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EXHIBIT 4.1
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$65,000,000
CREDIT AGREEMENT
AMONG
XXXXXX MANUFACTURING COMPANY
CERTAIN LENDERS
AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE LENDER
June 20, 2001
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BANC OF AMERICA SECURITIES LLC,
AS LEAD ARRANGER AND SOLE BOOK MANAGER
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TABLE OF CONTENTS
Section Page
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Article 1 Definitions............................................................................................1
Section 1.1 Defined Terms.........................................................................1
Section 1.2 Other Interpretive Provisions........................................................13
Section 1.3 Accounting Terms.....................................................................13
Section 1.4 Rounding.............................................................................13
Section 1.5 References to Agreements and Laws....................................................13
Article 2 Advances..............................................................................................13
Section 2.1 Advances.............................................................................13
Section 2.2 Borrowings, Conversions and Continuations of Advances................................14
Section 2.3 Interest.............................................................................14
Section 2.4 Commitment Fee.......................................................................15
Section 2.5 Prepayment...........................................................................16
Section 2.6 Reduction and Termination of Commitment..............................................16
Section 2.7 Non-Receipt of Funds by the Administrative Lender....................................16
Section 2.8 Payment of Principal of Advances.....................................................17
Section 2.9 Reimbursement........................................................................17
Section 2.10 Manner of Payment....................................................................17
Section 2.11 LIBOR Lending Offices................................................................18
Section 2.12 Sharing of Payments..................................................................18
Section 2.13 Calculation of LIBOR Rate............................................................18
Section 2.14 Booking Advances.....................................................................18
Section 2.15 Taxes................................................................................18
Section 2.16 Letters of Credit....................................................................19
Article 3 Conditions Precedent..................................................................................22
Section 3.1 Conditions Precedent to Initial Credit Extension.....................................22
Section 3.2 Conditions Precedent to All Credit Extensions and Conversions and Continuations......23
Article 4 Representations and Warranties........................................................................23
Section 4.1 Representations and Warranties.......................................................23
Section 4.2 Survival of Representations and Warranties, etc......................................26
Article 5 General Covenants.....................................................................................27
Section 5.1 Preservation of Existence and Similar Matters........................................28
Section 5.2 Business; Compliance with Applicable Law.............................................28
Section 5.3 Maintenance of Properties............................................................28
Section 5.4 Accounting Methods and Financial Records.............................................28
Section 5.5 Insurance............................................................................28
Section 5.6 Payment of Taxes and Claims..........................................................28
Section 5.7 Visits and Inspections...............................................................28
Section 5.8 Payment of Debt......................................................................29
Section 5.9 Use of Proceeds......................................................................29
Section 5.10 Indemnity............................................................................29
Section 5.11 Material Subsidiary Guaranty.........................................................29
Section 5.12 ERISA................................................................................29
Article 6 Information Covenants.................................................................................30
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Section 6.1 Quarterly Financial Statements and Information.......................................31
Section 6.2 Annual Financial Statements and Information; Certificate of No Default...............31
Section 6.3 Compliance Certificate...............................................................31
Section 6.4 Notice of Litigation, Default and Other Matters......................................31
Article 7 Negative Covenants....................................................................................31
Section 7.1 Capitalization Ratio.................................................................32
Section 7.2 Fixed Charge Coverage Ratio..........................................................32
Section 7.3 Leverage Ratio.......................................................................32
Section 7.4 Guaranties...........................................................................32
Section 7.5 Liens................................................................................32
Section 7.6 Investments..........................................................................32
Section 7.7 Acquisitions.........................................................................32
Section 7.8 Merger, etc..........................................................................33
Section 7.9 Dispositions.........................................................................33
Section 7.10 Transactions with Affiliates.........................................................33
Section 7.11 Business.............................................................................33
Section 7.12 Sales and Leasebacks.................................................................33
Section 7.13 Debt.................................................................................33
Section 7.14 Prepayment of Debt...................................................................33
Article 8 Default...............................................................................................33
Section 8.1 Events of Default....................................................................33
Section 8.2 Remedies.............................................................................34
Article 9 Changes In Circumstances..............................................................................35
Section 9.1 LIBOR Rate Determination Inadequate..................................................35
Section 9.2 Illegality...........................................................................35
Section 9.3 Increased Costs......................................................................36
Section 9.4 Effect On Base Rate Advances.........................................................36
Section 9.5 Capital Adequacy.....................................................................37
Section 9.6 Survival.............................................................................37
Article 10 Agreement Among Lenders..............................................................................37
Section 10.1 Agreement Among Lenders..............................................................37
Section 10.2 Lender Credit Decision...............................................................39
Section 10.3 Notice of Default....................................................................39
Section 10.4 Benefits of Article..................................................................39
Article 11 Miscellaneous........................................................................................39
Section 11.1 Notices..............................................................................39
Section 11.2 Expenses.............................................................................41
Section 11.3 Waivers..............................................................................41
Section 11.4 Determination by the Lenders Conclusive and Binding..................................41
Section 11.5 Set-Off..............................................................................41
Section 11.6 Successors and Assigns...............................................................42
Section 11.7 Counterparts.........................................................................44
Section 11.8 Severability.........................................................................44
Section 11.9 Interest and Charges.................................................................44
Section 11.10 Headings....................................................................44
Section 11.11 Amendment and Waiver........................................................44
Section 11.12 Exception to Covenants......................................................44
Section 11.13 No Liability of Issuing Bank................................................44
Section 11.14 Payments Set Aside..........................................................45
Section 11.15 No Strict Construction......................................................45
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Section 11.16 Foreign Lenders.............................................................45
Section 11.17 CONFIDENTIALITY.............................................................46
Section 11.18 GOVERNING LAW...............................................................46
Section 11.19 WAIVER OF JURY TRIAL........................................................46
Section 11.20 ENTIRE AGREEMENT............................................................46
SIGNATURES.....................................................................................S-1
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Schedules and Exhibits
Schedule 1.1(a) LIBOR Lending Offices
Schedule 1.1(b) Existing Liens
Schedule 1.1(c) Existing Letters of Credit
Schedule 4.1(a) Subsidiaries
Schedule 4.1(h) Existing Litigation
Schedule 4.1(q) Environmental Matters
Exhibit A Revolving Credit Note
Exhibit B Subsidiary Guaranty
Exhibit C Assignment Agreement
Exhibit D Compliance Certificate
Exhibit E Advance Notice
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of June 20, 2001, among XXXXXX MANUFACTURING
COMPANY, a Delaware corporation (the "Borrower"), the lenders from time to time
party hereto (collectively, the "Lenders" and individually, a "Lender"), and
BANK OF AMERICA, N.A., a national banking association, as Administrative Lender
for the Lenders (the "Administrative Lender").
BACKGROUND
The Borrower has requested that the Lenders make available to the Borrower a
three-year credit facility in the maximum principal amount of $65,000,000. The
Lenders have agreed to do so, subject to the terms and conditions set forth
below.
In consideration of the mutual covenants and agreements contained herein, and
other good and valuable consideration hereby acknowledged, the parties hereto
agree as follows:
DEFINITIONS
DEFINED TERMS. For purposes of this Agreement:
"Acquisition Liens" means Liens existing on Property (a) of a Person at the time
it becomes a Subsidiary or (b) of an on-going business acquired by the Borrower
or any Subsidiary after the Agreement Date, so long as in each case such Lien
(i) was not placed on such Property, and does not secure Debt created, incurred,
issued or assumed, contemporaneously with, or in any manner in contemplation of,
the acquisition of the equity interest of such Person, or such Property, by the
Borrower or such Subsidiary, and (ii) does not extend to any other Property of
the Borrower or any Subsidiary after such acquisition.
"Acquisitions" means any transaction pursuant to which the Borrower or any of
its Subsidiaries, (i) whether by means of a capital contribution or purchase or
other acquisition of stock or other securities or other equity participation or
interest, (A) acquires more than 50% of the voting or equity interest in any
Person pursuant to a solicitation by the Borrower or such Subsidiary of tenders
of equity securities of such Person, or through one or more negotiated block,
market, private or other transactions not involving a tender offer, or a
combination of any of the foregoing, (B) causes any Person, other than a
Subsidiary of the Borrower or such Subsidiary, to be merged into the Borrower or
such Subsidiary or causes any Subsidiary to be merged into any other Person
which does become a Subsidiary of the Borrower thereby, or (C) agrees to
purchase all or substantially all of the assets of any Person, pursuant to a
merger, purchase of assets or other reorganization providing for the delivery or
issuance to the holders of such Person's then outstanding securities, in
exchange for such securities, of cash or securities of the Borrower or such
Subsidiary, or any combination thereof, or (ii) purchases all or substantially
all of the business or assets of any Person or of any operating division of any
Person.
"Administrative Lender" means Bank of America, N.A., a national banking
association, as Administrative Lender for Lenders, or such successor
Administrative Lender appointed pursuant to Section 10.1(b) hereof.
"Advance" means any amount advanced by the Lenders to the Borrower pursuant to
Section 2.1 hereof which either may be a Base Rate Advance or a LIBOR Advance.
"Advance Notice" means the Advance Notice substantially in the form of Exhibit E
hereto.
"Affiliate" means any Person (other than a Guarantor) (i) who is a director or
executive officer of the Borrower or any Subsidiary, (ii) which directly or
indirectly through one or more intermediaries Controls, or is Controlled By, or
is Under Common Control with, the Borrower, (iii) which beneficially owns or
holds securities representing 5% or more of the combined voting power of the
voting stock of the Borrower or any Subsidiary or (iv) of which securities
representing 5% or more of the combined voting power of the voting stock (or in
the case of a Person which is not a corporation, 5% or more of the equity) are
beneficially owned or held by the Borrower or a Subsidiary.
"Agreement" means this Credit Agreement, as amended, modified, supplemented or
restated from time to time.
"Agreement Date" means the date of this Agreement.
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"Applicable Environmental Laws" means applicable laws pertaining to health or
the environment, including without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (as amended from time to time,
"CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended by the
Used Oil Recycling Act of 1980, the Solid Waste Disposal Act amendments of 1980,
and the Hazardous and Solid Waste Amendments of 1984 (as amended from time to
time, "RCRA"), the Texas Water Code, and the Texas Solid Waste Disposal Act or
any other similar state Law in any other jurisdiction in which the Borrower or
any Subsidiary transacts business or owns property.
"Applicable Law" means (a) in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person and its properties, including,
without limiting the foregoing, all orders and decrees of all courts and
arbitrators in proceedings or actions to which the Person in question is a
party, and (b) in respect of contracts relating to interest or finance charges
that are made or performed in the State of Texas, "Applicable Law" means the
laws of the United States of America, including without limitation 12 USC xx.xx.
85 and 86(a), as amended from time to time, and any other statute of the United
States of America now or at any time hereafter prescribing the maximum rates of
interest on loans and extensions of credit, and the laws of the State of Texas,
and any other statute of the State of Texas now or at any time hereafter
prescribing maximum rates of interest on loans and extensions of credit;
provided that the parties hereto agree that the provisions of Chapter 303 of the
Texas Finance Code, as amended, shall not apply to Advances, this Agreement, the
Revolving Credit Notes or any other Loan Documents.
"Applicable Margin" means the following per annum percentages, applicable in the
following situations:
Base Rate LIBOR Rate
Applicability Advances Advances
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(a) If the Capitalization Ratio is greater than or equal to 0.40 0.250 1.500
to 1
(b) If the Capitalization Ratio is greater than or equal to 0.30 0.000 1.250
to 1 but less than 0.40 to 1
(c) If the Capitalization Ratio is greater than or equal to 0.20 0.000 1.000
to 1 but less than 0.30 to 1
(d) If the Capitalization Ratio is less than 0.20 to 1 0.000 0.750
The Applicable Margin payable by the Borrower on the Advances outstanding
hereunder shall be subject to reduction or increase, as applicable and as set
forth in the table above, on a quarterly basis according to the performance of
the Borrower as tested using the Capitalization Ratio for the most recent fiscal
quarter; provided, that each adjustment in the LIBOR Rate or the Base Rate, as
the case may be, shall be effective with respect to LIBOR Advances or Base Rate
Advances (i) made following the Financial Statement Due Date, on the date of
making of such LIBOR Advance or Base Rate Advance and (ii) outstanding on the
Financial Statement Due Date, on the Financial Statement Due Date. If the
financial statements are not received by the Lenders on the Financial Statement
Due Date, the Applicable Margin shall be determined as if the Capitalization
Ratio is greater than or equal to 0.40 to 1 until such time as such financial
statements are received. Until the Financial Statement Due Date for the
Borrower's financial statements for the fiscal quarter ending June 30, 2001, the
Applicable Margin shall be determined as if the Capitalization Ratio is greater
than or equal to 0.30 to 1 but less than 0.40 to 1.
"Approved Fund" shall have the meaning ascribed thereto in Section 11.6(h)
hereof.
"Assignment Agreement" means an Assignment Agreement substantially in the form
of Exhibit C hereto.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capitalized Lease Obligation of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease;
provided, however, if such Person has a Guaranty Obligation with respect to any
Synthetic Lease Obligation, Attributable Indebtedness with
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respect to such Synthetic Lease Obligation means the lesser of (a) the
capitalized amount of the remaining lease payments under the relevant lease that
would appear on the balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease and (b)
the amount of the Guaranty Obligation of such Person in respect of such
Synthetic Lease Obligation.
"Authorized Signatory" means such senior personnel of the Borrower as may be
duly authorized and designated in writing by the Borrower to execute documents,
agreements and instruments on behalf of the Borrower, and to request Advances
and Letters of Credit hereunder.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the higher
of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as publicly announced by Bank of America as its "prime
rate". Such rate is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Advance" means any Advance that bears interest based on the Base
Rate.
"Borrower" means Xxxxxx Manufacturing Company, a Delaware corporation.
"Borrowing" means a borrowing consisting of simultaneous Advances of the same
Type and having the same Interest Periods by each of the Lenders pursuant to
Section 2.1 hereof.
"Business Day" means a day on which banks are open for the transaction of
business in Dallas, Texas and, with respect to any LIBOR Advance, in London,
England.
"Capitalization Ratio" means, for any date of determination, the ratio of (a)
Total Funded Debt as of such date to (b) Total Capital as of such date.
"Capitalized Lease Obligations" means that portion of any obligation of the
Borrower or any Subsidiary as lessee under a lease which at the time would be
required to be capitalized on a balance sheet prepared in accordance with GAAP.
"Change of Control" means, with respect to any Person, an event or series of
events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such Person or its subsidiaries, or any Person
acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 50% or more of the equity interests of such Person; or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means $65,000,000, as reduced from time to time pursuant to Section
2.6 hereof.
"Control" or "Controlled" or "Controlled By" or "Under Common Control" means
possession, directly or indirectly, of power to direct or cause the direction of
management or policies of a Person (whether through ownership of voting stock,
by contract or otherwise).
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"Controlled Group" means as of the applicable date, as to any Person, all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) which are under common control with such Person
and which, together with such Person, are treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code; provided, however, that the
Subsidiaries of the Borrower shall be deemed to be members of the Borrower's
Controlled Group.
"Credit Extension" means each of the following: (a) a Borrowing and (b) a Letter
of Credit Extension.
"Debt" means, as to any Person at a particular time, all of the following (but
without duplication):
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) any direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments;
(c) net aggregate obligations under Swap Contracts calculated (i) with
respect to Swap Contracts which have been closed out, the termination value
thereof, and (ii) with respect to Swap Contracts which have not been closed
out, the xxxx-to-market value thereof determined on the basis of readily
available quotations provided by any recognized dealer in such Swap
Contracts;
(d) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(e) Capitalized Lease Obligations and Synthetic Lease Obligations;
(f) any Redeemable Stock of such Person; and
(g) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes hereof, the Debt of any Person shall include the Indebtedness
of any partnership or joint venture in which such Person is a general partner or
a joint venturer to the extent there is recourse to such Person for such
Indebtedness. The amount of any Capitalized Lease Obligations or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Debtor Relief Laws" means any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar
debtor relief Laws affecting the rights of creditors generally from time to time
in effect.
"Default" means an Event of Default and/or any of the events specified in
Section 8.1, regardless of whether there shall have occurred any passage of time
or giving of notice that would be necessary in order to constitute such event an
Event of Default.
"Default Rate" means a simple per annum interest rate equal to the lesser of (a)
the Highest Lawful Rate, or (b) the sum of the Base Rate plus two percent.
"Determining Lenders" means, on any date of determination (a) prior to the
issuance of at least $40,000,000 in aggregate principal amount of the 2001
Private Placement Notes, the Lender(s) whose Specified Percentages aggregate
more than 50% and (b) after the issuance of at least $40,000,000 in aggregate
principal amount of the 2001 Private Placement Notes, at least two Lenders whose
Specified Percentages aggregate more than 50%; provided, however, that following
the termination of the Commitment, "Determining Lenders" means the Lender(s)
having more than 50% of the aggregate amount of the Advances then outstanding.
"Disposition" has the meaning given to it in Section 7.9 hereof.
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"Dividend" means, (i) as to the Borrower, any declaration or payment of any
dividend (other than a stock dividend) on, or the making of any distribution to
any holder of, any shares of capital stock or other ownership interests of the
Borrower (other than salaries, bonuses and other compensation paid in the
ordinary course of business) and (ii) as to any Subsidiary, any declaration or
payment of any dividend (other than a stock dividend) on, or the making of any
distribution to any holder of, any shares of capital stock or other ownership
interests of such Subsidiary (other than salaries and bonuses paid in the
ordinary course of business) to any Person other than the Borrower or a
Subsidiary of the Borrower.
"Dollar" or "$" means lawful currency of the United States of America.
"Domestic Subsidiary" means any Subsidiary which is not a Foreign Subsidiary.
"EBITDA" means, for any period, determined in accordance with GAAP on a
consolidated basis for the Borrower and its Subsidiaries, the sum of (a) pre-tax
net income (excluding therefrom, to the extent included in determining pre-tax
net income, any items of extraordinary gain, including net gains on the sale of
assets other than asset sales in the ordinary course of business, and any
non-recurring, non-cash credits, and adding thereto, to the extent including in
determining pre-tax net income, any items of extraordinary loss, including net
losses on the sale of assets other than asset sales in the ordinary course of
business, any non-recurring, non-cash charges), plus (b) interest expense
(including interest expense pursuant to Capitalized Lease Obligations), plus (c)
depreciation and amortization, in each case for the four consecutive fiscal
quarters immediately preceding the date of determination, plus (d) (without
duplication and to the extent included in determining pre-tax net income) rent
expense in respect of any Synthetic Lease Obligations.
"EBITDAR" means, for any period, determined in accordance with GAAP on a
consolidated basis for the Borrower and its Subsidiaries, the sum of (a) EBITDA,
plus (b) lease expense pursuant to Operating Leases.
"Eligible Assignee" has the meaning given to it in Section 11.6(h) hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any regulation promulgated thereunder.
"ERISA Affiliate" means the Borrower and (i) any corporation that is a member of
a controlled group of corporations within the meaning of Section 414(b) of the
Code of which the Borrower is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or businesses under
common control within the meaning of Section 414(c) of the Code of which the
Borrower is a member; and (iii) any member of an affiliated service group within
the meaning of Section 414(m) or (o) of the Code of which the Borrower, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
"ERISA Event" means, with respect to the Borrower and its Subsidiaries, (a) a
Reportable Event (other than a Reportable Event not subject to the provision for
30-day notice to the PBGC under regulations issued under Section 4043 of ERISA),
(b) the withdrawal of any such Person or any member of its Controlled Group from
a Plan subject to Title IV of ERISA during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the filing
of a notice of intent to terminate under Section 4041(c) of ERISA, (d) the
institution of proceedings to terminate a Plan by the PBGC, (e) the failure to
make required contributions which could result in the imposition of a lien under
Section 412 of the Code or Section 302 of ERISA, or (f) any other event or
condition which could reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan or the imposition of any liability under Title IV of ERISA
other than PBGC premiums due but not delinquent under Section 4007 of ERISA.
"Event of Default" means any of the events specified in Section 8.1, provided
that any requirement for notice or lapse of time has been satisfied.
"Existing Credit Agreement" means that certain Credit Agreement, dated as of
June 2, 1995, among the Borrower, the lenders party thereto and Bank of America,
N.A., as Administrative Lender, as amended, modified or supplemented from time
to time.
"Existing Private Placement Notes" means, collectively, those certain (a) 8.02%
Senior Notes of the Borrower in $35,000,000 aggregate principal amount, due
December 30, 2003 and (b) 6.57% Senior Notes of the Borrower in $35,000,000
aggregate principal amount, due March 20, 2013.
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"Existing Letters of Credit" means the letters of credit set forth on Schedule
1.1(c).
"Facility Sale and Leaseback" means the sale and leaseback (including the
purchase and resale by the Borrower or a Subsidiary of bonds secured by such
facility) by the Borrower or a Subsidiary of a plant or headquarters facility
used in their respective businesses, including facilities located in Xxxxxx,
Georgia and Greenville, Tennessee.
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards if
necessary, to the nearest 1/100th 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 Dallas on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Administrative Lender on such
day on such transactions as determined by Administrative Lender.
"Financial Statement Due Date" means each date that the financial statements
referred to Section 6.1 or 6.2 hereof, as applicable, are required to be
delivered to the Lenders pursuant thereto.
"Fixed Charges" means, for any period, determined in accordance with GAAP on a
consolidated basis for the Borrower and its Subsidiaries, the sum of (without
duplication) (a) interest expense (including interest expense pursuant to
Capitalized Lease Obligations), plus (b) lease expense pursuant to Operating
Leases, plus (c) Restricted Payments (other than Treasury Stock Purchases)
declared or paid (without duplication).
"Fixed Charge Coverage Ratio" means, as of any date of determination, the ratio
of (a) EBITDAR for the period of four consecutive fiscal quarters ending on such
date to (b) Fixed Charges for the period of four consecutive fiscal quarters
ending on such date.
"Foreign Lender" has the meaning given to it in Section 11.16 hereof.
"Foreign Subsidiary" means any Subsidiary which is organized or established
outside of the United States of America.
"Fund" has the meaning given to it in Section 11.6(h) hereof.
"Future Headquarters" means that certain corporate headquarters building of the
Borrower to be located in the West Bottoms, Kansas City, Missouri.
"Future Headquarters Sale and Leaseback" means the sale and leaseback (including
the purchase and resale by the Borrower of bonds secured by such facility) by
the Borrower of the Future Headquarters.
"GAAP" means generally accepted accounting principles as in effect in the United
States as set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the
accounting profession, that are applicable to the circumstances as of the date
of determination, consistently applied. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Determining Lenders shall so
request, the Administrative Lender, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Determining Lenders); provided that, until so amended, (a) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (b) the Borrower shall provide to the Administrative Lender
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP
"Governmental Authority" means (a) the government of (i) the United States of
America and any State or other political subdivision thereof or (ii) any
jurisdiction in which the Borrower or any Subsidiary conducts all or any part of
its business or owns any Property or (b) any entity exercising executive,
legislative, judicial, regulatory or administrative functions of, or pertaining
to, any such government.
"Guarantor" means each Subsidiary which has executed a Subsidiary Guaranty.
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"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Debt or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Debt or
other obligation of the payment or performance of such Debt or other obligation,
(iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligees in respect of such Debt
or other obligation of the payment or performance thereof or to protect such
obligees against loss in respect thereof (in whole or in part), or (b) any Lien
on any assets of such Person securing any Debt or other obligation of any other
Person, whether or not such Debt or other obligation is assumed by such Person;
provided, however, that the term "Guaranty Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guaranty Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guarantying Person in good faith.
"Hazardous Substance" means any and all pollutants, contaminants, toxic or
hazardous wastes or any other substances that might pose a hazard to health or
safety, the removal of which is or shall be required or the generation,
manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage,
or filtration of which is or shall be restricted, prohibited or penalized by any
applicable law (including, without limitation, asbestos, ureaformaldehyde foam
insulation and polychlorinated biphenyls).
"Highest Lawful Rate" means at the particular time in question the maximum rate
of interest which, under Applicable Law, any Lender is then permitted to charge
on the Obligations. If the maximum rate of interest which, under Applicable Law,
any Lender is permitted to charge on the Obligations shall change after the date
hereof, the Highest Lawful Rate shall be automatically increased or decreased,
as the case may be, from time to time as of the effective time of each change in
the Highest Lawful Rate without notice to the Borrower. For purposes of
determining the Highest Lawful Rate under Applicable Law, the indicated rate
ceiling shall be the lesser of (a)(i) the "weekly ceiling", as that expression
is defined in Section 303.003 of the Texas Finance Code, as amended, or (ii) if
available in accordance with the terms thereof and at the Administrative
Lender's option after notice to the Borrower and otherwise in accordance with
the terms of Section 303.103 of the Texas Finance Code, as amended, the
"annualized ceiling" and (b)(i) if the amount outstanding under this Agreement
is less than $250,000, twenty-four percent (24%), or (ii) if the amount under
this Agreement is equal to or greater than $250,000, twenty-eight percent (28%)
per annum.
"Indemnitees" has the meaning given to it in Section 5.10(a) hereof.
"Information" has the meaning given to it in Section 11.17 hereof.
"Initial Guarantors" means BMC Real Estate, Inc., a Delaware corporation, BUCON,
Inc., a Delaware corporation, Xxxxxx Holdings, Inc., a Delaware corporation,
Xxxxxx Real Estate, Inc., a Delaware corporation, Xxxxxx Buildings, Inc., a
Minnesota corporation, Xxxxxx Pacific, Inc., a Delaware corporation, Moduline
Windows, Inc., a Wisconsin corporation, and Liberty Building Systems, Inc., a
Delaware corporation.
"Interest Period" means as to each LIBOR Advance, the period commencing on the
date such LIBOR Advance is disbursed or converted to or continued as a LIBOR
Advance and ending on the date one, two, three or six months thereafter (or
ending on such other dates if available to all Lenders), as selected by the
Borrower in its Advance Notice, as the case may be; provided that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day
unless, in the case of a LIBOR Advance, such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
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(ii) any Interest Period pertaining to a LIBOR Advance that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the scheduled Maturity
Date.
"Investment" means any transaction pursuant to which the Borrower or any of its
Subsidiaries whether by means of a capital contribution or purchase or other
acquisition of stock or other securities or other equity participation or
interest acquires 50% or less of the voting or equity interest in any Person, or
any direct or indirect loan, advance or capital contribution to, or investment
in any other Person other than a Domestic Subsidiary which is not an
Acquisition, including without limitation the incurrence or sufferance by the
Borrower or any Domestic Subsidiary of Debt of any other Person, or the purchase
of accounts receivable of any other Person that are not current assets or do not
arise in the ordinary course of business, excluding, however, (i) all such
loans, advances, capital contributions and investments existing on the Agreement
Date and any subsequent recharacterizations or exchanges thereof, and (ii)
Guaranty Obligations with respect to which the obligor is not in default. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"Issuing Bank" means any Lender, in its capacity as issuer of a Letter of
Credit.
"Laws" means any statute, law, ordinance, regulation, rule, order, writ,
injunction or decree of any Governmental Authority.
"Lender" means each financial institution shown on the signature pages hereof so
long as such financial institution maintains a Commitment or is owed any part of
the Obligations (including the Administrative Lender in its individual
capacity), and each Assignee that hereafter becomes party hereto pursuant to
Section 11.6 hereof.
"Lender Affiliate" means any Person that, directly or indirectly through one or
more Persons, Controls or is Controlled By or Under Common Control with a
Lender.
"L/C Related Documents" has the meaning given to it in Section 2.16(e) hereof.
"Letter of Credit" has the meaning given to it in Section 2.16(a) hereof.
"Letter of Credit Agreement" has the meaning given to it in Section 2.16(b)(i)
hereof.
"Letter of Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or the extension of the expiration date thereof, or the renewal
or increase of the amount thereof.
"Letter of Credit Facility" means the amount of Letters of Credit the Issuing
Bank may issue pursuant to Section 2.16(a) hereof.
"Leverage Ratio" means, as of any date of determination, the ratio of (a) Total
Funded Debt as of such date to (b) EBITDA for the period of four consecutive
fiscal quarters ending on such date. For purposes of calculating the Leverage
Ratio, EBITDA shall include (exclude) the trailing four quarters of EBITDA
attributable to any assets acquired (disposed of) during such period, as
determined by a method prepared by the Borrower and which is reasonably
satisfactory to the Determining Lenders.
"LIBOR Advance" means an Advance which the Borrower requests to be made as a
LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance with the
provisions of Section 2.2 hereof.
"LIBOR Lending Office" means, with respect to a Lender, the office designated as
its LIBOR Lending Office on Schedule 1.1(a) attached hereto, and such other
office of the Lender or any of its affiliates hereafter designated by notice to
the Borrower and the Administrative Lender.
"LIBOR Rate" means, for any Interest Period the rate per annum (rounded upwards,
if necessary, to the nearest 1/100th of 1%) appearing on Telerate Page 3750 (or
any successor 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. If
for any reason such rate is not available, the term "LIBOR Rate" means, for any
LIBOR Advance for any Interest Period therefor, the rate per annum (rounded
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upwards, if necessary, to the nearest 1/100th 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 (rounded upwards,
if necessary, to the nearest 1/100th of 1%).
"Lien" means, with respect to any property, any mortgage, lien, pledge,
collateral assignment, hypothecation, charge, security interest, title retention
agreement, levy, execution, seizure, attachment, garnishment or other
encumbrance of any kind in respect of such property, whether or not xxxxxx,
vested or perfected.
"Loan Documents" means this Agreement, the Revolving Credit Notes, the
Subsidiary Guaranty, any Swap Contract entered into with any Lender or any
Lender Affiliate and any other document or agreement executed or delivered from
time to time by the Borrower or any Subsidiary in connection herewith or as
security for the Obligations.
"Material Adverse Effect" means any act or circumstance or event that (a) causes
a Default, (b) is material and adverse to (i) the consolidated financial
condition, Properties, results of operations or business of the Borrower and its
Subsidiaries taken as a whole or (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (c) in any manner whatsoever materially
and adversely affects the validity or enforceability of any Loan Documents.
"Material Subsidiary" means each Domestic Subsidiary (a) the gross revenues of
which for the then most recently completed four fiscal quarters (or, with
respect to any Domestic Subsidiary acquired during such four fiscal quarters,
would have constituted had the gross revenues of such Subsidiary been included
for such period) 5% or more of the consolidated gross revenues of the Borrower
and its Subsidiaries for such period or (b) the assets of which as of the end of
any fiscal quarter constituted 5% or more of the consolidated assets of the
Borrower and its Subsidiaries as of the end of such fiscal quarter.
"Maturity Date" means June 20, 2004, or the earlier date of termination in whole
of the Commitment pursuant to Sections 2.6 or 8.2 hereof.
"Maximum Amount" means the maximum amount of interest which, under Applicable
Law, the Lenders are permitted to charge on the Obligations.
"Multiemployer Plan" means, as to any Person, at any time, a "multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA and to which such Person
or any member of its Controlled Group is making, or is obligated to make
contributions or has made, or been obligated to make, contributions.
"Necessary Authorization" means any right, franchise, license, permit, consent,
approval or authorization from, or any filing or registration with, any
governmental or other regulatory authority necessary or appropriate to enable
the Borrower or any Subsidiary to maintain and operate its business and
properties.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower or any Subsidiary arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising.
Without limiting the generality of the foregoing, "Obligations" includes all
amounts which would be owed by the Borrower or any Subsidiary to Administrative
Lender, Lenders or any Lender Affiliate under any Loan Document, but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Borrower or any
Subsidiary (including all such amounts which would become due or would be
secured but for the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding of the Borrower or any
Subsidiary under any Debtor Relief Law).
"Operating Lease" means any operating lease, as defined in the Financial
Accounting Standard Board Statement of Financial Accounting Standards No. 13,
dated November, 1976 or otherwise in accordance with GAAP.
"Other Taxes" has the meaning given to it in Section 2.15(b) hereof.
"Participant" has the meaning given to it in Section 11.6(d) hereof.
"Payment Date" means the last day of the Interest Period for any LIBOR Advance.
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding
to any or all of its functions under ERISA.
"Permitted Liens" means, as applied to any Person, any or all of the following:
(a) any Lien in favor of the Lenders to secure the Obligations
hereunder;
(b) (i) Liens on real estate for real estate taxes, assessments,
governmental charges, levies, payments in lieu of taxes, impact fees,
payments due under declarations and covenants, water and sewer charges, and
dues or assessments of association, levy, management or similar districts
that are not yet delinquent, (ii) Liens created by lease agreements to
secure the payments of rental amounts and other sums not yet due
thereunder, (iii) Liens on leasehold interests created by the lessor in
favor of any mortgagee of the leased premises, and (iv) Liens for taxes,
assessments, governmental charges, levies or claims that are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on such Person's books, but
only so long as no foreclosure, restraint, sale or similar proceedings have
been commenced with respect thereto and the payment thereof is not at the
time required by Section 5.6 hereof;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen and other similar Liens incurred in the ordinary course of
business for sums not yet due or being contested in good faith, if such
reserve or appropriate provision, if any, as shall be required by GAAP
shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation, unemployment insurance or similar legislation;
(e) Easements, right-of-way, restrictions and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person;
(f) Purchase Money Liens if, after giving effect thereto and to any
concurrent transactions (i) each such Purchase Money Lien secures an amount
not exceeding 100% of the cost of the particular Property to which it
relates; provided, such Property is purchased in the ordinary course of
business and (ii) such Purchase Money Lien encumbers only Property (A)
purchased after the Agreement Date, (B) acquired with the proceeds of the
Debt secured thereby or credit extended by the seller of the Property and
(C) immediately after, and after giving effect thereto, no Default or Event
of Default would exist;
(g) Any Liens existing on the Agreement Date which are described on
Schedule 1.1(b) hereto, and Liens resulting from the refinancing of the
related Debt, provided that the Debt secured thereby shall not be increased
and the Liens shall not cover additional assets of the Borrower;
(h) Acquisition Liens;
(i) Liens on Property of a Subsidiary, provided that (i) such Lien is
of a type described in clauses (a) through (h), or (ii) other Liens which
secure obligations of that Subsidiary owing to the Borrower or a
Subsidiary;
(j) Liens on cash advanced, together with earnings and proceeds
thereof, as collateral for reimbursement obligations under bank letters of
credit, which Liens arise only upon a default in the agreements providing
for such letters of credit, so long as the cash advanced as collateral with
respect thereto does not exceed $7,000,000 in aggregate amount;
(k) any attachment or judgment Lien, unless the judgment it secures
shall not, within 30 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 30 days after the expiration of any such stay; and
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(l) Liens not otherwise described in clauses (a) through (k) above
securing Debt in an aggregate amount of $20,000,000, determined for the
Borrower and its Subsidiaries on a consolidated basis.
"Person" means an individual, corporation, partnership, trust or unincorporated
organization, or a government or any agency or political subdivision thereof.
"Plan" means any employee pension benefit plan, as defined in Section 3(2) of
ERISA, that has been established by, or contributed to, or is maintained by the
Borrower or any ERISA Affiliate.
"Prohibited Transaction" has the meaning specified therefor in Section 4975 of
the Code or Section 406 of Title I of ERISA.
"Property" means any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
"Purchase Money Lien" means a Lien held by any Person (whether or not the seller
of such assets) on tangible property acquired or constructed by the Borrower or
any Subsidiary after the date hereof (other than tangible property acquired to
replace, repair, upgrade or alter tangible Property owned by the Borrower or any
Subsidiary on the date hereof), which Lien secured all or a portion of the
related purchase price or construction costs of such tangible property and which
Lien is created contemporaneously with, or within one hundred eighty (180) days
of, such acquisition or construction; provided that, in each such case such Lien
does not extend to any other Property of the Borrower or any other Subsidiary.
"Quarterly Date" means the last day of each March, June, September and December,
beginning June 30, 2001.
"Redeemable Stock" means any capital stock or other equity interest of the
Borrower or any of its Subsidiaries which prior to July 30, 2004 is (a)
unilaterally redeemable (by seeking final or similar payments or otherwise) upon
the occurrence of certain events or otherwise, (b) redeemable at the option of
the holder thereof or (c) convertible into Debt.
"Register" has the meaning given to it in Section 11.6(c) hereof.
"Regulatory Change" has the meaning given to it in Section 2.16(d) hereof.
"Reimbursement Obligations" means, in respect of any Letter of Credit as at any
date of determination, the sum of (a) the maximum aggregate amount which is then
available to be drawn under such Letter of Credit plus (b) the aggregate amount
of all drawings under such Letter of Credit and not theretofore reimbursed by
the Borrower.
"Release Date" means the date on which the Revolving Credit Notes have been
paid, all other Obligations due and owing have been paid and performed in full,
and the Commitment has been terminated.
"Reportable Event" has the meaning set forth in Section 4043(b) of ERISA.
"Request for Credit Extension" means (a) with respect to a Borrowing, conversion
or continuation of an Advance, an Advance Notice and (b) with respect to a
Letter of Credit Extension, a Request for Issuance.
"Request for Issuance" has the meaning given to it in Section 2.16(b) hereof.
"Restricted Payments" means, with respect to any Person, (a) Dividends and (b)
Treasury Stock Purchases.
"Revolving Credit Note" means each Promissory Note of the Borrower evidencing
Advances hereunder, substantially in the form of Exhibit A hereto, together with
any extension, renewal or amendment thereof, or substitution therefor.
"San Xxxxxx Xxxxx" means those certain City of San Marcos Industrial Development
Corporation Industrial Development Revenue Bonds in aggregate principal amount
of $6,250,000, due 2015.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder's Equity" means the consolidated shareholder's equity of the
Borrower and its Subsidiaries, determined in accordance with GAAP.
"Solvent" means, with respect to any Person, that the fair value of the assets
of such Person is, on the date of determination, greater than the total amount
of liabilities (including contingent and unliquidated liabilities) of such
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Person as of such date and that, as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature and such Person does not
have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person.
"Special Counsel" means the law firm of Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C., or
such other legal counsel as the Administrative Lender may select.
"Specified Percentage" means, as to any Lender, the percentage indicated beside
its name on the signature pages hereof, or if applicable, specified in its most
recent Assignment Agreement or the most recent amendment of this Agreement, as
adjusted as a result of any Commitment reductions that are applied to Bank of
America only as provided in Sections 2.6(a) and 2.6(b) hereof.
"Subsidiary" means (a) any corporation of which more than 50% of the
outstanding stock (other than directors' qualifying shares) having ordinary
voting power to elect a majority of its board of directors, regardless of the
existence at the time of a right of the holders of any class of securities of
such corporation to exercise such voting power by reason of the happening of any
contingency, is at the time owned by the Borrower, directly or through one or
more intermediaries, and (b) any other entity which is Controlled by the
Borrower, directly or through one or more intermediaries.
"Subsidiary Guaranty" means the Subsidiary Guaranty of even date herewith,
executed by certain Domestic Subsidiaries of the Borrower, guarantying payment
and performance of the Obligations, substantially in the form of Exhibit C
hereto, as such agreement may be amended, modified, supplemented or restated
from time to time and each Subsidiary Guaranty hereafter executed and delivered
by a Material Subsidiary pursuant to Section 5.11 hereof.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, any cancellations, buy backs,
reversals, terminations or assignments of any of the foregoing, or any other
similar transactions or any combination of any of the foregoing (including any
options to enter into any of the foregoing), whether or not any such transaction
is governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement.
"Synthetic Lease Obligation" means the monetary obligation of a Person under (a)
a so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning given to it in Section 2.15(a) hereof.
"Total Assets" means, as of any date of determination, the consolidated assets
of the Borrower and its Subsidiaries determined in accordance with GAAP.
"Total Capital" means, as of any date of determination, the sum of (i)
Shareholder's Equity as of such date plus (ii) Total Funded Debt as of such
date.
"Total Funded Debt" means, as of any date of determination, determined on a
consolidated basis for the Borrower and its Subsidiaries, all Debt of the
Borrower and its Subsidiaries of the type described in clauses (a) through (f)
of the definition of "Debt" herein (provided that (y) Debt of the type described
in clause (b) of the definition of "Debt" herein shall only be deemed to be
Total Funded Debt to the extent that obligations are outstanding as a result of
draws or claims made against such instruments and (z) the bonds secured by the
Future Headquarters Sale and Leaseback or a Facility Sale and Leaseback, and
Borrower's obligations to reimburse insurance providers for third
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party claims filed under any insurance program therewith sponsored by the
Borrower or its Subsidiaries, shall not be considered Total Funded Debt).
"Treasury Stock Purchases" means, with respect to any Person, any purchase,
redemption or other acquisition or retirement for value of any shares of capital
stock or other ownership interests of such Person by such Person, but not
including any such purchase or acquisition in connection with the exercise of
stock options with respect to stock of the Borrower.
"2001 Private Placement Notes" means those certain private placement notes of
the Borrower in an aggregate amount up to $50,000,000 to be arranged by Banc of
America Securities LLC and to be issued on or about June 29, 2001.
"Type" means with respect to an Advance, its character as a Base Rate Advance or
a LIBOR Advance.
"UCC" means the Uniform Commercial Code of Texas, as amended from time to time.
OTHER INTERPRETIVE PROVISIONS.
THE MEANINGS OF DEFINED TERMS ARE EQUALLY APPLICABLE TO THE SINGULAR AND
PLURAL FORMS OF THE DEFINED TERMS.
(i) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section, Exhibit and
Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced.
IN THE COMPUTATION OF PERIODS OF TIME FROM A SPECIFIED DATE TO A LATER
SPECIFIED DATE, THE WORD "FROM" MEANS "FROM AND INCLUDING;" THE WORDS "TO" AND
"UNTIL" EACH MEAN "TO BUT EXCLUDING;" AND THE WORD "THROUGH" MEANS "TO AND
INCLUDING."
SECTION HEADINGS HEREIN AND THE OTHER LOAN DOCUMENTS ARE INCLUDED FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE INTERPRETATION OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT.
ACCOUNTING TERMS. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data required to
be submitted pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
ROUNDING. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly provided herein,
(a) references to agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only
to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
ADVANCES
ADVANCES. Each Lender severally agrees, upon the terms and subject to the
conditions of this Agreement, to make Advances to the Borrower from time to time
in an aggregate amount not to exceed its Specified Percentage of the
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Commitment, provided that at no time shall the aggregate outstanding principal
amount of all Advances, together with the aggregate outstanding principal amount
of Reimbursement Obligations, exceed the Commitment. Subject to Section 2.9
hereof, Advances may be repaid and then reborrowed. Any Advance shall, at the
option of the Borrower as provided in Section 2.2 hereof (and, in the case of
LIBOR Advances, subject to availability and to the provisions of Article 9
hereof), be made as a Base Rate Advance or a LIBOR Advance; provided that there
shall not be outstanding to any Lender, at any one time, more than ten LIBOR
Advances under the Commitment. On the Maturity Date unless sooner paid as
provided herein, the outstanding Advances shall be repaid in full.
Borrowings, conversions and continuations of advances.
NOTICES. Each Borrowing, each conversion of Advances from one Type to the other,
and each continuation of Advances as the same Type shall be made upon the
Borrower's irrevocable notice to the Administrative Lender, which may be given
by telephone. Each such notice must be received by the Administrative Lender not
later than (i) 10:00 a.m., Dallas Texas time three Business Days prior to the
requested date of any Borrowing of, conversion toor continuation of LIBOR
Advances, and (ii) 12:00 noon, Dallas, Texas time on the requested date of any
Borrowing of Base Rate Advances or of any conversion of LIBOR Advances to Base
Rate Advances. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Lender of a written Advance Notice, appropriately
completed and signed by an Authorized Signatory. Each Borrowing of, conversion
to or continuation of LIBOR Advances shall be in a principal amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing
of or conversion to Base Rate Advances shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof. Each Advance
Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a conversion of Advances from one Type to the other, or a
continuation of Advances as the same Type, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Advances to be borrowed, converted
or continued, (iv) the Type of Advances to be borrowed or to which existing
Advances are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Advances
shall be made or continued as, or converted to, Base Rate Advances. Any such
automatic conversion to Base Rate Advances shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable LIBOR
Advance. If the Borrower requests a Borrowing of, conversion to, or continuation
of LIBOR Advances in any such Advance Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
LIBOR ADVANCES. Except as otherwise provided herein, a LIBOR Advance may be
continued or converted only on the last day of the Interest Period for such
LIBOR Advance. During the existence of a Default or Event of Default, no
Advances may be requested as, converted to or continued as a LIBOR Advance
without the consent of the Determining Lenders, and the Determining Lenders may
demand that any or all of the then outstanding LIBOR Advances be converted
immediately to Base Rate Advances.
INTEREST RATE DETERMINATION. The Administrative Lender shall promptly notify the
Borrower and the Lenders of the interest rate applicable to any LIBOR Advance
upon determination of such interest rate. The determination of the LIBOR Rate by
the Administrative Lender shall be conclusive in the absence of manifest error.
FUNDING. The Administrative Lender shall promptly notify the Lenders of each
Advance Notice received from the Borrower pursuant to this Section. Each Lender
shall, not later than 1:00 p.m., Dallas, Texas time, on the date of any Advance,
deliver to the Administrative Lender, at its address set forth herein, such
Lender's Specified Percentage of such Advance in immediately available funds in
accordance with the Administrative Lender's instructions. Prior to 2:00 p.m.,
Dallas, Texas time, on the date of any Advance hereunder, the Administrative
Lender shall, subject to satisfaction of the conditions set forth in Article 3,
disburse the amounts made available to the Administrative Lender by the Lenders
by (i) transferring such amounts by wire transfer pursuant to the Borrower's
instructions, or (ii) in the absence of such instructions, transferring such
amounts by wire transfer to the account of the Borrower maintained with Bank of
America, N.A., Dallas, Texas, ABA No. 000000000, in favor of Xxxxxx
Manufacturing Company, Account No. 375-0000000.
INTEREST ON BASE RATE ADVANCES.
(v) The Borrower shall pay interest on the outstanding unpaid principal
amount of each Base Rate Advance, from the date such Advance is made until it is
due (whether at maturity, by reason of
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acceleration, by scheduled reduction, or otherwise) or repaid, at an interest
rate per annum equal to the lesser of (x) the Base Rate plus the Applicable
Margin or (y) the Highest Lawful Rate.
(vi) Subject to Section 11.9 hereof, interest on each Base Rate Advance
shall be computed on the basis of a 365-day year for the number of days actually
elapsed, and shall be payable in arrears on each Quarterly Date and on the
Maturity Date, commencing on the first Quarterly Date immediately following the
Agreement Date.
ON LIBOR ADVANCES.
(vii) The Borrower shall pay interest on the unpaid principal amount of
each LIBOR Advance, from the date such Advance is made until it is due (whether
at maturity, by reason of acceleration, by scheduled reduction, or otherwise) or
repaid, at a rate per annum equal to the lesser of (x) the LIBOR Rate for such
Advance plus the Applicable Margin or (y) the Highest Lawful Rate. The LIBOR
Rate shall, with respect to LIBOR Advances subject to reserve or deposit
requirements be subject to premiums therefor assessed by each Lender, which are
payable directly to each Lender.
(viii) Subject to Section 11.9 hereof, interest on each LIBOR Advance shall
be computed on the basis of a 360-day year for the actual number of days
elapsed, and shall be payable in arrears on the applicable Payment Date and on
the Maturity Date; provided, that for each LIBOR Advance with an Interest Period
of six months, interest shall also be paid on the day which is three months
after the beginning of such Interest Period.
INTEREST AFTER AN EVENT OF DEFAULT. (i) After an Event of Default (other than an
Event of Default specified in Section 8.1(f) or (g) hereof) and during any
continuance thereof, at the option of Determining Lenders, and (ii) after an
Event of Default specified in Section 8.1(f) or (g) hereof and during any
continuance thereof, automatically and without any action by the Administrative
Lender or any Lender, the Obligations shall bear interest at a rate per annum
equal to the Default Rate. Such interest shall be payable on the earlier of
demand or the Maturity Date, and shall accrue until the earlier of (i) waiver or
cure (to the satisfaction of the Determining Lenders) of the applicable Event of
Default, (ii) agreement by the Lenders to rescind the charging of interest at
the Default Rate, or (iii) payment in full of the Obligations. The Lenders shall
not be required to accelerate the maturity of the Advances, to exercise any
other rights or remedies under the Loan Documents, or to give notice to the
Borrower of the decision to charge interest at the Default Rate. The Lenders
will undertake to notify the Borrower, after the effective date, of the decision
to charge interest at the Default Rate, provided, however, the failure of the
Lenders to provide such notice shall not preclude the Lenders from charging
interest at the Default Rate.
COMMITMENT FEE. Subject to Section 11.9 hereof, the Borrower agrees to pay to
the Administrative Lender, for the ratable account of the Lenders, a commitment
fee on the daily average unused portion of the Commitment at the following per
annum percentages, applicable in the following situations (for purposes of
calculation of the daily average unused portion of such commitment fee, the
Commitment shall be deemed to be utilized by the aggregate face amount of
Letters of Credit outstanding from time to time):
Applicability Percentage
------------- ----------
(a) If the Capitalization Ratio is greater than or equal to 0.40 to 1 0.300
(b) If the Capitalization Ratio is greater than or equal to 0.30 to 1 but less 0.250
than 0.40 to 1
(c) If the Capitalization Ratio is less than 0.30 to 1 0.200
Such fee shall be (i) payable in arrears on each Quarterly Date and on the
Maturity Date (commencing on the second Quarterly Date immediately following the
Agreement Date), fully earned when due and, subject to Section 11.9 hereof,
non-refundable when paid and (ii) subject to Section 11.9 hereof, computed on
the basis of a 360-day year, for the actual number of days elapsed. The fee
shall be subject to reduction or increase, as applicable and as set forth in the
table above, on a quarterly basis according to the performance of the Borrower
as tested using the
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Capitalization Ratio for the most recent fiscal quarter; provided, that each
adjustment in the fee shall be effective on the Financial Statement Due Date. If
the financial statements are not received by the Lenders on the Financial
Statement Due Date, the fee payable in respect of the Commitment shall be
determined as if the Capitalization Ratio is greater than or equal to 0.40 to 1
until such time as such financial statements are received. Until the Financial
Statement Due Date for the Borrower's financial statements for the fiscal
quarter ending June 30, 2001, the fee payable in respect of the Commitment shall
be determined as if the Capitalization Ratio is greater than or equal to 0.30 to
1 but less than 0.40 to 1.
PREPAYMENT.
VOLUNTARY PREPAYMENTS. The Borrower may, upon notice to the Administrative
Lender, at any time or from time to time voluntarily prepay Advances in whole or
in part without premium or penalty; provided that (i) such notice must be
received by the Administrative Lender not later than 10:00 a.m., Dallas, Texas
time, (A) three Business Days prior to any date of prepayment of LIBOR Advances,
and (B) on the date of prepayment of Base Rate Advances; (ii) any prepayment of
LIBOR Advances shall be in a principal amount of $2,000,000 or a whole multiple
of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Advances
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Advances to be prepaid. The Administrative Lender
will promptly notify each Lender of its receipt of each such notice, and of such
Lender's pro rata share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a LIBOR Advance shall be accompanied by all accrued interest
thereon, together with any additional amounts required pursuant to Section 2.9
hereof.
MANDATORY PREPAYMENT. On or before the date of any reduction of the Commitment,
the Borrower shall prepay applicable outstanding Advances in an amount necessary
to reduce the same to an amount less than or equal to the Commitment as so
reduced. The Borrower shall first prepay all Base Rate Advances and shall
thereafter prepay LIBOR Advances. To the extent that any prepayment requires
that a LIBOR Advance be repaid on a date other than the last day of its Interest
Period, the Borrower shall reimburse each Lender in accordance with Section 2.9
hereof. To the extent that outstanding Advances exceed the Commitment after any
reduction thereof, the Borrower shall repay any such excess amount and all
accrued interest thereon on the date of such reduction.
REDUCTION AND TERMINATION OF COMMITMENT.
VOLUNTARY REDUCTION. The Borrower shall have the right, upon not less than 10
Business Days' notice by an Authorized Signatory to the Administrative Lender
(if telephonic, to be confirmed by telex or in writing on or before the date of
reduction or termination), which shall promptly notify the Lenders, to terminate
or reduce the Commitment, in whole or in part. Each partial termination shall be
in an aggregate amount which is at least $5,000,000 and which is an integral
multiple of $1,000,000, and no voluntary reduction in the Commitment shall cause
any LIBOR Advance to be repaid prior to the last day of its Interest Period. Any
voluntary reduction of the Commitment shall first be applied to reduce Bank of
America's portion of the Commitment to $15,000,000. Thereafter, any voluntary
reductions of the Commitment shall reduce the commitment of each Lender pro rata
in accordance with their Specified Percentage in effect at such time.
MANDATORY REDUCTION. Concurrently with the receipt of the net proceeds by the
Borrower from the issuance of the 2001 Private Placement Notes, the Commitment
shall be reduced to $50,000,000, which amount shall be allocated to reduce Bank
of America's portion of the Commitment to $20,000,000. On the Maturity Date, the
Commitment shall be automatically reduced to zero.
GENERAL REQUIREMENTS. Upon any reduction of the Commitment pursuant to this
Section, the Borrower shall immediately make a repayment of applicable Advances
in accordance with Section 2.5(b) hereof. The Borrower shall reimburse each
Lender for any loss or reasonable and necessary out-of-pocket expense incurred
by each Lender in connection with any such payment, as set forth in Section 2.9
hereof to the extent applicable. The Borrower shall not have any right to
rescind any termination or reduction. Once reduced, the Commitment may not be
increased or reinstated.
NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE LENDER. Unless the Administrative
Lender shall have been notified by a Lender prior to the date of any proposed
Advance (which notice shall be effective upon receipt) that such Lender does not
intend to make the proceeds of such Advance available to the Administrative
Lender, the Administrative Lender may assume that such Lender has made such
proceeds available to the Administrative Lender on such date, and the
Administrative Lender may in reliance upon such assumption (but shall not be
required to)
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make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Lender by such
Lender, the Administrative Lender shall be entitled to recover such amount on
demand from such Lender (or, if such Lender fails to pay such amount forthwith
upon such demand, from the Borrower) together with interest thereon in respect
of each day during the period commencing on the date such amount was available
to the Borrower and ending on (but excluding) the date the Administrative Lender
receives such amount from the Lender, with interest thereon at a per annum rate
equal to the lesser of (i) the Highest Lawful Rate or (ii) the Federal Funds
Rate. No Lender shall be liable for any other Lender's failure to fund an
Advance or participate in a Letter of Credit hereunder.
PAYMENT OF PRINCIPAL OF ADVANCES. The Borrower agrees to pay the principal
amount of the Advances to the Administrative Lender for the account of the
Lenders as follows:
END OF INTEREST PERIOD. The principal amount of each LIBOR Advance hereunder
shall be due and payable on its Payment Date, unless such LIBOR Advance is
continued as a LIBOR Advance or converted to a Base Rate Advance.
COMMITMENT REDUCTION. On the date of reduction of the Commitment pursuant to
Section 2.6 hereof, the aggregate amount of the Advances outstanding on such
date of reduction in excess of the Commitment as reduced shall be due and
payable.
MATURITY DATE. To the extent not otherwise required to be paid earlier
hereunder, the unpaid outstanding principal amount of the Advances outstanding
on the Maturity Date, all accrued interest and fees thereon, and all other
Obligations related thereto, shall be due and payable in full on the Maturity
Date.
REIMBURSEMENT. Whenever any Lender shall sustain or incur any losses or
reasonable and necessary out-of-pocket expenses in connection with (a) failure
by the Borrower to borrow any LIBOR Advance after having given an Advance Notice
in accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3 hereof), or (b) any prepayment for any reason of any LIBOR
Advance in whole or in part (including a prepayment pursuant to Section 9.3(b)
hereof), the Borrower agrees to pay to any such Lender, upon its demand, an
amount sufficient to compensate such Lender for all such losses and
out-of-pocket expenses, subject to Section 11.9 hereof. Such Lender's good faith
determination of the amount of such losses or out-of-pocket expenses, calculated
in its usual fashion, absent manifest error, shall be binding and conclusive.
Such losses shall include, without limiting the generality of the foregoing,
lost profits and reasonable expenses incurred by such Lender in connection with
the re-employment of funds prepaid, repaid, converted or not borrowed, converted
or paid, as the case may be. Upon request of the Borrower, such Lender shall
provide a certificate setting forth the amount to be paid to it by the Borrower
hereunder and which shall include, in reasonable detail, the basis for demand
for additional compensation, the method of calculation, and the calculations
therefor.
MANNER OF PAYMENT.
Each payment (including prepayments) by the Borrower of the principal of or
interest on the Advances, fees, and any other amount owed under this Agreement
or any other Loan Document shall be made not later than 12:00 noon (Dallas,
Texas time) on the date specified for payment under this Agreement to the
Administrative Lender at the Administrative Lender's office, in lawful money of
the United States of America constituting immediately available funds. If any
payment under this Agreement or any other Loan Document shall be specified to be
made upon a day which is not a Business Day, it shall be made on the next
succeeding day which is a Business Day, unless such Business Day falls in
another calendar month, in which case payment shall be made on the preceding
Business Day. Any extension of time shall in such case be included in computing
interest and fees, if any, in connection with such payment. The Borrower agrees
to pay principal, interest, fees and all other amounts due under the Loan
Documents without deduction for set-off or counterclaim or any deduction
whatsoever. If some but less than all amounts due from the Borrower are received
by the Administrative Lender, the Administrative Lender shall apply such amounts
in the following order of priority: (i) to the payment of the Administrative
Lender's expenses incurred on behalf of the Lenders then due and payable, if
any; (ii) to the payment of all other fees then due and payable; (iii) to the
payment of interest then due and payable on the Advances; (iv) to the payment of
all other amounts not otherwise referred to in this clause (d) then due and
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payable under the Loan Documents; and (v) to the payment of principal then due
and payable on the Advances. Each payment by the Borrower in respect of
obligations relating to the Advances and the Letters of Credit (whether for
principal, interest, fees or otherwise) shall be made to the Administrative
Lender for the account of the Lenders pro rata in accordance with their
respective Specified Percentages, except that (a) any mandatory prepayment
required as a result of the mandatory reduction of the Commitment pursuant to
the first sentence of Section 2.6(b) hereof or (b) any mandatory prepayment
required as a result of the voluntary reduction of the portion of the Bank of
America commitment being reduced to $15,000,000 shall be made to the
Administrative Lender for the sole account of Bank of America.
LIBOR LENDING OFFICES. Each Lender's initial LIBOR Lending Office is set forth
opposite its name in Schedule 1.1(a) attached hereto. Each Lender shall have the
right at any time and from time to time to designate a different office of
itself or of any Affiliate as such Lender's LIBOR Lending Office, and to
transfer any outstanding LIBOR Advance to such LIBOR Lending Office. No such
designation or transfer shall result in any liability on the part of the
Borrower for increased costs or expenses resulting solely from such designation
or transfer (except any such transfer which is made by a Lender pursuant to
Section 9.2 or 9.3 hereof, or otherwise for the purpose of complying with
Applicable Law). Increased costs for expenses related to any LIBOR Advance
resulting from a change in Law occurring subsequent to any such designation or
transfer shall be deemed not to result solely from such designation or transfer.
SHARING OF PAYMENTS. If any Lender shall obtain a payment (whether voluntary or
involuntary, due to the exercise of any right of set-off or otherwise) on
account of any Advances made by it to the Borrower under this Agreement, and, as
a result of such payment, such Lender shall have received a greater percentage
of the amounts then due hereunder by the Borrower to such Lender than the
percentage of the amounts then due hereunder to the other Lenders, it shall
promptly purchase from such other Lenders participations in the Advances made by
such other Lenders, and make such other adjustments from time to time as shall
be equitable to the end that all the Lenders shall share the benefit of such
excess payment (net of any expense which may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and interest on the Advances held by each of the Lenders;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section, to the fullest
extent permitted by law, may exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
CALCULATION OF LIBOR RATE. The provisions of this Agreement relating to
calculation of the LIBOR Rate are included only for the purpose of determining
the rate of interest or other amounts to be paid hereunder that are based upon
such rate, it being understood that each Lender shall be entitled to fund and
maintain its funding of all or any part of a LIBOR Advance as it sees fit.
BOOKING ADVANCES. Any Lender may make, carry or transfer Advances at, to or for
the account of any of its branch offices or the office of any Affiliate.
TAXES.
Any and all payments by the Borrower to or for the account of the Administrative
Lender or any Lender under any Loan Document shall be made free and clear of and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of the Administrative
Lender and each Lender, taxes imposed on or measured by its net income, 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 the
Administrative Lender or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Lender or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including
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deductions applicable to additional sums payable under this Section), the
Administrative Lender and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Lender (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof. In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes"). If the Borrower shall be required to deduct or
pay any Taxes or Other Taxes from or in respect of any sum payable under any
Loan Document to the Administrative Lender or any Lender, the Borrower shall
also pay to the Administrative Lender (for the account of such Lender) or to
such Lender, at the time interest is paid, such additional amount that such
Lender specifies as necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) such Lender
would have received if such Taxes or Other Taxes had not been imposed. The
Borrower agrees to indemnify the Administrative Lender and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by the Administrative Lender and such Lender, (ii) amounts payable under
Section 2.15(c) hereof and (iii) any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, in each case whether or
not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall be
made within 30 days after the date the Lender or the Administrative Lender makes
a demand therefor. Letters of Credit.
THE LETTER OF CREDIT FACILITIES. The Borrower may request an Issuing Bank, on
the terms and conditions hereinafter set forth, to issue, and an Issuing Bank
shall, if so requested, issue, letters of credit (the "Letters of Credit") for
the account of the Borrower from time to time on any Business Day from the
Agreement Date until the Maturity Date in an aggregate maximum amount (assuming
compliance with all conditions to drawing) not to exceed (together with all
other Letters of Credit issued by Issuing Banks) at any time outstanding the
lesser of (i) an amount equal to $25,000,000 or (ii) an amount equal to (A) the
Commitment minus (B) the aggregate principal amount of Advances then
outstanding. No Letter of Credit shall have an expiration date (including all
rights of renewal) later than ten days prior to the Maturity Date. Immediately
upon the issuance of each Letter of Credit, the Issuing Bank issuing such Letter
of Credit shall be deemed to have sold and transferred to each Lender, and each
Lender shall be deemed to have purchased and received from such Issuing Bank, in
each case irrevocably and without any further action by any party, an undivided
interest and participation in such Letter of Credit, each drawing thereunder and
the obligations of the Borrower under this Agreement in respect thereof in an
amount equal to the product of (x) such Lender's Specified Percentage and (y)
the maximum amount available to be drawn under such Letter of Credit (assuming
compliance with all conditions to drawing). Within the limits of the Letter of
Credit Facility, and subject to the limits referred to above, the Borrower may
request the issuance of Letters of Credit under this Section 2.16(a), repay any
Advances resulting from drawings thereunder pursuant to Section 2.16(c) and
request the issuance of additional Letters of Credit under this Section 2.16(a).
Upon the mandatory reduction of the Commitment pursuant to Section 2.6(b)
hereof, the Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after such mandatory reduction, the Letters of
Credit shall be subject to and governed by the terms hereof.
REQUEST FOR ISSUANCE. Each Letter of Credit shall be issued upon request, given
not later than 11:00 A.M. (Dallas time) on the third Business Day prior to the
date of the proposed issuance of such Letter of Credit, by the Borrower to the
Issuing Bank issuing such proposed Letter of Credit, which shall give to the
Administrative Lender and each Lender prompt notice thereof by telex, telecopier
or cable. Each Letter of Credit shall be issued upon notice given in accordance
with the terms of any separate agreement between the Borrower and the Issuing
Bank issuing such proposed Letter of Credit in form and substance reasonably
satisfactory to the Borrower and such Issuing Bank providing for the issuance of
Letters of Credit pursuant to this Agreement and containing terms and conditions
not inconsistent with this Agreement (a "Letter of Credit Agreement"), provided
that if any such terms and conditions are inconsistent with this Agreement, this
Agreement shall control. Each such request for issuance of a Letter of Credit (a
"Request for Issuance") shall
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be by telex, telecopier or cable, specifying therein, in the case of a Letter of
Credit, the requested (A) date of such issuance (which shall be a Business Day),
(B) maximum amount of such Letter of Credit, (C) expiration date of such Letter
of Credit, (D) name and address of the beneficiary of such Letter of Credit, (E)
form of such Letter of Credit and (F) such other information as shall be
required pursuant to the relevant Letter of Credit Agreement. If the requested
terms of such Letter of Credit are acceptable to the Issuing Bank issuing such
proposed Letter of Credit in its reasonable discretion, the Issuing Bank issuing
such proposed Letter of Credit will, upon fulfillment of the applicable
conditions set forth in Article 3 hereof, make such Letter of Credit available
to the Borrower at its office referred to in Section 11.1 or as otherwise agreed
with the Borrower in connection with such issuance.
DRAWING AND REIMBURSEMENT. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit issued by such Issuing Bank shall constitute for all
purposes of this Agreement the making by such Issuing Bank of an Advance, which
shall bear interest at the lesser of (i) the Highest Lawful Rate or (ii) the
Base Rate plus the Applicable Margin, in the amount of such draft (but without
any requirement for compliance with the conditions set forth in Article 3
hereof). In the event that a drawing under any Letter of Credit is not
reimbursed by the Borrower by 11:00 A.M. (Dallas time) on the first Business Day
after such drawing, the Issuing Bank issuing such Letter of Credit shall
promptly notify Administrative Lender and each other Lender. Each such Lender
shall, on the first Business Day following such notification, make an Advance
(or if as a result of any Debtor Relief Law the Lenders are prohibited from
making an Advance, each Lender shall fund its participation pursuant to Section
2.16(a) by making such amount available to the Administrative Lender), which
shall bear interest at the lesser of (i) the Highest Lawful Rate or (ii) the
Base Rate plus the Applicable Margin, and shall be used to repay the applicable
portion of such Issuing Bank's Advance, with respect to such Letter of Credit,
in an amount equal to the amount of its participation in such drawing for
application to reimburse such Issuing Bank (but without any requirement for
compliance with the applicable conditions set forth in Article 3 hereof) and
shall make available to the Administrative Lender for the account of such
Issuing Bank, by deposit at the Administrative Lender's office, in same day
funds, the amount of such Advance (or such participation). In the event that any
Lender fails to make available to the Administrative Lender for the account of
such Bank the amount of such Advance, the Issuing Bank shall be entitled to
recover such amount on demand from such Lender together with interest thereon at
a rate per annum equal to the lesser of (i) the Highest Lawful Rate or (ii) the
Federal Funds Rate.
INCREASED COSTS. If any change, after the Agreement Date, in any law or
regulation or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof (any such change
being a "Regulatory Change") shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against letters of credit or
guarantees issued by, or assets held by, or deposits in or for the account of,
any Issuing Bank or any Lender shall be to increase the cost to the Issuing Bank
of issuing or maintaining any Letter of Credit or to any Lender of purchasing
any participation therein or making any Advance pursuant to Section 2.16(c),
then, upon demand by such Issuing Bank or such Lender, the Borrower shall,
subject to Section 11.9 hereof, pay to such Issuing Bank or such Lender, from
time to time as specified by the Issuing Bank or such Lender, additional amounts
that shall be sufficient to compensate the Issuing Bank or such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to the Borrower by such Issuing Bank or such Lender, shall include in reasonable
detail the basis for the demand for additional compensation, the method of
calculation and the calculation thereof, and shall be conclusive and binding for
all purposes, absent manifest error. The obligations of the Borrower under this
Section 2.16(d) shall survive termination of this Agreement. The Issuing Bank or
any Lender claiming any additional compensation under this Section 2.16(d) shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
reduce or eliminate any such additional compensation which may thereafter accrue
and which efforts would not, in the sole discretion of such Issuing Bank or such
Lender, be otherwise disadvantageous. Neither the Issuing Bank nor any Lender
may make any demand for increased costs otherwise due under this Section 2.16(d)
more than one year after the effective date of the Regulatory Change which
caused any such increased costs.
OBLIGATIONS ABSOLUTE. The obligations of the Borrower under this Agreement with
respect to any Letter of Credit, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit or any Advance pursuant
to Section 2.16(c) shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
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(ix) any lack of validity or enforceability of this Agreement, any
other Loan Document, any Letter of Credit Agreement, any Letter of Credit
or any other agreement or instrument relating thereto (collectively, the
"L/C Related Documents");
(x) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
the Letters of Credit or any Advance pursuant to Section 2.16(c) or any
other amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;
(xi) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), any Issuing Bank, any Lender or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C Related Documents or any unrelated
transaction;
(xii) any statement or any other document presented under a 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;
(xiii) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not comply with the terms
of the Letter of Credit, except for any payment made upon such Issuing
Bank's gross negligence or willful misconduct;
(xiv) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
Subsidiary Guaranty or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the Letters of Credit or any
Advance pursuant to Section 2.16(c); or
(xv) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor, other than an Issuing Bank's
gross negligence or willful misconduct.
COMPENSATION.
(xvi) Letter of Credit Fee. Subject to Section 11.9 hereof, the
Borrower shall pay to the Administrative Lender, for the ratable account of
each Lender, a letter of credit fee (which shall be payable quarterly in
arrears on each Quarterly Date and on the Maturity Date, commencing on the
first Quarterly Date immediately following the Agreement Date, and, subject
to Section 11.9 hereof, computed on the basis of a 360-day year for the
actual number of days elapsed) on the daily average daily amount available
for drawing under all outstanding Letters of Credit at the following per
annum percentages, applicable in the following situations:
Applicability Percentage
------------- ----------
(a) If the Capitalization Ratio is greater than or equal to 0.40 to 1 1.500
(b) If the Capitalization Ratio is greater than or equal to 0.30 to 1 1.250
but less than 0.40 to 1
(c) If the Capitalization Ratio is greater than or equal to 0.20 to 1 1.000
but less than 0.30 to 1
(d) If the Capitalization Ratio is less than 0.20 to 1 0.750
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The fee payable in respect of the Letters of Credit shall be subject to
reduction or increase, as applicable and as set forth in the table above,
on a quarterly basis according to the performance of the Borrower as tested
using the Capitalization Ratio for the most recent fiscal quarter;
provided, that each adjustment in such fee shall be effective on the
Financial Statement Due Date. If the financial statements are not received
by the Lenders on the Financial Statement Due Date, the fee payable in
respect of the Letters of Credit shall be determined as if the
Capitalization Ratio is greater than or equal to 0.40 to 1 until such time
as such financial statements are received. Until the Financial Statement
Due Date for the Borrower's financial statements for the fiscal quarter
ending June 30, 2001, the fee payable in respect of the Letters of Credit
shall be determined as if the Capitalization Ratio is greater than or equal
to 0.30 to 1 but less than 0.40 to 1.
(xvii) Letter of Credit Issuance Fee. Subject to Section 11.9 hereof,
the Borrower shall pay to the Administrative Lender for the sole account of
any Issuing Bank which has issued a Letter of Credit an issuance fee (which
fee shall be payable quarterly in arrears on each Quarterly Date and on the
Maturity Date, commencing on the first Quarterly Date immediately following
the Agreement Date) equal to 0.125% per annum on the average daily amount
available for drawing under all Letters of Credit issued by such Issuing
Bank, and computed, subject to Section 11.9 hereof, on the basis of a
360-day year for the actual number of days elapsed.
(xviii) Standard Charges. Subject to Section 11.9 hereof, the Borrower
shall pay to the Administrative Lender for the sole account of the Issuing
Bank issuing a Letter of Credit the standard charges assessed by such
Issuing Bank in connection with the administration (including any drawings)
and amendment of Letters of Credit.
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to receipt by the
Administrative Lender of each of the following, in form and substance
satisfactory to each Lender, with a copy (except for the Revolving Credit Notes)
for each Lender:
a loan certificate or certificates of the Borrower certifying as to the accuracy
of its representations and warranties in the Loan Documents, certifying that no
Default has occurred, and including a certificate of incumbency with respect to
each Authorized Signatory, and including (i) a copy of the Articles of
Incorporation of the Borrower, certified to be true, complete and correct by the
secretary of state of its state of incorporation, (ii) a copy of the By-Laws of
the Borrower, as in effect on the Agreement Date, (iii) a copy of the
resolutions of the Borrower authorizing it to execute, deliver and perform this
Agreement, the Revolving Credit Notes and the other Loan Documents to which it
is a party, and (iv) a copy of a certificate of good standing and a certificate
of existence for its state of incorporation and the states of Texas and
Missouri; a certificate or certificates of an officer or officers acceptable to
the Lenders of each Initial Guarantor, certifying as to the incumbency of the
officers signing the Loan Documents to which it is a party, and including (i) a
copy of its Articles of Incorporation, certified as true, complete and correct
by the secretary of state of its state of incorporation, (ii) a copy of its
By-Laws, as in effect on the Agreement Date, (iii) a copy of the resolutions
authorizing it to execute, deliver and perform the Loan Documents to which it is
a party, and (iv) a copy of a certificate of good standing and a certificate of
existence for its state of incorporation; duly executed Revolving Credit Notes,
payable to the order of each Lender and in an amount for each Lender equal to
its Specified Percentage of the Commitment; opinions of counsel to the Borrower
and the Initial Guarantors addressed to the Lenders and in form and substance
satisfactory to the Lenders, dated the Agreement Date, and covering certain of
the matters set forth in Sections 4.1(a), (b), (c) and (n) and such other
matters incident to the transactions contemplated hereby as the Administrative
Lender or Special Counsel may reasonably request; reimbursement for the
Administrative Lender for Special Counsel's reasonable and necessary fees and
expenses rendered through the date hereof; evidence that all corporate
proceedings of the Borrower and the Initial Guarantors taken in connection with
the transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the Lenders and
Special Counsel; and the Lenders shall have received
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copies of all documents or other evidence which the Administrative Lender,
Special Counsel or any Lender may reasonably request in connection with such
transactions; a duly executed and completed Subsidiary Guaranty, dated as of the
Agreement Date; in form and substance satisfactory to the Lenders and Special
Counsel, such other documents, instruments and certificates as the
Administrative Lender or any Lender may reasonably require in connection with
the transactions contemplated hereby, including without limitation the status,
organization or authority of the Borrower or any Initial Guarantor, and the
enforceability of the Obligations; payment of all amounts due and owing under
the Existing Credit Agreement, whereupon the Existing Credit Agreement shall
automatically terminate; and evidence satisfactory to the Administrative Lender
of a commitment to purchase the 2001 Private Placement Notes by no later than
July 31, 2001.
CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS AND CONVERSIONS AND CONTINUATIONS.
The obligation of each Lender to honor any Request for a Credit Extension
(including the initial Request for Extension) is subject to the following
conditions precedent:
All of the representations and warranties of the Borrower under this Agreement
(excluding, with respect to any continuation or conversion only, the
representation and warranty contained in Section 4.1(k) hereof), which, pursuant
to Section 4.2 hereof, are made at and as of the time of such Advance, shall be
true and correct at such time in all material respects, both before and after
giving effect to the application of the proceeds of the Credit Extension; The
incumbency of the Authorized Signatories shall be as stated in the certificate
of incumbency delivered in the Borrower's loan certificate pursuant to Section
3.1(a) or as subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Lender. The Lenders may, without waiving this
condition, consider it fulfilled and a representation by the Borrower made to
such effect if no written notice to the contrary, dated on or before the date of
such Credit Extension, is received by the Administrative Lender from the
Borrower prior to the making of such Credit Extension; No Default shall exist or
would result from such Credit Extension which is a Borrowing and no Event of
Default shall exist or result from any continuation or conversion; The aggregate
Advances, and amounts available for draw under Letters of Credit, after giving
effect to such proposed Advance, or Letter of Credit, shall not exceed the
Commitment; and The Administrative Lender shall have received all such other
certificates, reports, statements, opinions of counsel or other documents as the
Administrative Lender or any Lender may reasonably request to provide further
assurance that all conditions precedent to the making of each Advance and the
issuance of each Letter of Credit are satisfied.
Notwithstanding the above, the obligation of each Lender to make an Advance
pursuant to Section 2.16(c) (or fund its participation in respect of Letters of
Credit pursuant to Section 2.16(c)) shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, (i)
the occurrence of any Default or Event of Default, or (ii) the failure of the
Borrower to satisfy any condition set forth in this Section 3.2; provided,
however, the conditions precedent set forth in Sections 3.1 and 3.2 hereof with
respect to the Letters of Credit for which such Advance is made (or
participation funded) shall have been satisfied in full at the time of issuance
of such Letter of Credit.
Each Request for Credit Extension by the Borrower shall constitute a
representation and warranty by the Borrower as of the date of the applicable
Credit Extension that all the conditions contained in this Section 3.2 have been
satisfied.
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants to
each Lender as follows:
ORGANIZATION; POWER; QUALIFICATION. As of the Agreement Date, the respective
jurisdiction of incorporation and percentage ownership by the Borrower or
another Subsidiary of the Subsidiaries listed on Schedule 4.1(a) are true and
correct. Each of the Borrower and its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its state of
organization. Each of the Borrower and its Subsidiaries has the corporate power
and authority to own its properties and to carry on its business as now being
and hereafter proposed to be conducted. Each of the Borrower and its
Subsidiaries is
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duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization except where the failure
to be so qualified or authorized would not have a Material Adverse Effect.
AUTHORIZATION. The Borrower has corporate power and has taken all necessary
corporate action to authorize it to borrow hereunder. Each of the Borrower and
its Subsidiaries has corporate power and has taken all necessary corporate
action to execute, deliver and perform the Loan Documents to which it is party
in accordance with the terms thereof, and to consummate the transactions
contemplated thereby. Each Loan Document has been duly executed and delivered by
the Borrower or the Subsidiary executing it. Each of the Loan Documents to which
the Borrower and its Subsidiary are party is a legal, valid and binding
respective obligation of the Borrower or the Subsidiary, as applicable,
enforceable in accordance with its terms, subject, to enforcement of remedies,
to the following qualifications: (i) equitable principles generally, and (ii)
Debtor Relief Laws (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower or any Subsidiary).
COMPLIANCE WITH OTHER LOAN DOCUMENTS AND CONTEMPLATED TRANSACTIONS. The
execution, delivery and performance by the Borrower and its Subsidiaries of the
Loan Documents to which they are respectively a party, and the consummation of
the transactions contemplated thereby, do not and will not (i) require any
consent or approval not already obtained, (ii) violate any Applicable Law, (iii)
conflict with, result in a breach of, or constitute a default under the articles
of incorporation or by-laws of the Borrower or any Subsidiary, or under any
Necessary Authorization, indenture, agreement or other instrument, to which the
Borrower or any Subsidiary is a party or by which they or their respective
properties may be bound, or (iv) result in or require the creation or imposition
of any Lien upon or with respect to any property now owned or hereafter acquired
by the Borrower or any Subsidiary, except Permitted Liens.
BUSINESS. The Borrower and its Subsidiaries are engaged in the businesses
described in its Annual Report filed on Form 10-K with the Securities and
Exchange Commission for the year ended December 31, 2000. Licenses, etc. All
Necessary Authorizations have been duly obtained, and are in full force and
effect without any known conflict with the rights of others and free from any
unduly burdensome restrictions. The Borrower and its Subsidiaries are and will
continue to be in compliance in all material respects with all provisions
thereof. No circumstance exists which might impair the utility of the Necessary
Authorization or the right to renew such Necessary Authorization the effect of
which would have a Material Adverse Effect. No Necessary Authorization is the
subject of any pending or, to the best of the Borrower's knowledge, threatened
challenge, suspension, cancellation or revocation.
COMPLIANCE WITH LAW. The Borrower and its Subsidiaries (i) are in compliance in
all respects with all Applicable Laws, (ii) have duly and timely filed all
reports, statements and filings that are required to be filed by any of them
with any Governmental Authority, and are in all material respects in compliance
therewith (including the rules and regulations of any Governmental Authority
relating to the operation of the Borrower's and each Subsidiary's business), and
(iii) have obtained all appropriate approvals and consents of, and have made all
filings with, the Governmental Authorities in connection with the operation of
the Borrower's and each Subsidiary's business, except in each case where the
failure to so comply, file or obtain approval would not have a Material Adverse
Effect.
TITLE TO PROPERTIES. The Borrower and its Subsidiaries have good and
indefeasible title to, or a valid leasehold interest in, all of their material
assets. None of their assets are subject to any Liens, except Permitted Liens.
No financing statement (except as set forth on Schedule 2 hereto) or other Lien
filing (except relating to Permitted Liens) is on file in any state or
jurisdiction that covers (or purports to cover) any assets of the Borrower or
any of its Subsidiaries. The Borrower and its Subsidiaries have not signed any
such financing statement or filing, nor any security agreement authorizing any
Person to file any such financing statement or filing.
LITIGATION. Except as reflected on Schedule 4.1(h) hereto, as of the Agreement
Date, there is no action, suit or proceeding pending against, or, to the best of
the Borrower's knowledge, threatened against the Borrower, or in any other
manner relating directly and adversely to the Borrower or any of its
Subsidiaries, or any of their properties, in any court or before any arbitrator
of any kind or before or by any governmental body in which the uninsured
liability could reasonably be expected to exceed $5,000,000. After the Agreement
Date, there has been no action, suit, or proceeding filed against, or, to the
best of the Borrower's knowledge, threatened against the Borrower, or in other
manner relating directly or adversely to the Borrower or any of its
Subsidiaries, or any of their properties, in any court or before any arbitrator
of any kind or before or by any
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governmental body in which the uninsured liability could reasonably be expected
to have a Material Adverse Effect.
TAXES. All federal, state and other tax returns of the Borrower and its
Subsidiaries required by law to be filed have been duly filed and all federal,
state and other taxes, assessments and other governmental charges or levies upon
the Borrower, its Subsidiaries or any of their properties, income, profits and
assets, which are due and payable, have been paid, unless the same are being
diligently contested in good faith by appropriate proceedings, with adequate
reserves established therefor, and no Lien (other than a Permitted Lien) has
attached and no foreclosure, distraint, sale or similar proceedings have been
commenced. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of their taxes are, in the judgment of the Borrower,
adequate.
FINANCIAL STATEMENTS; MATERIAL LIABILITIES; DEBT. The Borrower has furnished or
caused to be furnished to the Lenders copies of its consolidated financial
statements, as at and for the year ended December 31, 2000 and as at and for the
fiscal quarter ended March 31, 2001, respectively, which present fairly in
accordance with GAAP the consolidated financial position of the Borrower and its
Subsidiaries as at such dates and the consolidated results of operations for the
year and three month period then ended, respectively, subject to normal year-end
adjustments in the case of quarterly statements. The Borrower and its
Subsidiaries taken as a whole have no material liabilities, contingent or
otherwise, nor material losses, except as set forth in the such consolidated
financial statements.
NO ADVERSE CHANGE. Since December 31, 2000, no event or circumstances has
occurred or arisen that has had a Material Adverse Effect.
ERISA. Each Plan has satisfied the minimum funding standards under all Laws
applicable thereto, and no unfunded liabilities exist as of December 31, 2000
that are required to be disclosed pursuant to GAAP, except as disclosed in the
notes to the December 31, 2000 consolidated financial statements. The Borrower
and its Subsidiaries have not incurred any material liability to the PBGC with
respect to any Plan. No ERISA Event has occurred with respect to any Plan. The
Borrower has not participated in any Prohibited Transaction with respect to any
Plan or trust created thereunder, and the consummation of the transactions
contemplated hereby will not involve any Prohibited Transaction. Neither the
Borrower nor any member of its Controlled Group has been notified by the sponsor
of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA.
COMPLIANCE WITH REGULATIONS T, U AND X. The Borrower is not engaged principally
or as one of its important activities in the business of extending credit for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulations T, U and X of the Board of Governors of the Federal Reserve System,
and no part of the proceeds of the Advances will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock. No assets of the Borrower and its Subsidiaries are
margin stock. None of the Borrower and its Subsidiaries nor any agent acting on
their behalf, have taken or will knowingly take any action which might cause
this Agreement or any other Loan Documents to violate any regulation of the
Board of Governors of the Federal Reserve System or to violate the Securities
Exchange Act of 1934, in each case as in effect now or as the same may hereafter
be in effect.
GOVERNMENTAL REGULATION. The Borrower and its Subsidiaries are not required to
obtain any Necessary Authorization that has not already been obtained from, or
effect any material filing or registration that has not already been effected
with, any Governmental Authority in connection with the execution and delivery
of this Agreement or any other Loan Document, or the performance thereof, in
accordance with their respective terms, including any borrowings hereunder.
ABSENCE OF DEFAULT. The Borrower and its Subsidiaries are in compliance in all
material respects with all of the provisions of their articles of incorporation
and by-laws, and no event has occurred or failed to occur, which has not been
remedied or waived, the occurrence or non-occurrence of which constitutes, or
which with the passage of time or giving of notice or both would constitute, (i)
a Default or an Event of Default or (ii) a default by the Borrower or any of its
Subsidiaries under any material indenture, agreement or other instrument, or any
judgment, decree or order to which the Borrower or any of its Subsidiaries or by
which they or any of their material properties is bound.
INVESTMENT COMPANY ACT. The Borrower is not required to register under the
provisions of the Investment Company Act of 1940, as amended. Neither the
entering into or performance by the Borrower of this Agreement nor the issuance
of the Revolving Credit Notes violates any provision of such act or requires any
consent, approval, or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body of authority
pursuant to any provisions of such act.
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ENVIRONMENTAL MATTERS. Except as described on Schedule 4.1(q), each of the
Borrower and the Subsidiaries is in compliance with all Applicable Environmental
Laws in effect in each jurisdiction where it is presently doing business or has
done business, and in which the failure so to comply could have a Material
Adverse Effect. Neither the Borrower nor any of the Subsidiaries is subject to
any liability under any Applicable Environmental Laws that, in the aggregate,
could have a Material Adverse Effect. Neither the Borrower nor any Subsidiary
has received any (a) notice from any Governmental Authority by which any of its
present or previously-owned or leased real properties has been designated,
listed, or identified in any manner by any Governmental Authority charged with
administering or enforcing any Applicable Environmental Law as a Hazardous
Substance disposal or removal site, "Super Fund" clean-up site, or candidate for
removal or closure pursuant to any Applicable Environmental Law, (b) notice of
any Lien arising under or in connection with any Applicable Environmental Law
that has attached to any revenues of, or to, any of its owned or leased real
properties, or (c) summons, citation, notice, directive, letter, or other
communication, written or oral, from any Governmental Authority concerning any
intentional or unintentional action or omission by the Borrower or such
Subsidiary in connection with its ownership or leasing of any real property
resulting in the releasing, spilling, leaking, pumping, pouring, emitting,
emptying, dumping, or otherwise disposing of any Hazardous Substance into the
environment resulting in any material violation of an Applicable Environmental
Law, in each case in (a), (b) and (c) immediately preceding where the effect of
which could have a Material Adverse Effect.
CERTAIN FEES. Except as noted herein, no broker's, finder's or other fee or
commission will be payable by the Borrower (other than to the Lenders hereunder)
with respect to the making of the Commitment or the Advances hereunder or the
issuance of any Letters of Credit. The Borrower agrees to indemnify and hold
harmless the Administrative Lender and each Lender from and against any claims,
demand, liability, proceedings, costs or expenses asserted with respect to or
arising in connection with any such fees or commissions.
NECESSARY AUTHORIZATIONS. No event has occurred which permits (or with the
passage of time would permit) the revocation or termination of any Necessary
Authorization, or which could result in the imposition of any restriction
thereon of such a nature that could reasonably be expected to have a Material
Adverse Effect.
INTELLECTUAL PROPERTY. The Borrower and its Subsidiaries have obtained all
patents, trademarks, service-marks, trade names, copyrights, licenses and other
rights, free from unduly burdensome restrictions, that are necessary for the
operation of their business as presently conducted and as proposed to be
conducted, except where the failure to so obtain such would not have a Material
Adverse Effect. Nothing has come to the attention of the Borrower or any of its
Subsidiaries to the effect that (i) any process, method, part or other material
presently contemplated to be employed by the Borrower or any Subsidiary may
infringe any patent, trademark, service-xxxx, trade name, copyright, license or
other right owned by any other Person, or (ii) there is pending or overtly
threatened any claim or litigation against or affecting the Borrower or any
Subsidiary contesting its right to sell or use any such process, method, part or
other material, in each case where such infringement, claim or litigation could
have a Material Adverse Effect.
DISCLOSURE. Neither this Agreement nor any other document, certificate or
statement which has been furnished to any Lender by or on behalf of the Borrower
or any Subsidiary in connection herewith contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statement contained herein and therein not misleading at the time it was
furnished. There is no fact known to the Borrower and not known to the public
generally that is expected, as of the date of this Agreement, to have a material
adverse affect on the consolidated financial condition or results of operations
of the Borrower and its Subsidiaries, which has not been set forth in this
Agreement or in the documents, certificates and statements furnished to the
Lenders by or on behalf of the Borrower prior to the date hereof in connection
with the transaction contemplated hereby.
SOLVENCY. The Borrower is, and Borrower and its Subsidiaries on a consolidated
basis are, Solvent.
CONSOLIDATED BUSINESS ENTITY. The Borrower and its Subsidiaries are operated as
part of one consolidated business entity and are directly dependent upon each
other for and in connection with their respective business activities and their
respective financial resources.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All representations and
warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date and at and as of the date of
each Request for Credit Extension, and each shall be true and correct when made,
except to the extent (a) previously fulfilled in accordance with the terms
hereof, (b) applicable to a specific date or otherwise subsequently
inapplicable, or (c) previously waived in writing by the Determining Lenders
with respect to any
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particular factual circumstance. All such representations and warranties shall
survive, and not be waived by, the execution hereof by any Lender, any
investigation or inquiry by any Lender, or by the making of any Credit Extension
under this Agreement.
GENERAL COVENANTS
So long as any of the Obligations are outstanding and unpaid or any Commitment
is outstanding (whether or not the conditions to borrowing have been or can be
fulfilled):
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PRESERVATION OF EXISTENCE AND SIMILAR MATTERS. The Borrower shall, and shall
cause each Subsidiary to:
Preserve and maintain, or timely obtain and thereafter preserve and maintain,
its existence, rights, franchises, licenses, authorizations, consents,
privileges and all other Necessary Authorizations from federal, state and local
governmental bodies and any tribunal (regulatory or otherwise), the loss of
which could have a Material Adverse Effect; and qualify and remain qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification or
authorization, unless the failure to do so could not have a Material Adverse
Effect.
BUSINESS; COMPLIANCE WITH APPLICABLE LAW. The Borrower and its Subsidiaries
shall (a) engage principally in the businesses set forth in Section 4.1(d)
hereof and those directly related thereto, and (b) comply in all material
respects with the requirements of all Applicable Law.
MAINTENANCE OF PROPERTIES. The Borrower shall, and shall cause each Subsidiary
to, maintain or cause to be maintained all its properties (whether owned or held
under lease) in reasonably good repair, working order and condition, taken as a
whole, and from time to time make or cause to be made all appropriate repairs,
renewals, replacements, additions, betterments and improvements thereto.
ACCOUNTING METHODS AND FINANCIAL RECORDS. The Borrower shall, and shall cause
each Subsidiary to, maintain a system of accounting established and administered
in accordance with GAAP, keep adequate records and books of account in which
complete entries will be made and all transactions reflected in accordance with
GAAP, and keep accurate and complete records of its respective assets. The
Borrower and each of its Subsidiaries shall maintain a fiscal year ending on
December 31.
INSURANCE. The Borrower shall, and shall cause each Subsidiary to, maintain
insurance from responsible companies in such amounts and against such risks as
shall be customary and usual in the industry for companies of similar size and
capability. Specifically, the Borrower will maintain (a) public liability
insurance coverage, including products/completed operation liability coverage,
in an amount not less than $25,000,000, and (b) physical damage insurance on all
real and personal property on an all-risks basis (including the perils of flood
and earthquake, provided that earthquake coverages may be less than the cost of
repair and replacement, but shall in all events be such amounts as are
commercially available at reasonable rates), covering the repair and replacement
cost of all such property and consequential loss coverage for business
interruption and extra expense.
PAYMENT OF TAXES AND CLAIMS. The Borrower shall, and shall cause each Subsidiary
to, pay and discharge all taxes, assessments and governmental charges or levies
imposed upon it or its income or Properties prior to the date on which penalties
attach thereto, and all lawful material claims for labor, materials and supplies
which, if unpaid, might become a Lien upon any of its properties; except that no
such tax, assessment, charge, levy or claim need be paid which is being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on the appropriate books, but only
so long as (a) no Lien (other than a Permitted Lien) shall attach with respect
thereto, (b) no foreclosure, distraint, sale or similar proceedings shall have
been commenced and (c) the Borrower's or any Subsidiary's title to, and its
right to use its Property is not materially affected thereby. The Borrower
shall, and shall cause each Subsidiary to, timely file all information returns
required by federal, state or local tax authorities.
VISITS AND INSPECTIONS. The Borrower shall, and shall cause each Subsidiary to,
promptly permit representatives of the Administrative Lender or any Lender from
time to time to (a) visit and inspect the properties of the Borrower and
Subsidiary as often as the Administrative Lender or any Lender shall reasonably
deem advisable, (b) inspect and make extracts from and copies of the Borrower's
and each Subsidiary's books and records, and (c) discuss with the Borrower's and
each Subsidiary's directors, officers, employees and auditors its business,
assets, liabilities, financial positions, results of operations and business
prospects. Prior to the occurrence of an Event of Default, all such visits and
inspections shall be conducted during normal business hours. Following the
occurrence and during the continuance of an Event of Default, such visits and
inspections shall be conducted at any time requested by the Administrative
Lender or any Lender.
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PAYMENT OF DEBT. Subject to Section 5.6 hereof, the Borrower shall, and shall
cause each Subsidiary to, pay its Debt when and as the same becomes due, other
than amounts (other than the Obligations) duly and diligently disputed in good
faith.
USE OF PROCEEDS. The Borrower shall use the proceeds of Advances for working
capital, real estate development activities and for other general corporate
purposes, including refinancing of the debt under the Existing Credit Agreement.
INDEMNITY. The Borrower agrees to defend, protect, indemnify and hold harmless
the Administrative Lender, each Lender, each of their respective Affiliates, and
each of their respective (including such Affiliates') officers, directors,
employees, agents, attorneys, shareholders and consultants (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth herein) of each of the foregoing
(collectively, "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for such Indemnitees
in connection with any investigative, administrative or judicial proceeding,
whether or not such Indemnitees shall be designated a party thereto), imposed
on, incurred by, or asserted against such Indemnitees (whether direct, indirect
or consequential and whether based on any federal, state, or local laws and
regulations, under common law or at equitable cause, or on contract, tort or
otherwise, arising from or connected with the past, present or future operations
of the Borrower or its predecessors in interest, or the past, present or future
environmental condition of property of the Borrower or any Subsidiary or the
violation or asserted violation by the Borrower or any Subsidiary of any
Applicable Law, including any Applicable Environmental Law), in any manner
relating to or arising out of this Agreement, the Loan Documents, or any act,
event or transaction or alleged act, event or transaction relating or attendant
thereto, or the use or intended use of the proceeds of the Advances or the
Letters of Credit hereunder, or in connection with any investigation of any
potential matter covered hereby, but excluding (i) any claim or liability that
arises as the result of the gross negligence or willful misconduct of any
Indemnitee, as finally judicially determined by a court of competent
jurisdiction, and (ii) matters raised by one Lender against another Lender or by
any shareholders of a Lender against a Lender or its management. BORROWER AGREES
THAT IT EXPRESSLY INTENDS TO INDEMNIFY EACH INDEMNITEE FROM AND HOLD EACH OF
THEM HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES OR
EXPENSES ARISING OUT OF THE ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH
INDEMNITEE, BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNITEE. The obligations of the Borrower under this Section 5.10 shall
survive termination of the Commitment and payment in full of the Obligations.
MATERIAL SUBSIDIARY GUARANTY. The Borrower shall cause each Person that is or
becomes a Material Subsidiary (promptly upon becoming a Material Subsidiary) to
(i) execute a Subsidiary Guaranty and (ii) deliver to the Lenders such board
resolutions, officer's certificates and opinions of counsel as the
Administrative Lender shall reasonably request in connection with the Subsidiary
Guaranty.
ERISA.
ALL ASSUMPTIONS AND METHODS USED TO DETERMINE THE ACTUARIAL VALUATION OF
EMPLOYEE BENEFITS, BOTH VESTED AND UNVESTED, UNDER EACH PLAN SUBJECT TO TITLE IV
OF ERISA AND EACH SUCH PLAN, WHETHER NOW EXISTING OR ADOPTED AFTER THE DATE
HEREOF, WILL COMPLY IN ALL MATERIAL RESPECTS WITH ERISA. THE BORROWER WILL NOT
AT ANY TIME PERMIT ANY PLAN ESTABLISHED, MAINTAINED OR CONTRIBUTED TO BY IT OR
ANY SUBSIDIARY IN THE UNITED STATES OR ANY ERISA AFFILIATE TO:
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(xix) engage in any "prohibited transaction" as such term is defined
in Section 4975 of the Code or in Section 406 of ERISA;
(xx) incur any "accumulated funding deficiency" as such term is
defined in Section 302 of ERISA, whether or not waived; or
(xxi) be terminated under circumstances which are likely to result in
the imposition of a lien on the property of the Borrower or any such
Subsidiary pursuant to Section 4068 of ERISA,
if the event or condition described in clauses (i), (ii) or (iii) above is
likely to subject the Borrower or any Subsidiary or ERISA Affiliate to
liabilities which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
Upon request, the Borrower will furnish you or any other Lender a copy of the
annual report of each Plan (Form 5500) required to be filed with the Internal
Revenue Service no later than 45 days after the date such report has been filed
with the Internal Revenue Service. Promptly upon obtaining knowledge of the
occurrence thereof, the Borrower will give each Lender notice of (i) a
Reportable Event with respect to any Plan; (ii) the institution of any steps by
the Borrower, any Subsidiary, any ERISA Affiliate or the PBGC to terminate any
Plan; (iii) the institution of any steps by the Borrower, any Subsidiary, or any
ERISA Affiliate to withdraw from any Plan; (iv) a prohibited transaction in
connection with any Plan; (v) any material increase in the contingent liability
of the Borrower or any Subsidiary with respect to any post-retirement welfare
liability; or (vi) the taking of any action by the Internal Revenue Service, the
Department of Labor or the PBGC or any other Person with respect to any of the
foregoing which, individually or in the aggregate, in any of the events
specified in this subparagraph (d), could reasonably be expected to result in a
Material Adverse Effect.
INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or any Commitment
is outstanding (whether or not the conditions to borrowing have been or can be
fulfilled), the Borrower shall furnish or cause to be furnished to each Lender:
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QUARTERLY FINANCIAL STATEMENTS AND INFORMATION. Within 45 days after the end of
each fiscal quarter, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter, a consolidated statement of earnings
of the Borrower and its Subsidiaries for such quarter, and in the case of the
second and third quarters, for the portion of the fiscal year ending with such
quarter, and a consolidated statement of cash flows for the elapsed portion of
the year ended with the last day of such quarter, setting forth in each case in
comparative form the figures for the corresponding periods in the previous
fiscal year, all of which shall be certified by the chief executive officer,
chief financial officer, vice president - finance or treasurer of the Borrower,
to be, in his or her opinion, complete and correct in all material respects and
to present fairly, in accordance with GAAP, the financial position and results
of operations of the Borrower and its Subsidiaries as at the end of and for such
period, and for the elapsed portion of the year ended with the last day of such
period, subject only to normal year-end adjustments. Copies of the Borrower's
Quarterly Report on Form 10-Q prepared in compliance with the requirements
therefor and filed with the Securities and Exchange Commission shall be deemed
to satisfy the requirements of this Section 6.1.
ANNUAL FINANCIAL STATEMENTS AND INFORMATION; CERTIFICATE OF NO DEFAULT. Within
90 days after the end of each fiscal year, a copy of (i) the consolidated
balance sheet of the Borrower and its Subsidiaries, as at the end of such fiscal
year and (ii) consolidated statements of earnings, retained earnings and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, and a footnote reconciliation of treasury
stock transactions for such fiscal year, all of which are prepared in accordance
with GAAP, and certified by independent certified public accountants acceptable
to the Lenders, whose opinion shall be in scope and substance in accordance with
generally accepted auditing standards and shall be unqualified. Copies of the
Borrower's Annual Report on Form 10-K prepared in compliance with the
requirements therefor and filed with the Securities and Exchange Commission
shall be deemed to satisfy the requirements of this Section 6.2.
COMPLIANCE CERTIFICATE. At the time financial statements are furnished pursuant
to Sections 6.1 and 6.2 hereof, a certificate of an Authorized Signatory:
Setting forth at the end of such period, a calculation of the Capitalization
Ratio, as well as certifications and arithmetical calculations required to
establish whether the Borrower and its Subsidiaries were in compliance with the
requirements of Section 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7 and 7.9 hereof, which
shall be substantially in the form of Exhibit D hereto; and stating that, to the
best of his or her knowledge after due inquiry, no Default has occurred as at
the end of such period, or if a Default has occurred, disclosing each such
Default and its nature, when it occurred, whether it is continuing and the steps
being taken with respect to such Default.
NOTICE OF LITIGATION, DEFAULT AND OTHER MATTERS. PROMPT NOTICE OF THE FOLLOWING
EVENTS AFTER THE BORROWER HAS KNOWLEDGE OR NOTICE THEREOF:
The commencement of all proceedings and investigations by or before any
Governmental Authority, and each action and proceeding in any court or before
any arbitrator involving claims for damages, fines or penalties (including
punitive damages) in which the uninsured liability could reasonably be expected
to exceed $5,000,000, against or in any other way relating directly to the
Borrower, any Subsidiary, or any of their properties or businesses;
The holder of any Revolving Credit Note or other evidence of Debt which singly
or in the aggregate equals or exceeds $3,000,000 or other security for any of
such Debt has given notice or taken any action with respect to a breach, failure
to perform, claimed default or event of default thereunder;
Promptly upon the happening of any condition or event which constitutes a
Default, a written notice specifying the nature and period of existence thereof
and what action is being taken or is proposed to be taken with respect thereto;
and
Any material adverse change with respect to the business, assets, liabilities,
financial position, results of operations or prospective business of the
Borrower and its Subsidiaries, on a consolidated basis.
NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or any Commitment
is outstanding (whether or not the conditions to borrowing have been or can be
fulfilled):
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CAPITALIZATION RATIO. The Borrower shall not permit the Capitalization Ratio to
be greater than 0.50 to 1 at the end of any fiscal quarter.
FIXED CHARGE COVERAGE RATIO. The Borrower shall not permit the Fixed Charge
Coverage Ratio to be less than 1.70 to 1 at the end of any fiscal quarter.
LEVERAGE RATIO. The Borrower shall not permit the Leverage Ratio to be greater
than (a) 3.25 to 1 at the end of any fiscal quarter occurring during the period
from and including the Agreement Date through and including June 30, 2002 and
(b) 3.00 to 1 at the end of any fiscal quarter thereafter.
GUARANTIES. The Borrower shall not, and shall not permit any Subsidiary to,
create, assume, incur or otherwise become or remain obligated in respect of, or
permit to be outstanding, or suffer to exist any Guaranty Obligation, except any
or all of the following:
Endorsement of negotiable instruments in the ordinary course of business;
Guaranty Obligations in respect of the Existing Private Placement Notes, the
2001 Private Placement Notes, the San Xxxxxx Xxxxx and the Future Headquarters
Sale and Leaseback and a Facility Sale and Leaseback; The Subsidiary Guaranty;
Guaranty Obligations of a Subsidiary to the Borrower or another Subsidiary and
Guaranty Obligations of the Borrower to a Subsidiary; Guaranty Obligations in
respect of the performance or payment of construction and related undertakings
and other obligations made in the ordinary course of business of the Borrower
and its Subsidiaries; and Guaranty Obligations by Subsidiaries in respect of
Debt of the Borrower or other Subsidiaries, provided that the incurrence or
existence of such Debt does not result in an Default or Event of Default; and
Other Guaranty Obligations not to exceed $15,000,000 in aggregate amount
outstanding at any time.
LIENS. The Borrower shall not, and shall not permit any Subsidiary to,
create, assume, incur, permit or suffer to exist, directly or indirectly, any
Lien on any of its assets, whether now owned or hereafter acquired, except
Permitted Liens. The Borrower shall not, and shall not permit any Subsidiary to,
agree with any other Person that it shall not create, assume, incur, permit or
suffer to exist or to be created, assumed, incurred or permitted to exist,
directly or indirectly, any Lien on any of its assets other than with respect to
the Existing Private Placement Notes, the San Xxxxxx Xxxxx and the 2001 Private
Placement Notes and agreements related thereto, and other than by Xxxxxx Real
Estate, Inc. with respect to tenants and contract vendees of projects in the
ordinary course of its business so long as such agreement by Xxxxxx Real Estate,
Inc. not to create a Lien relates only to such projects.
INVESTMENTS. The Borrower shall not, and shall not permit any Subsidiary to,
make any Investment, except that the Borrower and its Subsidiaries may purchase
or otherwise acquire and own or make any or all of the following:
Investments in the form of loans to officers and employees for moving and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business not to exceed $5,000,000 in aggregate amount outstanding at any time;
Investments disclosed on the Borrower's financial statements for the fiscal
quarter ending March 31, 2001; and other Investments in an aggregate amount
outstanding at any time, together with Acquisitions of Persons who become
Foreign Subsidiaries as a result of such Acquisition that are permitted pursuant
to Section 7.7(ii) hereof, not to exceed the sum of (x) $10,000,000 plus (y) 25%
of Shareholder's Equity.
ACQUISITIONS. The Borrower shall not, and shall not permit any Subsidiary to,
make any Acquisitions, except that, after the Agreement Date, the Borrower and
its Subsidiaries may make Acquisitions of (i) Persons who become Domestic
Subsidiaries as a result of such Acquisition in an aggregate amount not to
exceed the sum of (x) $20,000,000 plus (y) 25% of Shareholder's Equity
immediately preceding any such Acquisition and provided that such Domestic
Subsidiary (if a Material Subsidiary) becomes party to a Subsidiary Guaranty,
and (ii) Persons who become Foreign Subsidiaries as a result of such Acquisition
provided that Acquisitions of Foreign Subsidiaries together with Investments in
all Subsidiaries permitted pursuant to Section 7.6(c) hereof shall not exceed in
aggregate amount outstanding at any time, the sum of (x) $20,000,000 plus (y)
25% of Shareholder's Equity.
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MERGER, ETC. The Borrower shall not, and shall not permit any Subsidiary to, at
any time consolidate with, or merge into, any Person other than a Person that
becomes a Subsidiary of the Borrower thereby, except that (a) a Subsidiary may
consolidate with or merge into the Borrower or a Guarantor and (b) any
Subsidiary which is not a Guarantor may consolidate into or merge into another
Person.
DISPOSITIONS.
The Borrower shall not, and shall not permit any Subsidiary to (other than in
the ordinary course of business) sell, lease, transfer or otherwise (including
by way of merger or a sale and lease-back transaction) dispose of (collectively
a "Disposition") any assets, including capital stock of Subsidiaries, in one or
a series of transactions, to any Person (other than the Borrower or a
Guarantor), (i) if in any fiscal year, after giving effect to such Disposition,
the aggregate net book value of assets subject to Dispositions during such
fiscal year would exceed 10% of Total Assets as of the end of the immediately
preceding fiscal quarter, or (ii) if a Default or Event of Default exists or
would exist after giving effect thereto. Notwithstanding the foregoing
limitations in clause (a) of this Section 7.9, the Borrower or a Subsidiary may
make a Disposition and the net book value of the assets subject to such
Disposition shall not be subject to or included in the foregoing limitations and
computations if the proceeds (net of taxes and related expenses) from such
Disposition are reinvested, within 180 days after such Disposition, in
productive assets of the Borrower or its Subsidiaries.
TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall not permit any
Subsidiary to, engage in any transaction with an Affiliate except in the
ordinary course of business as presently conducted and on terms and conditions
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; provided,
however, the Lenders agree that the lease of the Future Headquarters Facility
with an Affiliate is not a breach of this Section 7.10 so long as the terms of
such lease are no less favorable to the Borrower than would be obtained in a
lease in a comparable arms-length transaction with a Person not an Affiliate.
BUSINESS. The Borrower shall not, and shall not permit any Guarantor to, engage
in, directly or through other Persons, any business other than the business now
carried on by the Borrower and its Subsidiaries and other businesses directly
related thereto.
SALES AND LEASEBACKS. The Borrower shall not, and shall not permit any
Subsidiary to, enter into any arrangement whereby the Borrower or such
Subsidiary shall sell or transfer all or any part of its assets then owned by
it, and thereafter rent or lease such assets sold or transferred if a Default or
Event of Default exists or would result therefrom.
DEBT. The Borrower shall not, and shall not permit any Subsidiary to, create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, any Debt if a Default or Event of Default exists or would
result therefrom.
PREPAYMENT OF DEBT. The Borrower shall not, and shall not permit any Subsidiary
to, directly or indirectly prepay any Debt or defease, redeem, repurchase or
otherwise acquire any Debt if after giving effect to any proposed payment,
defeasance, redemption, repurchase or acquisition a Default or Event of Default
exists or would occur as a result thereof.
Default
Events of Default. Each of the following shall constitute an Event of Default,
whatever the reason for such event, and whether voluntary, involuntary, or
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any governmental or non-governmental body:
Any representation or warranty made under any Loan Document shall prove to have
been incorrect in any material respect when made;
The Borrower shall default in the payment of (i) any interest under any
Revolving Credit Note or any fees payable hereunder or any other costs, fees,
expenses or other amounts payable hereunder or under the Loan
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Documents, when due, which Default is not cured within two (2) Business Days
from the date such payment became due by payment of such late amount, or (ii)
any principal under any of the Revolving Credit Notes when due; The Borrower or
any Subsidiary shall default in the performance or observance of any agreement
or covenant contained in Article 7 hereof; The Borrower or any Subsidiary shall
default in the performance or observance of any other agreement or covenant
contained in this Agreement not specifically referred to elsewhere in this
Section 8.1, and such default shall not be cured within a period of thirty (30)
days after the earlier of notice from the Administrative Lender thereof or
actual notice thereof given by the Borrower or such Subsidiary to the
Administrative Lender; There shall occur any default or breach in the
performance or observance of any agreement or covenant (after the expiration of
any applicable grace period) in any of the Loan Documents (other than this
Agreement); There shall be commenced an involuntary proceeding or an involuntary
petition shall be filed in a court having competent jurisdiction seeking (i)
relief in respect of the Borrower or any Subsidiary, or a substantial port of
the assets of the Borrower or such Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other applicable
Federal or state bankruptcy law or other similar law, (ii) the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of the Borrower or any Subsidiary, or of any substantial part of their
respective properties, or (iii) the winding-up or liquidation of the affairs of
the Borrower or any Subsidiary, and any such proceeding or petition shall
continue unstayed and in effect for a period of sixty (60) consecutive days; The
Borrower or any Subsidiary shall file a petition, answer or consent seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable Federal or state bankruptcy law or other
similar law, or the Borrower or any Subsidiary shall consent to the institution
of proceedings thereunder or to the filing of any such petition or to the
appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Borrower or
any Subsidiary or of any substantial part of their respective properties, or the
Borrower or any Subsidiary shall make a general assignment for the benefit of
creditors, or the Borrower or any Subsidiary shall fail generally to pay its
debts as they become due, or the Borrower or any Subsidiary shall take any
action in furtherance of any such action; A final judgment or judgments shall be
entered by any court against the Borrower or any Material Subsidiary for the
payment of money which exceeds $1,000,000 in the aggregate, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of the Borrower or any Material Subsidiary which, together with all
other such property of the Borrower and its Material Subsidiaries subject to
other such process, exceeds in value $1,000,000 in the aggregate, and if the
events or occurrence forming the basis for such judgment or award is not insured
or, within 30 days after the entry, issue or levy thereof, such judgment,
warrant or process shall not have been paid or discharged or stayed pending
appeal, or if, after the expiration of any such stay, such judgment, warrant or
process shall not have been paid or discharged; The Borrower or any Material
Subsidiary shall fail to make any payment when due in respect of any Debt having
an aggregate principal amount in excess of $3,000,000 beyond any grace period
provided with respect thereto, or the Borrower or any Material Subsidiary shall
default in the performance of any agreement or instrument under which such Debt
is created or evidenced beyond any applicable grace period, or any other event
shall occur or condition shall exist under any such agreement or instrument, if
the effect of such default, event or condition is to permit or cause the holder
of such Debt (or a trustee on behalf of any such holder) to cause such Debt to
become due or to be repurchased or redeemed; Any provision of any Loan Document
shall for any reason cease to be valid and binding on or enforceable against any
party to it (other than the Administrative Lender or any Lender) in all material
respects, or any such party (other than the Administrative Lender or any Lender)
shall so state in writing; Less than $40,000,000 in aggregate principal amount
of the 2001 Private Placement Notes shall have been issued as of July 31, 2001;
or A Change of Control of the Borrower shall have occurred.
REMEDIES. If an Event of Default shall have occurred and shall be continuing:
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With the exception of an Event of Default specified in Section 8.1(f) or (g)
hereof, the Administrative Lender shall, upon the direction of the Determining
Lenders, terminate the Commitments and/or declare the principal of and interest
on the Advances and all Obligations and other amounts owed under the Loan
Documents to be forthwith due and payable without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived, anything in the
Loan Documents to the contrary notwithstanding. Upon the occurrence of an Event
of Default specified in Section 8.1(f) or (g) hereof, such principal, interest
and other amounts shall thereupon automatically and concurrently therewith
become due and payable and the Commitments shall automatically forthwith
terminate, all without any action by the Administrative Lender, any Lender or
any holders of the Revolving Credit Notes and without presentment, demand,
protest or other notice of any kind, all of which are expressly waived, anything
in the Loan Documents to the contrary notwithstanding. The Borrower hereby
agrees, in addition to the provisions of this Section 8.2, that (i) upon the
occurrence and during the continuance of any Event of Default, it shall, upon
demand by the Determining Lenders (and, in the case of any Event of Default
specified in Section 8.1(f) or (g) hereof, forthwith, without any demand or the
taking of any other action by the Administrative Lender or any Lender) pay to
the Administrative Lender an amount in immediately available funds equal to the
then aggregate undrawn face amount of the Letters of Credit and (ii) any amounts
received by the Administrative Lender pursuant to this Section 8.2(c) (and all
investments of such amounts and earnings and proceeds of such investments) shall
be held by the Administrative Lender in a cash collateral account in the name of
the Administrative Lender entitled "Xxxxxx Manufacturing Company Letter of
Credit Cash Collateral Account". As security for the payment of all
Reimbursement Obligations and for all other Obligations, the Borrower hereby
grants, conveys, assigns, pledges, sets over and transfers to the Administrative
Lender (for the benefit of each Issuing Bank and the Lenders) a Lien in such
collateral account, together with all earnings and proceeds thereof. The balance
in such collateral account (including all earnings thereon) shall be invested
and reinvested by the Administrative Lender in such interest-bearing obligations
as the Administrative Lender shall from time to time select, and the Borrower
hereby authorizes and directs the Administrative Lender to collect and receive
any earnings and proceeds of any such Investments and to credit the net amount
of all such receipts to such cash collateral account. The Administrative Lender,
and the Lenders may exercise all of the post-default rights granted to them
under the Loan Documents or under Applicable Law. The rights and remedies of the
Administrative Lender and the Lenders hereunder shall be cumulative, and not
exclusive.
CHANGES IN CIRCUMSTANCES
LIBOR RATE DETERMINATION INADEQUATE. If with respect to any proposed LIBOR
Advance for any Interest Period, any Lender determines that (i) deposits in
dollars (in the applicable amount) are not being offered to that Lender in the
relevant market for such Interest Period or (ii) the LIBOR Rate for such
proposed LIBOR Advance does not adequately cover the cost to such Lender of
making and maintaining such proposed LIBOR Advance for such Interest Period,
such Lender shall forthwith give notice thereof to the Borrower, whereupon until
such Lender notifies the Borrower that the circumstances giving rise to such
situation no longer exist, the obligation of such Lender to make LIBOR Advances
shall be suspended.
ILLEGALITY. If any applicable law, rule or regulation, or any change therein or
adoption thereof, or interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
LIBOR Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency, shall
make it unlawful or impossible for such Lender (or its LIBOR Lending Office) to
make, maintain or fund its LIBOR Advances, such Lender shall so notify the
Borrower and the Administrative Lender. Before giving any notice to the Borrower
pursuant to this Section, the notifying Lender shall designate a different LIBOR
Lending Office or other lending office if such designation will avoid the need
for giving such notice and will not, in the sole judgment of the Lender, be
materially disadvantageous to the Lender. Upon receipt of such notice,
notwithstanding anything contained in Article 2 hereof, the Borrower shall repay
in full the then outstanding principal amount of each LIBOR Advance owing to the
notifying Lender, together with accrued interest thereon, on either (a) the last
day of the Interest Period applicable to such Advance, if the Lender may
lawfully continue to maintain and fund such
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Advance to such day, or (b) immediately, if the Lender may not lawfully continue
to fund and maintain such Advance to such day. Concurrently with repaying each
affected LIBOR Advance owing to such Lender, notwithstanding anything contained
in Article 2 hereof, the Borrower shall borrow a Base Rate Advance from such
Lender, and such Lender shall make such Base Rate Advance, in an amount such
that the outstanding principal amount of the Advances owing to such Lender shall
equal the outstanding principal amount of the Advances owing to such Lender
immediately prior to such repayment.
INCREASED COSTS.
If any applicable law, rule or regulation, or any change in or adoption of any
law, rule or regulation, or any interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by any Lender (or its
LIBOR Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or compatible agency:
(xxii) shall subject a Lender (or its LIBOR Lending Office) to any Tax
(net of any tax benefit engendered thereby) with respect to its LIBOR
Advances or its obligation to make such Advances, or shall change the basis
of taxation of payments to a Lender (or to its LIBOR Lending Office) of the
principal of or interest on its LIBOR Advances or in respect of any other
amounts due under this Agreement, as the case may be, or its obligation to
make such Advances (except for changes in the rate of tax on the overall
net income, net worth or capital of the Lender and franchise taxes, doing
business taxes or minimum taxes imposed upon such Lender); or
(xxiii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, a
Lender's LIBOR Lending Office or shall impose on the Lender (or its LIBOR
Lending Office) or on the United States market for certificates of deposit
or the London interbank market any other condition affecting its LIBOR
Advances or its obligation to make such Advances;
and the result of any of the foregoing is to increase the cost to a Lender (or
its LIBOR Lending Office) of making or maintaining any LIBOR Advances, or to
reduce the amount of any sum received or receivable by a Lender (or its LIBOR
Lending Office) with respect thereto, by an amount deemed by a Lender to be
material, then, within 15 days after demand by a Lender, the Borrower agrees to
pay to such Lender such additional amount as will compensate such Lender for
such increased costs or reduced amounts, subject to Section 11.9 hereof. The
affected Lender will as soon as practicable notify the Borrower of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section and will designate a different
LIBOR Lending Office or other lending office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
judgment of the affected Lender made in good faith, be disadvantageous to such
Lender.
A certificate of any Lender claiming compensation under this Section which shall
include, in reasonable detail, the basis for the demand for additional
compensation, the method of calculation, and the calculation thereof, shall be
conclusive in the absence of manifest error. In determining such amount, a
Lender may use any reasonable averaging and attribution methods. If a Lender
demands compensation under this Section, the Borrower may at any time, upon at
least five Business Days' prior notice to the Lender, after reimbursement to the
Lender by the Borrower in accordance with this Section of all costs incurred,
prepay in full the then outstanding LIBOR Advances of the Lender, together with
accrued interest thereon to the date of prepayment, along with any reimbursement
required under Section 2.9 hereof. Concurrently with prepaying such LIBOR
Advances, the Borrower may borrow a Base Rate Advance from the Lender, and the
Lender shall make such Base Rate Advance, in an amount such that the outstanding
principal amount of the Advances owing to such Lender shall equal the
outstanding principal amount of the Advances owing to such Lender immediately
prior to such prepayment.
EFFECT ON BASE RATE ADVANCES. If notice has been given pursuant to Section 9.1,
9.2 or 9.3 hereof suspending the obligation of a Lender to make LIBOR Advances,
or requiring LIBOR Advances of a Lender to be repaid or prepaid, then, unless
and until the Lender notifies the Borrower that the circumstances giving rise
to such repayment
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no longer apply, all Advances which would otherwise be made by such Lender as
LIBOR Advances shall be made instead as Base Rate Advances.
CAPITAL ADEQUACY. If any change in or in the interpretation of any law, rule or
regulation or in any guideline of any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by a Lender or any
corporation controlling such Lender, and such Lender determines that the amount
of such capital is increased by or based upon the existence of such Lender's
commitment or Advances hereunder and other commitments or advances of such
Lender of this type, then, upon demand by such Lender, subject to Section 11.9,
the Borrower shall immediately pay to such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender with respect to such circumstances, to the extent that such Lender
reasonably determines in good faith such increase in capital to be allocable to
the existence of such Lender's Commitment hereunder. The Lender shall submit to
the Borrower a certificate as to such amounts, which shall include, in
reasonable detail, the basis for the demand for additional compensation, the
method of calculation, and the calculation thereof, which certificate shall, in
the absence of manifest error, be conclusive and binding for all purposes.
SURVIVAL. All of the Borrower's obligations under this Article 9 shall survive
termination of the Commitment and payment in full of the Obligations.
AGREEMENT AMONG LENDERS
Agreement Among Lenders. The Lenders agree among themselves that:
ADMINISTRATIVE LENDER. Each Lender hereby appoints the Administrative Lender as
its nominee in its name and on its behalf, to receive all documents and items to
be furnished hereunder; to act as nominee for and on behalf of all Lenders under
the Loan Documents; to, except as otherwise expressly set forth herein, take
such action as may be requested by the Determining Lenders provided that, unless
and until the Administrative Lender shall have received such requests, the
Administrative Lender may take such administrative action, or refrain from
taking such administrative action, as it may deem advisable and in the best
interests of the Lenders; to arrange the means whereby the proceeds of the
Advances of the Lenders are to be made available to the Borrower; to distribute
promptly to each Lender information, requests and documents received from the
Borrower, and each payment (in like funds received) with respect to any of such
Lender's Advances, participations in Letters of Credit, fees or other amounts;
and to deliver to the Borrower requests, demands, approvals and consents
received from the Lenders. Administrative Lender agrees to promptly distribute
to each Lender, at such Lender's address set forth below information, requests,
documents and payments received from the Borrower. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Lender shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Lender have or be
deemed to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Lender.
REPLACEMENT OF ADMINISTRATIVE LENDER. Should the Administrative Lender or any
successor Administrative Lender ever cease to be a Lender hereunder, or should
the Administrative Lender or any successor Administrative Lender ever resign as
Administrative Lender, or should the Administrative Lender or any successor
Administrative Lender ever be removed with cause by the Determining Lenders,
then the Lender appointed by the other Lenders shall forthwith become the
Administrative Lender, and the Borrower and the Lenders shall execute such
documents as any Lender may reasonably request to reflect such change. Any
resignation or removal of the Administrative Lender or any successor
Administrative Lender shall become effective upon the appointment by the Lenders
of a successor Administrative Lender; provided, however, that if the Lenders
fail for any reason to appoint a successor within 60 days after such removal or
resignation, the Administrative Lender or any successor Administrative Lender
(as the case may be) shall thereafter have no obligation to act as
Administrative Lender hereunder.
EXPENSES. Each Lender shall pay its pro rata share, based on its Specified
Percentage, of any expenses paid by the Administrative Lender directly and
solely in connection with any of the Loan Documents if
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Administrative Lender does not receive reimbursement therefor from other sources
within 60 days after the date incurred, unless payment of such fees is being
diligently disputed by such Lender or the Borrower in good faith. Any amount so
paid by the Lenders to the Administrative Lender shall be returned by the
Administrative Lender pro rata to each paying Lender to the extent later paid by
the Borrower or any other Person on the Borrower's behalf to the Administrative
Lender.
DELEGATION OF DUTIES. The Administrative Lender may execute any of its duties
hereunder by or through officers, directors, employees, attorneys or agents, and
shall be entitled to (and shall be protected in relying upon) advice of counsel
concerning all matters pertaining to its duties hereunder. The Administrative
Lender shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
RELIANCE BY ADMINISTRATIVE LENDER. The Administrative Lender and its officers,
directors, employees, attorneys and agents shall be entitled to rely and shall
be fully protected in relying on any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telex or teletype message,
statement, order, or other document or conversation reasonably believed by it or
them in good faith to be genuine and correct and to have been signed or made by
the proper Person and, with respect to legal matters, upon opinions of counsel
selected the Administrative Lender. The Administrative Lender may, in its
reasonable judgment, deem and treat the payee of any Revolving Credit Note as
the owner thereof for all purposes hereof.
LIMITATION OF ADMINISTRATIVE LENDER'S LIABILITY. Neither the Administrative
Lender nor any of its officers, directors, employees, attorneys or agents shall
be liable for any action taken or omitted to be taken by it or them hereunder in
good faith and believed by it or them to be within the discretion or power
conferred to it or them by the Loan Documents or be responsible for the
consequences of any error of judgment, except for its or their own gross
negligence or willful misconduct. Except as aforesaid, the Administrative Lender
shall be under no duty to enforce any rights with respect to any of the
Advances, or any security therefor. The Administrative Lender shall not be
compelled to do any act hereunder or to take any action towards the execution or
enforcement of the powers hereby created or to prosecute or defend any suit in
respect hereof, unless indemnified to its satisfaction against loss, cost,
liability and expense. The Administrative Lender shall not be responsible in any
manner to any Lender for the effectiveness, enforceability, genuineness,
validity or due execution of any of the Loan Documents, or for any
representation, warranty, document, certificate, report or statement made herein
or furnished in connection with any Loan Documents, or be under any obligation
to any Lender to ascertain or to inquire as to the performance or observation of
any of the terms, covenants or conditions of any Loan Documents on the part of
the Borrower. To the extent not reimbursed by the Borrower, each Lender hereby
indemnifies and holds harmless the Administrative Lender, pro rata according to
its Specified Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and/or
disbursements of any kind or nature whatsoever which may be imposed on, asserted
against, or incurred by the Administrative Lender in any way with respect to any
Loan Documents or any action taken or omitted by the Administrative Lender under
the Loan Documents; provided, however, no Lender shall be obligated to indemnify
or hold harmless the Administrative Lender hereunder if any such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, expenses
and/or disbursements result from gross negligence or willful misconduct by the
Administrative Lender. Each Lender agrees that it expressly intends, under this
Section 10.1(f) to indemnify Administrative Lender ratably as aforesaid for all
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements arising out of or resulting from
Administrative Lender's sole ordinary or contributory negligence.
LIABILITY AMONG LENDERS. No Lender shall incur any liability (other than the
sharing of expenses and other matters specifically set forth herein and in the
other Loan Documents) to any other Lender, except for acts or omissions in bad
faith.
RIGHTS AS LENDER. With respect to its commitment hereunder, the Advances made by
it and Revolving Credit Note issued to it, the Administrative Lender shall have
the same rights as a Lender and may exercise the same as though it were not the
Administrative Lender, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Lender in its individual
capacity. The Administrative
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Lender or any Lender may accept deposits from, act as trustee under indentures
of, and generally engage in any kind of business with, the Borrower and any of
its Affiliates, and any Person who may do business with or own securities of the
Borrower or any of its Affiliates, all as if the Administrative Lender were not
the Administrative Lender hereunder and without any duty to account therefor to
the Lenders.
LENDER CREDIT DECISION. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Lender or any other Lender and based
upon the financial statements referred to in Sections 4.1(j), 6.1 and 6.2
hereof, and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Lender or any other Lender and based upon such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
NOTICE OF DEFAULT. The Administrative Lender shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Administrative Lender for the account of the Lenders, unless
the Administrative Lender shall have received written notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Lender will notify the Lenders of its receipt of any such notice.
The Administrative Lender shall take such action with respect to such Default or
Event of Default as may be directed by the Determining Lenders in accordance
with Article 8; provided, however, that unless and until the Administrative
Lender has received any such direction, the Administrative Lender may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in the
best interest of the Lenders.
BENEFITS OF ARTICLE. None of the provisions of this Article shall inure to the
benefit of any Person other than Lenders; consequently, no Person shall be
entitled to rely upon, or to raise as a defense, in any manner whatsoever, the
failure of the Administrative Lender or any Lender to comply with such
provisions.
MISCELLANEOUS
NOTICES.
Unless otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including by facsimile transmission)
and mailed, faxed or delivered, to the address, facsimile number or (subject to
subsection (c) below) electronic mail address specified for notices below; or,
in the case of the Borrower or the Administrative Lender, to such other address
as shall be designated by such party in a notice to the other parties, and in
the case of any other party, to such other address as shall be designated by
such party in a notice to the Borrower and the Administrative Lender. All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the intended recipient and (ii)(A) if
delivered by hand or by courier, when signed for by the intended recipient; (B)
if delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed
by telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (c) below), when delivered; provided,
however, that notices and other communications to the Administrative Lender
pursuant to Article 2 hereof shall not be effective until actually received by
such Person. Any notice or other communication permitted to be given, made or
confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified below, it being
understood and agreed that a voicemail message shall in no event be effective as
a notice, communication or confirmation hereunder.
(xxiv) If to the Borrower, at:
Xxxxxx Manufacturing Company
BMA Tower
31st Street and Southwest Trafficway
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
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Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic: xxxxxxxx@xxxxxxxxx.xxx
with a copy to:
Xxxxxx Manufacturing Company
BMA Tower
31st Street and Southwest Trafficway
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic: xxxxxx@xxxxxxxxx.xxx
(xxv) If to the Administrative Lender, at:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Corporate Credit Services, Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic: xxxxx.x.xxxxxx@xxxxxxxxxxxxx.xxx
with a copy to:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Portfolio Management, Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic: xxxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
(xxvi) If to a Lender, at its address shown below its name on the
signature pages hereof, or if applicable, set forth in its Assignment
Agreement.
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EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents
and signatures shall, subject to Applicable Law, have the same force and effect
as manually-signed originals and shall be binding on the Borrower, its
Subsidiaries, the Administrative Lender and the Lenders. The Administrative
Lender may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
LIMITED USE OF ELECTRONIC MAIL. Electronic mail and internet and intranet
websites may be used only to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.
Expenses. The Borrower shall promptly pay:
all reasonable out-of-pocket expenses of the Administrative Lender in connection
with the preparation, negotiation, execution and delivery of this Agreement and
the other Loan Documents, the transactions contemplated hereunder and
thereunder, and the making of Advances hereunder, including without limitation
the reasonable fees and disbursements of Special Counsel; all reasonable
out-of-pocket expenses and attorneys' fees of the Administrative Lender in
connection with the administration of the transactions contemplated in this
Agreement and the other Loan Documents and the preparation, negotiation,
execution and delivery of any waiver, amendment or consent by the Lenders
relating to this Agreement or the other Loan Documents; and all costs,
out-of-pocket expenses and attorneys' fees of the Administrative Lender and each
Lender incurred for enforcement, collection, restructuring, refinancing and
"work-out", or otherwise incurred in obtaining performance under the Loan
Documents, and all costs and out-of-pocket expenses of collection if default is
made in the payment of the Revolving Credit Notes, which in each case shall
include without limitation fees and expenses of consultants, counsel for the
Administrative Lender and any Lender, and administrative fees for the
Administrative Lender. The obligations of the Borrower under this Section 11.2
shall survive termination of the Commitment and payment in full of the
Obligations.
WAIVERS. The rights and remedies of the Lenders under this Agreement and the
other Loan Documents shall be cumulative and not exclusive of any rights or
remedies which they would otherwise have. No failure or delay by the
Administrative Lender or any Lender in exercising any right shall operate as a
waiver of such right. The Lenders expressly reserve the right to require strict
compliance with the terms of this Agreement in connection with any funding of a
request for an Advance. In the event that any Lender decides to fund an Advance
or the Issuing Bank decides to issue a Letter of Credit at a time when the
Borrower is not in strict compliance with the terms of this Agreement, such
decision by such Lender or the Issuing Bank shall not be deemed to constitute an
undertaking by the Lender to fund any further requests for Advances or by the
Issuing Bank to issue any additional Letters of Credit or preclude the Lenders
from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Lenders shall not constitute a
modification of this Agreement, except to the extent expressly provided in such
waiver or indulgence, or constitute a course of dealing by the Lenders at
variance with the terms of the Agreement such as to require further notice by
the Lenders of the Lenders' intent to require strict adherence to the terms of
the Agreement in the future. Any such actions shall not in any way affect the
ability of the Administrative Lender or the Lenders, in their discretion, to
exercise any rights available to them under this Agreement or under any other
agreement, whether or not the Administrative Lender or any of the Lenders are a
party thereto, relating to the Borrower.
DETERMINATION BY THE LENDERS CONCLUSIVE AND BINDING. Any material determination
required or expressly permitted to be made by the Administrative Lender or any
Lender under this Agreement shall be made in its reasonable judgment and in good
faith, and shall when made, absent manifest error, be conclusive and binding on
all parties.
SET-OFF. In addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, upon the occurrence of an Event
of Default, each Lender and any subsequent holder of any Revolving Credit Note,
and any assignee or participant in any Revolving Credit Note is hereby
authorized by the Borrower at any time or from time to time, without notice to
the Borrower or any other Person, any such notice being hereby expressly waived,
to set-off, appropriate and apply any deposits (general or special (except trust
and escrow
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accounts), time or demand, including without limitation Debt evidenced by
certificates of deposit, in each case whether matured or unmatured) and any
other Debt at any time held or owing by such Lender or holder to or for the
credit or the account of the Borrower, against and on account of the Obligations
and other liabilities of the Borrower to such Lender or holder, irrespective of
whether or not (a) the Lender or holder shall have made any demand hereunder, or
(b) the Lender or holder shall have declared the principal of and interest on
the Advances and other amounts due hereunder to be due and payable as permitted
by Section 8.2 and although such obligations and liabilities, or any of them,
shall be contingent or unmatured. Any sums obtained by any Lender or by any
assignee, participant or subsequent holder of any Revolving Credit Note shall be
subject to pro rata treatment of all Obligations and other liabilities
hereunder.
SUCCESSORS AND ASSIGNS.
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 the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
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 and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement. Any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of the Commitment and Advances (including
for purposes of this subsection (b), participations in Reimbursement
Obligations) at the time owing to it); provided that (i) except in the case of
an assignment of the entire remaining amount of the assigning lender's portion
of the Commitment and the Advances at the time owing to it or in the case of an
assignment to a Lender or a Lender Affiliate or an Approved Fund with respect to
a Lender, the aggregate amount of the portion of the Commitment (which for this
purpose includes Advances outstanding thereunder) subject to each such
assignment, determined as of the date of the Assignment Agreement with respect
to such assignment is delivered to the Administrative Lender, shall not be less
than $5,000,000 unless each of the Administrative Lender and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed), (ii) 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 Advances (including such Lender's participations in the Reimbursement
Obligations) or the portion of the Commitment assigned, and (iii) the parties to
each assignment shall execute and deliver to the Administrative Lender an
Assignment Agreement, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Lender
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment Agreement, the Eligible Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
Agreement, 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 Agreement, be released from its obligations under this Agreement
(and, in the case of an Assignment Agreement 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
9.6 (which accrued to such Lender prior to such assignment), 5.10 and 11.2
hereof). Upon request, the Borrower (at its expense) shall execute and deliver
new or replacement Revolving Credit Notes to the assigning Lender and the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection 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 subsection (d) of this Section.
The Administrative Lender, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Lender's office a copy of each
Assignment Agreement delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitments of, and principal amount
of the Advances and Reimbursement Obligations 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 Administrative Lender 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.
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Any Lender may, without the consent of, or notice to, the Borrower or the
Administrative Lender, sell participations to one or more banks or other
entities (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 Advances (including such Lender's participations in Reimbursement
Obligations) 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 Administrative Lender and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. 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,
waiver or other modification that would (i) postpone any date upon which any
payment of money is scheduled to be paid to such Participant, (ii) reduce the
principal, interest, fees or other amounts payable to such Participant, or (iii)
release any Guarantor from the Subsidiary Guaranty. Subject to subsection (e) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.9, 2.15 and Article 9 hereof to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 11.5 hereof as though it were a Lender. A
Participant shall not be entitled to receive any greater payment under Section
2.5 or Article 9 hereof 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. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Revolving Credit Note, if any) to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank,
without the requirement for notice to or consent of any Person or the payment of
any fee; provided that no such pledge or assignment shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto. If the consent of the Borrower to an assignment
or to an Eligible Assignee is required hereunder (including a consent to an
assignment which does not meet the minimum assignment threshold specified in
clause (i) of the proviso to the first sentence of Section 11.6(b)), the
Borrower shall be deemed to have given its consent ten Business Days after the
date notice thereof has been delivered by the assigning Lender (through the
Administrative Lender) unless such consent is expressly refused by the Borrower
prior to such tenth Business Day. As used herein, the following terms have the
following meanings:
"Eligible Assignee" means (a) a Lender; (b) a Lender Affiliate; (c) an
Approved Fund; and (d) any other Person (other than a natural Person)
approved by the Administrative Lender and the Issuing Bank and, unless (x)
such Person is taking delivery of an assignment in connection with physical
settlement of a derivatives transaction or (y) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed).
"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.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) a Lender Affiliate or (c) an entity or an affiliate of an
entity that administers or manages a Lender.
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COUNTERPARTS. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument.
SEVERABILITY. Any provision of this Agreement which is for any reason prohibited
or found or held invalid or unenforceable by any court or governmental agency
shall be ineffective to the extent of such prohibition or invalidity or
unenforceability without invalidating the remaining provisions hereof in such
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
INTEREST AND CHARGES. It is not the intention of any parties to this Agreement
to make an agreement in violation of the laws of any applicable jurisdiction
relating to usury. Regardless of any provision in any Loan Documents, no Lender
shall ever be entitled to receive, collect or apply, as interest on the
Obligations, any amount in excess of the Maximum Amount. If any Lender or
participant ever receives, collects or applies, as interest, any such excess,
such amount which would be excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such; and if principal is paid
in full, any remaining excess shall be paid to the Borrower. In determining
whether or not the interest paid or payable, under any specific contingency,
exceeds the Maximum Amount, the Borrower and the Lenders shall, to the maximum
extent permitted under Applicable Law, (a) characterize any nonprincipal payment
as an expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effect thereof, and (c) amortize, prorate, allocate and
spread in equal parts, the total amount of interest throughout the entire
contemplated term of the Obligations so that the interest rate is uniform
throughout the entire term of the Obligations; provided, however, that if the
Obligations are paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period of
existence thereof exceeds the Maximum Amount, the Lenders shall refund to the
Borrower the amount of such excess or credit the amount of such excess against
the total principal amount of the Obligations owing, and, in such event, the
Lenders shall not be subject to any penalties provided by any laws for
contracting for, charging or receiving interest in excess of the Maximum Amount.
This Section shall control every other provision of all agreements pertaining to
the transactions contemplated by or contained in the Loan Documents.
HEADINGS. Headings used in this Agreement are for convenience only and shall not
be used in connection with the interpretation of any provision hereof.
AMENDMENT AND WAIVER. The provisions of this Agreement may not be amended,
modified or waived except by the written agreement of the Borrower and the
Determining Lenders; provided, however, that no such amendment, modification or
waiver shall be made (a) without the consent of each Lender directly affected
thereby, if it would (i) increase the Specified Percentage or commitment of such
Lender, or (ii) extend the date of maturity of, extend the due date for any
payment of principal or interest on, reduce the amount of any installment of
principal or interest on, or reduce the rate of interest on, any Advance or
Reimbursement Obligation owing to such Lender or reduce any other amount owing
to such Lender under any Loan Documents; or (b) without the consent of all
Lenders, if it would (i) release any security for or guaranty of the Obligations
(except pursuant to this Agreement), or (ii) revise this Section 11.11, or (iii)
waive, extend or postpone the date for payment of any of the Obligations, or
(vii) amend the definition of Determining Lenders; or (c) without the consent of
the Administrative Lender, if it would alter the rights, duties or obligations
of the Administrative Lender; or (d) without the consent of an Issuing Bank, if
it would alter the rights, duties, or obligations of such Issuing Bank. Neither
this Agreement nor any term hereof may be amended orally, nor may any provision
hereof be waived orally but only by an instrument in writing signed by the
Administrative Lender and, in the case of an amendment, by the Borrower.
EXCEPTION TO COVENANTS. Neither the Borrower nor any Subsidiary shall be deemed
to be permitted to take any action or fail to take any action which is permitted
as an exception to any of the covenants contained herein or which is within the
permissible limits of any of the covenants contained herein if such action or
omission would result in the breach of any other covenant contained herein.
NO LIABILITY OF ISSUING BANK. The Borrower assumes all risks of the acts or
omissions of any beneficiary or transferee of any Letter of Credit with respect
to its use of such Letter of Credit. No Issuing Bank nor any Lender nor any of
their respective officers or directors shall be liable or responsible for: (a)
the use that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (b) the validity,
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sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by any Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit, except for any payment made upon the Issuing Bank's gross
negligence or willful misconduct; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against an Issuing Bank, and an Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by (i)
such Issuing Bank's willful misconduct or gross negligence in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, 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.
PAYMENTS SET ASIDE. To the extent that the Borrower makes a payment to the
Administrative Lender or any Lender, or the Administrative Lender 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 Administrative Lender or such Lender in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) 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 (b) each Lender
severally agrees to pay to the Administrative Lender upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Lender,
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.
NO STRICT CONSTRUCTION. The parties (directly and through their counsel) hereto
have participated jointly in the negotiating and drafting of this Agreement and
the other Loan Documents. In the event an ambiguity or question of intent or
interpretation arises, this Agreement and the other Loan Documents shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or any other Loan Document.
FOREIGN LENDERS. Each Lender that is a "foreign corporation, partnership or
trust" within the meaning of the Code (a "Foreign Lender") shall deliver to the
Administrative Lender, prior to receipt of any payment subject to withholding
under the Code (or after accepting an assignment of an interest herein), two
duly signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Person by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Borrower pursuant to
this Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Lender that such Person is entitled to an exemption from, or
reduction of, U.S. withholding tax. Thereafter and from time to time, each such
Person shall (a) promptly submit to the Administrative Lender such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Borrower and
the Administrative Lender of any available exemption from or reduction of,
United States withholding taxes in respect of all payments to be made to such
Person by the Borrower pursuant to this Agreement, (b) promptly notify the Agent
of any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (c) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Person. If such Person fails
to deliver the above forms or other documentation, then the Administrative
Lender may withhold from any interest payment to such Person an amount
equivalent to the applicable withholding tax imposed by Sections 1441 and 1442
of the Code, without reduction. If any Governmental Authority asserts that the
Administrative Lender did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify the
Administrative Lender therefor, including all penalties and interest, any taxes
imposed by any
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jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including Attorney Costs) of the Administrative Lender. The
obligation of the Lenders under this Section shall survive the payment of all
Obligations and the resignation or replacement of the Administrative Lender.
CONFIDENTIALITY. Each of the Administrative Lender and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclose is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by an regulatory
authority; (c) to the extent required by Applicable Laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Borrower; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Lender or any Lender on a nonconfidential basis from a source
other than the Borrower that is not known to such Administrative Lender or
Lender to be subject to an obligation to keep such information confidential; or
(i) to the National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its affiliates.
For the purposes of this Section, "Information" means all information received
from the Borrower relating to the Borrower, any of its Subsidiaries or any of
their respective businesses, other than any such information that is available
to the Administrative Lender or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
in writing at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section 11.17
shall be considered to have complied with its obligations 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.
GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS; PROVIDED THAT
THE ADMINISTRATIVE LENDER AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW AND PROVIDED, FURTHER, HOWEVER, IT IS AGREED THAT THE PROVISIONS OF
CHAPTER 346 OF THE TEXAS FINANCE CODE, AS AMENDED, SHALL NOT APPLY TO THE
ADVANCES, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. WITHOUT EXCLUDING ANY
OTHER JURISDICTION, THE BORROWER AGREES THAT THE STATE AND FEDERAL COURTS OF
TEXAS LOCATED IN DALLAS, TEXAS SHALL HAVE JURISDICTION OVER PROCEEDINGS IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS ARE PERFORMABLE IN DALLAS COUNTY, TEXAS.
WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE LENDER AND THE
LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY AND INTENTIONALLY WAIVE, TO
THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT
TO EACH LENDER ENTERING INTO THIS AGREEMENT AND MAKING ANY ADVANCES HEREUNDER.
ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER LOAN
DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
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AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first set
forth above.
BORROWER:
XXXXXX MANUFACTURING COMPANY
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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ADMINISTRATIVE LENDER:
BANK OF AMERICA, N.A., as Administrative
Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
LENDERS:
BANK OF AMERICA, N.A., as a Lender and as
the Issuing Bank
Specified Percentage:
53.84615384%
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
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COMMERCE BANK, N.A.
Specified Percentage:
23.07692308%
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxx
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FIRSTAR BANK, N.A.
Specified Percentage:
23.07692308%
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
0000 Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
================================================================================
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EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$
--------------------- ----------------------
FOR VALUE RECEIVED, XXXXXX MANUFACTURING COMPANY, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of ___________________________
(the "Lender"), on the Maturity Date (as defined in the Credit Agreement
referred to below) the principal amount of __________________Dollars
($____________), or such lesser principal amount of Advances (as defined in such
Credit Agreement) due and payable by the Borrower to the Lender on the Maturity
Date under that certain Credit Agreement, dated as of June 20, 2001 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Lender.
The Borrower promises to pay interest on the unpaid principal amount of each
Advance from the date of such Advance until such principal amount is paid in
full, at such interest rates, and at such times as are specified in the
Agreement. All payments of principal and interest shall be made to the
Administrative Lender for the account of the Lender in Dollars in immediately
available funds at the Administrative Lender's office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the Default Rate set forth in the
Agreement.
This Note is one of the Revolving Credit Notes referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein. This Note is also entitled
to the benefits of the Subsidiary Guaranty. Upon the occurrence of one or more
of the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Advances made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Revolving Loans
and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, intent to
accelerate, acceleration, dishonor and non-payment of this Note.
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THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
XXXXXX MANUFACTURING COMPANY
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
---------- ------------
Principal or Principal
------------ ---------
Date Type of Loan Amount of Loan End of Interest Interest Paid Balance This
---- ------------ -------------- --------------- ------------- ------------
Made Made Period This Date Date Notation Made By
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================================================================================
EXHIBIT B
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY (this "Guaranty"), dated as of _____________, 2001, made by
each of the parties listed on the signature pages hereof (collectively, the
"Guarantors", and each, a "Guarantor"), in favor of the Guarantied Parties
referred to below.
WITNESSETH:
WHEREAS, Xxxxxx Manufacturing Company, a Delaware corporation (the "Borrower"),
has entered into a Credit Agreement, dated as of June 20, 2001, among the
Lenders party thereto, and Bank of America, N.A., as the administrative lender
(the "Administrative Lender") for the Lenders (said Credit Agreement, as it may
be amended, supplemented or otherwise modified from time to time, being the
"Credit Agreement", and capitalized terms not defined herein but defined therein
being used herein as therein defined); and
WHEREAS, the Borrower, directly or indirectly, owns beneficially and of record
more than 50% of the capital stock of the Guarantors, and the Borrower and each
of the Guarantors are members of the same consolidated group of companies and
are engaged in operations which require financing on a basis in which credit can
be made available from time to time to the Borrower and the Guarantors, and the
Guarantors will derive direct and indirect economic benefit from the Advances
and Letters of Credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make
Advances and issue and/or participate Letters of Credit under the Credit
Agreement that the Guarantors shall have executed and delivered this Guaranty;
and
WHEREAS, the Lenders, the Administrative Lender and any Lender Affiliate
entering into a Swap Contract (provided that such Lender was a Lender at the
time such Swap Contract was entered into) with the Borrower or any Affiliate of
the Borrower are herein referred to as the "Guarantied Parties";
NOW, THEREFORE, in consideration of the premises and to induce the Lenders to
make Advances and issue and/or participate in Letters of Credit, the Guarantors
hereby agree as follows:
GUARANTY. The Guarantors hereby jointly and severally
unconditionally and irrevocably guarantee the full and prompt payment when due,
whether at stated maturity, by acceleration or otherwise, of, and the
performance of, (a) the Obligations, whether now or hereafter existing and
whether for principal, interest, fees, expenses or otherwise, (b) any and all
reasonable out-of-pocket expenses (including, without limitation, reasonable
expenses and reasonable counsel fees and expenses of the Administrative Lender
and the Lenders) incurred by any of the Guarantied Parties in enforcing any
rights under this Guaranty and (c) all present and future amounts that would
become due but for the operation of Section 502 or 506 or any other provision of
Chapter 11 of Title 11 of the United States Code, as amended (the "Bankruptcy
Code"), and all present and future accrued and unpaid interest, including,
without limitation, all post-petition interest if the Borrower or any Guarantor
voluntarily or involuntarily becomes subject to any Debtor Relief Laws (the
items set forth in clauses (a), (b) and (c) immediately above being herein
referred to as the "Guarantied Obligations"). Upon failure of the Borrower to
pay any of the Guarantied Obligations when due after the giving by the
Administrative Lender and/or the Lenders of any notice and the expiration of any
applicable cure period in each case provided for in the Credit Agreement and
other Loan Documents (whether at stated maturity, by acceleration or otherwise),
the Guarantors hereby further jointly and severally agree to promptly pay the
same, without any demand or notice whatsoever, including without limitation, any
notice having been given to the Guarantor of either the acceptance by the
Guarantied Parties of this Guaranty or the creation or incurrence of any of the
Obligations. This Guaranty is an absolute guaranty of payment and performance
and not a guaranty of collection, meaning that it is not necessary for the
Guarantied Parties, in order to enforce payment by the Guarantors, first or
contemporaneously to accelerate payment of any of the Guarantied Obligations, to
institute suit or exhaust any rights against any the Borrower or any Guarantor,
or to enforce any rights against any Collateral. Notwithstanding anything herein
or in any other Loan
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Document to the contrary, in any action or proceeding involving any state
corporate law, or any state or federal bankruptcy, insolvency, reorganization or
other law affecting the rights of creditors generally, if the obligations of any
Guarantor under this Section 1 would otherwise, taking into account the
provisions of Section 10 hereof, be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under this Section 1, then the amount of such
liability shall, without any further action by such Guarantor, any Lender, the
Administrative Lender or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
GUARANTY ABSOLUTE. Each Guarantor guaranties that the Guarantied Obligations
will be paid strictly in accordance with the terms of the Credit Agreement, the
Revolving Credit Notes and the other Loan Documents, without set-off or
counterclaim, and regardless of any Applicable Law now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of the Guarantied
Parties with respect thereto. The liability of each Guarantor under this
Guaranty shall be absolute and unconditional irrespective of: any lack of
validity or enforceability of any provision of any other Loan Document or any
other agreement or instrument relating to any Loan Document, or avoidance or
subordination of any of the Guarantied Obligations; any change in the time,
manner or place of payment of, or in any other term of, or any increase in the
amount of, all or any of the Guarantied Obligations, or any other amendment or
waiver of any term of, or any consent to departure from any requirement of, the
Credit Agreement, the Revolving Credit Notes or any of the other Loan Documents;
any exchange, release or non-perfection of any Lien on any collateral for, or
any release or amendment or waiver of any term of any other guaranty of, or any
consent to departure from any requirement of any other guaranty of, all or any
of the Guarantied Obligations; the absence of any attempt to collect any of the
Guarantied Obligations from the Borrower or from any other Guarantor or any
other action to enforce the same or the election of any remedy by any of the
Guarantied Parties; any waiver, consent, extension, forbearance or granting of
any indulgence by any of the Guarantied Parties with respect to any provision of
any other Loan Document; the election by any of the Guarantied Parties in any
proceeding under the Bankruptcy Code of the application of section 1111(b)(2) of
the Bankruptcy Code; any borrowing or grant of a security interest by the
Borrower, as debtor-in-possession, under section 364 of the Bankruptcy Code; or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a borrower or a guarantor other than payment or
performance of the Obligations.
WAIVER. Each Guarantor hereby (i) waives (A) promptness, diligence, notice of
acceptance and any and all other notices, including, without limitation, notice
of intent to accelerate and notice of acceleration, with respect to any of the
Obligations or this Guaranty, (B) any requirement that any of the Guarantied
Parties protect, secure, perfect or insure any security interest in or other
Lien on any property subject thereto or exhaust any right or take any action
against the Borrower, any other Guarantor or any other Person or any Collateral,
(C) the filing of any claim with a court in the event of receivership or
bankruptcy of the Borrower, any other Guarantor or any other Person, (D) protest
or notice with respect to nonpayment of all or any of the Guarantied
Obligations, (E) the benefit of any statute of limitation, (F) all demands
whatsoever (and any requirement that demand be made on the Borrower, any other
Guarantor or any other Person as a condition
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precedent to such Guarantor's obligations hereunder), (G) all rights by which
any Guarantor might be entitled to require suit on an accrued right of action in
respect of any of the Guarantied Obligations or require suit against the
Borrower or any other Guarantor or Person, whether arising pursuant to Section
3402 of the Texas Business and Commerce Code, as amended, Section 17.001 of the
Texas Civil Practice and Remedies Code, as amended, Rule 31 of the Texas Rules
of Civil Procedure, as amended, or otherwise, (H) any defense based upon an
election of remedies by any Guarantied Party, or (I) notice of any events or
circumstances set forth in clauses (a) through (h) of Section 2 hereof; and (ii)
covenants and agrees that, except as set forth in Section 11 hereof, this
Guaranty will not be discharged except by complete payment and performance of
the Guarantied Obligations and any other obligations of such Guarantor contained
herein. If, in the exercise of any of its rights and remedies, any of the
Guarantied Parties shall forfeit any of its rights or remedies, including,
without limitation, its right to enter a deficiency judgment against the
Borrower, any other Guarantor or any other Person, whether because of any
Applicable Law pertaining to "election of remedies" or the like, each Guarantor
hereby consents to such action by such Guarantied Party and waives any claim
based upon such action. Any election of remedies which results in the denial or
impairment of the right of such Guarantied Party to seek a deficiency judgment
against the Borrower shall not impair the obligation of such Guarantor to pay
the full amount of the Guarantied Obligations or any other obligation of such
Guarantor contained herein. In the event any of the Guarantied Parties shall bid
at any foreclosure or trustee's sale or at any private sale permitted by law or
under any of the Loan Documents, to the extent not prohibited by Applicable Law,
such Guarantied Party may bid all or less than the amount of the Guarantied
Obligations and the amount of such bid, if successful, need not be paid by such
Guarantied Party but shall be credited against the Guarantied Obligations. Each
Guarantor agrees that notwithstanding the foregoing and without limiting the
generality of the foregoing if, after the occurrence and during the continuance
of an Event of Default, the Guarantied Parties are prevented by Applicable Law
from exercising their respective rights to accelerate the maturity of the
Guarantied Obligations, to collect interest on the Guarantied Obligations, or to
enforce or exercise any other right or remedy with respect to the Guarantied
Obligations, or the Administrative Lender is prevented from taking any action to
realize on the Collateral, such Guarantor agrees to pay to the Administrative
Lender for the account of the Guarantied Parties, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Guarantied Parties. Each
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of the Borrower and of each other Guarantor of all or any
part of the Guarantied Obligations, and of all other circumstances bearing upon
the risk of nonpayment of the Guarantied Obligations or any part thereof, that
diligent inquiry would reveal. Each Guarantor hereby agrees that the Guarantied
Parties shall have no duty to advise any Guarantor of information known to any
of the Guarantied Parties regarding such condition or any such circumstance. In
the event that any of the Guarantied Parties in its sole discretion undertakes
at any time or from time to time to provide any such information to any
Guarantor, such Guarantied Party shall be under no obligation (i) to undertake
any
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investigation not a part of its regular business routine, (ii) to disclose any
information which, pursuant to accepted or reasonable banking or commercial
finance practices, such Guarantied Party wishes to maintain as confidential, or
(iii) to make any other or future disclosures of such information or any other
information to such Guarantor. Each Guarantor consents and agrees that the
Guarantied Parties shall be under no obligation to marshal any assets in favor
of any Guarantor or otherwise in connection with obtaining payment of any or all
of the Guarantied Obligations from any Person or source.
REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby represents and warrants to
the Guarantied Parties that the representations and warranties set forth in
Article 4 of the Credit Agreement as they relate to such Guarantor or to the
Loan Documents to which such Guarantor is a party are true and correct in all
material respects in the manner specified in the Credit Agreement and the
Guarantied Parties shall be entitled to rely on each of them as if they were
fully set forth herein.
AMENDMENTS, ETC. No amendment or waiver of any provision of this Guaranty nor
consent to any departure by any Guarantor here from shall in any event be
effective unless the same shall be in writing, approved by the Determining
Lenders (or by all the Lenders where the approval of each Lender is required
under the Credit Agreement) and signed by the Administrative Lender, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
ADDRESSES FOR NOTICES. All notices and other communications provided for
hereunder shall be effectuated in the manner provided for in Section 11.1 of the
Credit Agreement, provided that if a notice or communication hereunder is sent
to a Guarantor, said notice shall be addressed to such Guarantor, in care of the
Borrower.
NO WAIVER; REMEDIES.
No failure on the part of any Guarantied Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by Applicable
Law or any of the other Loan Documents. No waiver by the Guarantied Parties of
any default shall operate as a waiver of any other default or the same default
on a future occasion, and no action by any of the Guarantied Parties permitted
hereunder shall in way affect or impair any of the rights of the Guarantied
Parties or the obligations of any Guarantor under this Guaranty or under any of
the other Loan Documents, except as specifically set forth in any such waiver.
Any determination by a court of competent jurisdiction of the amount of any
principal and/or interest or other amount constituting any of the Guarantied
Obligations shall be conclusive and binding on each Guarantor irrespective of
whether such Guarantor was a party to the suit or action in which such
determination was made.
RIGHT OF SET-OFF. Upon the occurrence and during the continuance of any Event of
Default under the Credit Agreement, each of the Guarantied Parties 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
(except trust and escrow accounts), time or demand, provisional or final) at any
time held and other Indebtedness at any time owing by such Guarantied Party to
or for the credit or the account of each Guarantor against any and all of the
obligations of each Guarantor now or hereafter existing under this Guaranty,
irrespective of whether or not such Guarantied Party shall have made any demand
under this Guaranty and although such obligations may be contingent and
unmatured; provided, however, such Guarantied Party shall promptly notify such
Guarantor and the Borrower after such set-off and the application made by such
Guarantied Party. The rights of each Guarantied Party under this Section 8 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Guarantied Party may have.
CONTINUING GUARANTY; TRANSFER OF REVOLVING CREDIT NOTES. Subject to Section 11,
this Guaranty is a continuing guaranty and shall remain in full force and effect
until payment in full of the Obligations after the Maturity Date, (ii) be
binding upon each Guarantor, its successors and assigns, and (iii) inure to the
benefit of
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and be enforceable by the Guarantied Parties and their respective successors,
transferees, and permitted assigns. Without limiting the generality of the
foregoing clause (iii), each of the Guarantied Parties may assign or otherwise
transfer any Revolving Credit Note held by it or the Guarantied Obligations owed
to it to any other Person, and such other Person shall thereupon become vested
with all the rights in respect thereof granted to such Guarantied Party herein
or otherwise with respect to such of the Revolving Credit Notes and the
Guarantied Obligations so transferred or assigned, subject, however, to
compliance with the provisions of Section 11.6 of the Credit Agreement in
respect of assignments. No Guarantor may assign any of its obligations under
this Guaranty without first obtaining the written consent of the Lenders as set
forth in the Credit Agreement.
REIMBURSEMENT. To the extent that any Guarantor shall be required to repay a
portion of the Advances which shall exceed the greater of (a) the amount of such
Advances actually received by such Guarantor and (b) the amount which such
Guarantor would otherwise have paid if such Guarantor had repaid the aggregate
amount of such Advances (excluding the amount thereof repaid by the Borrower) in
the same proportion as such Guarantor's net worth immediately after the later of
the Agreement Date or the date such Guarantor becomes a party to this Guaranty
bears to the aggregate net worth of the Guarantors (calculated for each
Guarantor based on such Guarantor's net worth immediately after the later of the
Agreement Date or the date such Guarantor becomes a party to this Guaranty),
then such Guarantor shall be reimbursed by the other Guarantors for the amount
of such excess, pro rata, based on their respective net worth immediately after
the Agreement Date or the date such Guarantor becomes a party to this Guaranty,
as applicable. This Section 10 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 10 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay to the
Guarantied Parties the Guarantied Obligations as and when the same shall become
due and payable in accordance with the terms hereof.
REINSTATEMENT. This Guaranty shall remain in full force and effect and continue
to be effective should any petition be filed by or against the Borrower or any
Guarantor for liquidation or reorganization, should the Borrower or any
Guarantor become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the
Borrower or any Guarantor's assets, and shall, to the fullest extent permitted
by Applicable Law, continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Obligations, or any part
thereof, is, pursuant to Applicable Law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligees of the Obligations or such
part thereof, whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Guarantied Obligations shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS (WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS) AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA.
SUBMISSION TO JURISDICTION; JURY TRIAL.
Any legal action or proceeding with respect to this Guaranty or any document
related thereto may be brought in the United States Federal or State Courts
sitting in Dallas, Texas, and, each of the Guarantors and Guarantied Parties
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of the
Guarantors and Guarantied Parties hereby irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions.
Nothing contained in this Section 13 shall affect the right of any Guarantor or
Guarantied Party to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against any other party or its
property in any other jurisdiction.
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THE ADMINISTRATIVE LENDER, THE GUARANTORS AND GUARANTIED PARTIES EACH, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAIVES ANY RIGHT IT MAY HAVE TO
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON OR ARISING OUT OF THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT.
SECTION TITLES. The Section titles contained in this Guaranty are and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of this Guaranty.
EXECUTION IN COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same Guaranty.
MISCELLANEOUS. All references herein to the Borrower or to any Guarantor shall
include their respective successors and assigns, including, without limitation,
a receiver, trustee or debtor-in-possession of or for the Borrower or such
Guarantor. All references to the singular shall be deemed to include the plural
where the context so requires.
SUBROGATION AND SUBORDINATION.
SUBROGATION. Notwithstanding any reference to subrogation contained herein to
the contrary, until the Release Date, each Guarantor hereby irrevocably waives
any claim or other rights which it may have or hereafter acquire against the
Borrower that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of any Lender
against the Borrower or any collateral which any Lender now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity, or under
contract, statutes or common law, including without limitation, the right to
take or receive from the Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Guarantied Obligations shall not
have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Lenders,
and shall forthwith be paid to the Administrative Lender to be credited and
applied upon the Guarantied Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement. Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by the Credit Agreement and that the waiver set forth
in this Section 17(a) is knowingly made in contemplation of such benefits.
SUBORDINATION. All debt and other liabilities of the Borrower to any Guarantor
("Borrower Debt") are expressly subordinate and junior to the Guarantied
Obligations and any instruments evidencing the Borrower Debt to the extent
provided below.
(xxvii) Until the Release Date, each Guarantor agrees that it will not
request, demand, accept, or receive (by set-off or other manner) any
payment amount, credit or reduction of all or any part of the amounts owing
under the Borrower Debt or any security therefor, except as specifically
allowed pursuant to clause (ii) below;
(xxviii) Notwithstanding the provisions of clause (i) above, the
Borrower may pay to the Guarantors and the Guarantors may receive and
retain from the Borrower payments on the Borrower Debt, provided that the
Borrower's right to pay and the
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Guarantors' right to receive any such amount shall automatically and be
immediately suspended and cease (A) upon the occurrence and during the
continuance of a Default or (B) if, after taking into account the effect of
such payment, a Default would occur and be continuing. The Guarantors'
right to receive amounts under this clause (ii) (including any amounts
which theretofore may have been suspended) shall automatically be
reinstated in such time as the Default which was the basis of such
suspension has been cured or waived (provided that no subsequent Default or
Event of Default has occurred) or such earlier date, if any, and the
Administrative Lender gives notice to the Guarantors of reinstatement by
the Determining Lenders, in the Determining Lenders' sole discretion;
(xxix) If any Guarantor receives any payment on the Borrower Debt in
violation of this Guaranty, such Guarantor will hold such payment in trust
for the Lenders and will immediately deliver such payment to the
Administrative Lender; and
(xxx) In the event of the commencement or joinder of any suit, action or
proceeding of any type (judicial or otherwise) or proceeding under any
Debtor Relief Law (an "Insolvency Proceeding") and subject to court orders
issued pursuant to the Bankruptcy Code, the Guarantied Obligations shall
first be paid, discharged and performed in full before any payment or
performance is made upon the Borrower Debt notwithstanding any other
provisions which may be made in such Insolvency Proceeding. In the event of
any Insolvency Proceeding, each Guarantor will at any time prior to the
Release Date (A) file, at the request of any Guarantied Party, any claim,
proof of claim or similar instrument necessary to enforce the Borrower's
obligation to pay the Borrower Debt, and (B) hold in trust for and pay to
the Guarantied Parties any and all monies, obligations, property, stock
dividends or other assets received in any such proceeding on account of the
Borrower Debt in order that the Guarantied Parties may apply such monies or
the cash proceeds of such other assets to the Guarantied Obligations.
GUARANTOR INSOLVENCY. Should any Guarantor voluntarily seek, consent to, or
acquiesce in the benefits of any Debtor Relief Law or become a party to or be
made the subject of any proceeding provided for by any Debtor Relief Law (other
than as a creditor or claimant) that could suspend or otherwise adversely affect
the rights of any Lender granted hereunder, then, the obligations of such
Guarantor under this Guaranty shall be, as between such Guarantor and such
Lender, a fully-matured, due, and payable obligation of such Guarantor to such
Lender (without regard to whether the Borrower is then in default under the
Credit Agreement or whether any part of the Guarantied Obligations is then due
and owing by the Borrower to such Lender), payable in full by such Guarantor to
such Lender upon demand, which shall be the estimated amount owing in respect of
the contingent claim created hereunder.
RATE PROVISION. It is not the intention of any Lender to make an agreement
violative of the laws of any applicable jurisdiction relating to usury.
Regardless of any provision in this Guaranty, no Lender shall ever be entitled
to contract, charge, receive, collect or apply, as interest on the Guarantied
Obligations, any amount in excess of the Highest Lawful Rate. In no event shall
any Guarantor be obligated to pay any amount in excess of the Highest Lawful
Rate. If from any circumstance, the Administrative Lender or any Lender shall
ever receive, collect or apply anything of value deemed excess interest under
Applicable Law, an amount equal to such excess shall be applied to the reduction
of the principal amount of outstanding Advances, and any remainder shall be
promptly refunded to the payor. In determining whether or not interest paid or
payable with respect to the Guarantied Obligations, under any specified
contingency, exceeds the Highest Lawful Rate, the Guarantors and the Lenders
shall, to the maximum extent permitted by Applicable Law, (a) characterize any
non-principal payment as an expense, fee or premium rather than as interest, (b)
amortize, prorate, allocate and spread the total amount of interest throughout
the full term of
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such Guarantied Obligations so that the interest paid on account of such
Guarantied Obligations does not exceed the Highest Lawful Rate and/or (c)
allocate interest between portions of such Guarantied Obligations; provided that
if the Guarantied Obligations are paid and performed in full prior to the end of
the full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Highest Lawful Rate, the Lenders shall
refund to the payor the amount of such excess or credit the amount of such
excess against the total principal amount owing, and, in such event, no Lender
shall be subject to any penalties provided by any laws for contracting for,
charging or receiving interest in excess of the Highest Lawful Rate.
SEVERABILITY. Any provision of this Guaranty which is for any reason prohibited
or found or held invalid or unenforceable by any court or governmental agency
shall be ineffective to the extent of such prohibition or invalidity or
unenforceability, without invalidating the remaining provisions hereof in such
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
ENTIRE AGREEMENT. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES REGARDING THE SUBJECT MATTER HEREIN AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
CONFLICTS. If in the event of a conflict between the terms and conditions of
this Guaranty and the terms and conditions of the Credit Agreement, the terms
and conditions of the Credit Agreement shall control.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed
and delivered by its duly authorized officer on the date first above written.
Guarantor
By:
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Name:
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Title:
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