and agreements may be amended, modified,
renewed, extended, or supplemented from time to time.
"Loans" means, collectively, the Revolving Credit Loan and the
Swing Loan.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
prospects, or properties of the Borrower and the Subsidiaries taken as
a whole, or (b) the validity or enforceability of this Agreement or
any of the other Loan Documents or the rights or remedies of the Agent
or the Lenders hereunder or thereunder. In determining whether any
individual event could reasonably be expected to result in a Material
Adverse Effect, notwithstanding that such event does not itself have
such effect, a Material Adverse Effect shall be deemed to have
occurred if the cumulative effect of such event and all other then
existing events could reasonably be expected to result in a Material
Adverse Effect.
"Material Debt" is defined in Section 11.1(h).
"Maximum Rate" means, at any time and with respect to any Lender,
the maximum rate of interest under applicable law that such Lender may
charge the Borrower. The Maximum Rate shall be calculated in a manner
that takes into account any and all fees, payments, and other charges
in respect of the Loan Documents that constitute interest under
applicable law. Each change in any interest rate provided for herein
based upon the Maximum Rate resulting from a change in the Maximum
Rate shall take effect without notice to the Borrower at the time of
such change in the Maximum Rate. For purposes of determining the
Maximum Rate under Texas law, the applicable rate ceiling shall be the
applicable weekly ceiling described in, and computed in accordance
with, Chapter 303 of the Texas Finance Code.
"Monthly Payment Date" means the third day of each calendar month
of each year, the first of which shall be October 3, 2006.
"Multiemployer Plan" means a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and which is covered by Title IV of
ERISA.
"Net Proceeds" from any issuance, sale or disposition of any
shares of equity securities (or any securities convertible or
exchangeable for any such shares, or any
12
rights, warrants, or options to subscribe for or purchase any such
shares) means the amount equal to (a) the aggregate gross proceeds of
such issuance, sale or other disposition, less (b) the following: (i)
placement agent fees, (ii) underwriting discounts and commissions,
(iii) bank and other lender fees, and (iv) reasonable legal fees and
other reasonable expenses payable by the issuer in connection with
such issuance, sale or other disposition. "Net Proceeds" from any
disposition of assets means the amount equal to (a) the aggregate
gross proceeds of such disposition, less (b) the following: (i) sales
or other similar taxes paid or payable by the seller in connection
with such disposition, (ii) reasonable broker fees in connection with
such disposition, (iii) reasonable legal fees and other reasonable
expenses payable by the seller in connection with such disposition and
(iv) the amount of any Debt secured by the assets that must be repaid
in connection with such disposition so long as it is a Debt permitted
under this Agreement.
"Notes" means, collectively, the Revolving Credit Notes and the
Swing Note.
"Obligated Party" means each Guarantor and any other Person who
is or becomes party to any written agreement that guarantees or
secures payment and performance of the Obligations or any part
thereof.
"Obligations" means, collectively, the Primary Obligations and
the Secondary Obligations.
"Other Taxes" means all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or under any other Loan
Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"Participant" has the meaning assigned to such term in Section
13.7(d).
"Pay-Day Advance Loan Documents" means the documents, instruments
and agreements which are acceptable to the Agent and the Lenders and
are more specifically described on Schedule 1.1(c) attached hereto,
and all amendments, modifications, renewals, extensions, restatements
and supplements thereto, copies of which have been provided to the
Agent and the Lenders and are satisfactory in form and substance to
the Agent and the Lenders; provided that if such amendments,
modifications, renewals, extensions, restatements and supplements are
non-substantive from the perspective of the economics of the
transactions evidenced by such documents, instruments and agreements
described on Schedule 1.1(c), prior approval by the Agent and the
Lenders is not required.
"Pay-Day Advance Loans" means loans which are anticipated to be
repaid by the proceeds of deferred presentment checks or through an
ACH debit from the account of the borrower of the Pay-Day Advance
Loan.
"Pay-Day Only Store" means any location of the Borrower or any of
its Subsidiaries where the only business conducted at such location is
the origination and/or processing of Pay-Day Advance Loans and/or
other unsecured consumer loans (including without limitation, the
processing of Pay-Day Advance Loans and/or other unsecured
13
consumer loans originated by a Person other than the Borrower or any
Subsidiary) and other services incident to the foregoing.
"Payment Office" means the operational office of the Agent in
Denver, Colorado, presently located at 0000 Xxxxxxxx, 0xx Xxxxx, XXX
#X0000-000, Xxxxxx, Xxxxxxxx 00000.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to all or any of its functions under ERISA.
"Permitted Acquisitions" means those acquisitions by the Borrower
or any of its Subsidiaries of all or substantially all of either the
assets of, or equity interests in, a Person (such Person hereinafter
referred to as the "Target") so long as (a) the purchase price
(whether in cash or other consideration) of such acquisition shall not
exceed an amount equal to 15% of the Borrower's Consolidated Net Worth
as of the closing date of such acquisition, (b) such acquisitions
shall be of either the assets of a Target used in, or equity interests
in a Target engaged in, the same or substantially similar businesses
as the Borrower and its Subsidiaries as of the date hereof, (c) such
acquisitions must not be hostile acquisitions, (d) no Default or Event
of Default has occurred and is continuing or would result therefrom,
(e) the Borrower has furnished to the Agent a Compliance Certificate
setting forth (i) recalculations of compliance with the covenants
contained in Article X for the prior four Fiscal Quarters then most
recently ended prior to the date of such Permitted Acquisition, on a
pro forma basis as if such Permitted Acquisition had occurred on the
first day of such period, and such recalculations shall show that such
covenants would have been complied with if the Permitted Acquisition
had occurred on the first day of such period and (ii) the Borrower in
good faith believes that after giving effect to such Permitted
Acquisition the covenants contained in Article X will continue to be
met for the one year period following the consummation of such
Permitted Acquisition, (f) after giving effect to such Permitted
Acquisition, the aggregate amount of Revolving Credit Loan Advances
available to be advanced pursuant to Section 2.1 shall be at least
$10,000,000, and (g) the Agent shall have received from the Borrower
notice of such Permitted Acquisition at least 30 days prior to the
closing of such Permitted Acquisition.
"Permitted Debt" means (a) the Obligations, (b) Existing Debt and
(c) other Debt permitted by Section 9.1.
"Permitted Liens" means Liens permitted by Section 9.2.
"Permitted Payments" means those dividends or other payments or
distributions on account of its capital stock or made to redeem,
purchase, retire, or otherwise acquire any of its capital stock (or
the purchase or acquisition by any Subsidiary of any capital stock of
the Borrower or another Subsidiary), so long as (a) the aggregate
amount of such dividend, payment or distribution shall not exceed an
amount equal to 15% of the Borrower's Consolidated Net Worth as of the
date of such Permitted Payment, (b) no Default or Event of Default has
occurred and is continuing or would result therefrom, (c) the Borrower
has furnished to the Agent a Compliance Certificate setting forth (i)
recalculations of compliance with the covenants contained in Article X
for the prior four Fiscal Quarters then most recently ended prior to
the date of such Permitted
14
Payment, on a pro forma basis as if such Permitted Payment had
occurred on the first day of such period, and such recalculations
shall show that such covenants would have been complied with if the
Permitted Payment had occurred on the first day of such period and
(ii) the Borrower in good faith believes that after giving effect to
such Permitted Payment the covenants contained in Article X will
continue to be met for the one year period following the consummation
of such Permitted Payment, and (d) after giving effect to such
Permitted Payment, the aggregate amount of Revolving Credit Loan
Advances available to be advanced pursuant to Section 2.1 shall be at
least $10,000,000.
"Person" means any individual, corporation, business trust,
association, company, partnership, joint venture, Governmental
Authority, or other entity.
"Plan" means any employee benefit plan (within the meaning of
Section 3(3) of ERISA) established or maintained by the Borrower or
any ERISA Affiliate, which plan is subject to the provisions of ERISA.
"Platform" is defined in Section 13.11(b)(iii).
"Primary Obligations" means all obligations, indebtedness, and
liabilities of the Borrower to the Agent, the Issuing Bank, and the
Lenders, or any of them, arising pursuant to any of the Loan
Documents, now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, including, without
limitation, the obligations, indebtedness, and liabilities of the
Borrower under this Agreement, the Notes and the other Loan Documents
(including without limitation, all of the Borrower's contingent
reimbursement obligations in respect of Letters of Credit), and all
interest accruing thereon and all attorneys' fees and other expenses
incurred in the enforcement or collection thereof.
"Prime Rate" means, at any time, the rate of interest per annum
then most recently announced by Xxxxx Fargo Bank, National Association
at its principal office in San Francisco as its prime rate, which rate
may not be the lowest rate of interest charged by Xxxxx Fargo Bank,
National Association to its borrowers. Each change in any interest
rate provided for herein based upon the Prime Rate resulting from a
change in the Prime Rate shall take effect on the date the change is
announced by Xxxxx Fargo Bank, National Association without notice to
the Borrower at the time of such change in the Prime Rate.
"Principal Office" means the principal office of the Agent in
Austin, Texas, presently located at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000.
"Prohibited Transaction" means any transaction set forth in
Section 406 or 407 of ERISA or Section 4975(c)(1) of the Code for
which there does not exist a statutory or administrative exemption.
"Quarterly Payment Date" means the third day of each January,
April, July and October of each year, the first of which shall be
October 3, 2006.
"Real Property" means the fee owned real property and interests
in fee owned real property of the Borrower and the Subsidiaries,
including without limitation, that fee owned real property identified
on Schedule 1.1(d) attached hereto, and all improvements
15
and fixtures thereon and all appurtenances thereto, whether now
existing or hereinafter arising.
"Real Property Security Documents" means all deeds of trust,
mortgages and other instruments, documents and agreements executed and
delivered by the Borrower or any Guarantor in favor of the Agent for
the benefit of the Lenders, which creates a Lien on such Person's
interests in the Real Property, as the same may be amended,
supplemented or modified.
"Register" is defined in Section 13.7(c).
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented
from time to time.
"Related Parties" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers, employees,
agents and advisors of such Person and of such Person's Affiliates.
"Release" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, disbursement,
leaching, or migration of Hazardous Materials into the indoor or
outdoor environment or into or out of property owned by such Person,
including, without limitation, the movement of Hazardous Materials
through or in the air, soil, surface water, ground water, or property
in violation of Environmental Laws.
"Remedial Action" means all actions required to (a) clean up,
remove, treat, or otherwise address Hazardous Materials in the indoor
or outdoor environment, (b) prevent the Release or threat of Release
or minimize the further Release of Hazardous Materials so that they do
not migrate or endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment, or (c) perform
pre-remedial studies and investigations and post-remedial monitoring
and care.
"Rental Expense" means the amounts paid by the Borrower and each
Subsidiary to lease facilities for business operations.
"Reportable Event" means any of the events set forth in Section
4043 of ERISA.
"Required Lenders" means at any time while no Advances or Letters
of Credit Liabilities are outstanding, two or more Lenders having at
least 66 2/3% of the aggregate amount of the Commitments and, at any
time while Advances or Letter of Credit Liabilities are outstanding,
two or more Lenders holding at least 66 2/3% of the outstanding
aggregate principal amount of the Revolving Credit Advances, the LC
Participations, and the SL Participations.
"Reserve Requirement" means, for any Eurodollar Advance for any
Interest Period therefor, the average maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation
D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency
Liabilities" as such term is used in Regulation D. Without limiting
the effect of the foregoing, the
16
Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks by reason of any Change in Law against
(i) any category of liabilities which includes deposits by reference
to which the Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include
Eurodollar Advances.
"Revolving Credit Commitment" means, as to each Lender, the
obligation of such Lender to make the Revolving Credit Loan as
described in Article II hereunder in the principal amount up to but
not exceeding the amount set forth opposite the name of such Lender on
Schedule 1.1(a) hereto under the heading "Revolving Credit
Commitment", as the same may be reduced pursuant to Section 2.11 or
terminated pursuant to Section 2.11 or 11.2. As of the date hereof,
the aggregate amount of the Revolving Credit Commitments of all
Lenders equals $40,000,000.
"Revolving Credit Loan" means the revolving credit loan made or
to be made hereunder to Borrower pursuant to Section 2.1.
"Revolving Credit Loan Advance" means an Advance under the
Revolving Credit Loan.
"Revolving Credit Notes" means the promissory notes of the
Borrower payable to the order of the Lenders in the aggregate
principal amount of the Revolving Credit Loan, in substantially the
form of Exhibit A hereto, and all extensions, renewals, and
modifications thereof.
"Rules" is defined in Section 13.13(b).
"Secondary Obligations" means all obligations, indebtedness, and
liabilities of the Borrower to the Lenders or any of them, arising
pursuant to or in connection with the Deposit and Cash Management
Services, now existing or hereafter arising, whether direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated,
joint, several, or joint and several, including without limitation,
the obligations of the Borrower to pay all fees, costs and expenses
(including without limitation, reasonable attorneys' fees) provided
for in connection with the documentation governing the Deposit and
Cash Management Services.
"Senior Funded Debt" means, at any particular time, the sum of
the following, calculated on a consolidated basis for the Borrower and
the Subsidiaries in accordance with GAAP: (a) all obligations for
borrowed money, including but not limited to senior bank debt, senior
notes and subordinated debt, but excluding any subordinated debt
permitted by Section 9.1(e), (b) all obligations relating to the
deferred purchase price of property and services, (c) all Capital
Lease Obligations, (d) all obligations as a reimbursement obligor with
respect to an issued letter of credit or similar instrument (whether
drawn or undrawn), (e) all CSO LC Liabilities of a CSO LC Issuer, and
(f) all obligations under a Guarantee of borrowed money, or any other
type of direct or contingent obligations other than Guarantees
permitted under Section 9.1(g).
17
"Senior Leverage Ratio" means, as of any Fiscal Quarter end, the ratio
of (a) Senior Funded Debt to (b) EBITDA, in each case for such Fiscal
Quarter and the prior three Fiscal Quarters.
"Significant Subsidiary" means any direct or indirect Subsidiary of
the Borrower formed or acquired after the date hereof which either (a) has
assets with an aggregate book value of equal to or greater than $5,000,000,
(b) is designated by the Agent or the Required Lenders as a Significant
Subsidiary, or (c) owns equity interests in a foreign Significant
Subsidiary.
"SL Participation" means, with respect to any Lender, at any time, the
amount of participating interest held by such Lender (or in the case of the
Swing Lender, other interests) in respect of the Swing Loan.
"Subsidiary" means any corporation (or other entity) of which at least
a majority of the outstanding shares of stock (or other ownership
interests) having by the terms thereof ordinary voting power to elect a
majority of the board of directors (or similar governing body) of such
corporation (or other entity) (irrespective of whether or not at the time
stock (or other ownership interests) of any other class or classes of such
corporation (or other entity) shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Borrower or one or more of the
Subsidiaries or by the Borrower and one or more of the Subsidiaries.
"Subsidiary Security Agreement" means collectively, those certain
Third Amended and Restated Subsidiary Security Agreements dated as of the
date hereof executed by the Guarantors in favor of the Agent for the
benefit of the Lenders, in form and substance satisfactory to the Agent and
the Lenders, as the same may be amended, restated, supplemented, or
modified from time to time.
"Swing Commitment" means an amount (subject to reduction or
cancellation as herein provided) equal to $3,000,000.
"Swing Lender" means Xxxxx Fargo Bank, National Association.
"Swing Loan" means the swing loan made or to be made hereunder to the
Borrower pursuant to Section 2.7.
"Swing Loan Advance" means an Advance under the Swing Loan.
"Swing Note" means the promissory note of the Borrower payable to the
order of the Swing Lender in the principal amount of the Swing Commitment
in substantially the form of Exhibit B hereto, and all extensions,
renewals, and modifications thereof.
"Target" is defined in the definition of "Permitted Acquisition".
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
18
"Termination Date" means 10:00 a.m. (Austin, Texas time) on October 1,
2009 or such earlier date and time on which the Revolving Credit
Commitments and Swing Commitment terminate as provided in this Agreement.
"Total Leverage Ratio" means, as of any Fiscal Quarter end, the ratio
of (a) Funded Debt, minus, for purposes of determining the Eurodollar
Margin and Commitment Fee Rate only, CSO LC Liabilities (to the extent
included in Funded Debt) to (b) EBITDA, in each case for such Fiscal
Quarter and the prior three Fiscal Quarters.
"Type" means any type of Advance (i.e., Base Rate Advance or
Eurodollar Advance).
"UCC" means the Uniform Commercial Code as in effect in the State of
Texas from time to time.
"Waiver" is defined in Section 8.12.
Section 1.2 Other Definitional Provisions. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
The word "will" shall be construed to have the same meaning and effect as the
word "shall." Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein," "hereof" and
"hereunder," and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) any reference to any law or regulation herein shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time and (f) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. Terms used herein that are
defined in the UCC, unless otherwise defined herein, shall have the meanings
specified in the UCC. In the event of any changes in accounting principles
required by GAAP or recommended by the Borrower's certified public accountants
and implemented by the Borrower occur and such changes result in a change in the
method of the calculation of financial covenants, standards, or terms under this
Agreement, then the Borrower, the Agent, and the Lenders agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such changes with the desired result that the criteria for
evaluating such covenants, standards, or terms shall be the same after such
changes as if such changes had not been made. Until such time as such an
amendment shall have been executed and delivered by the Agent, the Borrower and
the Required Lenders, all financial covenants, standards, and terms in this
Agreement shall continue to be calculated or construed as if such changes had
not occurred.
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ARTICLE II
Revolving Credit Loan and Swing Loan
Section 2.1 Revolving Credit Commitments. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make one or more
Revolving Credit Loan Advances to the Borrower from time to time from the date
hereof to but excluding the Termination Date in an aggregate principal amount at
any time outstanding up to but not exceeding the amount of such Lender's
Revolving Credit Commitment as then in effect, provided that the aggregate
amount of all Revolving Credit Loan Advances at any time outstanding shall not
exceed (a) the Revolving Credit Commitments, minus (b) the sum of the
outstanding Swing Loan Advances and the Letter of Credit Liabilities. Subject to
the foregoing limitations, and the other terms and provisions of this Agreement,
the Borrower may borrow, repay, and reborrow hereunder the amount of the
Revolving Credit Commitments by means of Base Rate Advances and Eurodollar
Advances and, until the Termination Date, the Borrower may Convert Revolving
Credit Loan Advances of one Type into Revolving Credit Loan Advances of another
Type. Revolving Credit Loan Advances of each Type made by each Lender shall be
made and maintained at such Lender's Applicable Lending Office for Advances of
such Type.
Section 2.2 Revolving Credit Notes. The obligation of the Borrower to repay
each Lender for Revolving Credit Loan Advances made by such Lender and interest
thereon shall be evidenced by a Revolving Credit Note executed by the Borrower,
payable to the order of such Lender, in the principal amount of such Lender's
Revolving Credit Commitment dated the date hereof.
Section 2.3 Repayment of Revolving Credit Loan. The Borrower shall repay
the outstanding principal amount of the Revolving Credit Loan and the Swing Loan
on the Termination Date.
Section 2.4 Interest. The unpaid principal amount of the Revolving Credit
Loan shall bear interest at a varying rate per annum equal from day to day to
the lesser of (a) the Maximum Rate or (b) the Applicable Rate. If at any time
the Applicable Rate for any Advance shall exceed the Maximum Rate, thereby
causing the interest accruing on such Advance to be limited to the Maximum Rate,
then any subsequent reduction in the Applicable Rate for such Advance shall not
reduce the rate of interest on such Advance below the Maximum Rate until the
aggregate amount of interest accrued on such Advance equals the aggregate amount
of interest which would have accrued on such Advance if the Applicable Rate had
at all times been in effect. Accrued and unpaid interest on the Revolving Credit
Loan Advances shall be due and payable as follows:
(a) in the case of all Base Rate Advances, on each Monthly Payment
Date;
(b) in the case of all Eurodollar Advances, on the last day of the
Interest Period with respect thereto and, in the case of an Interest Period
with a duration greater than three months, at three-month intervals after
the first day of such Interest Period;
(c) upon the payment or prepayment of any Eurodollar Advance or the
Conversion of any Eurodollar Advance to an Advance of another Type (but
only on the principal amount so paid, prepaid, or Converted); and
20
(d) with respect to Revolving Credit Loan Advances and Swing Loan
Advances, on the Termination Date.
Notwithstanding the foregoing, upon the occurrence and during the
continuance of an Event of Default, the outstanding principal amounts of all
Advances and (to the fullest extent permitted by law) any other amounts payable
by the Borrower under any Loan Document shall bear interest at the Default Rate
at the Required Lenders' option beginning upon the occurrence of such Event of
Default or such later date as selected by the Required Lenders. Interest payable
at the Default Rate shall be payable from time to time on demand.
Section 2.5 Revolving Credit Loan Borrowing Procedure. The Borrower shall
give the Agent notice by means of an Advance Request Form of each requested
Revolving Credit Loan Advance at least one Business Day before the requested
date of each Base Rate Advance, and at least three Business Days before the
requested date of each Eurodollar Advance, specifying: (a) the requested date of
such Revolving Credit Loan Advance (which shall be a Business Day), (b) the
amount of such Revolving Credit Loan Advance, (c) the Type of Revolving Credit
Loan Advance, and (d) in the case of a Eurodollar Advance, the duration of the
Interest Period for such Revolving Credit Loan Advance. Each Eurodollar Advance
under the Revolving Credit Loan shall be in a minimum principal amount of
$1,000,000 or an integral multiple of $500,000. Each Base Rate Advance under the
Revolving Credit Loan shall be in a minimum principal amount of $500,000 or in
greater increments of $100,000. The Agent shall notify each Lender of the
contents of each such notice promptly. Not later than 1:00 p.m. (Austin, Texas
time) on the date specified for each Revolving Credit Loan Advance hereunder,
each Lender will make available to the Agent at the Principal Office in
immediately available funds, for the account of the Borrower, its pro rata share
of each Revolving Credit Loan Advance. After the Agent's receipt of such funds
and subject to the other terms and conditions of this Agreement, the Agent will
make each Revolving Credit Loan Advance available to the Borrower by depositing
the same, in immediately available funds, in an account of the Borrower
(designated by the Borrower) maintained with the Agent at the Principal Office.
All notices by the Borrower under this Section shall be irrevocable and shall be
given not later than 11:00 a.m. (Austin, Texas time) on the day which is not
less than the number of Business Days specified above for such notice.
Section 2.6 Conversions and Continuations. The Borrower shall have the
right from time to time to Convert all or part of a Revolving Credit Loan
Advance of one Type into an Advance of another Type or to Continue Eurodollar
Advances as Eurodollar Advances by giving the Agent written notice at least one
Business Day before Conversion into a Base Rate Advance, and at least three
Business Days before Conversion into or Continuation of a Eurodollar Advance,
specifying: (a) the Conversion or Continuation date, (b) the amount of the
Advance to be Converted or Continued, (c) in the case of Conversions, the Type
of Advance to be Converted into, and (d) in the case of a Continuation of or
Conversion into a Eurodollar Advance, the duration of the Interest Period
applicable thereto; provided that (i) Eurodollar Advances may only be Converted
on the last day of the Interest Period, (ii) except for Conversions into Base
Rate Advances, no Conversions shall be made while a Default has occurred and is
continuing, and (iii) no more than five Interest Periods shall be in effect at
the same time. The Agent shall notify each Lender of the contents of each such
notice promptly and in any event not later than one Business Day after receipt
thereof. All notices by the Borrower under this Section shall be irrevocable and
shall be given not later than 11:00 a.m. (Austin, Texas time) on the day which
is not less than the number of Business Days specified above for such notice. If
the Borrower shall
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fail to give the Agent the notice as specified above for Continuation or
Conversion of a Eurodollar Advance prior to the end of the Interest Period with
respect thereto, such Eurodollar Advance shall be Converted automatically into a
Base Rate Advance on the last day of the then current Interest Period for such
Eurodollar Advance.
Section 2.7 Swing Loans.
(a) Making Swing Loans; Interest Rate. For the convenience of the
parties and as an integral part of the transactions contemplated by the
Loan Documents, the Swing Lender, solely for its own account, agrees, on
the terms and conditions hereinafter set forth, to make Swing Loans to the
Borrower (which the Borrower may repay and reborrow from time to time in
accordance with the terms and provisions hereof) from time to time on any
Business Day during the period from the date hereof to but excluding the
Termination Date in an aggregate principal amount at any one time
outstanding which shall not exceed the Swing Commitment; provided that, the
Swing Lender shall not be obligated to make any Swing Loan (i) which when
added to the then outstanding Revolving Credit Loan Advances plus the
outstanding Letter of Credit Liabilities plus the outstanding Swing Loan
Advances would exceed the Revolving Credit Commitments, and (ii) at any
time after any Lender has refused to purchase a participation in any Swing
Loan as provided in Section 2.7(d). All Swing Loans shall bear interest at
the lesser of (A) the Maximum Rate and (B) the Applicable Rate for Base
Rate Advances (subject to Section 2.4) and shall be included within the
Primary Obligations hereunder. Each Swing Loan shall be subject to all the
terms and conditions applicable to the Revolving Credit Loan; provided
that, (i) there shall be no minimum Swing Loan Advance amount or repayment
for a Swing Loan except as provided in Section 2.7(c), and (ii) each Swing
Loan shall be available and may be prepaid on same day telephonic notice to
be followed promptly with an Advance Request Form (except for telephonic
notices of prepayment) from the Borrower to the Swing Lender, so long as
such notice is received by the Swing Lender prior to 11:00 a.m. (Austin,
Texas time).
(b) Swing Note. The Swing Loans made by the Swing Lender shall be
evidenced by a single promissory note of the Borrower in substantially the
form of Exhibit B hereto, payable to the order of the Swing Lender in a
principal amount equal to the Swing Commitment as originally in effect and
otherwise duly completed.
(c) Repayment of Swing Loans. Upon the earlier to occur of (i) the
date 10 Business Days after each Swing Loan Advance, and (ii) demand by the
Swing Lender, the Borrower shall promptly borrow Revolving Credit Loans
from the Lenders, pursuant to Section 2.1 hereof and apply the proceeds of
such Revolving Credit Loans to the repayment of such Swing Loan Advance
then due.
(d) Participation of Lenders. In the event the Borrower shall fail to
repay when due any Swing Loan, each Lender with a Revolving Credit
Commitment shall irrevocably and unconditionally purchase from the Swing
Lender an SL Participation in such Swing Loan in lawful money of the United
States and in the same day funds, in an amount equal to such Lender's pro
rata share (based on the Revolving Credit Commitments) of the principal
amount of such Swing Loans then due. If such amount is not in fact made
available to the Swing Lender by any Lender with a Revolving Credit
Commitment, the Swing Lender shall be entitled to recover such amount on
demand from
22
such Lender together with accrued interest thereon, for each day from the
date of demand therefor, if made prior to 1:00 p.m. (Austin, Texas time) on
any Business Day, or, if made at any other time, from the next Business Day
following the date of such demand, until the date such amount is paid to
the Swing Lender by such Lender at the Federal Funds Rate. If such Lender
does not pay such amount forthwith upon the Swing Lender's demand therefor,
and until such time as such Lender makes the required payment, the Swing
Lender shall be deemed to continue to have outstanding a Swing Loan in the
amount of such unpaid participation obligation for all purposes under the
Loan Documents other than those provisions requiring the other Lenders with
a Revolving Credit Commitment to purchase a participation therein.
Thereafter, each payment of all or any part of the Primary Obligations
evidenced by the Swing Note shall be paid to the Swing Lender for the
ratable benefit of the Swing Lender and the Lenders who are participants in
the Swing Loan; provided that, with respect to any participation hereunder,
all interest accruing on the Swing Loan (or any portion thereof) to which
such participation relates prior to the date of purchase of any
participation hereunder shall be payable solely to the Swing Lender for its
own account.
Section 2.8 Use of Proceeds. The proceeds of Advances shall be used by the
Borrower (a) to refinance Debt of the Borrower under the Existing Credit
Agreement, (b) for working capital in the ordinary course of business and other
general corporate purposes and (c) to finance Permitted Acquisitions.
Section 2.9 Fees. (a) On or prior to each October 13 during the term
hereof, beginning as of the date hereof, the Borrower agrees to pay to the Agent
for the account of the Agent an annual agent fee in an amount to be agreed to by
the Borrower and the Agent pursuant to a side letter agreement, and (b) the
Borrower agrees to pay to the Agent for the account of each Lender a Commitment
Fee (herein so called) on the average daily unused amount of such Lender's
Revolving Credit Commitment for the period from and including the date of this
Agreement to and including the Termination Date at the Commitment Fee Rate,
based on a 360 day year and the actual number of days elapsed. The accrued
Commitment Fee shall be payable in arrears on each Quarterly Payment Date and on
the Termination Date. For the purpose of calculating the Commitment Fee
hereunder, the Revolving Credit Commitments shall be deemed utilized by the
amount of all Revolving Credit Loan Advances and all Letter of Credit
Liabilities and without giving effect to any Swing Loan Advances or SL
Participations.
Section 2.10 Determination of Eurodollar Margin and Commitment Fee Rate.
The Eurodollar Margin and Commitment Fee Rate shall be defined and determined as
follows:
"Commitment Fee Rate" means (i) during the period commencing on the
date hereof and ending on but not including the first Adjustment Date,
0.25% per annum, and (ii) during each Calculation Period, the percent per
annum set forth in the table below in this Section 2.10 under the heading
"Commitment Fee Rate" opposite the Total Leverage Ratio calculated for the
completed four Fiscal Quarters which immediately preceded the beginning of
the applicable Calculation Period.
"Eurodollar Margin" means (i) during the period commencing on the date
hereof and ending on but not including the first Adjustment Date, 1.00% per
annum, and (ii) during each Calculation Period, the percent per annum set
forth in the table below in this Section 2.10 under the heading "Eurodollar
Margin" opposite the Total Leverage
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Ratio calculated for the completed four Fiscal Quarters which immediately
preceded the beginning of the applicable Calculation Period.
EURODOLLAR COMMITMENT
TOTAL LEVERAGE RATIO MARGIN FEE RATE
-------------------- ---------- ----------
Greater than 2.50:1.00 2.00% 0.30%
Equal to or less than 2.50:1.00, but greater than 2.00:1.00 1.75% 0.30%
Equal to or less than 2.00:1.00, but greater than 1.50:1.00 1.50% 0.25%
Equal to or less than 1.50:1.00, but greater than 1.00:1.00 1.25% 0.25%
Equal to or less than 1.00:1.00 1.00% 0.25%
Upon delivery of the Compliance Certificate pursuant to Section 8.1(c)
in connection with the financial statements required to be delivered
pursuant to Section 8.1(b) at the end of each Fiscal Quarter commencing
with such Compliance Certificate delivered with respect to the Fiscal
Quarter ending on September 30, 2006, the Eurodollar Margin and the
Commitment Fee Rate shall automatically be adjusted as set forth in the
table above, such automatic adjustment to take effect as of the first
Business Day after the receipt by the Agent of the related Compliance
Certificate (each such Business Day when the Eurodollar Margin or the
Commitment Fee Rate is adjusted pursuant to this sentence or below, herein
an "Adjustment Date"). If the Borrower fails to deliver such Compliance
Certificate which so sets forth the Total Leverage Ratio within the period
of time required by Section 8.1(c), the Eurodollar Margin and the
Commitment Fee Rate shall automatically be adjusted to highest applicable
percentage set forth in the grid above, such automatic adjustment to take
effect as of the first Business Day after the last day on which the
Borrower was required to deliver the applicable Compliance Certificate in
accordance with Section 8.1(c) and to remain in effect until subsequently
adjusted in accordance herewith upon the delivery of a Compliance
Certificate.
Section 2.11 Reduction or Termination of Commitments.
(a) Optional. The Borrower shall have the right to terminate in whole
or reduce in part the unused portion of the Commitments (including the
Swing Commitment) upon at least three Business Days prior notice (which
notice shall be irrevocable) to the Agent and each Lender specifying the
effective date thereof, whether a termination or reduction is being made,
and the amount of any partial reduction, provided that each partial
reduction shall be in the amount of $5,000,000 (or in the case of the Swing
Commitment, $1,000,000) or an integral multiple thereof and the Revolving
Credit Commitments (other than the Swing Commitment) shall not be reduced
below the outstanding Letter of Credit Liabilities, and the Borrower shall
simultaneously prepay the amount by which the unpaid principal amount of
the Revolving Credit Loan Advances, the Swing Loan Advances and outstanding
Letter of Credit Liabilities exceeds the Revolving Credit Commitments
(after giving effect to such notice) plus accrued and unpaid interest on
the principal amount so prepaid. The Commitments may not be reinstated
after they have been terminated or reduced. In addition the Swing
24
Commitment may never be more than the Revolving Credit Commitments
(exclusive of the amount of the Swing Commitment).
(b) Mandatory. Upon the occurrence of any event requiring a mandatory
prepayment under Section 4.3(c), (i) the Revolving Credit Commitments shall
automatically reduce by the amount equal to 100% of the Net Proceeds from
the sale of assets occurring on such date to the extent such amount exceeds
either (A) $2,000,000 per Disposition or (B) $6,000,000 in the aggregate
for all Dispositions which have occurred since the date hereof, and (ii)
the Borrower shall simultaneously prepay the amount by which the unpaid
principal amount of the Advances plus the Letter of Credit Liabilities
exceeds the Revolving Credit Commitments (after giving effect to such
reduction) plus accrued and unpaid interest on the principal amount so
prepaid.
ARTICLE III
Letters of Credit
Section 3.1 Letters of Credit.
(a) Subject to the terms and conditions of this Agreement, the Issuing
Bank agrees to issue one or more Letters of Credit for the account of the
Borrower or any Guarantor from time to time from the date hereof to but
excluding the date 30 days prior to the Termination Date; provided,
however, that the outstanding Letter of Credit Liabilities shall not at any
time exceed the lesser of (i) $4,000,000, and (ii) an amount equal to (A)
the Revolving Credit Commitments, minus (B) the sum of the outstanding
Revolving Credit Loan Advances and Swing Loan Advances. Each Letter of
Credit shall have an expiration date not beyond five Business Days prior to
the Termination Date, shall be payable in Dollars, must support a
transaction that is entered into in the ordinary course of the Borrower's
business, must be satisfactory in form and substance to the Issuing Bank,
and shall be issued pursuant to such documents and instruments (including,
without limitation, the Issuing Bank's standard application for issuance of
letters of credit as then in effect) as the Issuing Bank may require. No
Letter of Credit shall require any payment by the Issuing Bank to the
beneficiary thereunder pursuant to a drawing prior to the third Business
Day following presentment of a draft and any related documents to the
Issuing Bank.
(b) By the issuance of each Letter of Credit and without any further
action on the part of the Issuing Bank or any of the Lenders in respect
thereof, the Issuing Bank hereby grants to each Lender and each Lender
hereby agrees to acquire from the Issuing Bank a participation in each
Letter of Credit and the related Letter of Credit Liabilities, effective
upon the issuance thereof without recourse or warranty, equal to such
Lender's pro rata share (based on the Revolving Credit Commitments) of such
Letter of Credit and Letter of Credit Liabilities. In furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay
to the Issuing Bank, as and when required by Section 3.4, such Lender's pro
rata share of each Letter of Credit Disbursement. Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
Section 3.1(b) in respect of each Letter of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including without limitation the occurrence and continuance of any Default,
and that each such payment shall be made
25
without any offset, abatement, withholding, or reduction whatsoever. This
agreement to grant and acquire participations is an agreement between the
Issuing Bank and the Lenders, and neither the Borrower nor any beneficiary
of a Letter of Credit shall be entitled to rely thereon. The Borrower
agrees that each Lender purchasing a participation from the Issuing Bank
pursuant to this Section 3.1(b) may exercise all its rights to payment
against the Borrower including the right of setoff, with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
(c) The Issuing Bank agrees with each Lender that it shall transfer to
such Lender, without any offset, abatement, withholding, or reduction
whatsoever, such Lender's proportionate share of any payment of a
reimbursement obligation of the Borrower with respect to a Letter of Credit
Disbursement, including interest payments made to the Issuing Bank on such
Letter of Credit Disbursement, based on the proportion that the payment
made by such Lender to the Issuing Bank in respect of the principal amount
of such Letter of Credit Disbursement bears to the outstanding principal
amount of such Letter of Credit Disbursement.
Section 3.2 Procedure for Issuing Letters of Credit. Each Letter of Credit
shall be issued on at least three Business Days prior notice from the Borrower
to the Issuing Bank by means of a Letter of Credit Request Form describing the
transaction proposed to be supported thereby and specifying (a) the date on
which such Letter of Credit is to be issued (which shall be a Business Day) and
the face amount thereof, (b) the name and address of the beneficiary, (c)
whether such Letter of Credit shall permit a single drawing or multiple
drawings, (d) the conditions permitting the drawing or drawings thereunder, (e)
whether the draft thereunder shall be a sight or time draft and, if the latter,
the date when the draft shall be payable, (f) the form of the draft and any
other documents required to be presented at the time of any drawing (such notice
to set forth the exact wording of such documents or to attach copies thereof),
and (g) the expiration date of such Letter of Credit. Upon fulfillment of the
applicable conditions precedent in Article VI, the Issuing Bank shall make the
applicable Letter of Credit available to the Borrower or, if so requested by the
Borrower, to the beneficiary of the Letter of Credit.
Section 3.3 Presentment and Reimbursement. (a) Promptly upon receipt of any
documents purporting to represent a demand for payment under a Letter of Credit,
the Issuing Bank shall give notice to the Borrower of the receipt thereof, which
notice may be telephonic to be followed by written notice (which notice may be
made by electronic mail or other electronic media) to the Borrower's general
counsel and chief financial officer. If the Issuing Bank shall have determined
that a demand for payment under a Letter of Credit appears on its face to be in
conformity with the terms and conditions of such Letter of Credit, the Issuing
Bank shall give notice to the Borrower, which notice may be telephonic, of the
receipt and amount of such drawing and the date on which payment thereon will be
made. If the Borrower shall not have discharged in full by 10:00 a.m. (Austin,
Texas time) on the date of such payment, its obligation to reimburse the Issuing
Bank in the amount of such drawing under such Letter of Credit, then the amount
of such drawing for which the Issuing Bank shall not have been reimbursed by the
Borrower shall be paid by the Borrower to the Issuing Bank or, to the extent the
Issuing Bank shall have received payments with respect to such drawing from the
Lenders, to the Issuing Bank for the account of the Lenders, within three
Business Days after the date of such drawing (but in any event before the
Termination Date), together with interest on such amount at the Default Rate
26
from the date of payment by the Issuing Bank to the beneficiary under the Letter
of Credit (each such payment made after 10:00 a.m. (Austin, Texas time) on such
due date to be deemed to be made on the next succeeding Business Day). The
obligations of the Borrower under this Section 3.3 shall be unconditional,
absolute, and irrevocable in all respects.
Section 3.4 Payment. If the Issuing Bank shall pay any draft presented
under a Letter of Credit issued by it and if the Borrower shall not have
discharged in full its reimbursement obligation by 10:00 a.m. (Austin, Texas
time) on the date of such Letter of Credit Disbursement, then the Issuing Bank
shall as promptly as practicable give telephonic (which shall be promptly
confirmed in writing) or facsimile notice to each Lender of the date of such
payment and the amount of such payment and each Lender shall pay to the Issuing
Bank, in immediately available funds, not later than 3:00 p.m. (Austin, Texas
time) on the date of such payment (or, if Issuing Bank shall notify the Lenders
of such payment after 11:00 a.m. (Austin, Texas time) then not later than 12:00
p.m. (Austin, Texas time) on the next succeeding Business Day), an amount equal
to such Lender's pro rata share of such drawing; provided that, if any Lender
shall for any reason fail to pay the Issuing Bank its pro rata share of the
drawing on the date of such payment, the Issuing Bank shall itself fund such
Lender's pro rata share while retaining the right to proceed against such Lender
for reimbursement therefor. In the event that the Issuing Bank shall fund a
Lender's pro rata share of a drawing, the amount so funded shall bear interest
at a rate per annum equal to the Federal Funds Rate and shall be payable by such
Lender when it reimburses the Issuing Bank for funding its pro rata part (with
interest to accrue from and including the date of such funding to and excluding
the date of reimbursement). In the event that a Lender, after notice, pays its
pro rata share of a drawing hereunder and such payment is not required to fund a
Letter of Credit Disbursement, the Issuing Bank shall return such payment to the
Lender with interest calculated at a rate per annum equal to the Federal Funds
Rate (with interest to accrue from and including the date of such funding to and
excluding the date of return). The obligation of each Lender to pay to the
Issuing Bank such Lender's pro rata part of any drawing under a Letter of Credit
shall be absolute and unconditional under any and all circumstances (including
without limitation the passage of the Termination Date), and such obligations
shall be several and not joint.
Section 3.5 Letter of Credit Fee. The Borrower shall pay to the Agent, for
the account of the Lenders, a nonrefundable letter of credit fee for each Letter
of Credit payable in arrears on each Quarterly Payment Date in an amount equal
to the applicable Eurodollar Margin multiplied by the undrawn amount of such
Letter of Credit, based on a 360 day year and the actual number of days in the
stated term of such Letter of Credit. In addition, the Borrower shall pay to the
Issuing Bank, solely for its own account as issuer of Letters of Credit,
nonrefundable fronting, amendment, transfer, negotiation and other fees as
determined in accordance with the Issuing Bank's then current fee policy.
Section 3.6 Obligations Absolute. The obligations of the Borrower under
this Agreement and the other Loan Documents (including without limitation the
obligation of the Borrower to reimburse the Issuing Bank for draws under any
Letter of Credit) shall be absolute, unconditional, and irrevocable, and shall
be performed strictly in accordance with the terms of this Agreement and the
other Loan Documents under all circumstances whatsoever, including without
limitation the following circumstances:
(a) Any lack of validity or enforceability of any Letter of Credit or
any other Loan Document;
27
(b) Any amendment or waiver of or any consent to departure from any
Loan Document;
(c) The existence of any claim, set-off, counterclaim, defense or
other rights which the Borrower, any Obligated Party, or any other Person
may have at any time against any beneficiary of any Letter of Credit, the
Issuing Bank, any Lender, the Agent, or any other Person, whether in
connection with this Agreement or any other Loan Document or any unrelated
transaction;
(d) Any statement, draft, or other document presented under any 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;
(e) Payment by the Issuing Bank under any Letter of Credit against
presentation of a draft or other document which does not comply with the
terms of such Letter of Credit; or
(f) Any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Section 3.7 Limitation of Liability. The Borrower assumes all risks of the
acts or omissions of any beneficiary of any Letter of Credit with respect to its
use of such Letter of Credit. Neither the Issuing Bank, the Lenders, the Agent,
nor any of their officers or directors shall have any responsibility or
liability to the Borrower or any other Person for: (a) the failure of any draft
to bear any reference or adequate reference to any Letter of Credit, or the
failure of any documents to accompany any draft at negotiation, or the failure
of any Person to surrender or to take up any Letter of Credit or to send
documents apart from drafts as required by the terms of any Letter of Credit, or
the failure of any Person to note the amount of any instrument on any Letter of
Credit, each of which requirements, if contained in any Letter of Credit itself,
it is agreed may be waived by the Issuing Bank, (b) errors, omissions,
interruptions, or delays in transmission or delivery of any messages, (c) the
validity, sufficiency, or genuineness of any draft or other document, or any
endorsement(s) thereon, even if any such draft, document or endorsement should
in fact prove to be in any and all respects invalid, insufficient, fraudulent,
or forged or any statement therein is untrue or inaccurate in any respect, (d)
the payment by the Issuing Bank to the beneficiary of any Letter of Credit
against presentation of any draft or other document that does not comply with
the terms of the Letter of Credit, or (e) any other circumstance whatsoever in
making or failing to make any payment under a Letter of Credit. The Borrower
shall have a claim against the Issuing Bank, and the Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower which the Borrower proves in a final
nonappealable judgment were caused by (i) the Issuing Bank's willful misconduct
or gross negligence in determining whether documents presented under any Letter
of Credit complied with the terms thereof or (ii) the Issuing Bank's willful
failure to pay under any Letter of Credit after presentation to it of documents
strictly complying with the terms and conditions of such Letter of Credit. The
Issuing Bank 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.
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ARTICLE IV
Payments
Section 4.1 Method of Payment. Except as provided in Article III, all
payments of principal, interest, and other amounts to be made by the Borrower
under this Agreement and the other Loan Documents shall be made to the Agent at
the Payment Office for the account of each Lender's Applicable Lending Office in
Dollars and in immediately available funds by credit to Account Number
4518-151436, without setoff, deduction, or counterclaim, not later than 1:00
p.m. (Austin, Texas time) on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). The Borrower shall, at the time
of making each such payment, specify to the Agent the sums payable by the
Borrower under this Agreement and the other Loan Documents to which such payment
is to be applied (and in the event that the Borrower fails to so specify, or if
an Event of Default has occurred and is continuing, the Agent may apply such
payment to the Obligations in such order and manner as it may elect in its sole
discretion, subject to Section 4.4 hereof). Each payment received by the Agent
under this Agreement or any other Loan Document for the account of a Lender
shall be paid by the Agent to such Lender, in immediately available funds, for
the account of such Lender's Applicable Lending Office within one Business Day
following receipt thereof. Whenever any payment under this Agreement or any
other Loan Document shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of the
payment of interest, the Commitment Fee and any other fees, as the case may be.
Section 4.2 Voluntary Prepayment. The Borrower may, upon at least one
Business Day prior notice to the Agent in the case of Base Rate Advances (except
as otherwise provided for under Section 2.7(a) for Swing Loan Advances), and at
least three Business Days prior notice to the Agent in the case of Eurodollar
Advances, voluntarily prepay the Advances in whole at any time or from time to
time in part without premium or penalty but with accrued interest to the date of
prepayment on the amount so prepaid, provided that (a) any prepayments of
Eurodollar Advances, if prepaid on other than the last day of the Interest
Period for such Advances, shall be accompanied by all additional amounts which
may be required pursuant to Sections 5.1 and 5.5 and (b) each partial prepayment
shall be in the principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. All notices under this Section shall be irrevocable and shall be
given not later than 11:00 a.m. (Austin, Texas time) on the day which is not
less than the number of Business Days specified above for such notice. Any such
voluntary prepayments shall be applied as the Borrower and the Agent may agree,
but in the absence of such agreement, first to the Swing Loan Advances, then to
Letter of Credit Disbursements for which the Issuing Bank has not been
reimbursed by the Borrower, then to Base Rate Advances under the Revolving
Credit Loan, then to Eurodollar Advances under the Revolving Credit Loan and
then to the remaining Letter of Credit Liabilities. Any prepayments hereunder
shall be accompanied with accrued and unpaid interest on the amount prepaid to
the date of prepayment.
Section 4.3 Mandatory Prepayments.
(a) If at any time the amount equal to the sum of (i) the outstanding
principal amount of all Revolving Credit Loan Advances and the Swing Loan
Advances, plus (ii) the Letter of Credit Liabilities, exceeds the aggregate
amount of the Revolving Credit
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Commitments, the Borrower shall promptly prepay Revolving Credit Loan
Advances, Swing Loan Advances and the Letter of Credit Disbursements by the
amount of the excess or, if no Revolving Credit Loan Advances, Swing Loan
Advances or Letter of Credit Disbursements are outstanding, the Borrower
shall immediately pledge to the Agent cash or Cash Equivalent Investments
(subject to no other Liens) in an amount equal to the excess as security
for the Obligations. Any such mandatory prepayments shall be applied first
to Swing Loan Advances, then to Letter of Credit Disbursements for which
the Issuing Bank has not been reimbursed by the Borrower, then to Base Rate
Advances under the Revolving Credit Loan, then to Eurodollar Advances under
the Revolving Credit Loan, and then to the remaining Letter of Credit
Liabilities. Any prepayments hereunder shall be accompanied with accrued
and unpaid interest on the amount prepaid to the date of prepayment.
(b) After any reduction in the Commitments pursuant to Section 2.11,
the Borrower shall promptly prepay the outstanding Revolving Credit Loan
Advances and Swing Loan Advances by the amount which the sum of the
outstanding principal amount of the Advances under the Revolving Credit
Loan and the Swing Loan plus the Letter of Credit Liabilities exceeds the
aggregate amount of the Revolving Credit Commitments, as reduced.
(c) Upon the Disposition of any assets (other than Dispositions of
equity interests or Dispositions of assets permitted under Sections 9.8(a)
and (d)), the Borrower shall promptly prepay the Advances by an amount
equal to the Net Proceeds of such Disposition; provided however, with
respect to any Dispositions permitted under Sections 9.8(b), (c) and (e),
the Borrower shall promptly prepay the Advances by an amount equal to the
Net Proceeds of such Disposition to the extent such amount exceeds either
(i) $2,000,000 per Disposition or (ii) $6,000,000 in the aggregate for all
Dispositions which have occurred since the date hereof. Any such mandatory
prepayments shall be applied first to Swing Loan Advances, then to Letter
of Credit Disbursements for which the Issuing Bank has not been reimbursed
by the Borrower, then to the Base Rate Advances under the Revolving Credit
Loan, then to Eurodollar Advances under the Revolving Credit Loan, and then
to the remaining Letter of Credit Liabilities. Any prepayments hereunder
shall be accompanied with accrued and unpaid interest on the amount prepaid
to the date of prepayment.
Section 4.4 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each Advance shall be made by the Lenders under Section 2.1, each
payment of the Commitment Fee under Section 2.9, each payment of the Letter of
Credit fee under Section 3.5 (except as provided therein) shall be made for the
account of the Lenders, pro rata according to their respective Revolving Credit
Commitments; (b) each termination or reduction of the Commitments under Section
2.11 shall be applied to the Revolving Credit Commitments of the Lenders, pro
rata according to the respective Revolving Credit Commitments; (c) the making,
Conversion, and Continuation of Advances of a particular Type (other than
Conversions provided for by Section 5.4) shall be made pro rata among the
Lenders holding Advances of such Type according to the amounts of their
respective Revolving Credit Commitments; (d) each payment and prepayment of
principal of or interest on Advances by the Borrower or any Obligated Party of a
particular Type of Loan shall be made to the Agent for the account of the
Lenders pro rata in accordance with the respective unpaid principal amounts of
such Advances of such Revolving
30
Credit Loan held by such Lenders; (e) any and all other monies received by the
Agent from any source other than pursuant to any of clauses (a) through (d)
hereinabove (including, without limitation, from the Borrower or any Guarantor)
to be applied first against the Primary Obligations and shall be for the pro
rata benefit and account of the Lenders based upon each Lender's aggregate
outstanding Advances of all Types and LC Participations and SL Participations to
the aggregate outstanding Advances of all Types and LC Participations and SL
Participations of all Lenders and then against the Secondary Obligations and
shall be for the pro rata benefit and account of the Lenders based upon their
respective unpaid amounts of the Secondary Obligations; and (f) the Lenders
shall purchase from the Issuing Bank and the Swing Lender pursuant to Section
3.1 and Section 2.7 respectively, participations in the Letters of Credit and
the related Letter of Credit Liabilities and the Swing Loans respectively, pro
rata in accordance with their Revolving Credit Commitments.
Section 4.5 Non-Receipt of Funds by the Agent.
(a) Funding by Lenders; Presumption by Agent. Unless the Agent shall
have received notice from a Lender prior to the proposed date of any
Advance that such Lender will not make available to the Agent such Lender's
share of such Advance, the Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.5 and may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Advance available to the Agent, then the applicable
Lender and the Borrower severally agree to pay to the Agent forthwith on
demand such corresponding amount with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Agent, at (i) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Advances. If the
Borrower and such Lender shall pay such interest to the Agent for the same
or an overlapping period, the Agent shall promptly remit to the Borrower
the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Advance to the Agent, then the
amount so paid shall constitute such Lender's Loan included in such
Advance. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make
such payment to the Agent.
(b) Payments by Borrower; Presumptions by Agent. Unless the Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Agent for the account of the Lenders or the Issuing
Bank hereunder that the Borrower will not make such payment, the Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay
to the Agent forthwith on demand the amount so distributed to such Lender
or the Issuing Bank, with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of
payment to the Agent, at the greater of the Federal Funds Rate and a
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rate determined by the Agent in accordance with banking industry rules on
interbank compensation.
Section 4.6 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for
any Indemnified Taxes or Other Taxes, provided that if the Borrower shall
be required by applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then (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) the Agent, Lender or Issuing Bank, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting the
provisions of clause (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Agent, each Lender and the Issuing Bank, within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Agent, such
Lender or the Issuing Bank, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate
as to the amount of such payment or liability delivered to the Borrower by
a Lender or the Issuing Bank (with a copy to the Agent), or by the Agent on
its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority as required by this Section 4.6, the Borrower shall deliver to
the Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower
(with a copy to the Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower or the Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the Borrower or the
Agent, shall deliver such other documentation
32
prescribed by applicable law or reasonably requested by the Borrower or the
Agent as will enable the Borrower or the Agent to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements. Without limiting the generality of the foregoing, in the
event that the Borrower is resident for tax purposes in the United States
of America, any Foreign Lender shall deliver to the Borrower and the Agent
(in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the
Borrower or the Agent, but only if such Foreign Lender is legally entitled
to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States of America is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the Code,
(x) a certificate to the effect that such Foreign Lender is not (A) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be
made.
(f) Treatment of Certain Refunds. If the Agent, a Lender or the
Issuing Bank determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section, it shall pay to the Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Agent, such Lender or the Issuing Bank, as
the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that
the Borrower, upon the request of the Agent, such Lender or the Issuing
Bank, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent, such Lender or the Issuing Bank in the event the
Agent, such Lender or the Issuing Bank is required to repay such refund to
such Governmental Authority. This clause shall not be construed to require
the Agent, any Lender or the Issuing Bank to make available its tax returns
(or any other information relating to its taxes that it deems confidential)
to the Borrower or any other Person.
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Section 4.7 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 5.1, or requires the Borrower to pay any
additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 4.6, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 4.6 or 5.1, as the case may
be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 5.1, or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 4.6, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in, and consents required by, Section 13.7), all
of its interests, rights and obligations under this Agreement and the
related Loan Documents to an Eligible Assignee that shall assume such
obligations (which Eligible Assignee may be another Lender, if a Lender
accepts such assignment), provided that:
(i) the Borrower shall have paid to the Agent the assignment fee
specified in Section 13.7;
(ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and LC Participations,
accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan Documents (including any
amounts under Section 5.5) from the Eligible Assignee (to the extent
of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim
for compensation under Section 5.1 or payments required to be made
pursuant to Section 4.6, such assignment will result in a reduction in
such compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and
delegation cease to apply.
Section 4.8 Computation of Interest. Interest on the Advances and all other
amounts payable by the Borrower hereunder shall be computed on the basis of a
year of 360 days and the
34
actual number of days elapsed (including the first day but excluding the last
day) unless such calculation would result in a usurious rate, in which case
interest shall be calculated on the basis of a year of 365 or 366 days, as the
case may be.
Section 4.9 Proceeds of Collateral and Collections under the Guaranty.
(a) Proceeds. Except as otherwise permitted by Section 4.3, any
proceeds received by the Agent from the sale or other liquidation of the
Collateral and from collections under the Guaranty shall first be applied
as payment of the accrued and unpaid fees of the Agent hereunder and then
to all other unpaid or unreimbursed Obligations (including reasonable
attorneys' fees and expenses) owing to the Agent in its capacity as Agent
only. Any amount of such proceeds remaining after the applications
described in the preceding sentence shall be distributed:
(i) first, to the Lenders, pro rata, in accordance with the
respective unpaid amounts of the Primary Obligations (including in
such Primary Obligations for purposes of this calculation all Letter
of Credit Liabilities) until all Primary Obligations are paid in full
and provided that each Lender's pro rata portion of such proceeds
applicable to Letter of Credit Liabilities shall be held by the Agent
(and not disbursed to the Lenders) as collateral for the Letter of
Credit Liabilities relating thereto;
(ii) then to the Lenders, pro rata, in accordance with the
respective unpaid amounts of the Secondary Obligations; and
(iii) after all Primary Obligations are paid in full, and all
Letter of Credit Liabilities have terminated or are otherwise
satisfied, all remaining portions of the proceeds of the Collateral
then held by the Agent or such Lender as collateral for the Letter of
Credit Liabilities shall be distributed to the Lenders, pro rata, in
accordance with their respective unpaid amounts of the Secondary
Obligations.
(b) Noncash Proceeds. Notwithstanding anything to the contrary
contained herein, if the Agent shall ever acquire any Collateral through
foreclosure or by a conveyance in lieu of foreclosure or by retaining any
of the Collateral in satisfaction of all or part of the Obligations or if
any proceeds of Collateral received by the Agent to be distributed and
shared pursuant to this Section 4.9 are in a form other than immediately
available funds, the Agent shall not be required to remit any share thereof
under the terms hereof and the Lenders shall only be entitled to their
undivided interests in the Collateral or noncash proceeds as determined
hereby. The Lenders shall receive the applicable portions (as determined in
accordance with Section 4.9(a)) of any immediately available funds
consisting of proceeds from such Collateral or proceeds of such noncash
proceeds so acquired only if any when paid in connection with the
subsequent disposition thereof. While any Collateral or other property to
be shared pursuant to this Section 4.9 is held by the Agent pursuant to
this clause (b), the Agent shall hold such Collateral or other property for
the benefit of the Lenders and all matters relating to the management,
operation, further disposition or any other aspect of such Collateral or
other property shall be resolved by the agreement of the Required Lenders.
35
(c) Payments Set Aside. To the extent that any payment by or on behalf
of the Borrower is made to the Agent or any Lender, or the Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to
be fraudulent or preferential, set aside or required (including pursuant to
any settlement entered into by the Agent or such Lender in its discretion)
to be repaid to a trustee, receiver or any other party, in connection with
any proceeding under the Bankruptcy Code of the United States of America,
or any other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization or similar laws of the applicable jurisdictions or
otherwise, then (i) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
set-off had not occurred, and (ii) each Lender severally agrees to pay to
the Agent upon demand its applicable share of any amount so recovered from
or repaid by the Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal
Funds Rate from time to time in effect.
ARTICLE V
Yield Protection
Section 5.1 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement reflected in the Adjusted Eurodollar Rate) or the Issuing
Bank;
(ii) subject any Lender or the Issuing Bank to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit,
any participation in a Letter of Credit or any Eurodollar Advance made
by it, or change the basis of taxation of payments to such Lender or
the Issuing Bank in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 4.6 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the
Issuing Bank); or
(iii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Advances made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Advance (or of
maintaining its obligation to make any such Loan), or to increase the cost
to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount
of
36
any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or any other amount) then, upon request of
such Lender or the Issuing Bank, the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for
such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Bank determines
that any Change in Law affecting such Lender or the Issuing Bank or any
lending office of such Lender or such Lender's or the Issuing Bank's
holding company, if any, regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender's or the Issuing
Bank's capital or on the capital of such Lender's or the Issuing Bank's
holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by
the Issuing Bank, to a level below that which such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's
or the Issuing Bank's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the
Issuing Bank setting forth the amount or amounts necessary to compensate
such Lender or the Issuing Bank or its holding company, as the case may be,
as specified in clauses (a) or (b) of this Section and delivered to the
Borrower shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs incurred or reductions suffered more than six months prior
to the date that such Lender or the Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the Issuing Bank's intention to
claim compensation therefor (except that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of
retroactive effect thereof).
Section 5.2 Limitation on Types of Advances. Anything herein to the
contrary notwithstanding, if with respect to any Eurodollar Advances for any
Interest Period therefor:
(a) The Agent determines (which determination shall be conclusive)
that quotations of interest rates for the relevant deposits referred to in
the definition of "Eurodollar Rate" in Section 1.1 hereof are not being
provided in the relative amounts or for the relative maturities for
purposes of determining the rate of interest for such Advances as provided
in this Agreement; or
37
(b) Required Lenders determine (which determination shall be
conclusive absent manifest error) and notify the Agent that the relevant
rates of interest referred to in the definition of "Eurodollar Rate" in
Section 1.1 hereof on the basis of which the rate of interest for such
Advances for such Interest Period is to be determined do not accurately
reflect the cost to the Lenders of making or maintaining such Advances for
such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant amounts or periods, and so long as such condition remains in effect,
the Lenders shall be under no obligation to make additional Eurodollar Advances
or to Convert Base Rate Advances into Eurodollar Advances and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Advances, either prepay such Eurodollar Advances or
Convert such Eurodollar Advances into Base Rate Advances in accordance with the
terms of this Agreement.
Section 5.3 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to (a) honor its obligation to make Eurodollar
Advances hereunder or (b) maintain Eurodollar Advances hereunder, then such
Lender shall promptly notify the Borrower (with a copy to the Agent) thereof and
such Lender's obligation to make or maintain Eurodollar Advances and to Convert
Base Rate Advances into Eurodollar Advances hereunder shall be suspended until
such time as such Lender may again make and maintain Eurodollar Advances (in
which case the provisions of Section 5.4 hereof shall be applicable).
Section 5.4 Treatment of Affected Advances. If the Eurodollar Advances of
any Lender (such Eurodollar Advances being hereinafter called "Affected
Advances") are to be Converted pursuant to Section 5.1 or 5.3 hereof, such
Lender's Affected Advances shall be automatically Converted into Base Rate
Advances on the last day(s) of the then current Interest Period(s) for the
Affected Advances (or, in the case of a Conversion required by Section 5.1(b) or
5.3 hereof, on such earlier date as such Lender may specify to the Borrower with
a copy to the Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.1 or 5.3 hereof which gave
rise to such Conversion no longer exist:
(a) To the extent that such Lender's Affected Advances have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's Affected Advances shall be applied instead to
its Base Rate Advances; and
(b) All Affected Advances which would otherwise be made or Continued
by such Lender as Eurodollar Advances shall be made as or Converted into
Base Rate Advances and all Affected Advances of such Lender which would
otherwise be Converted into Eurodollar Advances shall be Converted instead
into (or shall remain as) Base Rate Advances.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1 or 5.3 hereof which gave rise to the
Conversion of such Lender's Affected Advances pursuant to this Section 5.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Affected Advances are outstanding, such
Lender's Base Rate Advances shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding Affected
Advances to the
38
extent necessary so that, after giving effect thereto, all Eurodollar Advances
held by the Lenders holding Eurodollar Advances and by such Lender are held pro
rata (as to principal amounts, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
Section 5.5 Compensation. The Borrower shall pay to the Agent for the
account of each Lender, upon the request of such Lender through the Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense incurred by it as a
result of:
(a) Any payment, prepayment or Conversion of a Eurodollar Advance for
any reason (including, without limitation, the acceleration of the
outstanding Advances pursuant to Section 11.2 and assignments pursuant to
Section 4.7(b)) on a date other than the last day of an Interest Period for
such Eurodollar Advance; or
(b) Any failure by the Borrower for any reason (including, without
limitation, the failure of any conditions precedent specified in Article VI
to be satisfied) to borrow, Convert, or prepay a Eurodollar Advance on the
date for such borrowing, Conversion, or prepayment, specified in the
relevant notice of borrowing, prepayment, or Conversion under this
Agreement.
Section 5.6 Additional Costs in Respect of Letters of Credit. If as a
result of any Change in Law there shall be imposed, modified, or deemed
applicable any tax, reserve, special deposit, or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder or the Issuing Bank's commitment to issue Letters of Credit
hereunder, and the result shall be to increase the cost to the Issuing Bank of
issuing or maintaining any Letter of Credit or its commitment to issue Letters
of Credit hereunder or reduce any amount receivable by the Issuing Bank
hereunder in respect of any Letter of Credit (which increase in cost, or
reduction in amount receivable, shall be the result of the Issuing Bank's
reasonable allocation of the aggregate of such increases or reductions resulting
from such event), then, upon demand by the Issuing Bank, the Borrower agrees to
pay the Issuing Bank, from time to time as specified by the Issuing Bank, such
additional amounts as shall be sufficient to compensate the Issuing Bank for
such increased costs or reductions in amount. A statement as to such increased
costs or reductions in amount incurred by the Issuing Bank, submitted by the
Issuing Bank to the Borrower, shall be conclusive as to the amount thereof,
provided that the determination thereof is made on a reasonable basis.
ARTICLE VI
Conditions Precedent
Section 6.1 Initial Extension of Credit. The obligation of each Lender to
make its initial Advance is subject to the condition precedent that the Agent
shall have received on or before the day of such Advance all of the following,
each dated (unless otherwise indicated) the date hereof, in form and substance
satisfactory to the Agent:
(a) Resolutions. Resolutions of the Board of Directors of the Borrower
and each Guarantor certified by its Secretary or an Assistant Secretary
which authorize the execution, delivery, and performance of the Loan
Documents to which it is or is to be a party;
39
(b) Incumbency Certificate. A certificate of incumbency certified by
the Secretary or an Assistant Secretary of the Borrower and each Guarantor
certifying the names of each of its officers authorized to sign the Loan
Documents to which it is or is to be a party (including the certificates
contemplated herein) together with specimen signatures of such officers;
(c) Certificate or Articles of Incorporation and Certificate of
Limited Partnership. The certificate or articles of incorporation or
certificate of limited partnership, as applicable, of the Borrower and each
Guarantor certified by the Secretary of State of the State of its
organization;
(d) Bylaws and Limited Partnership Agreement. The bylaws or limited
partnership agreement, as applicable, of the Borrower and each Guarantor
certified by the Secretary or an Assistant Secretary of such Person;
(e) Existence and Good Standing. Certificates of the appropriate
government officials of the state of organization of the Borrower and each
Guarantor as to its existence and good standing and certificates of
appropriate government officials of each state in which the Borrower and
each Guarantor is required to qualify to do business and where failure to
so qualify could reasonably be expected to have a Material Adverse Effect,
as to the Borrower's and each Guarantor's qualification to do business and
good standing in such state, all dated a current date;
(f) Notes. The Notes executed by the Borrower;
(g) Guaranty. The Guaranty executed by the Guarantors;
(h) Contribution and Indemnification Agreement. The Contribution and
Indemnification Agreement executed by the Borrower and the Guarantors;
(i) Borrower Security Agreement. The Borrower Security Agreement
executed by the Borrower;
(j) Subsidiary Security Agreement. The Subsidiary Security Agreement
executed by each Guarantor, as applicable;
(k) Opinion of Counsel. A favorable opinion of legal counsel to the
Borrower and each Guarantor (which opinion may be prepared in part by
Borrower's in-house counsel) satisfactory to the Agent, as to such matters
as the Agent may reasonably request;
(l) Fees of Lenders. Evidence that all fees of the Agent and the
Lenders payable pursuant to side letter agreements shall have been paid in
full by the Borrower; and
(m) Attorneys' Fees and Expenses. Evidence that the costs and expenses
(including attorneys' fees) referred to in Section 13.1, to the extent
incurred, shall have been paid in full by the Borrower.
40
Section 6.2 All Extensions of Credit. The obligation of each Lender to make
any Advance and of the Issuing Bank to issue any Letter of Credit (including the
initial Advance and the initial Letter of Credit) is subject to the following
additional conditions precedent:
(a) Advance Request Form, Telephonic Request, or Letter of Credit
Request Form. The Agent in respect of Revolving Credit Loan Advances, the
Swing Lender in respect of Swing Loan Advances, and the Issuing Bank in
respect of Letters of Credit shall have received, in accordance with
Section 2.5, 2.7 or 3.2, as the case may be, an Advance Request Form, a
telephonic request, or Letter of Credit Request Form, as applicable,
executed by an authorized officer of the Borrower;
(b) No Default. No Default shall have occurred and be continuing, or
would result from such Advance or Letter of Credit;
(c) Representations and Warranties. All of the representations and
warranties contained in Article VII hereof and in the other Loan Documents
shall be true and correct in all material respects on and as of the date of
such Advance or issuance of Letter of Credit with the same force and effect
as if such representations and warranties had been made on and as of such
date except to the extent such representations and warranties speak to a
specific date;
(d) No Material Adverse Effect. Neither any Material Adverse Effect or
any material adverse change in the financial or capital markets shall have
occurred since the date of the most recent financial statements delivered
to the Agent and the Lenders pursuant to Section 8.1 hereof; and
(e) Additional Documentation. The Agent shall have received such
additional approvals, opinions, or documents as the Agent or its legal
counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., may reasonably request.
ARTICLE VII
Representations and Warranties
To induce the Agent, the Issuing Bank, and the Lenders to enter into this
Agreement, the Borrower represents and warrants to the Agent, the Issuing Bank,
and the Lenders that:
Section 7.1 Existence. The Borrower and each Subsidiary (a) is a
corporation (or other entity as set forth on Schedule 7.14) duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation or organization; (b) has all requisite power and authority to own
its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business in all jurisdictions in which the
nature of its business makes such qualification necessary and where failure to
so qualify would have a Material Adverse Effect. Each of the Borrower and the
Guarantors has the power and authority to execute, deliver, and perform its
obligations under the Loan Documents to which it is or may become a party.
Section 7.2 Financial Statements. The Borrower has delivered to the Agent
audited consolidated financial statements of the Borrower and its Subsidiaries
as at and for the fiscal year
41
ended September 30, 2005, and unaudited consolidated financial statements of the
Borrower and its Subsidiaries for the nine-month period ended June 30, 2006.
Such financial statements are true and correct, have been prepared in accordance
with GAAP, and fairly and accurately present, on a consolidated basis, the
financial condition of the Borrower and its Subsidiaries as of the respective
dates indicated therein and the results of operations for the respective periods
indicated therein. As of the date hereof, neither the Borrower nor any of its
Subsidiaries has any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments, or unrealized or anticipated losses
from any unfavorable commitments except as referred to or reflected in such
financial statements, and there has been no Material Adverse Effect since the
effective date of the most recent financial statements referred to in this
Section.
Section 7.3 Action; No Breach. The execution, delivery, and performance by
the Borrower and each Guarantor of the Loan Documents to which it is or may
become a party, and compliance with the terms and provisions hereof and thereof
have been duly authorized by all requisite action on the part of the Borrower
and each Guarantor and do not and will not (a) violate or conflict with, or
result in a breach of, or require any consent, other than such consents which
have been obtained and copies of which have been provided to the Agent, under
(i) the articles of incorporation or bylaws or the applicable organizational
documents of the Borrower or any Guarantor, (ii) any applicable law, rule, or
regulation or any order, writ, injunction, or decree of any Governmental
Authority or arbitrator, including without limitation, the provisions of the
Texas Pawnshop Act (Chapter 371 of the Texas Finance Code) and the consumer loan
provisions of the Texas Finance Code, or (iii) any agreement or instrument to
which the Borrower or any of the Guarantors is a party or by which any of them
or any of their property is bound or subject, or (b) constitute a default under
any such agreement or instrument, or result in the creation or imposition of any
Lien upon any of the revenues or assets of the Borrower or any Guarantor (except
for Liens in favor of the Agent for the benefit of the Lenders).
Section 7.4 Operation of Business. The Borrower and each of its
Subsidiaries possess all licenses, permits, franchises, patents, copyrights,
trademarks, and tradenames, or rights thereto, necessary to conduct their
respective businesses substantially as now conducted and as presently proposed
to be conducted, and the Borrower and each of its Subsidiaries are not in
violation of any valid rights of others with respect to any of the forgoing
except where such violation individually or in combination with all other such
violations could not reasonably be expected to have a Material Adverse Effect.
Section 7.5 Litigation and Judgments. There is no action, suit,
investigation, or proceeding before or by any Governmental Authority or
arbitrator pending, or to the knowledge of the Borrower, threatened against or
affecting the Borrower or any Subsidiary, that could, if adversely determined,
reasonably be expected to have a Material Adverse Effect. As of the date hereof,
there are no outstanding judgments against the Borrower or any Subsidiary,
except for those certain default judgments in an aggregate amount not exceeding
$15,000 outstanding on the date hereof.
Section 7.6 Rights in Properties; Liens. The Borrower and each Subsidiary
have good and indefeasible title to or valid leasehold interests in their
respective properties and assets, real and personal, including the properties,
assets, and leasehold interests reflected in the financial statements described
in Section 7.2, and none of the properties, assets, or leasehold interests of
the Borrower or any Subsidiary is subject to any Lien, except as permitted by
Section 9.2.
42
Section 7.7 Enforceability. The Loan Documents to which the Borrower or a
Guarantor is a party, when delivered, shall constitute the legal, valid, and
binding obligations of the Borrower or such Guarantor, as applicable,
enforceable against the Borrower or such Guarantor, as applicable, in accordance
with their respective terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of creditors'
rights and general principles of equity.
Section 7.8 Approvals. No authorization, approval, or consent of, and no
filing or registration with, any Governmental Authority or third party is or
will be necessary for the execution, delivery, or performance by the Borrower of
this Agreement and by the Borrower or any Guarantor of the other Loan Documents
to which the Borrower or such Guarantor, as applicable, is or may become a party
or for the validity or enforceability thereof.
Section 7.9 Debt. The Borrower and the Subsidiaries have no Debt, except as
permitted by Section 9.1.
Section 7.10 Taxes. The Borrower and each Subsidiary have filed all tax
returns (federal, state, and local) required to be filed, including all income,
franchise, employment, property, and sales tax returns, and have paid all of
their respective liabilities for taxes, assessments, governmental charges, and
other levies that are due and payable other than those being contested in good
faith by appropriate proceedings diligently pursued for which adequate reserves
have been established. The Borrower knows of no pending investigation of the
Borrower or any Subsidiary by any taxing authority or of any pending but
unassessed tax liability of the Borrower or any Subsidiary.
Section 7.11 Use of Proceeds; Margin Securities. Neither the Borrower nor
any Subsidiary is engaged 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 Regulations T, U, or X of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of any
Advance will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying margin stock.
Section 7.12 ERISA. As of the date hereof, the Borrower, each Subsidiary,
each ERISA Affiliate, and each Plan are in compliance in all material respects
with all applicable provisions of ERISA and the Code except for events of
noncompliance that will not have a Material Adverse Effect. Neither a Reportable
Event nor a Prohibited Transaction has occurred and is continuing with respect
to any Plan. No notice of intent to terminate a Plan has been filed, nor has any
Plan been terminated. No circumstances exist which constitute grounds entitling
the PBGC to institute proceedings to terminate, or appoint a trustee to
administer, a Plan, nor has the PBGC instituted any such proceedings. Neither
the Borrower nor any ERISA Affiliate has completely or partially withdrawn from
a Multiemployer Plan. With respect to any Plan that is subject to Title IV or
Section 302 of ERISA or Section 412 or 4971 of the Code (a) no circumstances
exist which constitute grounds entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, a Plan, nor has the PBGC
instituted any such proceedings, (b) the Borrower and each ERISA Affiliate have
met their minimum funding requirements under ERISA, and no "accumulated funding
deficiency" (for which an excise tax is due or would be due in the absence of a
waiver) as defined in Section 412 of the Code or Section 302(a)(2) of ERISA,
whichever may apply, has been incurred with respect to any Plan, whether or not
waived, (c) the present value of all vested benefits under each Plan do not
exceed
43
the fair market value of all Plan assets allocable to such benefits, determined
on a termination basis as of the most recent valuation date of the Plan and in
accordance with ERISA, and (d) neither the Borrower nor any ERISA Affiliate (i)
has incurred any liability to the PBGC under ERISA, (ii) is subject to any lien
imposed under Section 412(n) of the Code or Section 302(f) or 4068 of ERISA,
whichever may apply, with respect to any Plan or (iii) is required to provide
security to a Plan under Section 401(a)(29) of the Code.
Section 7.13 Disclosure. All factual information (taken as a whole)
furnished by or on behalf of the Borrower in writing to the Agent or any Lender
(including, without limitation, all information contained in the Loan Documents)
for purposes of or in connection with this Agreement, the other Loan Documents
or any transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower to the Agent or any Lender, will be true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at such time in light
of the circumstances under which such information was provided.
Section 7.14 Subsidiaries. As of the date hereof, the Borrower has no
Subsidiaries other than those listed on Schedule 7.14 hereto, and Schedule 7.14
(a) sets forth the type of each Subsidiary listed thereon, (b) sets forth the
jurisdiction of incorporation or organization of each Subsidiary, and the
percentage of the Borrower's (or intervening Subsidiary's) ownership of the
outstanding voting stock or other ownership interests of each Subsidiary. All of
the outstanding capital stock of each corporate Subsidiary has been validly
issued, is fully paid, and is nonassessable. There are no outstanding
subscriptions, options, warrants, calls, or rights to acquire, and no
outstanding securities or instruments convertible into, capital stock of any
Subsidiary except as listed on Schedule 7.14.
Section 7.15 Agreements. Neither the Borrower nor any Subsidiary is a party
to any indenture, loan, or credit agreement, or to any lease or other agreement
or instrument, or subject to any charter or corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in any material respect in the performance,
observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument material to its business to which it is
a party other than defaults which could not reasonably be expected to have a
Material Adverse Effect.
Section 7.16 Compliance with Laws. Neither the Borrower nor any Subsidiary
is in violation of any law, rule, regulation, order, or decree of any
Governmental Authority or arbitrator, including without limitation, the
provisions of the Texas Pawnshop Act (Chapter 371 of the Texas Finance Code),
the consumer loan provisions of the Texas Finance Code and provisions of the
Xxxxx Law and other laws, rules and regulations related to the regulation of
firearms, other than violations which could not reasonably be expected to have a
Material Adverse Effect.
Section 7.17 Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 7.18 Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company"' or a "subsidiary company" of a "holding
company" or an
44
"affiliate" of a "holding company" or a "public utility" within the meaning of
the Public Utility Holding Company Act of 2005, as amended.
Section 7.19 Environmental Matters. Except for those matters which will not
individually or collectively have a Material Adverse Effect:
(a) The Borrower, each Subsidiary, and all of their respective
properties, assets, and operations are in full compliance with all
Environmental Laws. The Borrower is not aware of, nor has the Borrower
received notice of, any past, present, or future conditions, events,
activities, practices, or incidents which may interfere with or prevent the
compliance or continued compliance of the Borrower and the Subsidiaries
with all Environmental Laws;
(b) The Borrower and each Subsidiary have obtained all permits,
licenses, and authorizations that are required under applicable
Environmental Laws, and all such permits are in good standing and the
Borrower and its Subsidiaries are in compliance with all of the terms and
conditions of such permits;
(c) No Hazardous Materials exist on, about, or within or have been
used, generated, stored, transported, disposed of on, or Released from any
of the properties or assets of the Borrower or any Subsidiary. The use
which the Borrower and the Subsidiaries make and intend to make of their
respective properties and assets will not result in the use, generation,
storage, transportation, accumulation, disposal, or Release of any
Hazardous Material on, in, or from any of their properties or assets except
in compliance with Environmental Laws;
(d) Neither the Borrower nor any of its Subsidiaries nor any of their
respective currently or previously owned or leased properties or operations
is subject to any outstanding or, to the best of its knowledge, threatened
order from or agreement with any Governmental Authority or other Person or
subject to any judicial or docketed administrative proceeding with respect
to (i) failure to comply with Environmental Laws, (ii) Remedial Action, or
(iii) any Environmental Liabilities arising from a Release or threatened
Release;
(e) There are no conditions or circumstances associated with the
currently or previously owned or leased properties or operations of the
Borrower or any of its Subsidiaries that could reasonably be expected to
give rise to any Environmental Liabilities;
(f) Neither the Borrower nor any of its Subsidiaries is a treatment,
storage, or disposal facility requiring a permit under the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., regulations
thereunder or any comparable provision of state law. The Borrower and its
Subsidiaries are in compliance with all applicable financial responsibility
requirements of all Environmental Laws;
(g) Neither the Borrower nor any of its Subsidiaries has filed or
failed to file any notice required under applicable Environmental Law
reporting a Release; and
45
(h) No Lien arising under any Environmental Law has attached to any
property or revenues of the Borrower or its Subsidiaries.
ARTICLE VIII
Positive Covenants
The Borrower covenants and agrees that, as long as the Obligations or any
part thereof are outstanding or any Lender has any Commitment hereunder, or the
Issuing Bank has any obligation to issue Letters of Credit hereunder, the
Borrower will perform and observe the following positive covenants:
Section 8.1 Reporting Requirements. The Borrower will furnish to the Agent,
the Issuing Bank, and each Lender:
(a) Annual Audited Financial Statements. As soon as available, and in
any event within 90 days after the end of each Fiscal Year of the Borrower
and the Subsidiaries, beginning with the Fiscal Year ending September 30,
2006, a copy of the annual audited financial statements of the Borrower and
the Subsidiaries for such Fiscal Year containing, on a consolidated basis,
balance sheets and statements of income, retained earnings, and cash flow
as at the end of such Fiscal Year and for the 12-month period then ended,
in each case setting forth in comparative form the figures for the
preceding Fiscal Year, all in reasonable detail and audited and certified
by Ernst & Young, or other independent certified public accountants of
recognized standing acceptable to the Agent, to the effect that such report
has been prepared in accordance with GAAP;
(b) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the end of each Fiscal Quarter in each Fiscal
Year of the Borrower (for the first three Fiscal Quarters in each Fiscal
Year), a copy of an unaudited financial report of the Borrower and the
Subsidiaries as of the end of such Fiscal Quarter and for the portion of
the Fiscal Year then ended, containing, on a consolidated basis (and, at
the request of the Agent, on a consolidating basis), balance sheets and
statements of income, retained earnings, and a year-to-date cash flow
statement in each case setting forth in comparative form the figures for
the corresponding period of the preceding Fiscal Year, all in reasonable
detail certified by the chief financial officer of the Borrower to have
been prepared in accordance with GAAP and to fairly and accurately present
(subject to year-end audit adjustments) the financial condition and results
of operations of the Borrower and the Subsidiaries, on a consolidated basis
(and, at the request of the Agent, on a consolidating basis), at the date
and for the periods indicated therein;
(c) Compliance Certificate. As soon as available, and in any event
within 45 days after the end of each Fiscal Quarter of each Fiscal Year of
the Borrower for the first three Fiscal Quarters of each Fiscal Year and
within 90 days after the end of the fourth Fiscal Quarter of each Fiscal
Year, a certificate (the "Compliance Certificate") of the chief financial
officer of the Borrower (i) stating that to the best of such officer's
knowledge, no Default has occurred and is continuing, or if a Default has
occurred and is continuing, a statement as to the nature thereof and the
action that is proposed to be taken
46
with respect thereto, and (ii) showing in reasonable detail the most recent
Fiscal Quarter calculations demonstrating compliance with Article X;
(d) Projections. As soon as available and in any event within 30 days
after the end of each Fiscal Year, projections of consolidated financial
statements of the Borrower and its Subsidiaries for the upcoming Fiscal
Year;
(e) Management Letters. Promptly upon receipt thereof, a copy of any
management letter or written report submitted to the Borrower or any
Subsidiary by independent certified public accountants with respect to the
business, condition (financial or otherwise), operations, prospects, or
properties of the Borrower or any Subsidiary;
(f) Notice of Litigation. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any Governmental
Authority or arbitrator affecting the Borrower or any Subsidiary which, if
determined adversely to the Borrower or such Subsidiary, could reasonably
be expected to have a Material Adverse Effect;
(g) Notice of Default. As soon as possible and in any event within 10
days after the Borrower knows of the occurrence of each Default, a written
notice setting forth the details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(h) ERISA Reports. Promptly after the filing or receipt thereof,
copies of all reports, including annual reports or informational returns,
notices which the Borrower or any ERISA Affiliate files with or receives
from the PBGC or the U.S. Department of Labor under ERISA, and any tax
returns the Borrower or any ERISA Affiliate file with the Internal Revenue
Service related to any Plan; and as soon as possible and in any event
within five days after the Borrower or any ERISA Affiliate knows or has
reason to know that any Reportable Event (as to which the thirty day notice
requirement to the PBGC has not been waived) or Prohibited Transaction has
occurred with respect to any Plan or that the PBGC or the Borrower or any
Subsidiary or any ERISA Affiliate has instituted or will institute
proceedings under Title IV of ERISA to terminate any Plan, a certificate of
the chief financial officer of the Borrower setting forth the details as to
such Reportable Event or Prohibited Transaction or Plan termination and the
action that the Borrower proposes to take with respect thereto;
(i) Notice of Material Adverse Effect. As soon as possible and in any
event within 10 days after the Borrower knows of the occurrence thereof,
written notice of any matter that could reasonably be expected to have a
Material Adverse Effect;
(j) Proxy Statements, Etc. As soon as available, one copy of each
financial statement, report, notice or proxy statement sent by the Borrower
or any Subsidiary to its stockholders generally and one copy of each
regular, periodic or special report, registration statement, or prospectus
filed by the Borrower or any Subsidiary with any securities exchange or the
Securities and Exchange Commission or any successor agency;
(k) CSO Program Agreements. As soon as available and in any event
within 30 days after the execution and delivery thereof, copies of each
credit services organization and lender agreement or other similar
agreement between the Borrower or
47
any Guarantor and an unaffiliated, third-party lender in connection with
any CSO Program and, at the request of the Agent, copies of any other
agreements related thereto; and
(l) General Information. Promptly, such other information concerning
the Borrower or any Subsidiary as the Agent or any Lender may from time to
time reasonably request.
Section 8.2 Maintenance of Existence; Conduct of Business. The Borrower
will preserve and maintain, and will cause each Subsidiary to preserve and
maintain, its corporate (or partnership, limited liability company or other
entity) existence and all of its leases, privileges, licenses, permits,
franchises, qualifications, and rights that are necessary or desirable in the
ordinary conduct of its business. The Borrower will conduct, and will cause each
Subsidiary to conduct, its business in an orderly and efficient manner in
accordance with good business practices customary in the industry in which the
Borrower and the Subsidiaries are engaged.
Section 8.3 Maintenance of Properties. The Borrower will maintain, keep,
and preserve, and cause each Subsidiary to maintain, keep, and preserve, all of
its properties (tangible and intangible) necessary or useful in the proper
conduct of its business in good working order and condition (ordinary wear and
tear excepted).
Section 8.4 Taxes and Claims. The Borrower will pay or discharge, and will
cause each Subsidiary to pay or discharge, at or before maturity or before
becoming delinquent (a) all taxes, levies, assessments, and governmental charges
imposed on it or its income or profits or any of its property, and (b) all
lawful claims for labor, material, and supplies, which, if unpaid, might become
a Lien upon any of its property; provided, however, that neither the Borrower
nor any Subsidiary shall be required to pay or discharge any tax, levy,
assessment, or governmental charge which is being contested in good faith by
appropriate proceedings diligently pursued, and for which adequate reserves have
been established.
Section 8.5 Insurance. The Borrower will maintain, and will cause each
Subsidiary to maintain, insurance with financially sound and reputable insurance
companies in such amounts and covering such risks as is usually carried by
corporations engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower and the Subsidiaries operate, provided
that in any event the Borrower will maintain and cause each Subsidiary to
maintain workmen's compensation insurance, property insurance, comprehensive
general liability insurance, reasonably satisfactory to the Agent.
Section 8.6 Inspection Rights; Audits. At any reasonable time and from time
to time, the Borrower will permit, and will cause each Subsidiary to permit,
representatives of the Agent and each Lender to examine, copy, and make extracts
from its books and records, to visit and inspect its properties, and to discuss
its business, operations, and financial condition with its officers, employees,
and independent certified public accountants.
Section 8.7 Keeping Books and Records. The Borrower will maintain, and will
cause each Subsidiary to maintain, proper books of record and account in which
full, true, and correct entries in conformity with GAAP shall be made of all
dealings and transactions in relation to its business and activities.
48
Section 8.8 Compliance with Laws. The Borrower will comply, and will cause
each Subsidiary to comply, in all respects with all applicable laws, rules,
regulations, orders, and decrees of any Governmental Authority or arbitrator,
including without limitation, the provisions of the Texas Pawnshop Act (Chapter
371 of the Texas Finance Code), the consumer loan provisions of the Texas
Finance Code and the provisions of the Xxxxx Law and other laws, rules and
regulations related to the regulation of firearms, other than such
non-compliance which could not reasonably be expected to have a Material Adverse
Effect.
Section 8.9 Compliance with Agreements. The Borrower will comply, and will
cause each Subsidiary to comply, in all respects with all agreements, contracts,
and instruments binding on it or affecting its properties or business other than
such non-compliance which could not reasonably be expected to have a Material
Adverse Effect.
Section 8.10 Further Assurances. The Borrower will, and will cause each
Subsidiary to, execute and deliver such further agreements and instruments and
take such further action as may be reasonably requested by the Agent to carry
out the provisions and purposes of this Agreement and the other Loan Documents.
Without limiting the foregoing, upon the creation, formation or acquisition of
any Significant Subsidiary or a new store by a new Significant Subsidiary or by
a Guarantor in a new state, the Borrower shall, within 30 calendar days
following the date the Borrower has knowledge that such creation, formation or
acquisition, as the case maybe, has been consummated, all in form and substance
satisfactory to the Agent:
(a) provide written notice of such creation, formation or acquisition
to the Agent;
(b) cause each such Significant Subsidiary (other than an Excluded
Foreign Subsidiary) to execute and deliver (i) a supplement to the
Guaranty, a supplement to the Contribution and Indemnification Agreement,
(ii) if requested by the Agent or the Required Lenders, a supplement to the
Subsidiary Security Agreement, Real Property Security Documents, Uniform
Commercial Code financing statements (delivery only), a Waiver for each
Leased Location (subject in all respects to a best efforts standard of
performance), title insurance commitments, surveys of Real Property,
appraisals of Real Property, lender's title insurance policy with any
required endorsements, and (iii) a legal opinion of the Borrower's and
Guarantors' counsel (which may in the Agent's discretion be a legal opinion
of the Borrower's in-house counsel); and
(c) cause the holder of the equity interest of such Excluded Foreign
Subsidiary to execute and deliver amendments and supplements to the Loan
Documents and take any other actions as Agent deems advisable or necessary
to grant to Agent for the benefit of the Secured Parties (as defined in the
Borrower Security Agreement and the Subsidiary Security Agreement), a
perfected first priority security interest in such equity interest
(provided that in no event shall more than 66% of the total outstanding
voting equity interest of any such new Excluded Foreign Subsidiary be
required to be so pledged).
If any Subsidiary is created or acquired after the date hereof, the Borrower
shall deliver to the Agent (i) an amended Schedule 7.14 to this Agreement to
reflect the addition of the new Subsidiary and (ii) if such Subsidiary is a
Significant Subsidiary, any other documents which
49
would have otherwise been required to be delivered to the Agent and the Lenders
if such Significant Subsidiary had been a Guarantor as of the date hereof.
Section 8.11 ERISA. With respect to any Plan that is subject to Title IV or
Section 302 of ERISA or Section 412 or 4971 of the Code, the Borrower will
comply, and will cause each Subsidiary to comply, with all minimum funding
requirements, and all other material requirements of ERISA, if applicable, so as
not to give rise to any liability thereunder which could reasonably be expected
to have a Material Adverse Effect.
Section 8.12 Landlord's Waivers or Subordinations. At the request of the
Agent or the Required Lenders, the Borrower will, and will cause each Subsidiary
to, deliver promptly a waiver or subordination of the landlord's lien in the
Collateral (a "Waiver") by the landlord of a Leased Location (subject in all
respects to a best efforts standard of performance), the Waiver to be in form
and substance reasonably satisfactory to the Agent.
ARTICLE IX
Negative Covenants
The Borrower covenants and agrees that, as long as the Obligations or any
part thereof are outstanding or any Lender has any Commitment hereunder or the
Issuing Bank has any obligation to issue Letters of Credit hereunder, the
Borrower will perform and observe the following negative covenants:
Section 9.1 Debt. The Borrower will not incur, create, assume, or permit to
exist, and will not permit any Subsidiary to incur, create, assume, or permit to
exist, any Debt, except:
(a) Debt to the Lenders and the Issuing Bank pursuant to the Loan
Documents;
(b) Debt listed on Schedule 9.1;
(c) unsecured Debt owed by a Guarantor to another Guarantor evidenced
by a promissory note which is issued to satisfy any applicable state
regulatory requirement for the issuance of a license for consumer loan
activity, such promissory note being pledged to and held by the Agent as
Collateral;
(d) Guarantee by the Borrower of real estate lease obligations of a
Guarantor;
(e) subordinated Debt which is fully subordinated to the Obligations,
on terms specifically including, without limitation, that payments on such
Debt shall be prohibited if a Default exists or would result from such
payment, the maturity date of such Debt shall be later than the Termination
Date, and other terms and conditions and pursuant to documentation, all in
form and substance satisfactory to the Agent and the Required Lenders;
(f) Debt consisting of CSO LCs;
(g) Guarantees of the Debt permitted in clause (f) above;
50
(h) Debt assumed by the Borrower or any Subsidiary in connection with
Permitted Acquisitions in an aggregate amount not to exceed $5,000,000 at
any one time outstanding;
(i) purchase money Debt which in each case shall not exceed 100% of
the lesser of the total purchase price and the fair market value of such
acquired asset as determined at the time of acquisition; and
(j) Debt (other than Debt described in clauses (a) through and
including (i) above) in an aggregate amount not to exceed $2,000,000.00 at
any one time outstanding.
Section 9.2 Limitation on Liens. The Borrower will not incur, create,
assume, or permit to exist, and will not permit any Subsidiary to incur, create,
assume, or permit to exist, any Lien upon any of its property, assets, or
revenues, whether now owned or hereafter acquired, except:
(a) Liens disclosed on Schedule 9.2 hereto and Liens in favor of the
Agent for the benefit of the Lenders;
(b) Liens for taxes, assessments, or other governmental charges which
are not delinquent or which are being diligently contested in good faith
and for which adequate reserves have been established;
(c) Liens of mechanics, materialmen, warehousemen, carriers, landlords
or other similar statutory Liens securing obligations that are not yet due
and are incurred in the ordinary course of business;
(d) Liens resulting from good faith deposits to secure payments of
workmen's compensation or other social security programs or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, contracts (other than for payment of Debt), or leases made in the
ordinary course of business;
(e) Liens on the Litigation Fund Account in favor of County Bank of
Rehoboth Beach, Delaware;
(f) purchase money Liens securing Permitted Debt described in Section
9.1(i), provided that the Debt secured by any such Lien encumbers only the
asset so purchased;
(g) financing statements filed in connection with operating lease
transactions for computers;
(h) Liens in favor of a landlord of a Leased Location on only the
assets of the Borrower or any Subsidiary located at such Lease Location so
long as no financing statement will be filed in connection with such Lien
unless (i) the collateral description listed on such financing statement is
limited to the assets of the Borrower or applicable Subsidiary located at
such Leased Location, and (ii) if requested by the Agent or the Required
Lenders, the Borrower or applicable Subsidiary has obtained a Waiver for
such
51
Leased Location from such landlord (subject in all respects to a best
efforts standard of performance), such Waiver to be in form and substance
satisfactory to the Agent; and
(i) Liens in favor of former holders of equity interests in a Target
on holdback and escrow accounts established by the Borrower pursuant to
purchase agreements related to Permitted Acquisitions.
Neither the Borrower nor any Subsidiary shall enter into or assume any
agreement (other than the Loan Documents) prohibiting the creation or assumption
of any Lien upon its properties or assets whether now owned or hereafter
acquired; provided that in connection with the creation of purchase money Liens
permitted hereby, the Borrower or the Subsidiary may agree that it will not
permit any other Liens (other than the Liens in favor of the Agent for the
benefit of the Lenders) to encumber the assets subject to such purchase money
Lien. Further, the Borrower will not and will not permit any Subsidiaries
directly or indirectly to create or otherwise cause or suffer to exist to become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to: (i) pay dividends or make any other distribution on any of
such Subsidiaries' capital stock owned by the Borrower or any Subsidiary of the
Borrower; (ii) subject to subordination provisions pay any Debt owed to the
Borrower or any other Subsidiary; (iii) make loans or advances to the Borrower
or any other Subsidiary; or (iv) transfer any of its properties or assets to the
Borrower or any other Subsidiary not restricted hereby.
Section 9.3 Mergers, Etc. The Borrower will not, and will not permit any
Subsidiary to become a party to a merger or consolidation, or to purchase or
otherwise acquire all or a substantial part of the business or assets of any
Person or any shares or other equity interest of any Person (whether or not
certificated), or wind-up, dissolve, or liquidate itself; provided that, (i) a
domestic Subsidiary may wind-up, dissolve or liquidate if no Default exists or
would result therefrom and its assets are transferred to the Borrower or another
domestic Significant Subsidiary; (ii) a foreign Subsidiary may wind-up, dissolve
or liquidate if no Default exists or would result therefrom; (iii) any
Subsidiary may merge with and into the Borrower if the Borrower is the surviving
entity and no Default exists or would result therefrom; (iv) any Subsidiary may
merge with and into any other domestic Significant Subsidiary if the domestic
Significant Subsidiary is the surviving entity, no Default exists or would
result therefrom and Section 8.10 is complied with; (v) any foreign Subsidiary
may merge with any other foreign Subsidiary if no Default exists or would result
therefrom; (vi) the Borrower or a Subsidiary may make investments permitted
under Section 9.5 hereof; (vii) the Borrower or a Subsidiary may make Permitted
Acquisitions; (vii) any Subsidiary that is not a Significant Subsidiary may
merge with and into any other Subsidiary if the other Subsidiary is the
surviving entity and no Default exists or would result therefrom; and (viii) the
Borrower or any Subsidiary may acquire assets as permitted under Section 9.7.
Section 9.4 Restricted Payments. The Borrower will not declare or pay any
dividends or make any other payment or distribution (whether in cash, property,
or obligations) on account of its capital stock, or redeem, purchase, retire, or
otherwise acquire any of its capital stock, or permit any of its Subsidiaries to
purchase or otherwise acquire any capital stock of the Borrower or another
Subsidiary, or set apart any money for a sinking or other analogous fund for any
dividend or other distribution on its capital stock or for any redemption,
purchase, retirement, or other acquisition of any of its capital stock; provided
however, the Borrower may declare or pay Permitted Payments.
52
Section 9.5 Investments. Other than pawn loans, Pay-Day Advance Loans (and
participations therein) and other consumer loans (and participations therein)
extended in the ordinary course of business, the Borrower will not make, and
will not permit any Subsidiary to make, any advance, loan, extension of credit,
or capital contribution to or investment in, or purchase to own, or permit any
Subsidiary to purchase or own, any stock, bonds, notes, debentures, or other
securities of any Person, except:
(a) investments that are permitted and approved by the Borrower in
accordance with the Corporate Investment Policy adopted by the Borrower's
board of directors on July 21, 2006 other than any investments in Albemarle
& Bond Holdings plc;
(b) investments in Subsidiaries existing on the date of this Agreement
and investments in subsequently created Subsidiaries so long as the
Borrower and the Subsidiaries have complied with the terms and conditions
of Section 8.10;
(c) any loans or investments not covered in the previous sections of
this Section 9.5 (including any additional investments made after the date
hereof in Albemarle & Bond Holdings plc) not to exceed $7,500,000 in the
aggregate;
(d) Permitted Acquisitions;
(e) any CSO LC Disbursements made by the CSO LC Issuer in connection
with the CSO Program; and
(f) investments in Albemarle & Bond Holdings plc existing on the date
of this Agreement.
Section 9.6 Limitation on Issuance of Capital Stock. The Borrower will not
permit any of its Subsidiaries to, at any time issue, sell, assign, or otherwise
dispose of (a) any of its capital stock (or any equivalent interest therein),
(b) any securities exchangeable for or convertible into or carrying any rights
to acquire any of its capital stock (or any equivalent interest therein), or (c)
any option, warrant, or other right to acquire any of its capital stock (or any
equivalent interest therein), except issuances by a Subsidiary to the Borrower.
Section 9.7 Transactions With Affiliates. The Borrower will not enter into,
and will not permit any Subsidiary to enter into, any transaction, including,
without limitation, the purchase, sale, or exchange of property or the rendering
of any service, with any Affiliate of the Borrower or such Subsidiary, except,
so long as no Default has occurred and is continuing or would result therefrom,
(a) the transfers of assets with a book value not greater than $2,500,000 in the
aggregate during the term of this Agreement, (b) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate of the
Borrower or such Subsidiary, (c) transfers of assets to any Obligated Party so
long as, if such assets are subject to a Lien in favor of the Agent, then such
transferee Obligated Party shall grant promptly first priority perfected Liens
in such assets to the Agent, (d) transfers of cash to any Subsidiary so long as
such cash is deposited into a deposit account that is subject to a first
priority perfected Lien in favor of the Agent, (e) transfers of cash to any
other Subsidiary so long as such cash shall be used by the transferee Subsidiary
in the ordinary course of business, and (f) transfers by any Subsidiary that is
53
not an Obligated Party of any assets not constituting Collateral (including
cash) to another Subsidiary that is not an Obligated Party.
Section 9.8 Disposition of Assets. The Borrower will not sell, lease,
assign, transfer, or otherwise dispose (collectively "Dispositions") of any of
its assets, or permit any Subsidiary to do so with any of its assets, except:
(a) Dispositions of Inventory in the ordinary course of business;
(b) Dispositions of obsolete, worn or used equipment;
(c) Dispositions in the ordinary course of business of short-term
consumer loans and any other rights related to such consumer loans arising
under the CSO Program (including reimbursement obligations under CSO LCs)
(collectively the "Consumer Obligations") so long as (i) such consumers
have defaulted on such loans and (ii) the related CSO LCs have been fully
drawn;
(d) Dispositions to a Guarantor as to which Agent has in its
possession an executed Guaranty, Contribution and Indemnification
Agreement, Subsidiary Security Agreement and Real Estate Security
Documents, if applicable;
(e) Dispositions of certain store locations (including sales of Real
Property and operating business (which may include the sale of Inventory,
pawn loans and interests in Pay-Day Advance Loans of the Borrower or any
Subsidiary in connection with the sale of such location and sales of the
Consumer Obligations described in Section 9.8(c) above in connection with
the sale of such location), but excluding liquidating sales of Inventory,
pawn loans and interests in Pay-Day Advance Loans and Consumer Obligations
made in connection with the CSO Program of the Borrower or any Subsidiary,
which do not occur in connection with the sale of any Real Property or
operating business) owned by the Borrower or any of its Subsidiaries as of
the date hereof so long as the Net Proceeds of such Disposition are
promptly paid to the Agent in accordance with Section 4.3; and
(f) Dispositions to the Borrower or a Subsidiary permitted under
Section 9.7.
Section 9.9 Nature of Business. The Borrower will not, and will not permit
any Subsidiary to, engage in any business other than the businesses in which
they are engaged on the date hereof and similar businesses thereto in connection
with the providing of consumer loan products or financial services, directly and
indirectly. Without in any way limiting the foregoing, such businesses shall
include, but not be limited to, the following: pawn loans, check-cashing, money
wires, Pay-Day Advance Loans, other consumer loans, directly (as a lender) and
indirectly (as a participant), jewelry and merchandise sales, insurance products
and services, credit services, loan broker services and other businesses,
services and products incidental to the foregoing.
Section 9.10 Environmental Protection. The Borrower will not, and will not
permit any of its Subsidiaries to, (a) use (or permit any tenant to use) any of
their respective properties or assets for the handling, processing, storage,
transportation, or disposal of any Hazardous Material, (b) generate any
Hazardous Material, (c) conduct any activity that is likely to cause a Release
or threatened Release of any Hazardous Material, or (d) otherwise conduct any
activity or use any of
54
their respective properties or assets in any manner that is likely to violate
any Environmental Law or create any Environmental Liabilities for which the
Borrower or any of its Subsidiaries would be responsible.
Section 9.11 Accounting. The Borrower will not, and will not permit any of
its Subsidiaries to, change its Fiscal Year or make any change in accounting
treatment or reporting practices, except as permitted by GAAP and disclosed to
the Agent.
Section 9.12 Prepayment of Debt. The Borrower will not, and will not permit
any Subsidiary to, prepay any Debt except (i) the Obligations and (ii)
intercompany Debt among Guarantors permitted pursuant to Section 9.1(c).
Section 9.13 Pay-Day Advance Loans. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase participation or other interests in
any Pay-Day Advance Loans, or other consumer loans, the applications for which
were originated and processed by a Person other than the Borrower or any
Subsidiary or a Person acquired by the Borrower or any Subsidiary.
ARTICLE X
Financial Covenants
The Borrower covenants and agrees that, as long as the Obligations or any
part thereof are outstanding or any Lender has any Commitment hereunder or the
Issuing Bank has any obligation to issue Letters of Credit hereunder, the
Borrower will perform and observe the following financial covenants:
Section 10.1 Consolidated Net Worth. Beginning with the Fiscal Quarter
ending December 31, 2005, the Borrower will maintain at all times Consolidated
Net Worth in an amount not less than (a) $125,000,000.00, plus (b) an amount
equal to 75% of Consolidated Net Income (not less than zero dollars [$0.00]) for
all periods subsequent to the Fiscal Quarter ending December 31, 2005, plus (c)
an amount equal to 100% of the Net Proceeds of all equity offerings (including
conversions of debt securities into common stock) of the Borrower subsequent to
December 31, 2005.
Section 10.2 Senior Leverage Ratio. The Borrower will maintain a Senior
Leverage Ratio at the end of each Fiscal Quarter of not greater than 2.00 to
1.00.
Section 10.3 Total Leverage Ratio. The Borrower will maintain a Total
Leverage Ratio at the end of each Fiscal Quarter of not greater than 3.25 to
1.00.
Section 10.4 Fixed Charge Coverage Ratio. The Borrower will maintain a
Fixed Charge Coverage Ratio at the end of each Fiscal Quarter of not less than
1.25 to 1.00.
55
ARTICLE XI
Default
Section 11.1 Events of Default. Each of the following shall be deemed an
"Event of Default":
(a) The Borrower shall fail to pay when due the Obligations or any
part thereof.
(b) Any representation or warranty made or deemed made by the Borrower
or any Obligated Party (or any of their respective officers) in any Loan
Document or in any certificate, report, notice, or financial statement
furnished at any time in connection with this Agreement shall be false,
misleading, or erroneous in any material respect when made or deemed to
have been made.
(c) The Borrower shall fail to perform, observe, or comply with any
covenant, agreement, or term contained in Section 8.1, Article IX, or
Article X of this Agreement; or the Borrower or any Obligated Party shall
fail to perform, observe, or comply with any other covenant, agreement, or
term contained in this Agreement or any other Loan Document (other than
covenants to pay the Obligations) and such failure shall continue for a
period of 15 days.
(d) The Borrower, any Subsidiary, or any Obligated Party shall
commence a voluntary proceeding seeking liquidation, reorganization, or
other relief with respect to itself or its debts under any bankruptcy,
insolvency, or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian, or other similar
official of it or a substantial part of its property or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it or
shall make a general assignment for the benefit of creditors or shall
generally fail to pay its debts as they become due or shall take any
corporate action to authorize any of the foregoing.
(e) An involuntary proceeding shall be commenced against the Borrower,
any Subsidiary, or any Obligated Party seeking liquidation, reorganization,
or other relief with respect to it or its debts under any bankruptcy,
insolvency, or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official for it or a substantial part of its property, and such involuntary
proceeding shall remain undismissed and unstayed for a period of 30 days.
(f) The Borrower, any Subsidiary, or any Obligated Party shall fail to
discharge within a period of 45 days after the commencement thereof any
attachment, sequestration, or similar proceeding or proceedings involving
an aggregate amount in excess of $250,000 against any of its assets or
properties.
(g) A final judgment or judgments for the payment of money in excess
of $250,000 in the aggregate shall be rendered by a court or courts against
the Borrower, any of its Subsidiaries, or any Obligated Party and the same
shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not
56
be procured, within 45 days from the date of entry thereof and the Borrower
or the relevant Subsidiary or Obligated Party shall not, within said period
of 45 days, or such longer period during which execution of the same shall
have been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal.
(h) The Borrower, any Subsidiary, or any Obligated Party shall fail to
pay when due any principal of or interest on any Material Debt (hereinafter
defined) (other than the Obligations), or the maturity of any such Debt
shall have been accelerated, or any such Debt shall have been required to
be prepaid prior to the stated maturity thereof, or any event shall have
occurred that permits any holder or holders of such Debt or any Person
acting on behalf of such holder or holders to accelerate the maturity
thereof or require any such prepayment. For purposes of this clause (h),
the term "Material Debt" means Debt owed by the Borrower or any Subsidiary
the principal amount of which exceeds $250,000.
(i) This Agreement or any other Loan Document shall cease to be in
full force and effect or shall be declared null and void or the validity or
enforceability thereof shall be contested or challenged by the Borrower,
any Subsidiary, any Obligated Party or any of their respective
shareholders, or the Borrower or any Obligated Party shall deny that it has
any further liability or obligation under any of the Loan Documents.
(j) Any of the following events shall occur or exist with respect to
the Borrower or any ERISA Affiliate: (i) any Prohibited Transaction
involving any Plan; (ii) any Reportable Event with respect to any Plan;
(iii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan; (iv) any event or
circumstance that might constitute grounds entitling the PBGC to institute
proceedings under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan, or the institution by the
PBGC of any such proceedings; or (v) complete or partial withdrawal under
Section 4201 or 4204 of ERISA from a Multiemployer Plan or the
reorganization, insolvency, or termination of any Multiemployer Plan; and
in each case above, such event or condition, together with all other events
or conditions, if any, have subjected or could in the reasonable opinion of
Required Banks subject the Borrower to any tax, penalty, or other liability
to a Plan, a Multiemployer Plan, the PBGC, or otherwise (or any combination
thereof) which in the aggregate exceed or could reasonably be expected to
exceed $250,000.
(k) Any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act sells or acquires after the date hereof
"beneficial ownership" (within the meaning of Section 13(d) of the Exchange
Act) in excess of 33% of the total voting power of all classes of capital
stock then outstanding of the Borrower entitled (without regard to the
occurrence of any contingency) to vote in elections of directors of the
Borrower.
(l) The Borrower or any of its Subsidiaries, or any of their
properties, revenues, or assets, shall become the subject of an order of
forfeiture, seizure, or divestiture and the same shall not have been
discharged (or provisions shall not be made for such discharge) within 30
days from the date of entry thereof.
(m) Any Material Adverse Effect shall occur.
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Section 11.2 Remedies.
(a) Remedies. If any Event of Default shall occur and be continuing,
the Agent may (and if directed by Required Lenders, shall) do any one or
more of the following:
(i) Acceleration. Declare all outstanding principal of and
accrued and unpaid interest on the Notes, all outstanding Letter of
Credit Disbursements, and all other obligations of the Borrower under
the Loan Documents immediately due and payable, and the same shall
thereupon become immediately due and payable, without notice, demand,
presentment, notice of dishonor, notice of acceleration, notice of
intent to accelerate, protest, or other formalities of any kind, all
of which are hereby expressly waived by the Borrower.
(ii) Termination of Revolving Credit Commitments. Terminate the
Revolving Credit Commitments and the obligation of the Issuing Bank to
issue Letters of Credit without notice to the Borrower.
(iii) Judgment. Reduce any claim to judgment.
(iv) Foreclosure. Foreclose or otherwise enforce any Lien granted
to the Agent for the benefit of itself and the Lenders to secure
payment and performance of the Obligations in accordance with the
terms of the Loan Documents.
(v) Rights. Exercise any and all rights and remedies afforded by
the laws of the State of Texas or any other jurisdiction, by any of
the Loan Documents, by equity, or otherwise.
Provided, however, that upon the occurrence of an Event of Default under
subsection (d) or (e) of Section 11.1, the Revolving Credit Commitments of
all of the Lenders and the obligation of the Issuing Bank to issue Letters
of Credit shall automatically terminate, and the outstanding principal of
and accrued and unpaid interest on the Notes and all other obligations of
the Borrower under the Loan Documents shall thereupon become immediately
due and payable without notice, demand, presentment, notice of dishonor,
notice of acceleration, notice of intent to accelerate, protest, or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower.
(b) Setoff. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Bank, and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the Issuing Bank or any such
Affiliate to or for the credit or the account of the Borrower or any
Obligated Party against any and all of the obligations of the Borrower or
such Obligated Party now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the Issuing Bank, irrespective of
whether or not such Lender or the Issuing Bank shall have made any demand
under this Agreement or any other Loan Document and although such
obligations of the
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Borrower or such Obligated Party may be contingent or unmatured or are owed
to a branch or office of such Lender or the Issuing Bank different from the
branch or office holding such deposit or obligated on such indebtedness.
The rights of each Lender, the Issuing Bank and their respective Affiliates
under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, the Issuing Bank or their
respective Affiliates may have. Each Lender and the Issuing Bank agrees to
notify the Borrower and the Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
(c) Cash Collateral. If an Event of Default shall have occurred and be
continuing the Borrower shall, if requested by the Agent or Required
Lenders, pledge to the Agent as security for the Obligations an amount in
immediately available funds equal to the then outstanding Letter of Credit
Liabilities, such funds to be held in a cash collateral account at the
Agent without any right of withdrawal by the Borrower.
Section 11.3 Performance by the Agent. If the Borrower shall fail to
perform any covenant or agreement in accordance with the terms of the Loan
Documents, the Agent may, at the direction of Required Lenders, perform or
attempt to perform such covenant or agreement on behalf of the Borrower. In such
event, the Borrower shall, at the request of the Agent, promptly pay any amount
reasonably expended by the Agent or the Lenders in connection with such
performance or attempted performance to the Agent at the Principal Office,
together with interest thereon at the Default Rate from and including the date
of such expenditure to but excluding the date such expenditure is paid in full.
Notwithstanding the foregoing, it is expressly agreed that neither the Agent nor
any Lender shall have any liability or responsibility for the performance of any
obligation of the Borrower under this Agreement or any of the other Loan
Documents.
ARTICLE XII
The Agent
Section 12.1 Appointment and Authority. Each of the Lenders and the Issuing
Bank hereby irrevocably appoints Xxxxx Fargo Bank, National Association to act
on its behalf as the Agent hereunder and under the other Loan Documents and
authorizes the Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Agent, the Lenders
and the Issuing Bank, and neither the Borrower nor any Obligated Party shall
have rights as a third party beneficiary of any of such provisions.
Section 12.2 Rights as a Lender. The Person serving as the Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Agent hereunder in
its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if such Person were not the Agent
hereunder and without any duty to account therefor to the Lenders.
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Section 12.3 Exculpatory Provisions. The Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Agent
is required to exercise as directed in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Agent to liability or that is
contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Sections 13.9 and 11.2) or (ii) in the absence of its own gross negligence or
willful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Agent by
the Borrower, a Lender or the Issuing Bank.
The Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article VI or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Agent.
Section 12.4 Reliance by Agent. The Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the Issuing Bank, the Agent may presume that such
condition is satisfactory to such Lender or the Issuing Bank unless the Agent
shall have received notice to the
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contrary from such Lender or the Issuing Bank prior to the making of such Loan
or the issuance of such Letter of Credit. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
Section 12.5 Delegation of Duties. The Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and to
the Related Parties of the Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Section 12.6 Resignation of Agent. The Agent may at any time give notice of
its resignation to the Lenders, the Issuing Bank and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the United States of America, or an Affiliate of any such bank
with an office in the United States of America. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent meeting the qualifications set forth
above provided that if the Agent shall notify the Borrower and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the retiring
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any collateral security
held by the Agent on behalf of the Lenders or the Issuing Bank under any of the
Loan Documents, the retiring Agent shall continue to hold such collateral
security until such time as a successor Agent is appointed) and (b) all
payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender and the Issuing
Bank directly, until such time as the Required Lenders appoint a successor Agent
as provided for above in this Section. Upon the acceptance of a successor's
appointment as Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Agent, and the retiring Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Agent's resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 13.1 shall continue
in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Agent was acting as Agent.
Section 12.7 Non-Reliance on Agent and Other Lenders. Each Lender and the
Issuing Bank acknowledges that it has, independently and without reliance upon
the Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each
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Lender and the Issuing Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
Section 12.8 Sharing of Payments, Etc. If any Lender shall, by exercising
any right of setoff or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender's receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Agent of such fact, and
(b) purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them,
provided that:
(a) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest; and
(b) the provisions of this clause shall not be construed to apply to
(i) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or (ii) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or participations in Letter of Credit Disbursements to any
assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this clause shall apply).
The Borrower and each Obligated Party consent to the foregoing and agree, to the
extent each of them may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower or any Obligated Party rights of setoff and counterclaim
with respect to such participation as fully as if such Lender were a direct
creditor of the Borrower and each Obligated Party in the amount of such
participation.
Section 12.9 Indemnification. THE LENDERS HEREBY AGREE TO INDEMNIFY THE
AGENT AND THE ISSUING BANK FROM AND HOLD THE AGENT AND THE ISSUING BANK HARMLESS
AGAINST (TO THE EXTENT NOT REIMBURSED UNDER SECTIONS 13.1 AND 13.2, BUT WITHOUT
LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SECTIONS 13.1 AND 13.2), RATABLY
IN ACCORDANCE WITH THEIR RESPECTIVE REVOLVING CREDIT COMMITMENTS, ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST THE AGENT AND THE ISSUING BANK IN ANY WAY RELATING TO OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO BE
TAKEN BY THE AGENT AND THE ISSUING BANK UNDER OR IN RESPECT OF ANY OF THE LOAN
DOCUMENTS; PROVIDED, FURTHER, THAT NO
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LENDER SHALL BE LIABLE FOR ANY PORTION OF THE FOREGOING TO THE EXTENT CAUSED BY
THE AGENT'S OR THE ISSUING BANK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS SECTION, EACH LENDER AGREES TO
REIMBURSE THE AGENT AND THE ISSUING BANK PROMPTLY UPON DEMAND FOR ITS PRO RATA
SHARE (CALCULATED ON THE BASIS OF THE REVOLVING CREDIT COMMITMENTS) OF ANY AND
ALL OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY
THE AGENT AND THE ISSUING BANK 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, THE LOAN DOCUMENTS, TO THE EXTENT
THAT THE AGENT OR THE ISSUING BANK IS NOT REIMBURSED FOR SUCH EXPENSES BY THE
BORROWER.
Section 12.10 Several Commitments. The Commitments and other obligations of
the Lenders under this Agreement are several. The default by any Lender in
making an Advance in accordance with its Commitment shall not relieve the other
Lenders of their obligations under this Agreement. In the event of any default
by any Lender in making any Advance, each nondefaulting Lender shall be
obligated to make its Advance but shall not be obligated to advance the amount
which the defaulting Lender was required to advance hereunder. In no event shall
any Lender be required to advance an amount or amounts to the Borrower which
shall in the aggregate exceed such Lender's Revolving Credit Commitment. No
Lender shall be responsible for any act or omission of any other Lender.
Section 12.11 Agent May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Borrower or any Obligated Party, the Agent (irrespective of whether the
principal of any Advance or Letter of Credit Liabilities shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Agent shall have made any demand on the Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Advances, Letter of Credit
Liabilities and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the
Agent and their respective agents and counsel and all other amounts due the
Lenders and the Agent under Sections 2.9 and 13.1) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Agent and, in the event that the Agent
shall consent to the making of such payments directly to the Lenders, to pay to
the Agent any amount due for the reasonable compensation, expenses,
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disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under Sections 2.9 and 13.1.
Nothing contained herein shall be deemed to authorize the Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Agent to vote in respect of the
claim of any Lender in any such proceeding.
Section 12.12 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Agent, at its option and in its discretion:
(a) to release any Lien on any property granted to or held by the
Agent under any Loan Document (i) upon termination of the Revolving Credit
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 13.9, if approved, authorized or
ratified in writing by the Required Lenders; and
(b) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Agent at any time, the Required Lenders will confirm in
writing the Agent's authority to release its interest in particular types or
items of property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 12.12.
ARTICLE XIII
Miscellaneous
Section 13.1 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Agent and its Affiliates (including
the reasonable fees, charges and disbursements of counsel for the Agent),
and shall pay all reasonable fees and time charges and disbursements for
attorneys who may be employees of the Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by the
Agent, any Lender or the Issuing Bank (including the fees, charges and
disbursements of any counsel for the Agent, any Lender or the Issuing
Bank), and shall pay all fees and time charges for attorneys who may be
employees of the Agent, any Lender or the Issuing Bank, in connection with
the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or
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Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Agent (and any sub-agent thereof), each Lender and the Issuing Bank, and
each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses
(including the reasonable fees, charges and disbursements of any counsel
for any Indemnitee), and shall indemnify and hold harmless each Indemnitee
from all reasonable fees and time charges and disbursements for attorneys
who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or
any Obligated Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the Issuing Bank to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower or any other Obligated
Party, and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by
the Borrower or any Obligated Party against an Indemnitee for breach in bad
faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Obligated Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under clause (a) or
(b) of this Section to be paid by it to the Agent (or any sub-agent
thereof), the Issuing Bank or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Agent (or any such sub-agent),
the Issuing Bank or such Related Party, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or
asserted against the Agent (or any such sub-agent) or the Issuing Bank in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Agent (or any such sub-agent) or Issuing Bank in
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connection with such capacity. The obligations of the Lenders under this
clause (c) are subject to the provisions of Section 12.10.
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in clause (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be payable
promptly after demand therefor.
Section 13.2 Limitation of Liability. None of the Agent, the Issuing Bank,
any Lender, or any Affiliate, officer, director, employee, attorney, or agent
thereof shall have any liability with respect to, and the Borrower hereby
waives, releases, and agrees not to xxx any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents, including
without limitation, any damages suffered or incurred by the Borrower in
connection with Swing Loan Advances made by telephonic notice pursuant to
Section 2.7(a) hereto, except for such Person's gross negligence or willful
misconduct.
Section 13.3 No Duty. All attorneys, accountants, appraisers, and other
professional Persons and consultants retained by the Agent, the Issuing Bank and
the Lenders shall have the right to act exclusively in the interest of the
Agent, the Issuing Bank and the Lenders and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to the Borrower or any of the Borrower's shareholders or any other
Person.
Section 13.4 No Fiduciary Relationship. The relationship between the
Borrower and each of the Agent, the Issuing Bank and the Lenders is solely that
of debtor and creditor, and neither the Agent, the Issuing Bank nor any Lender
has any fiduciary or other special relationship with the Borrower, and no term
or condition of any of the Loan Documents shall be construed so as to deem the
relationship between the Borrower and any of the Agent, the Issuing Bank and the
Lenders to be other than that of debtor and creditor.
Section 13.5 Equitable Relief. The Borrower recognizes that in the event
the Borrower fails to pay, perform, observe, or discharge any or all of the
Obligations, any remedy at law may prove to be inadequate relief to the Agent,
the Issuing Bank and the Lenders. The Borrower therefore agrees that the Agent,
the Issuing Bank and the Lenders, if the Agent, the Issuing Bank or the Lenders
so request, shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
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Section 13.6 No Waiver; Cumulative Remedies. No failure on the part of the
Agent, the Issuing Bank or any Lender to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power, or privilege under this Agreement preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies provided for in this Agreement and the
other Loan Documents are cumulative and not exclusive of any rights and remedies
provided by law.
Section 13.7 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby, except that
neither the Borrower nor any Obligated Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior
written consent of the Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of clause (b) of this
Section, (ii) by way of participation in accordance with the provisions of
clause (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of clause (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall
be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to
the extent provided in clause (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent and
the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that any such assignment shall be subject
to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need
be assigned; and
(B) in any case not described in clause (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to
the Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date) shall not be less than
$2,500,000, unless each of the Agent and, so long as no Default
has occurred and is
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continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loan
or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by clause (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) a
default has occurred and is continuing at the time of such
assignment or (y) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund;
(B) the consent of the Agent (such consent not to be
unreasonably withheld or delayed) shall be required for
assignments if such assignment is to a Person that is not a
Lender with a Commitment in respect of such facility, an
Affiliate of such Lender or an Approved Fund with respect to such
Lender; and
(C) the consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit
(whether or not then outstanding).
(iv) Assignment and Assumption. The parties to each assignment
shall execute and deliver to the Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,000, and the
assignee, if it is not a Lender, shall deliver to the Agent an
Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made
to the Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall
be made to a natural person.
Subject to acceptance and recording thereof by the Agent pursuant to clause
(c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Sections 5.1 and 13.1 with
respect to facts and circumstances occurring prior to the
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effective date of such assignment. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with
this Section shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with clause (d) of this Section.
(c) Register. The Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at its Principal Office a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to
it); provided 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 and (iii) the
Borrower, the Agent and the Lenders, and Issuing Bank shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver with
respect to the following: (A) any increase of such Lender's Commitments,
(B) any reduction of the principal amount of, or interest to be paid on,
the Advances and LC Participations of such Lender, (C) any reduction of any
commitment fee or other amount payable to such Lender under any Loan
Document, or (D) any postponement of any date for the payment of any amount
payable in respect of the Advances or LC Participations of such Lender.
Subject to clause (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Section 5.1 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to clause (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 11.2(b)
as though it were a Lender, provided such Participant agrees to be subject
to Sections 4.9(c) and 12.8 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 4.6 and 5.1 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender
shall
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not be entitled to the benefits of Section 4.6 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 4.6(e) as
though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
Section 13.8 Survival. All representations and warranties made in this
Agreement or any other Loan Document or in any document, statement, or
certificate furnished in connection with this Agreement shall survive the
execution and delivery of this Agreement and the other Loan Documents, and no
investigation by the Agent, the Issuing Bank or any Lender or any closing shall
affect the representations and warranties or the right of the Agent, the Issuing
Bank or any Lender to rely upon them. Without prejudice to the survival of any
other obligation of the Borrower hereunder, the obligations of the Borrower
under Article V and Sections 13.1 and 13.2 shall survive repayment of the Notes
and termination of the Revolving Credit Commitments and the Letters of Credit.
Section 13.9 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, the Notes, or any other Loan Document to which the Borrower or
any Obligated Party is a party, nor any consent to any departure by the Borrower
or any Obligated Party therefrom, shall in any event be effective unless the
same shall be agreed or consented to by Required Lenders and the Borrower or the
Obligated Party, as applicable, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that no amendment, waiver, or consent shall: (a) increase the
Commitment of any Lender or subject any Lender to any additional obligations
without the written consent of such Lender; (b) reduce the principal of, or
interest on, the Notes or any fees or other amounts due to the Lenders (or any
of them) hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; (c) postpone any date fixed for any
payment of principal of, or interest on, the Notes or Letter of Credit
Disbursements or any fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby; (d) waive any of the conditions specified in
Article VI without the written consent of each Lender; (e) change the percentage
of the Revolving Credit Commitments or of the aggregate unpaid principal amount
of the Notes or Letter of Credit Liabilities or the number of Lenders which
shall be required for the Lenders or any of them to take any action under this
Agreement without the written consent of each Lender; (f) change any provision
contained in this Section 13.10 without the written consent of each Lender; (g)
release the Borrower from any of its obligations under this Agreement or the
other Loan Documents or, except as provided in Section 12.9, release any
Guarantor from its obligations under its Guaranty without the written consent of
each Lender; and (h) release any Collateral securing the Guaranty, or the
Obligations except in accordance with and as contemplated by the Loan Documents
without the written consent of each Lender. Notwithstanding anything to the
contrary contained in this Section, no amendment, waiver, or consent shall be
made (i) with respect to Article XII hereof without the prior written consent of
the Agent, (ii) with respect to Section 2.7 hereof without the prior written
consent of the Swing
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Lender, or (iii) with respect to Article III hereof without the prior written
consent of the Issuing Bank.
Section 13.10 Maximum Interest Rate. No provision of this Agreement or of
any other Loan Document shall require the payment or the collection of interest
in excess of the maximum amount permitted by applicable law. If any excess of
interest in such respect is hereby provided for, or shall be adjudicated to be
so provided, in any Loan Document or otherwise in connection with this loan
transaction, the provisions of this Section shall govern and prevail and neither
the Borrower nor the sureties, guarantors, successors, or assigns of the
Borrower shall be obligated to pay the excess amount of such interest or any
other excess sum paid for the use, forbearance, or detention of sums loaned
pursuant hereto. In the event any Lender ever receives, collects, or applies as
interest any such sum, such amount which would be in excess of the maximum
amount permitted by applicable law shall be applied as a payment and reduction
of the principal of the indebtedness evidenced by the Notes and the LC
Participations; and, if the principal of the Notes and the LC Participations has
been paid in full, any remaining excess shall forthwith be paid to the Borrower.
In determining whether or not the interest paid or payable exceeds the Maximum
Rate, the Borrower and each Lender shall, to the extent permitted by applicable
law, (a) characterize any non-principal payment as an expense, fee, or premium
rather than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread the total amount of
interest throughout the entire contemplated term of the indebtedness evidenced
by the Notes and LC Participations so that interest for the entire term does not
exceed the Maximum Rate.
Section 13.11 Notices.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in clause (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows:
(i) if to the Borrower or any Obligated Party, to it at the
address specified below the Borrower's name on the signature page
hereof;
(ii) if to the Agent, to it at the address specified below its
name on the signature page hereof;
(iii) if to the Issuing Bank, to it at the address specified
below its name on the signature page hereof; and
(iv) if to a Lender, to it at its address (or telecopier number)
set forth in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
business day for the recipient). Notices delivered through electronic
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communications to the extent provided in clause (b) below, shall be
effective as provided in said clause (b).
(b) Electronic Communications. (i) Notices and other communications to
the Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Article II if such Lender or the Issuing Bank, as applicable,
has notified the Agent that it is incapable of receiving notices under such
Article by electronic communication. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by
it, provided that approval of such procedures may be limited to particular
notices or communications.
(ii) Unless the Agent otherwise prescribes, (A) notices and other
communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient
(such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgement), provided that if such
notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next business day
for the recipient, and (B) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described
in the foregoing clause (A) of notification that such notice or
communication is available and identifying the website address
therefor.
(iii) The Borrower agrees that any Agent may make any material
delivered by the Borrower to such Agent, as well as any amendments,
waivers, consents, and other written information, documents,
instruments and other materials relating to the Borrower, any of its
Subsidiaries, or any other materials or matters relating to this
Agreement, the other Loan Documents or any of the transactions
contemplated hereby (collectively, the "Communications") available to
the Lenders by posting such notices on an electronic delivery system
(which may be provided by an Agent, an Affiliate of an Agent, or any
Person that is not an Affiliate of an Agent), such as IntraLinks, or a
substantially similar electronic system (the "Platform"). The Borrower
acknowledges that (A) the distribution of material through an
electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (B)
the Platform is provided "as is" and "as available" and (C) neither
any Agent nor any of its Affiliates warrants the accuracy,
completeness, timeliness, sufficiency, or sequencing of the
Communications posted on the Platform. Each Agent and its Affiliates
expressly disclaim with respect to the Platform any liability for
errors in transmission, incorrect or incomplete downloading, delays in
posting or delivery, or problems accessing the Communications posted
on the Platform and any liability for any losses, costs, expenses or
liabilities that may be suffered or incurred in connection with the
Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of
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merchantability, fitness for a particular purpose, non-infringement of
third party rights or freedom from viruses or other code defects, is
made by any Agent or any of its Affiliates in connection with the
Platform.
(iv) Each Lender agrees that notice to it specifying that any
Communication has been posted to the Platform shall for purposes of
this Agreement constitute effective delivery to such Lender of such
information, documents or other materials comprising such
Communication. Each Lender agrees (A) to notify, on or before the date
such Lender becomes a party to this Agreement, each Agent in writing
of such Lender's e-mail address to which a notice may be sent (and
from time to time thereafter to ensure that each Agent has on record
an effective e-mail address for such Lender) and (B) that any notice
may be sent to such e-mail address.
(c) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice
to the other parties hereto.
Section 13.12 Governing Law; Venue; Service of Process.
(a) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of Texas.
(b) Submission to Jurisdiction. The Borrower and each Obligated Party
irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of the courts of the State of Texas sitting
in Xxxxxx County; and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement or any other
Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and
determined in such Texas State court or, to the fullest extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement or in any other
Loan Document shall affect any right that the Agent, any Lender or the
Issuing Bank may otherwise have to bring any action or proceeding relating
to this Agreement or any other Loan Document against the Borrower or any
Obligated Party or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower and each Obligated Party irrevocably
and unconditionally waives, to the fullest extent permitted by applicable
law, any objection that it may now or hereafter have to the laying of venue
of any action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in clause (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party hereto irrevocably consents to
service of process in the manner provided for notices in Section 13.11.
Nothing in this Agreement
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will affect the right of any party hereto to serve process in any other
manner permitted by applicable law.
Section 13.13 Binding Arbitration.
(a) Arbitration. The parties hereto agree, upon demand by any party,
to submit to binding arbitration all claims, disputes and controversies
between or among them (and their respective employees, officers, directors,
attorneys, and other agents), whether in tort, contract or otherwise
arising out of or relating to in any way (i) the loan and related Loan
Documents which are the subject of this Agreement and its negotiation,
execution, collateralization, administration, repayment, modification,
extension, substitution, formation, inducement, enforcement, default or
termination; or (ii) requests for additional credit.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a
location in Texas selected by the American Arbitration Association ("AAA");
(ii) be governed by the Federal Arbitration Act (Title 9 of the United
States Code), notwithstanding any conflicting choice of law provision in
any of the documents between the parties; and (iii) be conducted by the
AAA, or such other administrator as the parties shall mutually agree upon,
in accordance with the AAA's commercial dispute resolution procedures,
unless the claim or counterclaim is at least $1,000,000.00 exclusive of
claimed interest, arbitration fees and costs in which case the arbitration
shall be conducted in accordance with the AAA's optional procedures for
large, complex commercial disputes (the commercial dispute resolution
procedures or the optional procedures for large, complex commercial
disputes to be referred to, as applicable, as the "Rules"). If there is any
inconsistency between the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or refuses
to submit to arbitration following a demand by any other party shall bear
all costs and expenses incurred by such other party in compelling
arbitration of any dispute. Nothing contained herein shall be deemed to be
a waiver by any party that is a bank of the protections afforded to it
under 12 U.S.C. Section 91 or any similar applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure. The
arbitration requirement does not limit the right of any party to (i)
foreclose against real or personal property collateral; (ii) exercise
self-help remedies relating to collateral or proceeds of collateral such as
setoff or repossession; or (iii) obtain provisional or ancillary remedies
such as replevin, injunctive relief, attachment or the appointment of a
receiver, before during or after the pendency of any arbitration
proceeding. This exclusion does not constitute a waiver of the right or
obligation of any party to submit any dispute to arbitration or reference
hereunder, including those arising from the exercise of the actions
detailed in clauses (i), (ii) and (iii) of this Section 13.13(c).
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding
in which the amount in controversy is $5,000,000.00 or less will be decided
by a single arbitrator selected according to the Rules, and who shall not
render an award of greater than $5,000,000.00. Any dispute in which the
amount in controversy exceeds $5,000,000.00 shall be decided by majority
vote of a panel of three arbitrators; provided however, that all three
arbitrators must actively participate in all hearings and deliberations.
The arbitrator will be a neutral attorney licensed in the State of Texas
with
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a minimum of ten years experience in the substantive law applicable to the
subject matter of the dispute to be arbitrated. The arbitrator will
determine whether or not an issue is arbitratable and will give effect to
the statutes of limitation in determining any claim. In any arbitration
proceeding the arbitrator will decide (by documents only or with a hearing
at the arbitrator's discretion) any pre-hearing motions which are similar
to motions to dismiss for failure to state a claim or motions for summary
adjudication. The arbitrator shall resolve all disputes in accordance with
the substantive law of Texas and may grant any remedy or relief that a
court of such state could order or grant within the scope hereof and such
ancillary relief as is necessary to make effective any award. The
arbitrator shall also have the power to award recovery of all costs and
fees, to impose sanctions and to take such other action as the arbitrator
deems necessary to the same extent a judge could pursuant to the Federal
Rules of Civil Procedure, the Texas Rules of Civil Procedure or other
applicable law. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction. The institution and maintenance
of an action for judicial relief or pursuit of a provisional or ancillary
remedy shall not constitute a waiver of the right of any party, including
the plaintiff, to submit the controversy or claim to arbitration if any
other party contests such action for judicial relief.
(e) Discovery. In any arbitration proceeding discovery will be
permitted in accordance with the Rules. All discovery shall be expressly
limited to matters directly relevant to the dispute being arbitrated and
must be completed no later than 20 days before the hearing date and within
180 days of the filing of the dispute with the AAA. Any requests for an
extension of the discovery periods, or any discovery disputes, will be
subject to final determination by the arbitrator upon a showing that the
request for discovery is essential for the party's presentation and that no
alternative means for obtaining information is available.
(f) Class Proceedings and Consolidations. The resolution of any
dispute arising pursuant to the terms of this Agreement shall be determined
by a separate arbitration proceeding and such dispute shall not be
consolidated with other disputes or included in any class proceeding.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall award
all costs and expenses of the arbitration proceeding.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the dispute with
the AAA. No arbitrator or other party to an arbitration proceeding may
disclose the existence, content or results thereof, except for disclosures
of information by a party required in the ordinary course of its business
or by applicable law or regulation. If more than one agreement for
arbitration by or between the parties potentially applies to a dispute, the
arbitration provision most directly related to the Loan Documents or the
subject matter of the dispute shall control. This arbitration provision
shall survive termination, amendment or expiration of any of the Loan
Documents or any relationship between the parties.
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Section 13.14 Counterparts.
(a) Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and
the other Loan Documents, and any separate letter agreements with respect
to fees payable to the Agent, constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Article VI, this Agreement
shall become effective when it shall have been executed by the Agent and
when the Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto. Delivery
of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement.
(b) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act or any other
similar state laws based on the Uniform Electronic Transactions Act.
Section 13.15 Severability. Any provision of this Agreement held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be invalid or illegal.
Section 13.16 Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 13.17 Construction. The Borrower, the Agent, the Issuing Bank and
each Lender acknowledge that each of them has had the benefit of legal counsel
of its own choice and has been afforded an opportunity to review this Agreement
and the other Loan Documents with its legal counsel and that this Agreement and
the other Loan Documents shall be construed as if jointly drafted by the parties
hereto.
Section 13.18 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of a Default if such action is taken or such condition
exists.
Section 13.19 Treatment of Certain Information; Confidentiality. Each of
the Agent, the Lenders and the Issuing Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and other
representatives (it being understood that the Persons to whom such disclosure is
made will be informed of the
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confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Agent, any Lender, the Issuing Bank or any of their respective Affiliates on
a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any of its Subsidiaries relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Agent, any Lender or the Issuing Bank on a
nonconfidential basis prior to disclosure by the Borrower or any of its
Subsidiaries, provided that, in the case of information received from the
Borrower or any of its Subsidiaries after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Section 13.20 USA Patriot Act Notice. Each Lender, the Issuing Bank and the
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.L.107.56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender, the Issuing Bank or the Agent, as applicable, to
identify the Borrower in accordance with the Act.
Section 13.21 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
77
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 13.22 ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES, AND THE OTHER
LOAN DOCUMENTS REFERRED TO HEREIN REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES HERETO AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 13.23 Amendment and Restatement. This Agreement amends and restates
in its entirety the Existing Credit Agreement. The execution of this Agreement
and the other Loan Documents executed in connection herewith does not extinguish
the indebtedness outstanding in connection with the Existing Credit Agreement
nor does it constitute a novation with respect to such indebtedness. THE
BORROWER REPRESENTS AND WARRANTS THAT AS OF THE DATE HEREOF THERE ARE NO CLAIMS
OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OR ANY OBLIGATED PARTIES'
OBLIGATIONS UNDER THE EXISTING CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS AND
THE DOCUMENTATION RELATING TO THE DEPOSIT AND CASH MANAGEMENT SERVICES.
[Remainder of Page Intentionally Left Blank.]
78
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
BORROWER:
EZCORP, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
Address for Notices:
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Email: xxxxxxxxx@xxxxxx.xxx
Attention: Xxxxxx X. Xxxxxxxx
Chief Financial Officer
With a courtesy copy to:
Xxxxxx Xxxxxx
Vice President & General Counsel
EZCORP, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Email: xxxxxx_xxxxxx@xxxxxx.xxx
(Signature Page to Fourth Amended and Restated Credit Agreement)
AGENT, ISSUING BANK AND LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Agent, Issuing Bank and a Lender
By:
------------------------------------
Xxxx Xxxxxxx
Senior Vice President
Address for Notices:
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxx.xxx
Attention: Xxxx Xxxxxxx
Address for Operational Notices:
Xxxxx Fargo Bank, N.A.
1700 Lincoln, 0xx Xxxxx
XXX # X0000-000
Xxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Email: xxxxx.x.xxxx@xxxxxxxxxx.xxx
Attention: Xxxxx X. Xxxx
with a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxx.xxx
Attention: T. Xxxxxxx Xxxxxxxx, Esq.
Lending Office for Base Rate Advances
and Eurodollar Advances:
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(Signature Page to Fourth Amended and Restated Credit Agreement)
GUARANTY BANK,
as a Lender
By:
------------------------------------
Xxx Xxxxxxx
Vice President
Address for Notices and Applicable
Lending Office:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attn: Xxx Xxxxxxx
Lending Office for Base Rate Advances
and Eurodollar Advances:
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Loan Support
(Signature Page to Fourth Amended and Restated Credit Agreement)
SCHEDULE 1.1(a)
Revolving Credit Commitments
Lender: Revolving Credit Commitment:
------- ----------------------------
Xxxxx Fargo Bank, National Association $23,500,000.00
Guaranty Bank $16,500,000.00
--------------
Total: $40,000,000.00
==============
