REVOLVING CREDIT AGREEMENT
among
PROTECTION ONE ALARM MONITORING, INC.
BORROWER
NATIONSBANK, N.A.,
ADMINISTRATIVE AGENT
FIRST UNION NATIONAL BANK,
SYNDICATION AGENT
TORONTO DOMINION (TEXAS), INC.,
DOCUMENTATION AGENT
and
THE LENDERS NAMED HEREIN,
LENDERS
$500,000,000
DATED AS OF DECEMBER 21, 1998
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
Managing Agent
THE CHASE MANHATTAN BANK,
Managing Agent
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
Co-Agent
NATIONSBANC XXXXXXXXXX SECURITIES LLC,
LEAD ARRANGER
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS AND TERMS. . . . . . . . . . . . . . . . . . . . . . .1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Number and Gender of Words; Other References . . . . . . . . . . 17
1.3 Accounting Principles. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2 BORROWING PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 17
2.1 Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 LC Subfacility . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3 Voluntary Termination of Commitments . . . . . . . . . . . . . . 22
2.4 Borrowing Procedure. . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3 TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . 23
3.1 Loan Accounts and Payments . . . . . . . . . . . . . . . . . . . 23
3.2 Interest and Principal Payments. . . . . . . . . . . . . . . . . 24
3.3 Interest Options . . . . . . . . . . . . . . . . . . . . . . . . 24
3.4 Quotation of Rates . . . . . . . . . . . . . . . . . . . . . . . 25
3.5 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.6 Interest Recapture . . . . . . . . . . . . . . . . . . . . . . . 25
3.7 Interest Calculations. . . . . . . . . . . . . . . . . . . . . . 25
3.8 Maximum Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.9 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . 26
3.10 Conversions. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.11 Order of Application . . . . . . . . . . . . . . . . . . . . . . 27
3.12 Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . . . 27
3.13 Offset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.14 Booking Borrowings . . . . . . . . . . . . . . . . . . . . . . . 28
3.15 Replacement of Lenders under Certain Circumstances . . . . . . . 28
SECTION 4 CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . . . . . . . 28
4.1 Increased Cost and Reduced Return. . . . . . . . . . . . . . . . 28
4.2 Limitation on Types of Borrowings. . . . . . . . . . . . . . . . 30
4.3 Illegality.. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.4 Treatment of Affected Loans. . . . . . . . . . . . . . . . . . . 30
4.5 Compensation.. . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.6 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5 FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.1 Treatment of Fees. . . . . . . . . . . . . . . . . . . . . . . . 33
5.2 Fees of Administrative Agent . . . . . . . . . . . . . . . . . . 33
5.3 LC Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.4 LC Issuance and Fronting Fees. . . . . . . . . . . . . . . . . . 33
5.5 Commitment Fees. . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6. GUARANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(i)
6.1 POI Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.2 Subsidiary Guaranty. . . . . . . . . . . . . . . . . . . . . . . 34
6.3 Other Guaranties . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 34
7.1 Conditions Precedent to Closing. . . . . . . . . . . . . . . . . 34
7.2 Conditions to all Borrowings.. . . . . . . . . . . . . . . . . . 36
SECTION 8 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 37
8.1 Purpose of Credit Facility . . . . . . . . . . . . . . . . . . . 37
8.2 Existence, Good Standing, Authority, and Authorizations. . . . . 37
8.3 Subsidiaries; Capital Stock. . . . . . . . . . . . . . . . . . . 37
8.4 Authorization and Contravention. . . . . . . . . . . . . . . . . 37
8.5 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . 38
8.7 Litigation, Claims, Investigations . . . . . . . . . . . . . . . 38
8.8 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.9 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . 39
8.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . 39
8.11 Properties; Liens. . . . . . . . . . . . . . . . . . . . . . . . 39
8.12 Government Regulations . . . . . . . . . . . . . . . . . . . . . 39
8.13 Material Agreements. . . . . . . . . . . . . . . . . . . . . . . 39
8.14 Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.15 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.16 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . 40
8.17 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . 40
8.18 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . 40
8.19 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . 40
8.20 Senior Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9 AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . 41
9.1 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . 41
9.2 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . 41
9.3 Items to be Furnished. . . . . . . . . . . . . . . . . . . . . . 41
9.4 Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.6 Maintenance of Existence, Assets, and Business . . . . . . . . . 42
9.7 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.8 Preservation and Protection of Rights. . . . . . . . . . . . . . 43
9.9 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . 43
9.10 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . 43
9.11 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . 43
9.12 After-Acquired Subsidiaries. . . . . . . . . . . . . . . . . . . 43
9.13 Other Required Guarantors. . . . . . . . . . . . . . . . . . . . 44
SECTION 10 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 44
10.1 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . 44
(ii)
10.2 Debt of Foreign Subsidiaries . . . . . . . . . . . . . . . . . . 44
10.3 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
10.4 Transactions with Affiliates . . . . . . . . . . . . . . . . . . 46
10.5 Compliance with Documents . . . . . . . . . . . . . . . . . . . 46
10.6 Fiscal Year and Accounting Methods . . . . . . . . . . . . . . . 46
10.7 New Business . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.8 Loans, Advances, and Investments . . . . . . . . . . . . . . . . 47
10.9 Distributions and Subordinated Debt Payments . . . . . . . . . . 47
10.10 Restrictions on Companies. . . . . . . . . . . . . . . . . . . . 48
10.11 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.12 Mergers and Dissolutions; Sale of Capital Stock. . . . . . . . . 49
10.13 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 11 DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.1 Payment of Obligation. . . . . . . . . . . . . . . . . . . . . . 49
11.2 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.3 Debtor Relief. . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.4 Judgments and Attachments. . . . . . . . . . . . . . . . . . . . 50
11.5 Misrepresentation. . . . . . . . . . . . . . . . . . . . . . . . 50
11.6 Change of Control. . . . . . . . . . . . . . . . . . . . . . . . 50
11.7 Default Under Other Debt and Agreements. . . . . . . . . . . . . 50
11.8 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . 51
11.9 Validity and Enforceability of Loan Documents. . . . . . . . . . 51
11.10 Environmental Liability. . . . . . . . . . . . . . . . . . . . . 52
SECTION 12 RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . 52
12.1 Remedies Upon Default. . . . . . . . . . . . . . . . . . . . . . 52
12.2 Company Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 52
12.3 Performance by Administrative Agent. . . . . . . . . . . . . . . 52
12.4 Delegation of Duties and Rights. . . . . . . . . . . . . . . . . 53
12.5 Not in Control . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.6 Course of Dealing. . . . . . . . . . . . . . . . . . . . . . . . 53
12.7 Cumulative Rights. . . . . . . . . . . . . . . . . . . . . . . . 53
12.8 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . 53
12.9 Certain Proceedings. . . . . . . . . . . . . . . . . . . . . . . 54
12.10 Expenditures by Lenders. . . . . . . . . . . . . . . . . . . . . 54
12.11 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 13 AGREEMENT AMONG LENDERS. . . . . . . . . . . . . . . . . . . . . 55
13.1 Administrative Agent . . . . . . . . . . . . . . . . . . . . . . 55
13.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.3 Proportionate Absorption of Losses . . . . . . . . . . . . . . . 57
13.4 Delegation of Duties; Reliance . . . . . . . . . . . . . . . . . 57
13.5 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . 57
13.6 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.7 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . 59
13.8 Relationship of Lenders. . . . . . . . . . . . . . . . . . . . . 59
(iii)
13.9 Benefits of Agreement. . . . . . . . . . . . . . . . . . . . . . 59
13.10 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
13.11 Obligations Several. . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 14 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.1 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.2 Nonbusiness Days . . . . . . . . . . . . . . . . . . . . . . . . 59
14.3 Communications . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.4 Form and Number of Documents . . . . . . . . . . . . . . . . . . 60
14.5 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 60
14.6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.8 Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . 60
14.9 Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
14.10 Jurisdiction; Venue; Service of Process; Jury Trial. . . . . . . 61
14.11 Amendments, Consents, Conflicts, and Waivers . . . . . . . . . . 62
14.12 Multiple Counterparts. . . . . . . . . . . . . . . . . . . . . . 63
14.13 Successors and Assigns; Assignments and Participations . . . . . 63
14.14 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . 65
14.15 Designated Senior Indebtedness . . . . . . . . . . . . . . . . . 65
(iv)
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Commitments; Addresses for Notice
Schedule 8.2 - Companies
Schedule 8.3 - Subsidiaries and Stock
Schedule 10.3 - Existing Capital Leases
Schedule 10.4 - Affiliate Transactions
Schedule 10.8 - Existing Investments
Exhibit A-1 - Form of Compliance Certificate
Exhibit A-2 - Form of Permitted Acquisition Compliance Certificate
Exhibit B - Form of Note
Exhibit C-1 - Form of Notice of Borrowing
Exhibit C-2 - Form of Notice of Conversion
Exhibit C-3 - Form of Notice of LC
Exhibit D-1 - Form of POI Guaranty
Exhibit D-2 - Form of Subsidiary Guaranty
Exhibit E - Form of Opinion of Counsel of Borrower
Exhibit F - Form of Assignment and Acceptance Agreement
(viii)
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT is entered into as of December 21, 1998,
among PROTECTION ONE ALARM MONITORING, INC., a Delaware corporation
("BORROWER"), Lenders (hereinafter defined), NATIONSBANK, N.A., a national
banking association, as Administrative Agent (hereinafter defined), FIRST
UNION NATIONAL BANK, a national banking association, as Syndication Agent
(hereinafter defined), and TORONTO DOMINION (TEXAS), INC., as Documentation
Agent (hereinafter defined).
R E C I T A L S
A. Borrower has requested that Lenders extend credit to Borrower in
the form of this Agreement, providing for a revolving credit and letter of
credit facility in the aggregate principal amount of $500,000,000.
B. Upon and subject to the terms and subject to the conditions of
this Agreement, Lenders are willing to extend such credit to Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower, Administrative Agent,
and Lenders agree, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS. As used herein:
ACQUISITION means any transaction or series of related transactions for
the purpose of, or resulting in, directly or indirectly, (a) the acquisition
by any Company of all or substantially all of the assets of a Person or of
any line of business or division of a Person, (b) the acquisition by any
Company of more than fifty percent (50%) of any class of Stock (or similar
ownership interests) of any Person (PROVIDED THAT formation or organization
of any entity shall not constitute an "ACQUISITION" to the extent that the
amount of the loan, advance, investment, or capital contribution in such
entity constitutes a permitted investment under SECTION 10.8); or (c) a
merger, consolidation, amalgamation, or other combination by any Company with
another Person if a Company is the surviving entity; PROVIDED THAT in any
merger involving Borrower, Borrower must be the surviving entity.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Borrowing for such Interest Period by (b) one (1) MINUS the Reserve
Requirement for such Eurodollar Borrowing for such Interest Period.
ADMINISTRATIVE AGENT means NationsBank, N.A., and its permitted
successors or assigns as "ADMINISTRATIVE AGENT" for Lenders under this
Agreement.
AFFILIATE as to any Person means any other Person who directly or
indirectly controls, or is controlled by, or is under common control with, such
Person, and, for purposes of this definition only, "CONTROL," "CONTROLLED BY,"
and "UNDER COMMON CONTROL WITH" mean possession, directly or indirectly, of the
power to
direct or cause the direction of management or policies (whether through
ownership of voting securities, by contract, or otherwise).
AGENTS means, collectively, Administrative Agent, Syndication Agent,
Documentation Agent, and Lead Arranger, and AGENT means any one of the Agents.
AGREEMENT means this Revolving Credit Agreement (as the same may
hereafter be amended, modified, supplemented, or restated from time to time).
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "LENDING OFFICE" of such Lender (or an Affiliate of such
Lender) designated on SCHEDULE 2.1 attached hereto or such other office that
such Lender (or an Affiliate of such Lender) may from time to time specify to
Administrative Agent and Borrower by written notice in accordance with the
terms hereof.
APPLICABLE MARGIN means, as of any date of determination, the interest
margin over Base Rate or the Eurodollar Rate, as the case may be, that
corresponds to the Xxxxx'x Rating AND the S & P Rating set forth below on
such date of determination:
----------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE
LEVEL XXXXX'X S & P RATING MARGIN MARGIN FOR MARGIN FOR
RATING FOR BASE RATE EURODOLLAR COMMITMENT
BORROWINGS BORROWINGS FEES
----------------------------------------------------------------------------------
1 Baa2 or BBB or better 0% 1.00% 0.20%
better
----------------------------------------------------------------------------------
2 Baa3 BBB- 0% 1.25% 0.25%
----------------------------------------------------------------------------------
3 Ba1 BB+ 0.25% 1.50% 0.275%
----------------------------------------------------------------------------------
4 Ba2 BB 0.50% 1.75% 0.30%
----------------------------------------------------------------------------------
5 Ba3 or lower BB- or lower 0.65% 2.00% 0.375%
or or
Not Rated Not Rated
----------------------------------------------------------------------------------
For purposes of the foregoing: (a) if the Xxxxx'x Rating and the S & P Rating
shall fall within different LEVELS (but not more than one (1) LEVEL apart),
then the Applicable Margin shall be determined by reference to the
numerically lower LEVEL (E.G., if the S & P Rating is in LEVEL 1 and the
Xxxxx'x Rating is in LEVEL 2, then the Applicable Margin shall be determined
by reference to LEVEL 1); (b) if the Xxxxx'x Rating and the S & P Rating
shall fall within different LEVELS (and by more than one (1) LEVEL), then the
Applicable Margin shall be determined by reference to the LEVEL that is one
(1) LEVEL higher than the numerically lower LEVEL (E.G., if the S & P Rating
is in LEVEL 1 and the Xxxxx'x Rating is in LEVEL 4, then the Applicable
Margin shall be determined by reference to LEVEL 2); and (c) if either
Xxxxx'x or S & P no longer publishes ratings and Borrower and Administrative
Agent cannot agree on another ratings agency to replace Xxxxx'x or S & P, as
the case may be, then the Xxxxx'x Rating or the S & P Rating, as the case may
be, shall be deemed to be "NOT RATED." Each change in the Applicable Margin
shall be effective commencing on the fifth (5th) Business Day following the
earlier to occur of (i) Administrative Agent's receipt of notice from
Borrower, as required
2
in SECTION 9.3(f), of a change in the Xxxxx'x Rating or the S & P Rating, and
(ii) Administrative Agent's actual knowledge of a change in the Xxxxx'x
Rating or the S & P Rating.
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations,
consents, franchises, licenses, certificates, and permits from, any
Governmental Authority.
BASE RATE means, for any day, the rate per annum equal to THE GREATER
OF (a) the Federal Funds Rate for such day plus one-half of one percent
(.5%), and (b) the Prime Rate for such day. Any change in the Base Rate due
to a change in the Prime Rate or the Federal Funds Rate shall be effective on
the effective date of such change in the Prime Rate or the Federal Funds
Rate, as applicable.
BASE RATE BORROWING means a Borrowing bearing interest at the SUM of
the Base Rate PLUS the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this Agreement.
BORROWING means any amount disbursed (a) by one or more Lenders to
Borrower under the Loan Documents, whether such amount constitutes an
original disbursement of funds, the Continuation of an amount outstanding, or
payment of a draft under an LC, or (b) by any Lender in accordance with, and
to satisfy the obligations of any Obligor under, any Loan Document.
BORROWING DATE is defined in SECTION 2.4(a).
BUDGET means the annual financial budget for the Companies delivered to
Administrative Agent pursuant to SECTION 9.3(c), together with any
adjustments, if any, to any such budget listed on a schedule to a Permitted
Acquisition Compliance Certificate provided to Administrative Agent in
connection with a Material Acquisition.
BUSINESS DAY means (a) for all purposes, any day OTHER THAN Saturday,
Sunday, and any other day on which commercial banking institutions are
required or authorized by Law to be closed in Dallas, Texas, New York, New
York, or Los Angeles, California, and (b) in addition to the foregoing, in
respect of any Eurodollar Borrowing, a day on which dealings in United States
dollars are conducted in the London interbank market and commercial banks are
open for international business in London.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CLOSING DATE means the date upon which this Agreement has been executed
by Borrower and the Credit Parties and all conditions precedent specified in
SECTION 7.1 have been satisfied or waived.
CODE means the INTERNAL REVENUE CODE OF 1986, as amended.
COMMITMENT USAGE means, at the time of any determination thereof, THE
SUM OF (without duplication) (a) the Total Principal Debt, PLUS (b) the LC
Exposure.
3
COMMITTED SUM means, for any Lender at any date of determination, the
amount stated beside each Lender's name on the most-recently amended SCHEDULE
2.1 (which amount is subject to increase, reduction, or cancellation in
accordance with this Agreement).
COMPANIES means, as of any date, POI and each of its Subsidiaries, and
COMPANY means any one of the Companies.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible
Officer, substantially in the form of EXHIBIT A-1.
CONSEQUENTIAL LOSS means any loss or expense which any Lender
reasonably incurs in respect of a Eurodollar Borrowing as a consequence of
any event described in SECTION 4.5.
CONSOLIDATED DEBT means, as of any date of determination, all Debt of
the Companies, on a consolidated basis, of the types described in CLAUSES
(a)(i) and (a)(ii) of the definition of Debt.
CONSOLIDATED EBITDA means, for any period of determination, the EBITDA
of the Companies, on a consolidated basis.
CONSOLIDATED INTEREST EXPENSE means, for any period of determination,
the Interest Expense of the Companies, on a consolidated basis.
CONSTITUENT DOCUMENTS means, with respect to any Person, its articles
or certificate of incorporation, bylaws, partnership agreements, limited
liability company agreements, trust agreement, or such other document as may
govern such Person's formation or organization.
CONTINUE, CONTINUATION, and CONTINUED refers to the continuation
pursuant to SECTION 3.10 hereof of a Eurodollar Borrowing from one Interest
Period to the next Interest Period.
CONVERT, CONVERSION, and CONVERTED refers to a conversion pursuant to
SECTION 3.10 of one Type of Borrowing into another Type of Borrowing.
CONVERTIBLE NOTE INDENTURE means that certain Indenture dated as of
August 29, 1996, as supplemented by that certain Supplemental Indenture No. 1
for the 6-3/4 Convertible Senior Subordinated Notes due 2003 dated as of
September 20, 1996, by and among State Street Bank and Trust Company, as
Trustee, Borrower, and POI, as the same may be amended, supplemented, or
otherwise modified from time to time.
CONVERTIBLE NOTES means the notes issued pursuant to the Convertible
Note Indenture.
CREDIT PARTIES means Agents and Lenders, and "CREDIT PARTY" means any
one of the Credit Parties.
CURRENT FINANCIALS means, at the time of any determination thereof, the
more recently delivered to Lenders of either (a) the Financial Statements for
the fiscal year ended December 31, 1997, and the nine-month period ended
September 30, 1998, calculated on a consolidated basis for the Companies, or
(b) the Financial Statements required to be delivered under SECTIONS 9.3(a)
or 9.3(b), as the case may be.
4
DEALER ACQUISITIONS means the acquisition of the assets or contracts
(but not Stock) of a Person who is engaged in the business of originating
security, monitoring, and emergency response contracts.
DEBT means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations, and
obligations under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (b) all obligations of
the type referred to in CLAUSES (a)(i) through (a)(iii) preceding of other
Persons for the payment of which such Person is responsible or liable as
obligor, guarantor, or otherwise; (c) all obligations of the type referred to
in CLAUSES (a)(i) through CLAUSE (a)(iii) and CLAUSE (b) preceding of other
Persons secured by any Lien on any property or asset of such Person (whether
or not such obligation is assumed by such Person), the amount of such
obligation being deemed to be the lesser of the fair value of such property
or assets or the amount of the obligation so secured as determined in good
faith by such Person; (d) the face amount of all letters of credit and
banker's acceptances issued for the account of such Person, and without
duplication, all drafts drawn and unpaid thereunder; and (e) net liabilities
under Financial Xxxxxx.
DEBTOR RELIEF LAWS means the BANKRUPTCY CODE OF THE UNITED STATES OF
AMERICA and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization,
fraudulent transfer or conveyance, suspension of payments, or similar Laws
from time to time in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 11.
DEFAULTING LENDER means, as of any date, any Lender that has (a) failed
to make a Borrowing required to be made by it hereunder, or (b) given notice
to Administrative Agent or Borrower that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Advances hereunder
(unless such notice is given by all Lenders).
DEFAULT RATE means a per annum rate of interest equal from day to day
to THE LESSER OF (a) the sum of the Base Rate PLUS the Applicable Margin for
Base Rate Borrowings PLUS two percent (2%), and (b) the Maximum Rate.
DISTRIBUTION for any Person means, with respect to any Stock issued by
such Person, (a) the retirement, redemption, purchase, or other acquisition
for value of any such Stock, (b) the declaration or payment of any dividend
on or with respect to any such Stock, and (c) any other payment by such
Person with respect to such Stock.
DOCUMENTATION AGENT means, collectively, Toronto Dominion (Texas), Inc.
and its respective permitted successors or assigns as "DOCUMENTATION AGENT"
under this Agreement.
DOLLARS and the symbol $ means lawful money of the United States of
America.
DOMESTIC SUBSIDIARY means any Subsidiary of POI other than a Foreign
Subsidiary.
5
EBITDA means, with respect to any Person for any fiscal period, an
amount equal to (a) consolidated net income of such Person for such period,
MINUS (b) THE SUM OF (i) income tax credits, (ii) interest income, (iii)
gains from extraordinary items for such period, and (iv) any aggregate net
gain during such period arising from the sale, exchange, or other disposition
of capital assets by such Person (including any fixed assets, whether
tangible or intangible, and all inventory sold in conjunction with the
disposition of fixed assets, but excluding asset sales in the ordinary course
of business permitted pursuant to SECTION 10.11), in each case to the extent
included in the calculation of consolidated net income of such Person for
such period in accordance with GAAP, but without duplication, MINUS (c) any
cash payments made in respect of any item of extraordinary loss accrued
during a prior period and added back to EBITDA in such prior period pursuant
to CLAUSE (d)(v) below, PLUS (d) THE SUM OF (i) any provision for income
taxes, (ii) Interest Expense, (iii) the amount of depreciation and
amortization for such period, (iv) the amount of any deduction to
consolidated net income as the result of any Stock option expense, (v) the
amount of any item of extraordinary loss not paid in cash in such period, and
(vi) the absolute value of any aggregate net loss during such period arising
from the sale, exchange, or other disposition of capital assets by such
Person (including any fixed assets, whether tangible or intangible, and all
inventory sold in conjunction with the disposition of fixed assets, but
excluding asset sales in the ordinary course of business permitted pursuant
to SECTION 10.11), in each case to the extent included in the calculation of
consolidated net income of such Person for such period in accordance with
GAAP, but without duplication. In the case of any Permitted Acquisition
during any period of calculation, EBITDA shall, for the purposes of the
foregoing calculations, be adjusted to give effect to such Permitted
Acquisition, as if such Permitted Acquisition occurred on the first (1st) day
of such period, by increasing, if positive, or decreasing, if negative,
EBITDA by the EBITDA of such newly-acquired business during such period of
calculation occurring prior to the date of such Permitted Acquisition.
ELIGIBLE ASSIGNEE means: (a) a Lender; (b) an Affiliate of a Lender (so
long as such assignment is not made in conjunction with the sale of such
Affiliate); and (c) any other Person approved by Administrative Agent (which
approval will not be unreasonably withheld or delayed by Administrative
Agent) and, unless a Payment Default has occurred and is continuing at the
time any assignment is effected in accordance with SECTION 14.13, Borrower,
such approval not to be unreasonably withheld or delayed by Borrower and such
approval to be deemed given by Borrower if no objection is received by the
assigning Lender and Administrative Agent from Borrower within five (5)
Business Days after notice of such proposed assignment has been provided by
the assigning Lender to Borrower; PROVIDED, HOWEVER, that neither Borrower
nor any Affiliate of Borrower shall qualify as an Eligible Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by TITLE
IV of ERISA and established or maintained by Borrower or any ERISA Affiliate,
but not including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of the environment (including air, groundwater,
surface water, soil, other environmental media, or natural resources) and
remediation to the environment, (b) the regulation of any Hazardous
Substances, or (c) the Release or threatened Release of Hazardous Substances,
including, without limitation, the COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT (42 U.S.C. SECTION 9601 ET SEQ.) ("CERCLA"),
the CLEAN AIR ACT (42 U.S.C. SECTION 7401 ET SEQ.), the FEDERAL WATER
POLLUTION CONTROL ACT, as amended by the CLEAN WATER ACT (33 U.S.C. SECTION
1251 ET SEQ.), the FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (7
U.S.C. SECTION 136 ET SEQ.), the EMERGENCY PLANNING AND COMMUNITY RIGHT TO
KNOW ACT OF 1986 (42 U.S.C. SECTION 11001 ET SEQ.), the HAZARDOUS MATERIALS
TRANSPORTATION ACT (49 U.S.C. SECTION 1801 ET SEQ.), the NATIONAL
ENVIRONMENTAL POLICY ACT OF 1969 (42 U.S.C. SECTION 4321 ET SEQ.), the OIL
POLLUTION ACT (33 U.S.C. SECTION 2701 ET SEQ.), the RESOURCE CONSERVATION AND
RECOVERY ACT (42 U.S.C. SECTION 6901 ET SEQ.), the RIVERS AND HARBORS ACT (33
U.S.C. SECTION 401 ET
6
SEQ.), the SAFE DRINKING WATER ACT (42 U.S.C. SECTION 201 and SECTION 300f ET
SEQ.), the SOLID WASTE DISPOSAL ACT, as amended by the RESOURCE CONSERVATION
AND RECOVERY ACT OF 1976 and the HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
(42 U.S.C. SECTION 6901 ET SEQ.), the TOXIC SUBSTANCES CONTROL ACT (15 U.S.C.
SECTION 2601 ET SEQ.), and analogous state and local Laws, as any of the
foregoing may have been and may be amended or supplemented from time to time,
and any analogous future enacted or adopted Law.
ERISA means the EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, as
amended.
ERISA AFFILIATE means any company or trade or business (whether or not
incorporated) which, for purposes of TITLE IV of ERISA, is a member of
Borrower's controlled group or which is under common control with Borrower
within the meaning of SECTION 414(b), (c), (m), or (o) of the Code.
EURODOLLAR RATE means, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow Xxxxx Markets (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 (2) Business Days prior
to the first (1st) day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, then the term
"EURODOLLAR RATE" shall mean, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first (1st) day of such
Interest Period for a term comparable to such Interest Period; PROVIDED,
HOWEVER, if more than one (1) rate is specified on Reuters Screen LIBO Page,
then the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR BORROWING means a Borrowing bearing interest at the SUM of
the Adjusted Eurodollar Rate PLUS the Applicable Margin for Eurodollar
Borrowings.
EXCLUDED TAXES is defined in SECTION 4.6(a).
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
FACILITY means the credit facility as described in and subject to the
limitations set forth in SECTION 2.1 hereof.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such
day; PROVIDED THAT (a) if such day is not a Business Day, then 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,
then the Federal Funds Rate for such day shall be the average rate quoted to
Administrative Agent (in its individual capacity) at approximately 10:00 a.m.
(Dallas, Texas time) on such day received by Administrative Agent from three
(3) Federal funds brokers of recognized national standing selected by
Administrative Agent in its sole discretion.
7
FINANCIAL HEDGE means a swap, collar, floor, cap, or other contract
which is intended to reduce or eliminate the risk of fluctuations in interest
rates.
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows
prepared in accordance with GAAP, which statements of operations and
statements of cash flows shall be in comparative form to the corresponding
period of the preceding fiscal year, and which balance sheets and statements
of shareholders' investments shall be in comparative form to the prior fiscal
year-end figures.
FOREIGN SUBSIDIARY means any Subsidiary of POI which is not organized
under the Laws of any State of the United States of America or the District
of Columbia.
GAAP means generally accepted accounting principles in the United
States of America as set forth in the opinions and pronouncements of the
American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board which are
applicable from time to time.
GOVERNMENTAL AUTHORITY means any applicable (a) local, state,
municipal, or federal judicial, executive, or legislative instrumentality,
(b) private arbitration board or panel presiding over binding arbitration, or
(c) central bank.
GUARANTORS means POI, the Subsidiary Guarantors, and any other Person
that is required to execute a guaranty pursuant to SECTION 6.3, and GUARANTOR
means any one of the Guarantors.
GUARANTIES means the POI Guaranty, the Subsidiary Guaranty, and any
other guaranty executed pursuant to SECTION 6.3, and GUARANTY means any one
of the Guaranties.
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
defined, or classified as a hazardous waste, hazardous material, pollutant,
contaminant, or toxic or hazardous substance by any applicable Governmental
Authority, including without limitation, any hazardous substance within the
meaning of SECTION 101 of CERCLA, or (b) any other substances regulated by a
Governmental Authority having jurisdiction over any Company with respect to
environmental matters because of their effect or potential effect on public
health and/or the environment, including, without limitation, (i) petroleum,
oil, gasoline, natural gas or liquids, fuel oil, motor oil, waste oil, diesel
fuel, jet fuel, and other petroleum hydrocarbons, (ii) regulated asbestos and
asbestos-containing materials in any form, (iii) polychlorinated biphenyls,
(iv) urea formaldehyde foam, (v) lead paint, and (vi) radioactive material.
IMMATERIAL ACQUISITION means any single Acquisition involving an
aggregate consideration (including, without limitation, cash paid, Stock
issued, or Debt issued or assumed) in an amount that does not exceed
$10,000,000.
INDEMNIFIED PARTIES is defined in SECTION 12.11.
INTEREST COVERAGE RATIO means, as of any date of determination thereof,
THE RATIO OF (a) THE PRODUCT OF (i) Consolidated EBITDA for the most-recent
fiscal quarter ending on or prior to the date of determination, and (ii) four
(4), to (b) Consolidated Interest Expense for the most-recent four (4) fiscal
quarters ending on or prior to the date of determination.
8
INTEREST EXPENSE means, for any period of calculation thereof, for any
Person (a) interest expense determined in accordance with GAAP (excluding the
fees and other amounts payable on or before the Closing Date pursuant to
SECTION 5.2 and the fees and expenses incurred in connection with the Senior
Subordinated Note Indenture), MINUS (b) cash interest income received by such
Person during such period.
INTEREST PERIOD is defined in SECTION 3.9.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or binding interpretations of any Governmental Authority.
LC means the letter(s) of credit issued hereunder in the form agreed
upon among Borrower, Administrative Agent, and the beneficiary thereof at the
time of issuance thereof and participated in by Lenders pursuant to the terms
and conditions of SECTION 2.2 hereof.
LC AGREEMENT means a letter of credit application and agreement (in
form and substance reasonably satisfactory to Administrative Agent) submitted
by Borrower to Administrative Agent for an LC for Borrower's own account (and
for the benefit of Borrower or any other Company).
LC EXPOSURE means, at any time and without duplication, THE SUM OF (a)
the aggregate undrawn portion of all uncancelled and unexpired LCs, PLUS (b)
the aggregate unpaid reimbursement obligations of Borrower in respect of
drawings of drafts under any LC; PROVIDED THAT LC Exposure shall exclude the
aggregate undrawn portion of any uncanceled or unexpired LCs that have been
cash collateralized or for which back-up letters of credit have been provided
pursuant to SECTION 2.2(h).
LC SUBFACILITY means a subfacility for the issuance of LCs (the LC
Exposure in connection with which may never exceed $25,000,000), as described
in and subject to the limitations of SECTION 2.2.
LEAD ARRANGER means NationsBanc Xxxxxxxxxx Securities LLC, and its
successors and assigns.
LENDERS means, on any date of determination, the financial institutions
named on SCHEDULE 2.1 (as the same may be amended from time to time by
Administrative Agent to reflect the assignments made in accordance with
SECTION 14.13(b) of this Agreement and delivered to Borrower and the Credit
Parties), and subject to the terms and conditions of this Agreement, their
respective successors and assigns.
LEVERAGE RATIO means, as of any date of determination thereof, THE
RATIO OF (a) Consolidated Debt outstanding on such date, to (b) THE PRODUCT
OF (i) Consolidated EBITDA for the most-recent fiscal quarter ending on or
prior to the date of determination, and (ii) four (4).
LIEN means, with respect to any property or assets, any lien, mortgage,
collateral assignment, hypothecation, security interest, pledge, assignment,
charge, conditional sale or title retention agreement, levy, execution,
seizure, attachment, garnishment, or other encumbrance of any kind in respect
of such property or assets.
LIFELINE means Lifeline Systems, Inc., a Massachusetts corporation.
9
LIFELINE ACQUISITION means the Acquisition of all of the issued and
outstanding Stock of Lifeline pursuant to that certain Agreement and Plan of
Contribution and Merger dated as of October 18, 1998, as amended on October
28, 1998, among POI, Protection One Acquisition Holding Corporation, P-1
Merger Sub, Inc. (Mass.), P-1 Merger Sub, Inc. (Del.), and Lifeline.
LITIGATION means any action by or before any Governmental Authority.
LOAN DOCUMENTS means (a) this Agreement, any Notes, the Guaranties, the
LCs, and the LC Agreements, (b) all agreements, documents, or instruments in
favor of any Credit Party ever delivered pursuant to this Agreement or
otherwise delivered in connection with all or any part of the Obligation, (c)
any Financial Hedge between any Obligor and any Credit Party or any Affiliate
of any Credit Party, and (d) any and all future renewals, extensions,
restatements, reaffirmations, or amendments of, or supplements to, all or any
part of the foregoing.
MATERIAL ACQUISITION means any single Acquisition or series of related
Acquisitions involving an aggregate consideration (including, without
limitation, cash paid, Stock issued, or Debt issued or assumed) in an amount
in excess of $125,000,000.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or
events which, individually or collectively, could reasonably be expected to
result in any (a) material impairment of the ability of any Obligor to
perform any of its payment or other material obligations under the Loan
Documents or the ability of any Credit Party to enforce any such obligations
or any of their respective Rights under the Loan Documents, (b) material and
adverse effect on the business, properties, condition (financial or
otherwise), or results of operations of the Companies, taken as a whole, or
(c) Default.
MATERIAL COMPANIES means POI and its Material Subsidiaries, and
MATERIAL COMPANY means any one of the Material Companies.
MATERIAL STATE means any State of the United States of America or the
District of Columbia in which any Obligor is conducting business and where
the failure to qualify to do business as a foreign corporation or other
entity would be a Material Adverse Event.
MATERIAL SUBSIDIARY of POI means, at any time, any of:
(a) Borrower;
(b) any Domestic Subsidiary of POI that has (or, in respect of a
newly formed or acquired Subsidiary, would have on a pro forma basis)
contributed at least fifteen percent (15%) of either (i) the gross revenues
of the Companies for the immediately preceding fiscal year of the Companies,
or (ii) the consolidated net income of the Companies for the immediately
preceding fiscal year of the Companies, or (iii) the consolidated total
assets of the Companies as of the last day of the immediately preceding
fiscal year of the Companies (any Domestic Subsidiaries that do not meet the
requirements of this CLAUSE (b) being "INDIVIDUAL IMMATERIAL SUBSIDIARIES");
(c) such additional Domestic Subsidiaries that are Individual Immaterial
Subsidiaries selected by Borrower and approved by Administrative Agent so that
all other Individual Immaterial Subsidiaries shall collectively contribute
fifteen percent (15%) or less of each of (i) the gross revenues of the Companies
for
10
the immediately preceding fiscal year of the Companies, or (ii) the
consolidated net income of the Companies for the immediately preceding fiscal
year of the Companies, or (iii) the consolidated total assets of the
Companies as of the last day of the immediately preceding fiscal year of the
Companies.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest
which, under applicable Law, such Lender is permitted to contract for,
charge, take, reserve, or receive on the Obligation.
MOODY'S means Xxxxx'x Investors Service, Inc.
XXXXX'X RATING means the most recently-announced rating from time to
time of Moody's assigned to any class of long-term senior, unsecured debt
securities issued by Borrower, as to which no letter of credit or guaranty or
third-party credit support (other than from the Companies) is in place,
regardless of whether all or any part of such Indebtedness has been issued at
the time such rating was issued.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in SECTIONS
3(37) or 4001(a)(3) of ERISA or SECTION 414(f) of the Code to which any
Company or any ERISA Affiliate has any obligation or liability (contingent or
otherwise).
NATIONSBANK means NationsBank, N.A., a national banking association,
and its successors and assigns.
NOTES means any promissory notes executed pursuant to SECTION
3.1(a)(ii), and NOTE means any one of the Notes.
NOTICE OF BORROWING means a notice substantially in the form of EXHIBIT
C-1.
NOTICE OF CONVERSION means a notice substantially in the form of
EXHIBIT C-2.
NOTICE OF LC means a notice substantially in the form of EXHIBIT C-3.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof,
now or hereafter owed to any Credit Party or any Affiliate of any Credit
Party by any Obligor arising from, by virtue of, or pursuant to any Loan
Document, together with all interest accruing thereon, fees, costs, and
expenses (including, without limitation, all reasonable attorneys' fees and
expenses incurred in the enforcement or collection thereof as provided in
SECTION 12.10 or in any other Loan Document) payable under the Loan Documents.
OBLIGORS means Borrower and Guarantors, and OBLIGOR means any one of
the Obligors.
OTHER REQUIRED GUARANTOR is defined in SECTION 6.3.
OTHER TAXES is defined in SECTION 4.6(b).
PARTICIPANT is defined in SECTION 14.13(e).
PAYMENT DEFAULT means any Default described in SECTION 11.1.
11
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PERMITTED ACQUISITIONS means:
(a) any Dealer Acquisition;
(b) the Lifeline Acquisition;
(c) any Immaterial Acquisition, PROVIDED THAT the aggregate
consideration with respect to such Immaterial Acquisition, when combined with
the aggregate consideration of all other Immaterial Acquisitions during the
twelve (12) month period prior to such Immaterial Acquisition, does not
exceed $10,000,000;
(d) any Acquisition by any Company with respect to which each of the
following requirements shall have been satisfied:
(i) as of the closing of any Acquisition, the Acquisition has been
approved and recommended by the board of directors (or other equivalent
governing body, if any) of the Person to be acquired or from which such
assets or business are to be acquired;
(ii) as of the closing of any Acquisition, after giving effect to
such Acquisition, the acquiring party must be Solvent and the Companies,
on a consolidated basis, must be Solvent;
(iii) as of the closing of any Acquisition, no Potential Default or
Default shall exist or occur as a result of, and after giving effect to,
such Acquisition;
(iv) as of the closing of any Acquisition, if such Acquisition is
structured as a merger, Borrower, (or if such merger is with any
Subsidiary of Borrower, then such Subsidiary) must be the surviving entity
after giving effect to such merger;
(v) the making and performance of the related acquisition
agreements with respect to such Acquisition, and all other agreements,
documents, and actions required thereunder, will not violate any provision
of any Law, except where such violation could not be a Material Adverse
Event, and will not violate any provisions of the Constituent Documents of
any Company, or constitute a default under any agreement by which any
Company or its respective property may be bound, except where such default
could not be a Material Adverse Event; and
(vi) if such Acquisition is a Material Acquisition,
contemporaneously with the closing of such Material Acquisition, Borrower
shall have delivered to Administrative Agent (A) a Permitted Acquisition
Compliance Certificate, demonstrating pro forma compliance with the terms
and conditions of the Loan Documents, after giving effect to the
Acquisition, and (B) any proposed adjustments to the Budget most-recently
delivered pursuant to the terms of this Agreement as a result of such
Acquisition; or
(e) any other Acquisition for which the prior written consent of
Required Lenders has been obtained (and Lenders agree to respond to a request
for consent to any such Acquisition within ten (10)
12
Business Days following Borrower's request for such consent; PROVIDED THAT
the failure to provide a response to such request for consent shall be deemed
to be a refusal to grant such consent).
PERMITTED ACQUISITION COMPLIANCE CERTIFICATE means a certificate signed by
a Responsible Officer of Borrower, substantially in the form of EXHIBIT A-2.
PERMITTED LIENS means Liens permitted under SECTION 10.3 as described in
such SECTION.
PERSON means any individual, entity, or Governmental Authority.
POI means (a) prior to the Lifeline Acquisition, Protection One, Inc., a
Delaware corporation, and (b) on and after the Lifeline Acquisition, Protection
One Acquisition Holding Corp., a Delaware corporation (whose name shall be
changed to Protection One, Inc. following the Lifeline Acquisition).
POI GUARANTY means (a) an Unconditional Guaranty of Payment in
substantially the form of EXHIBIT D-1, executed and delivered by POI, and (b)
any amendments, modifications, supplements, restatements, ratifications, or
reaffirmations thereof made from time to time in accordance with the Loan
Documents.
POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
PRIME RATE means, as of any date, the per annum rate of interest
established by NationsBank on such date as its prime rate, which rate may not be
the lowest rate of interest charged by NationsBank to its customers.
PRINCIPAL DEBT means, for a Lender and at any time, the unpaid principal
balance of all outstanding Borrowings from such Lender hereunder as of such
date.
PRO RATA or PRO RATA PART, for each Lender, means (a) for purposes of any
commitment to fund (or to purchase participations pursuant to SECTION 2.2) in
respect of the Facility or the L/C Subfacility, respectively, the percentage
stated opposite such Lender's name as set forth on SCHEDULE 2.1 or on the most
recently amended SCHEDULE 2.1, if any, prepared by Administrative Agent pursuant
to SECTION 14.13, (b) for purposes of sharing any amount or fee payable to any
Lender in respect of the Facility or the L/C Subfacility, respectively, the
proportion (whether held directly or through a participation therein pursuant to
SECTION 2.2 and determined after giving effect thereto) which the portion of the
Principal Debt or the LC Exposure, as applicable, owed to such Lender bears to
the Principal Debt or LC Exposure, as applicable, owed to all Lenders at the
time in question, and (c) for all other purposes, the proportion which the
portion of the Principal Debt owed to such Lender bears to the Principal Debt
owed to all Lenders at the time in question, or if no Principal Debt is
outstanding, then the proportion that the aggregate of such Lender's Committed
Sum bears to the Total Commitment then in effect.
REGISTER is defined in SECTION 14.13(c).
REGULATION D means Regulation D of the Board of Governors of the Federal
Reserve System, as amended.
13
REGULATION U means Regulation U of the Board of Governors of the Federal
Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the
environment (including air, groundwater, surface water, soil, other
environmental media, or natural resources).
REPORTABLE EVENT shall have the meaning specified in SECTION 4043 of ERISA
or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the thirty (30) day notice requirement is waived
under applicable PBGC regulations other than those events described in
SECTIONS 2615.11, 2615.15 and 2615.19 of such regulations, including each such
provision as it may subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
REQUIRED LENDERS means (a) on any date of determination prior to
termination of the Total Commitment, those Lenders (other than Defaulting
Lenders) holding more than fifty percent (50%) of the Total Commitment
(excluding the Committed Sums of any Defaulting Lenders), or (b) on any date of
determination occurring after the Total Commitment has terminated, those Lenders
holding more than fifty percent (50%) of the outstanding Total Principal Debt
(excluding the Principal Debt of any Defaulting Lenders).
RESERVE REQUIREMENT means, at any time, the maximum rate at which reserves
(including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against, in the case of
Eurodollar Borrowings, "EUROCURRENCY LIABILITIES" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is to be determined,
or (b) any category of extensions of credit or other assets which include
Eurodollar Borrowings. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
RESPONSIBLE OFFICER of Borrower means its chairman, president, chief
executive officer, chief financial officer (or officer having comparable
duties), treasurer, or secretary, or any vice president, assistant treasurer, or
assistant secretary, or, for all purposes under the Loan Documents, any other
officer designated from time to time by the Board of Directors of Borrower,
which designated officer is reasonably acceptable to Administrative Agent.
RIGHTS means rights, remedies, powers, privileges, and benefits.
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Documents.
SENIOR NOTE INDENTURE means that certain Indenture for the 7-3/8 Senior
Notes due 2005 dated as of August 16, 1998, by and among the Bank of New York,
as Trustee, Borrower and POI, as the same may be amended, supplemented, or
otherwise modified from time to time.
14
SENIOR NOTES means the notes issued pursuant to the Senior Note Indenture.
SENIOR SUBORDINATED NOTE INDENTURE means that certain Indenture for the
8-1/8% Senior Subordinated Notes due 2009 dated as of December 21, 1998, by and
among Bank of New York, as Trustee, Borrower, as issuer, and the Guarantors
named therein, as the same may be amended, supplemented, or otherwise modified
from time to time.
SOLVENT means, as to a Person, that (a) the aggregate fair market value of
such Person's assets exceeds its liabilities (whether contingent, subordinated,
unmatured, unliquidated, or otherwise), (b) such Person has sufficient cash flow
to enable it to pay its Debts as they mature, and (c) such Person does not have
unreasonably small capital to conduct such Person's businesses.
S & P means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., a New York corporation.
S & P RATING means the most recently-announced rating from time to time of
S & P assigned to any class of long-term senior, unsecured debt securities
issued by Borrower, as to which no letter of credit or guaranty or third-party
credit support (other than from the Companies) is in place, regardless of
whether all or any part of such Indebtedness has been issued at the time such
rating was issued.
STOCK means all shares, options, warrants, general or limited partnership
interests, membership interests, or other ownership interests (regardless of how
designated) of or in a corporation, partnership, limited liability company,
trust, or other entity, whether voting or nonvoting, including common stock,
preferred stock, or any other "EQUITY SECURITY" (as such term is defined in RULE
3a11-1 of the GENERAL RULES AND REGULATIONS promulgated by the Securities and
Exchange Commission under the SECURITIES EXCHANGE ACT OF 1934, as amended).
SUBORDINATED DEBT means any Debt of any Obligor subordinated to the
Obligation, including, without limitation, Debt issued pursuant to the
Convertible Note Indenture, the Senior Subordinated Note Indenture, and the
Subordinated Note Indenture.
SUBORDINATED NOTE INDENTURE means that certain Indenture for the 13-5/8
Senior Subordinated Discount Notes due 2005 dated as of May 17, 1995, by and
among The First National Bank of Boston, as Trustee, Borrower, as issuer, and
POI, Protection One Alarm Services, Inc., and A-Able Lock & Alarm, Inc., as
guarantors, as the same may be amended, supplemented, or otherwise modified from
time to time.
SUBSIDIARY of any Person means (a) any entity of which an aggregate of
more than fifty percent (50%) (in number of votes) of the Stock is owned of
record or beneficially, directly or indirectly, by such Person, or (b) any
partnership (limited or general) of which such Person shall at any time be the
general partner.
SUBSIDIARY GUARANTORS means each Material Subsidiary of POI that has
executed the Subsidiary Guaranty, and SUBSIDIARY GUARANTOR means any one of the
Subsidiary Guarantors.
SUBSIDIARY GUARANTY means (a) an Unconditional Guaranty of Payment in
substantially the form of EXHIBIT D-2, executed and delivered by each Subsidiary
Guarantor pursuant to the requirements of
15
SECTION 6.2, and (b) any amendments, modifications, supplements,
restatements, ratifications, or reaffirmations thereof made from time to time
in accordance with the Loan Documents.
SYNDICATION AGENT means, collectively, First Union National Bank and its
respective permitted successors or assigns as "SYNDICATION AGENT" under this
Agreement.
TAXES means, for any Person, taxes, assessments, duties, levies, imposts,
deductions, charges, or withholdings, or other governmental charges or levies
imposed upon such Person, its income, or any of its properties, franchises, or
assets.
TERMINATION DATE means the EARLIER of (a) December 21, 2001, and (b) the
effective date of any other termination or cancellation of Lenders' commitments
to lend under, and in accordance with, this Agreement.
TOTAL COMMITMENT means, on any date of determination, the sum of all
Committed Sums for all Lenders (as the same may have been reduced or canceled as
provided in the Loan Documents) then in effect.
TOTAL PRINCIPAL DEBT means, at any time, THE SUM OF the Principal Debt of
all Lenders.
TYPE means either a Base Rate Borrowing or a Eurodollar Borrowing, as the
context may require.
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding Stock (except shares
required as directors' qualifying Stock) shall be owned by Borrower or one or
more of its Wholly-owned Subsidiaries.
YEAR 2000 COMPLIANT is defined in SECTION 8.19.
YEAR 2000 PROBLEM is defined in SECTION 8.19.
1.2 NUMBER AND GENDER OF WORDS; OTHER REFERENCES. Unless otherwise
specified in the Loan Documents, (a) where appropriate, the singular includes
the plural and VICE VERSA, and words of any gender include each other gender,
(b) heading and caption references may not be construed in interpreting
provisions, (c) monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Document in which they are used, (e)
references to "TELECOPY," "FACSIMILE," "FAX," or similar terms are to facsimile
or telecopy transmissions, (f) references to "INCLUDING" mean including without
limiting the generality of any description preceding that word, (g) the rule of
construction that references to general items that follow references to specific
items are limited to the same type or character of those specific items is not
applicable in the Loan Documents, (h) references to any Person include that
Person's heirs, personal representatives, successors, trustees, receivers, and
permitted assigns, (i) references to any Law include every amendment or
supplement to it, rule and regulation adopted under it, and successor or
replacement for it, and (j) references to any Loan Document or other document
include every renewal and extension of it, amendment and supplement to it, and
replacement or substitution for it.
1.3 ACCOUNTING PRINCIPLES. All accounting and financial terms used in
the Loan Documents and the compliance with each financial covenant therein shall
be determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
16
period are comparable in all material respects to those applied during the
preceding comparable period. If Borrower or any Credit Party determines that a
change in GAAP from that in effect on the date hereof has altered the treatment
of certain financial data to its detriment under this Agreement, then such party
may, by written notice to Administrative Agent not later than ten (10) days
after the effective date of such change in GAAP, request renegotiation of the
financial covenants affected by such change whereupon the Borrower and
Administrative Agent, on behalf of Lenders, shall negotiate in good faith for a
period of not more than thirty (30) days regarding amendments to any affected
covenants to make such covenants consistent with the prior covenants and GAAP,
as then in effect, and, after any such revision as shall be agreed to by
Borrower and Required Lenders, this Agreement will be construed in accordance
with GAAP as then in effect. If Borrower and Required Lenders have not agreed
on revised covenants within thirty (30) days after delivery of such notice,
then, for purposes of this Agreement, GAAP will mean generally accepted
accounting principles on the date just prior to the date on which the change
that gave rise to the renegotiation occurred.
SECTION 2 BORROWING PROVISIONS.
2.1 COMMITMENTS. Subject to and in reliance upon the terms, conditions,
representations, and warranties in the Loan Documents, each Lender severally and
not jointly agrees to lend to Borrower such Lender's Pro Rata Part of one or
more Borrowings not to exceed such Lender's Committed Sum, which, may be repaid
and reborrowed from time to time in accordance with the terms and provisions of
the Loan Documents subject to the following conditions:
(a) each Borrowing requested by Borrower hereunder must occur on a
Business Day and no later than the Business Day immediately preceding the
Termination Date;
(b) each Borrowing requested by Borrower must be in an amount not less
than $5,000,000 or a greater multiple of $1,000,000;
(c) the Commitment Usage may not exceed the Total Commitment; and
(d) THE SUM OF (i) each Lender's Principal Debt PLUS (ii) such Lender's
Pro Rata Part of the LC Exposure may not exceed such Lender's Committed Sum.
2.2 LC SUBFACILITY.
(a CONDITIONS. Subject to the terms and conditions of this Agreement
and applicable Law, Administrative Agent agrees to issue LCs upon Borrower's
application therefor (denominated in Dollars) by delivering to Administrative
Agent a properly completed Notice of LC and an LC Agreement with respect thereto
no later than 10:00 a.m. Dallas, Texas time three (3) Business Days before such
LC is to be issued; PROVIDED THAT (i) on any date of determination and after
giving effect to any LC to be issued on such date, the Commitment Usage shall
never exceed the Total Commitment then in effect, (ii) on any date of
determination and after giving effect to any LC to be issued on such date, the
LC Exposure shall never exceed $25,000,000, (iii) at the time of issuance of
such LC, no Potential Default or Default shall exist, (iv) each LC requested by
Borrower must be in an amount not less than $1,000,000, and (v) each LC must
expire NO LATER than the EARLIER of the fifteenth (15th) day prior to the
Termination Date or one (1) year from its issuance; PROVIDED THAT any LC may
provide for automatic renewal for successive twelve (12) month periods (but no
renewal period may extend beyond the fifteenth (15th) day prior to the
Termination Date) unless Administrative Agent has given prior notice to the
applicable beneficiary of its election not to extend such LC.
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(b PARTICIPATION. Immediately upon the issuance by Administrative
Agent of any LC, Administrative Agent shall be deemed to have sold and
transferred to each other Lender, and each other such Lender shall be deemed
irrevocably and unconditionally to have purchased and received from
Administrative Agent, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's Pro Rata Part, in such LC, and all
Rights of Administrative Agent in respect thereof (OTHER THAN Rights to receive
certain fees provided for in SECTION 2.2(c)). Upon the issuance, renewal, or
extension of an LC, Administrative Agent shall provide copies of such LC to each
other Lender.
(c REIMBURSEMENT OBLIGATION. In order to induce Administrative Agent
to issue and maintain LCs and Lenders to participate therein, Borrower agrees to
pay or reimburse Administrative Agent (i) on the date on which Administrative
Agent notifies Borrower of the date and amount of any draft presented under any
LC, the amount of any draft paid or to be paid by Administrative Agent, and
(ii) promptly, upon demand, the amount of any fees (in addition to the fees
described in SECTION 5) which Administrative Agent customarily charges to a
Person similarly situated in the ordinary course of its business for amending LC
Agreements, for honoring drafts, and taking similar action in connection with
letters of credit; PROVIDED THAT (A) if Borrower has not reimbursed
Administrative Agent for any drafts paid or to be paid within twenty-four
(24) hours of demand therefor by Administrative Agent, then Administrative Agent
is hereby irrevocably authorized to fund such reimbursement obligations as a
Borrowing under the Facility to the extent of availability under the Facility,
and the proceeds of such Borrowing under the Facility shall be advanced directly
to Administrative Agent in payment of Borrower's reimbursement obligation with
respect to the draft under the LC, and (B) if for any reason, funds are not
advanced pursuant to the Facility, then Borrower's reimbursement obligation
shall continue to be due and payable. Borrower's obligations under this
SECTION 2.2(c) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim, or defense to
payment which Borrower may have at any time against Administrative Agent (except
to the extent resulting from the gross negligence or willful misconduct of
Administrative Agent) or any other Person, and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances: (1) any lack of validity
or enforceability of this Agreement or any of the Loan Documents; (2) the
existence of any claim, setoff, defense, or other Right which Borrower may have
at any time against a beneficiary named in a LC, any transferee of any LC (or
any Person for whom any such transferee may be acting), any Credit Party (except
to the extent resulting from the gross negligence or willful misconduct of such
Credit Party), or any other Person, whether in connection with this Agreement,
any LC, the transactions contemplated herein, or any unrelated transactions
(including any underlying transaction between Borrower and the beneficiary named
in any such LC); (3) any draft, certificate, or any other document presented
under the LC proving to be forged, fraudulent, invalid, or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; and
(4) the occurrence of any Potential Default or Default. To the extent any
funding of a draft has been made by Lenders pursuant to SECTION 2.2(e) or under
the Facility, Administrative Agent shall promptly distribute any such payments
received from Borrower with respect to such draft to all Lenders funding such
draft according to their Pro Rata Part. Interest on any amounts remaining
unpaid by Borrower (and unfunded by a Borrowing under the Facility) under this
CLAUSE at any time from and after the date such amounts become payable until
paid in full shall be payable by Borrower to Administrative Agent at the Default
Rate. In the event any payment by Borrower received by Administrative Agent
with respect to an LC and distributed to Lenders on account of their
participations therein is thereafter set aside, avoided, or recovered from
Administrative Agent in connection with any receivership, liquidation, or
bankruptcy proceeding, each Lender which received such distribution shall, upon
demand by Administrative Agent, contribute to Administrative Agent such Lender's
ratable portion of the amount set aside, avoided, or
18
recovered, together with interest at the rate required to be paid by
Administrative Agent upon the amount required to be repaid by it.
(d GENERAL. If any draft shall be presented for honor under any LC,
then Administrative Agent shall promptly notify Borrower of the date and amount
of such draft; PROVIDED THAT failure to give any such notice shall not affect
the obligations of Borrower hereunder. Administrative Agent shall make payment
upon presentment of a draft for honor unless it appears that presentment on its
face does not comply with the terms of such LC, regardless of whether (i) any
default or potential default under any other agreement has occurred, and
(ii) the obligations under any other agreement have been performed by the
beneficiary or any other Person (and Administrative Agent shall not be liable
for any obligation of any Person thereunder). The Credit Parties shall not be
responsible for, and Borrower's reimbursement obligations for honored drafts
shall not be affected by, any matter or event whatsoever (including, without
limitation, the validity or genuineness of documents or of any endorsements
thereof, even if such documents should in fact prove to be in any respect
invalid, fraudulent, or forged), or any dispute among any Company, the
beneficiary of any LC, or any other Person to whom any LC may be transferred, or
any claims whatsoever of any Company against any beneficiary of any LC or any
such transferee; PROVIDED THAT nothing in this Agreement shall constitute a
waiver of Borrower's Rights to assert any claim based upon the gross negligence
or wilful misconduct of any Credit Party.
(e OBLIGATION OF LENDERS. If Borrower fails to reimburse
Administrative Agent as provided in SECTION 2.2(c) within twenty-four (24) hours
after receiving notice of a draft pursuant to SECTION 2.2(d), then
Administrative Agent shall promptly notify each Lender of such failure, of the
date and amount of the draft paid, and of such Lender's Pro Rata Part thereof.
Each Lender shall promptly and unconditionally make available to Administrative
Agent in immediately available funds such Lender's Pro Rata Part of such unpaid
reimbursement obligation, which funds shall be paid to Administrative Agent on
or before the close of business on the Business Day on which such notice was
given by Administrative Agent (if given at or prior to 1:00 p.m., Dallas, Texas
time) or on the next succeeding Business Day (if notice was given after
1:00 p.m., Dallas, Texas time). All such amounts payable by any such Lender
shall include interest thereon accruing at the Federal Funds Rate from the day
the applicable draft is paid by Administrative Agent to (but not including) the
date such amount is paid by such Lender to Administrative Agent. The
obligations of Lenders to make payments to Administrative Agent with respect to
LCs shall be irrevocable and are not subject to any qualification or exception
whatsoever (other than the gross negligence or wilful misconduct of
Administrative Agent) and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances: (i) any lack of validity or
enforceability of this Agreement or any of the Loan Documents; (ii) the
existence of any claim, setoff, defense, or other Right which Borrower may have
at any time against a beneficiary named in a LC, any transferee of any LC (or
any Person for whom any such transferee may be acting), any Credit Party, or any
other Person, whether in connection with this Agreement, any LC, the
transactions contemplated herein, or any unrelated transactions (including any
underlying transaction between Borrower and the beneficiary named in any such
LC); (iii) any draft, certificate, or any other document presented under the LC
proving to be forged, fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; and (iv) the
occurrence of any Potential Default or Default.
(f DELIVERY AND CANCELLATION. Borrower acknowledges that each LC will
be deemed issued upon delivery to its beneficiary or Borrower. If Borrower
requests any LC be delivered to Borrower rather than the beneficiary, and
Borrower subsequently cancels such LC, then Borrower agrees to return it to
Administrative Agent together with Borrower's written certification that it has
never been delivered to such
19
beneficiary. If any LC is delivered to its beneficiary pursuant to
Borrower's instructions, then no cancellation thereof by Borrower shall be
effective without written consent of such beneficiary to Administrative Agent
and the return of such LC to Administrative Agent. Borrower hereby agrees
that if Administrative Agent becomes involved in any dispute as a result of
Borrower's cancellation of any LC, then it shall indemnify the Credit Parties
for all losses, costs, damages, expenses, and reasonable attorneys' fees
suffered or incurred by the Credit Parties as a direct result thereof.
(g DUTIES OF ADMINISTRATIVE AGENT. Administrative Agent agrees with
each Lender that it will exercise and give the same care and attention to each
LC as it gives to its other letters of credit, and Administrative Agent's sole
liability to each Lender with respect to such LCs (OTHER THAN liability arising
from the gross negligence or willful misconduct of Administrative Agent) shall
be to distribute promptly to each Lender who has acquired a participating
interest therein such Lender's ratable portion of any payments made to
Administrative Agent by Borrower pursuant to SECTION 2.2(c). Each Lender and
Borrower agree that, in paying any draw under any LC, Administrative Agent shall
not have any responsibility to obtain any document (OTHER THAN any documents
required by the respective LC) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person delivering any such
document. The Credit Parties and their respective Representatives shall not be
liable to any other Credit Party or any Obligor for the use which may be made of
any LC or for any acts or omissions of any beneficiary thereof in connection
therewith. Any action, inaction, error, delay, or omission taken or suffered by
Administrative Agent or any of its Representatives under or in connection with
any LC, the draws, drafts, or documents relating thereto, or the transmission,
dispatch, or delivery of any message or advice related thereto, if in good faith
and in conformity with such Laws as Administrative Agent or any of its
Representatives may deem applicable and in accordance with the standards of care
specified in the UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS issued by
the International Chamber of Commerce, as in effect on the date of issue of such
LC, shall be binding upon Obligors and the Credit Parties and shall not place
Administrative Agent or any of its Representatives under any resulting liability
to any Credit Party or any Obligor. Any action taken or omitted to be taken by
Administrative Agent under or in connection with any LC if taken or omitted in
the absence of gross negligence or wilful misconduct shall not create for
Administrative Agent any resulting liability to any Credit Party or any Obligor.
(h CASH COLLATERAL. On the Termination Date or upon any demand from
time to time by Administrative Agent or the Required Lenders at any time while a
Default exists, Borrower shall provide to Administrative Agent, for the benefit
of Lenders, either (i) cash collateral, or (ii) back-up letters of credit
reasonably acceptable to Administrative Agent, in an aggregate amount equal to
one hundred percent (100%) of the LC Exposure existing on the date of such
demand. Such cash (and all interest thereon) and letters of credit shall
constitute collateral for all LCs. Any cash collateral deposited, and all
interest earned thereon, shall be held by Administrative Agent and invested and
reinvested at the expense and the written direction of Borrower, in United
States Treasury Bills with maturities of no more than ninety (90) days from the
date of investment. In the absence of any such direction from Borrower,
Administrative Agent shall invest the funds held in the cash collateral account
(so long as the aggregate amount of such funds exceeds any relevant minimum
investment requirement) in one or more types of investments with such maturities
as Administrative Agent may specify, pending application of such funds on
account of any other Obligation, as the case may be. All such investments shall
be made in Administrative Agent's name for the account of the Credit Parties,
subject to the ownership interest therein of Borrower. Administrative Agent may
liquidate any investment held in the cash collateral account in order to apply
the proceeds of such investment on account of any of the Obligation if such
Obligation is then due and payable without regard to whether such
20
investment has matured and without liability for any penalty or other fee
incurred (with respect to which Borrower hereby agrees to reimburse
Administrative Agent) as a result of such application.
(i INDEMNIFICATION. IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE
PROVIDED IN THIS AGREEMENT, BORROWER HEREBY AGREES TO PROTECT, INDEMNIFY, PAY,
AND SAVE EACH CREDIT PARTY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES, DAMAGES, OR LOSSES OF, OR OWED TO THIRD PARTIES, AND ANY
AND ALL RELATED COSTS, CHARGES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES), WHICH ANY CREDIT PARTY MAY INCUR OR BE SUBJECT TO AS A CONSEQUENCE,
DIRECT OR INDIRECT, OF (A) THE ISSUANCE OF ANY LC, OR (B) THE FAILURE OF
ADMINISTRATIVE AGENT TO HONOR A DRAFT UNDER SUCH LC AS A RESULT OF ANY ACT OR
OMISSION, WHETHER RIGHTFUL OR WRONGFUL, OF ANY PRESENT OR FUTURE GOVERNMENTAL
AUTHORITY; PROVIDED THAT BORROWER SHALL HAVE NO LIABILITY TO INDEMNIFY ANY
CREDIT PARTY IN RESPECT OF ANY LIABILITY ARISING OUT OF THE GROSS NEGLIGENCE OR
WILFUL MISCONDUCT OF SUCH PARTY OR ANY REPRESENTATIVES OF SUCH PARTY. THE
PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATIONS SET FORTH IN THIS
SECTION 2.2(i) SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND
TERMINATION OF THIS AGREEMENT.
(j LC AGREEMENTS. Although referenced in any LC, terms of any
particular agreement or other obligation to the beneficiary are not in any
manner incorporated herein. Drafts under any LC shall be deemed part of the
Obligation. In the event of any conflict or inconsistency between the terms of
this Agreement and any LC Agreement, the terms of this Agreement shall be
controlling.
2.3 VOLUNTARY TERMINATION OF COMMITMENTS. Without premium or penalty,
and upon giving not less than three (3) Business Days prior telephonic notice
(followed by written notice) to Administrative Agent, Borrower may terminate in
whole or in part the unused portion of the Total Commitment; PROVIDED THAT:
(i) each partial termination shall be in an amount of not less than $10,000,000
or a greater integral multiple of $1,000,000; (ii) the amount of the Commitment
Usage may not exceed the Total Commitment (unless Borrowings are simultaneously
paid in an amount equal to such excess); and (iii) each reduction shall be
allocated Pro Rata among Lenders in accordance with their respective Pro Rata
Parts. Promptly after receipt of such notice of termination or reduction,
Administrative Agent shall notify each Lender of the proposed cancellation or
reduction. Such termination or partial reduction of the Total Commitment shall
be effective on the Business Day specified in Borrower's notice (which date must
be at least three (3) Business Days after Borrower's delivery of such notice).
In the event that the Total Commitment is reduced to zero at a time when there
shall be no LC Exposure or Principal Debt, this Agreement shall be terminated to
the extent specified in SECTION 14.14, and all commitment fees and other fees
then earned and unpaid hereunder and all other amounts of the Obligation then
due and owing shall be immediately due and payable, without notice or demand by
Administrative Agent or any Lender.
2.4 BORROWING PROCEDURE. The following procedures apply to Borrowings:
(a NOTICE OF BORROWING. Each Borrowing shall be made pursuant to a
Notice of Borrowing delivered to Administrative Agent requesting that Lenders
fund a Borrowing on a certain date (the "BORROWING DATE"), which notice
(i) shall be irrevocable and binding on Borrower, (ii) shall specify the
Borrowing Date, amount, Type, and (for a Borrowing comprised of Eurodollar
Borrowings) Interest Period, and (iii) must be received by Administrative Agent
no later than (A) 2:00 p.m. Dallas, Texas time on the third (3rd) Business Day
preceding the Borrowing Date for any Eurodollar Borrowing, and (B) 11:00 a.m.
Dallas,
21
Texas time on the Borrowing Date for any Base Rate Borrowing. Administrative
Agent shall timely notify each Lender with respect to each Notice of
Borrowing.
(b FUNDING. Each Lender shall remit its Pro Rata Part of each
requested Borrowing to Administrative Agent's principal office in Dallas, in
funds which are or will be available for immediate use by Administrative
Agent by 1:00 p.m. Dallas time on the Borrowing Date therefor. Subject to
receipt of such funds, Administrative Agent shall (unless to its actual
knowledge any of the conditions precedent therefor have not been satisfied by
Borrower or waived by Required Lenders) make such funds available to Borrower
by causing such funds to be deposited to Borrower's account as designated to
Administrative Agent by Borrower. Notwithstanding the foregoing, unless
Administrative Agent shall have been notified by a Lender prior to a
Borrowing Date that such Lender does not intend to make available to
Administrative Agent such Lender's Pro Rata Part of the applicable Borrowing,
Administrative Agent may assume that such Lender has made such proceeds
available to Administrative Agent on such date, as required herein, and
Administrative Agent may (unless to its actual knowledge any of the
conditions precedent therefor have not been satisfied by Borrower or waived
by Required Lenders), in reliance upon such assumption (but shall not be
required to), make available to Borrower a corresponding amount in accordance
with the foregoing terms, but, if such corresponding amount is not in fact
made available to Administrative Agent by such Lender on such Borrowing Date,
then Administrative Agent shall be entitled to recover such corresponding
amount on demand (i) from such Lender, together with interest at the Federal
Funds Rate during the period commencing on the date such corresponding amount
was made available to Borrower and ending on (but excluding) the date
Administrative Agent recovers such corresponding amount from such Lender, or
(ii) if such Lender fails to pay such corresponding amount forthwith upon
such demand, then from Borrower, together with interest at a rate per annum
equal to the applicable rate for such Borrowing during the period commencing
on such Borrowing Date and ending on (but excluding) the date Administrative
Agent recovers such corresponding amount from Borrower. No Lender shall be
responsible for the failure of any other Lender to make its Pro Rata Part of
any Borrowing.
SECTION 3 TERMS OF PAYMENT.
3.1 LOAN ACCOUNTS AND PAYMENTS.
(a LOAN ACCOUNTS.
(i) The Obligation payable to each Lender shall be evidenced by
one or more loan accounts or records maintained by such Lender in the
ordinary course of business. The loan accounts or records maintained by
Administrative Agent and each Lender shall be conclusive evidence absent
manifest error of the amount of the Obligation owing to each Lender. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of Borrower hereunder to pay any amount
owing to any Lender with respect to the Obligation.
(ii) Upon the request of any Lender made through Administrative
Agent, the Principal Debt of the Obligation owing to such Lender may be
evidenced by one or more Notes in addition to loan accounts. Each such
Note shall be in substantially the form of EXHIBIT B and be executed by
Borrower and payable to the order of such Lender in the maximum original
principal amount equal to such Lender's Committed Sum. Each such Lender
may endorse on the schedules annexed to its Note(s) the date, amount, and
maturity of each Borrowing made by it and the amount of each payment of
principal made by Borrower with respect thereto and each Lender's record
shall be
22
conclusive absent manifest error; PROVIDED, HOWEVER, that the failure of
a Lender to make, or an error by a Lender in making, a notation thereon
with respect to any Borrowing shall not limit or otherwise affect the
obligations of Borrower hereunder or under any such Note to such Lender.
(b PAYMENTS GENERALLY. Each payment or prepayment on the Obligation is
due and must be paid at Administrative Agent's principal office in Dallas in
funds which are or will be available for immediate use by Administrative Agent
at or before 1:00 p.m. Dallas, Texas time on the day due. Payments made after
1:00 p.m., Dallas, Texas time shall be deemed made on the Business Day next
following. Administrative Agent shall pay to each Lender any payment or
prepayment to which such Lender is entitled hereunder on the same day
Administrative Agent shall have received the same from Borrower; PROVIDED THAT
such payment or prepayment is received by Administrative Agent at or before
1:00 p.m. Dallas, Texas time, and otherwise at or before 1:00 p.m. Dallas, Texas
time on the Business Day next following. If and to the extent Administrative
Agent shall not make such payments to Lenders when due as set forth in the
preceding sentence, then such unpaid amounts shall accrue interest, payable by
Administrative Agent, at the Federal Funds Rate from the due date until (but not
including) the date on which Administrative Agent makes such payments to
Lenders.
3.2 INTEREST AND PRINCIPAL PAYMENTS.
(a INTEREST PAYMENTS. Interest on each Eurodollar Borrowing shall be
due and payable as it accrues on the last day of its respective Interest Period
and on the Termination Date, as applicable; PROVIDED THAT with respect to
Eurodollar Borrowings having an Interest Period in excess of three (3) months,
Borrower shall pay interest on each three (3) month anniversary date of such
Interest Period and on the expiration of such Interest Period. Interest on each
Base Rate Borrowing shall be due and payable as it accrues on each March 31,
June 30, September 30, and December 31, and on the Termination Date.
(b MANDATORY PAYMENTS. The Total Principal Debt is due and payable on
the Termination Date. On any date of determination, if the Commitment Usage
exceeds the Total Commitment, then Borrower shall make a mandatory prepayment of
the Principal Debt in the amount of such excess, together with (i) all accrued
and unpaid interest on the principal amount so prepaid, and (ii) any
Consequential Loss arising as a result thereof. All mandatory prepayments
hereunder shall be applied Pro Rata.
(c VOLUNTARY PREPAYMENTS. After giving Administrative Agent advance
telephonic notice (promptly followed by written notice) of the intent to prepay,
Borrower may voluntarily prepay all or any part of the Principal Debt from time
to time and at any time, in whole or in part, without premium or penalty;
PROVIDED THAT: (i) such notice must be received by Administrative Agent at or
before 1:00 p.m. Dallas, Texas time on (A) the third (3rd) Business Day
preceding the date of prepayment of a Eurodollar Borrowing, and (B) the Business
Day of a prepayment of a Base Rate Borrowing; (ii) each such partial prepayment
must be in a minimum amount of at least $5,000,000 or a greater integral
multiple of $1,000,000 thereof (if a Eurodollar Borrowing or a Base Rate
Borrowing); (iii) all accrued interest on any Eurodollar Borrowing being prepaid
must also be paid in full, to the date of such prepayment; and (iv) Borrower
shall pay any related Consequential Loss within ten (10) days after demand
therefor. Each notice of prepayment shall specify the prepayment date and the
Type of Borrowing(s) and amount(s) of such Borrowing(s) to be prepaid and shall
constitute a binding obligation of Borrower to make a prepayment on the date
stated therein unless such notice is given in connection with the payment in
full of all Borrowings under this Agreement, the termination of the Total
Commitment, and a termination of this Agreement in which case the parties hereto
23
acknowledge that such payment may (subject to any Consequential Loss) occur on a
date after the date given in such notice as a result of normal delays with
respect to such payment.
3.3 INTEREST OPTIONS. Except where specifically otherwise provided,
Borrowings shall bear interest at a rate per annum equal to THE LESSER OF
(a) the Base Rate PLUS the Applicable Margin for Base Rate Borrowings or the
Adjusted Eurodollar Rate PLUS the Applicable Margin for Eurodollar Borrowings,
in each case as designated in accordance with the terms of this Agreement, AND
(b) the Maximum Rate. Each change in the Base Rate or the Maximum Rate, subject
to the terms of this Agreement, will become effective, without notice to
Borrower or any other Person, upon the effective date of such change.
3.4 QUOTATION OF RATES. A Responsible Officer or other appropriately
designated officer of Borrower may call Administrative Agent on or before the
date on which a Notice of Borrowing is to be delivered by Borrower in order to
receive an indication of the rates then in effect, but such indicated rates
shall neither be binding upon Administrative Agent or Lenders nor affect the
rate of interest which thereafter is actually in effect when the Notice of
Borrowing is given.
3.5 DEFAULT RATE. To the extent permitted by Law, all past-due
Principal Debt and accrued interest thereon shall bear interest from maturity
(stated or by acceleration) at the Default Rate until paid, regardless whether
such payment is made before or after entry of a judgment; PROVIDED THAT the
Default Rate shall automatically apply in the case of SECTION 2.2(c) where the
Default Rate is specified.
3.6 INTEREST RECAPTURE. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, then the rate of interest on such Borrowing
shall be limited to the Maximum Rate, but any subsequent reductions in such
designated rate shall not reduce the rate of interest thereon below the Maximum
Rate until the total amount of interest accrued thereon equals the amount of
interest which would have accrued thereon if such designated rate had at all
times been in effect. In the event that at maturity (stated or by
acceleration), or at final payment of the Total Principal Debt, the total amount
of interest paid or accrued is less than the amount of interest which would have
accrued if such designated rates had at all times been in effect, then, at such
time and to the extent permitted by Law, Borrower shall pay an amount equal to
the difference between (a) THE LESSER OF the amount of interest which would have
accrued if such designated rates had at all times been in effect AND the amount
of interest which would have accrued if the Maximum Rate had at all times been
in effect, and (b) the amount of interest actually paid or accrued on the Total
Principal Debt.
3.7 INTEREST CALCULATIONS.
(a All payments of interest shall be calculated on the basis of actual
number of days (including the first (1st) day but excluding the last day)
elapsed but computed as if each calendar year consisted of 360 days in the case
of a Eurodollar Borrowing (unless such calculation would result in the interest
on the Borrowings exceeding the Maximum Rate, in which event such interest shall
be calculated on the basis of a year of 365 or 366 days, as the case may be),
and 365 or 366 days, as the case may be, in the case of a Base Rate Borrowing.
All interest rate determinations and calculations by Administrative Agent shall
be conclusive and binding absent manifest error.
(b The provisions of this Agreement relating to the calculation of the
Base Rate and the Adjusted Eurodollar 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.
24
3.8 MAXIMUM RATE. Regardless of any provision contained in any Loan
Document, no Credit Party shall ever be entitled to contract for, charge,
take, reserve, receive, or apply, as interest on the Obligation, or any part
thereof, any amount in excess of the Maximum Rate, and, if any Credit Party
ever does so, then such excess shall be deemed a partial prepayment of
principal and treated hereunder as such and any remaining excess shall be
refunded to Borrower. In determining if the interest paid or payable exceeds
the Maximum Rate, Borrower and the Credit Parties shall, to the maximum
extent permitted under applicable Law, (a) treat all Borrowings as but a
single extension of credit (and the Credit Parties and Borrower agree that
such is the case and that provision herein for multiple Borrowings is for
convenience only), (b) characterize any non-principal payment as an expense,
fee, or premium rather than as interest, (c) exclude voluntary prepayments
and the effects thereof, and (d) amortize, prorate, allocate, and spread the
total amount of interest throughout the entire contemplated term of the
Obligation; PROVIDED THAT if the Obligation is 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, then the Credit Parties shall refund such excess, and, in such event,
the Credit Parties shall not, to the extent permitted by Law, be subject to
any penalties provided by any Laws for contracting for, charging, taking,
reserving, or receiving interest in excess of the Maximum Amount.
3.9 INTEREST PERIODS. When Borrower requests any Eurodollar
Borrowing, Borrower may elect the interest period (each an "INTEREST PERIOD")
applicable thereto, which shall be, at Borrower's option, one (1) month or
two (2), three (3), or six (6) months, in each case to the extent available
from each Lender (or other periods, if requested by Borrower and agreed to by
each Lender); PROVIDED, HOWEVER, that: (a) the initial Interest Period for a
Eurodollar Borrowing shall commence on the date of such Borrowing (including
the date of any Conversion thereto), and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day on which
the next preceding Interest Period applicable thereto expires; (b) if any
Interest Period for a Eurodollar Borrowing begins on a day for which there is
no numerically corresponding Business Day in the calendar month at the end of
such Interest Period, then such Interest Period shall end on the next
Business Day immediately following what otherwise would have been such
numerically corresponding day in the calendar month at the end of such
Interest Period (unless such date would be in a different calendar month from
what would have been the month at the end of such Interest Period, or unless
there is no numerically corresponding day in the calendar month at the end of
the Interest Period; whereupon, such Interest Period shall end on the last
Business Day in the calendar month at the end of such Interest Period); (c)
no Interest Period may be chosen with respect to any portion of the Total
Principal Debt which would extend beyond the Termination Date; and (d) no
more than an aggregate of ten (10) Interest Periods shall be in effect at one
time.
3.10 CONVERSIONS. Borrower may (a) Convert a Eurodollar Borrowing on
the last day of an Interest Period to a Base Rate Borrowing, (b) Convert a
Base Rate Borrowing at any time to a Eurodollar Borrowing, and (c) Continue a
Eurodollar Borrowing by electing a new Interest Period, by giving a Notice of
Conversion no later than 2:00 p.m. Dallas, Texas time on the third (3rd)
Business Day prior to the date of Conversion or the last day of the Interest
Period, as the case may be (in the case of a Conversion to a Eurodollar
Borrowing or an election of a new Interest Period), and no later than 11:00
a.m. Dallas, Texas time on the last day of the Interest Period (in the case
of a Conversion to a Base Rate Borrowing); PROVIDED THAT the principal amount
Converted to, or Continued as, a Eurodollar Borrowing shall be in an amount
not less than $5,000,000 or a greater integral multiple of $1,000,000.
Administrative Agent shall timely notify each Lender with respect to each
Notice of Conversion. Absent Borrower's Notice of Conversion or election of
a new Interest Period, a Eurodollar Borrowing shall be deemed Converted to a
Base Rate Borrowing effective as of the expiration of the Interest Period
applicable thereto. No Eurodollar Borrowing may be either made
25
or Continued as a Eurodollar Borrowing, and no Base Rate Borrowing may be
Converted to a Eurodollar Borrowing, if (i) the interest rate for such
Eurodollar Borrowing would exceed the Maximum Rate, or (ii) a Default exists.
3.11 ORDER OF APPLICATION.
(a If no Default exists, then payments and prepayments of the
Obligation shall be applied in the order and manner as Borrower may direct in
writing.
(b If a Default exists (or if Borrower fails to give directions as
permitted under SECTION 3.11(a)), then any payment or prepayment (including
proceeds from the exercise of any Rights) shall be applied to the Obligation
in the following order: (i) to the ratable payment of all fees, expenses,
and indemnities for which the Credit Parties have not been paid or reimbursed
in accordance with the Loan Documents; (ii) to the ratable payment of accrued
and unpaid interest on the Total Principal Debt; (iii) to the ratable payment
of any reimbursement obligation with respect to any LC issued pursuant to the
Facility which is due and payable and which remains unfunded by any Borrowing
under the Facility; PROVIDED THAT such payments shall be allocated ratably
among Administrative Agent and all Lenders which have funded their
participation in such LC; (iv) to the ratable payment of the Total Principal
Debt; (v) as a deposit with Administrative Agent, for the benefit of the
Credit Parties, as security for, and to provide for the payment of, any LC
Exposure as of the date of such application to the Obligation; and (vi) to
the payment of the remaining Obligation in the order and manner Required
Lenders deem appropriate.
(c Subject to the provisions of SECTION 13 and provided that
Administrative Agent shall not in any event be bound to inquire into or to
determine the validity, scope, or priority of any interest or entitlement of
any Credit Party and may suspend all payments or seek appropriate relief
(including, without limitation, instructions from Required Lenders or an
action in the nature of interpleader) in the event of any doubt or dispute as
to any apportionment or distribution contemplated hereby, Administrative
Agent shall promptly distribute such amounts to each Credit Party in
accordance with the Agreement and the related Loan Documents.
3.12 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any payment
(whether voluntary, involuntary, or otherwise, including, without limitation,
as a result of exercising its Rights under SECTION 3.13) which is in excess
of its ratable share of any such payment, such Lender shall purchase from the
other Lenders such participations as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, then the purchase shall be
rescinded and the purchase price restored to the extent of such recovery.
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this SECTION 3.12 may, to the fullest extent permitted by
Law, exercise all of its Rights of payment (including the Right of offset)
with respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
3.13 OFFSET. Upon the occurrence and during the continuance of a
Default, each Credit Party shall be entitled to exercise (for the benefit of
all Lenders in accordance with SECTION 3.12) the Rights of offset and/or
banker's Lien against each and every account and other property, or any
interest therein, which any Obligor may now or hereafter have with, or which
is now or hereafter in the possession of, such Credit Party to the extent of
the full amount of the Obligation; PROVIDED THAT if any Credit Party should
exercise its Right
26
of offset hereunder, then such Credit Party shall thereafter promptly provide
notice of such offset to Administrative Agent and Borrower.
3.14 BOOKING BORROWINGS. To the extent permitted by Law, any Lender
may make, carry, or transfer its Borrowings at, to, or for the account of any
of its branch offices or the office of any of its Affiliates; PROVIDED THAT
no Affiliate shall be entitled to receive any greater payment under SECTION 4
than the transferor Lender would have been entitled to receive with respect
to such Borrowings.
3.15 REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES. If at any
time (a) Borrower becomes obligated to pay additional amounts described in
SECTION 4.1(a) or SECTION 4.6 as a result of any condition described in such
SECTIONS or any Lender ceases to make Eurodollar Borrowings pursuant to
SECTION 4.2(b), in any such case where such condition or circumstance is not
applicable to all Lenders, (b) any Lender becomes insolvent and its assets
become subject to a receiver, liquidator, trustee, custodian, or other Person
having similar powers, or (c) any Lender becomes a Defaulting Lender, then
Borrower may, on ten (10) Business Days' prior written notice to
Administrative Agent and such Lender, replace such Lender by causing such
Lender to (and such Lender shall be obligated to) assign pursuant to SECTION
14.13(b) all of its Rights and obligations under this Agreement to a Lender
or other Eligible Assignee selected by Borrower and reasonably acceptable to
Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Principal Debt and all accrued interest and fees and
other amounts payable hereunder (including amounts payable under SECTION 4.5
as though such Lender was being paid instead of being purchased), PROVIDED
THAT (i) neither Administrative Agent nor any Lender shall have any
obligation to Borrower to find a replacement Lender or other such entity, and
(ii) in no event shall the Lender hereby replaced be required to pay or
surrender to such replacement Lender or other entity any of the fees received
by such Lender hereby replaced pursuant to this Agreement. In the case of a
replacement of a Lender to which Borrower becomes obligated to pay additional
amounts to such Lender prior to such Lender being replaced, the payment of
such additional amounts shall be a condition to the replacement of such
Lender. Upon the satisfaction of all the foregoing conditions, such Lender
that is being replaced shall cease to be a "LENDER" for purposes of this
Agreement, PROVIDED THAT Borrower shall continue to be obligated to such
Lender under SECTION 12.11 with respect to any indemnified liabilities
arising prior to such termination. Borrower's right to replace a Defaulting
Lender pursuant to this SECTION 3.15 is, and shall be, in addition to, and
not in lieu of, all other rights and remedies available to Borrower against
such Defaulting Lender under this Agreement or under applicable Law.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 INCREASED COST AND REDUCED RETURN.
(a) CHANGE IN LAWS. If, after the date hereof, the adoption of any
applicable Law, or any change in any applicable Law, or any change in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by
any Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar
Borrowing, its Note (if any), or its obligation to make Eurodollar
Borrowings, or change the basis of taxation of any amounts payable to such
Lender (or its Applicable Lending Office) under this Agreement or its Note
(if any) in respect of any Eurodollar
27
Borrowings (other than taxes imposed on the overall gross or net income
of such Lender or franchise taxes imposed on such Lender, in each case
by the jurisdiction in which such Lender has its principal office or
such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Reserve
Requirement utilized in the determination of the Adjusted Eurodollar Rate)
relating to any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Commitment of such Lender
hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office)
or the London interbank market any other condition affecting this
Agreement or its Note (if any) or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Borrowings or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement with respect to any Eurodollar Borrowings, then Borrower shall pay
to such Lender from time to time as specified by the affected Lender such
amount or amounts as will compensate such Lender for such increased cost or
reduction. If any Lender requests compensation by Borrower under this
SECTION 4.1(a), then Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such Lender to make or
Continue Eurodollar Borrowings, or Convert all Eurodollar Borrowings into
Base Rate Borrowings, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of SECTION 4.4
shall be applicable); PROVIDED THAT such suspension shall not affect the
Right of such Lender to receive the compensation so requested.
(b) CAPITAL ADEQUACY. If, after the date hereof, any Lender shall
have determined that the adoption of any applicable Governmental Requirement
regarding capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such Governmental Authority, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender's obligations hereunder to a
level below that which such Lender or such corporation could have achieved
but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy), then from time
to time upon demand Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender for such reduction.
(c) NOTICE. Each Lender shall promptly notify Borrower and
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant to
this SECTION 4.1 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
materially disadvantageous to it. Any Lender claiming compensation under
this SECTION 4.1 shall furnish to Borrower and Administrative Agent a
certificate setting forth the additional amount or amounts to be paid to it
hereunder and shall include in reasonable detail the basis for the demand for
additional compensation, which certificate shall be conclusive in the absence
of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. Although no Lender shall have
any liability to any Credit Party or any Company for its failure to give the
notice
28
required by this SECTION 4.1(c), Borrower shall not be obligated to pay to
any Credit Party any amounts under this SECTION 4.1 that arise, accrue, or
are imposed more than one hundred and eighty (180) days before any such
notice to the extent it is applicable to those amounts.
4.2 LIMITATION ON TYPES OF BORROWINGS. If on or prior to the first
(1st) day of any Interest Period for any Eurodollar Borrowing:
(a) Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period; or
(b) Required Lenders determine (which determination shall be
conclusive) and notify Administrative Agent that the Adjusted Eurodollar Rate
will not adequately and fairly reflect the cost to Lenders of funding
Eurodollar Borrowings for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, Lenders shall be under no obligation to make additional
Eurodollar Borrowings, Continue any Eurodollar Borrowings, or to Convert any
Base Rate Borrowings to Eurodollar Borrowings and Borrower shall, on the last
day(s) of the then-current Interest Period(s) for the outstanding Eurodollar
Borrowings, either prepay such Borrowings or Convert such Borrowings into
Base Rate Borrowings in accordance with the terms of this Agreement.
4.3 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Borrowings
hereunder, then such Lender shall promptly notify Administrative Agent and
Borrower thereof and such Lender's obligation to make or Continue Eurodollar
Borrowings and to Convert Base Rate Borrowings into Eurodollar Borrowings
shall be suspended until such time as such Lender may again make, maintain,
and fund Eurodollar Borrowings (in which case the provisions of SECTION 4.4
shall be applicable).
4.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make or Continue Eurodollar Borrowings or to Convert Base Rate Borrowings
into Eurodollar Borrowings shall be suspended pursuant to SECTIONS 4.1, 4.2,
or 4.3, then such Lender's Eurodollar Borrowings shall be automatically
Converted into Base Rate Borrowings on the last day(s) of the then current
Interest Period(s) for all Eurodollar Borrowings (or, in the case of a
Conversion required by SECTION 4.3, on such earlier date as such Lender may
specify to Borrower with a copy to Administrative Agent) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in SECTIONS 4.1, 4.2, or 4.3 that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Eurodollar Borrowings have been
so Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Borrowings shall be applied instead to
its Base Rate Borrowings; and
(b) all Borrowings that would otherwise be made or Continued by such
Lender as Eurodollar Borrowings shall be made or Continued instead as Base
Rate Borrowings, and all Borrowings of such Lender that would otherwise be
Converted into Eurodollar Borrowings shall be Converted instead into (or
shall remain as) Base Rate Borrowings.
29
If such Lender gives notice to Borrower (with a copy to Administrative Agent)
that the circumstances specified in SECTIONS 4.1, 4.2, or 4.3 that gave rise
to the Conversion of such Lender's Eurodollar Borrowings pursuant to this
SECTION 4.4 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar Borrowings
made by other Lenders are outstanding, then such Lender's Base Rate
Borrowings shall be automatically Converted, on the first (1st) day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar
Borrowings, to the extent necessary so that, after giving effect thereto, all
Eurodollar Borrowings held by Lenders are held Pro Rata (as to principal
amounts, Types, and Interest Periods).
4.5 COMPENSATION. Upon the request of any Lender, Borrower shall pay
to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (herein called a "CONSEQUENTIAL LOSS") incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Borrowing
for any reason (including, without limitation, the acceleration of the
Obligation pursuant to SECTION 12.1) on a date other than the last day of
the Interest Period for such Borrowing; or
(b) any failure by Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in SECTION 7.2
to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar
Borrowing on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant Borrowing Notice.
4.6 TAXES.
(a) Any and all payments by Borrower to or for the account of any
Credit Party hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any and all present or future Taxes
arising after the date hereof, EXCLUDING, in the case of each Credit Party,
Taxes based on or measured by its gross or net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Credit Party
(or its Applicable Lending Office) is organized or any political subdivision
thereof (such income and franchise Taxes being "EXCLUDED TAXES"). If
Borrower shall be required by law to deduct any Taxes (other than Excluded
Taxes) from or in respect of any sum payable under this Agreement or any
other Loan Document to any Credit Party, then (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 4.6) such Credit Party receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Borrower shall make such
deductions, (iii) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with all Laws, and (iv)
Borrower shall, upon the request of Administrative Agent, furnish to
Administrative Agent, at its address referred to in SECTION 14.3, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or future
stamp or documentary Taxes and any other excise or property Taxes or charges
or similar levies which arise from any payment made under this Agreement or
any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter
referred to as "OTHER TAXES").
(c) Borrower agrees to indemnify each Credit Party for the full
amount of Taxes (other than Excluded Taxes) and Other Taxes (including,
without limitation, any Taxes (other than Excluded Taxes) or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this SECTION
4.6) paid by such
30
Credit Party (as the case may be) and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto. If any
Credit Party receives a refund in respect of any Taxes or Other Taxes in
which it has been indemnified by Borrower pursuant to this SECTION 4.6, then
such Credit Party shall promptly notify Borrower of such refund and shall
promptly, upon receipt, repay such refund to Borrower.
(d) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if requested in
writing by Borrower or Administrative Agent (but only so long as such Lender
remains lawfully able to do so), shall provide Borrower and Administrative
Agent with (i) INTERNAL REVENUE SERVICE FORM 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to which
the United States is a party which reduces the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or
business in the United States, (ii) INTERNAL REVENUE SERVICE FORM W-8 or W-9,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by SECTIONS 871(h) and 881(c)
of the Code), certifying that such Lender is entitled to an exemption from or
a reduced rate of tax on payments pursuant to this Agreement or any of the
other Loan Documents.
(e) For any period with respect to which a Lender has failed to
provide Borrower and Administrative Agent with the appropriate form pursuant
to SECTION 4.6(d) (unless such failure is due to a change in Law occurring
subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under
SECTIONS 4.6(a) or (b) with respect to Taxes imposed by the United States;
PROVIDED, HOWEVER, that should a Lender, which is otherwise exempt from or
subject to a reduced rate of withholding tax, become subject to Taxes (other
than Excluded Taxes) because of its failure to deliver a form required
hereunder, Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(f) If Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this SECTION 4.6, then such Lender will
agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which
may thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in
this SECTION 4.6 shall survive the termination of the Total Commitment and
the payment in full of the Obligation.
SECTION 5 FEES.
5.1 TREATMENT OF FEES. Except as otherwise provided by Law, the fees
described in this SECTION 5: (a) do not constitute compensation for the use,
detention, or forbearance of money; (b) are in addition to, and not in lieu
of, interest and expenses otherwise described in this Agreement; (c) shall be
payable in accordance with SECTION 3.1; (d) shall be non-refundable; (e)
shall, to the fullest extent permitted by Law, bear interest, if not paid
when due, at the Default Rate; and (f) shall be calculated on the basis of
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actual number of days (including the first day but excluding the last day)
elapsed, but computed as if each calendar year consisted of 365 or 366 days,
as the case may be.
5.2 FEES OF ADMINISTRATIVE AGENT. Borrower shall pay to
Administrative Agent the fees specified in the letter agreement between
Administrative Agent and Borrower, which fees shall be for the account of
Administrative Agent and for the account of the Credit Parties as shall be
agreed between Administrative Agent and each other Credit Party.
5.3 LC FEES. Borrower shall pay to Administrative Agent, for the
ratable benefit of Lenders, in accordance with their respective Pro Rata
Parts, a fee for each LC, payable in installments in arrears, so long as such
LC remains outstanding. Such installments shall be paid for the period from
and including the date of issuance of the applicable LC to but excluding the
next quarterly payment date (as hereinafter specified), and thereafter for
the period from and including such quarterly payment date to but excluding
the next quarterly payment date or (if earlier) the expiry date of such LC.
Such installments shall be paid on each March 31, June 30, September 30, and
December 31. Each such installment shall be in an amount equal to THE
PRODUCT OF (a) the Applicable Margin for Eurodollar Borrowings in effect on
the date of payment of such fee (and applied on a per annum basis) TIMES (b)
the face amount of such LC, and pro rated (in accordance with SECTION 5.1(f))
for the period for which such installment is due.
5.4 LC ISSUANCE AND FRONTING FEES. Borrower shall pay Administrative
Agent, as the issuer of LCs and for the individual account of Administrative
Agent, an LC issuance and fronting fee for each LC, payable in installments
in arrears, so long as such LC remains outstanding. Such installments shall
be paid for the period from and including the date of issuance of the
applicable LC, to but excluding the next quarterly payment date (as
hereinafter specified), and thereafter for the period from and including such
quarterly payment date to but excluding the next quarterly payment date or
(if earlier) the expiry date of such LC. Such installments shall be paid on
each March 31, June 30, September 30, and December 31. Each such installment
shall be in an amount equal to THE PRODUCT OF (a) 0.125% per annum TIMES (b)
the face amount of such LC, and pro rated (in accordance with SECTION 5.1(f))
for the period for which such installment is due. In addition, Borrower
shall pay to Administrative Agent, for its individual account, standard
administrative charges for LC amendments provided for in SECTION 2.2(c).
5.5 COMMITMENT FEES. Following the Closing Date, Borrower shall pay
to Administrative Agent, for the ratable account of Lenders, a commitment
fee, payable in installments in arrears, on each March 31, June 30, September
30, and December 31 and on the Termination Date, commencing December 31,
1998. Each installment shall be, in an amount equal to the Applicable Margin
for Commitment Fees TIMES the amount by which (a) the average daily Total
Commitment exceeds (b) the average daily Commitment Usage, in each case
during the period from and including the last payment date to and excluding
the payment date for such installment; PROVIDED THAT each such installment
shall be calculated in accordance with SECTION 5.1(f).
SECTION 6. GUARANTIES.
6.1 POI GUARANTY. As an inducement to the Credit Parties to enter
into this Agreement, Borrower shall cause POI to unconditionally guarantee in
favor of the Credit Parties the full payment and performance of the
Obligation pursuant to the POI Guaranty.
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6.2 SUBSIDIARY GUARANTY. As an inducement to the Credit Parties to
enter into this Agreement, Borrower shall cause each Material Subsidiary to
unconditionally guarantee in favor of the Credit Parties the full payment and
performance of the Obligation pursuant to the Subsidiary Guaranty or an
addendum thereto in the form attached to the Subsidiary Guaranty; PROVIDED
THAT upon the sale or dissolution of any Material Subsidiary otherwise
permitted by this Agreement and the other Loan Documents, Administrative
Agent shall, at the request of Borrower and so long as no Default exists or
would result therefrom, release such Material Subsidiary from the Subsidiary
Guaranty.
6.3 OTHER GUARANTIES. As an inducement to the Credit Parties to
enter into this Agreement, Borrower shall cause each Other Required Guarantor
to unconditionally guarantee in favor of the Credit Parties the full payment
and performance of the Obligation pursuant to a guaranty in form and
substance reasonably acceptable to Administrative Agent. "OTHER REQUIRED
GUARANTOR" means, as of any date, any Person (other than POI or a Subsidiary
Guarantor) that is an Affiliate of any Company that has, as of such date,
guaranteed the payment or performance of any Debt of POI, Borrower, or any
other Company exceeding $25,000,000 individually or in the aggregate.
SECTION 7 CONDITIONS PRECEDENT.
7.1 CONDITIONS PRECEDENT TO CLOSING. This Agreement shall not become
effective, and Lenders shall not be obligated to advance any Borrowing or
issue any LC, unless the following conditions precedent are satisfied on or
before the Closing Date:
(a) BORROWER DOCUMENTS. Borrower shall deliver or cause to be
delivered to Administrative Agent the following, each, unless otherwise
noted, dated as of the Closing Date:
(i) certified copies of its Constituent Documents, together with a
good standing certificate from the Secretary of State of the state of its
incorporation and each other Material State and, to the extent generally
available, a certificate or other evidence of good standing as to payment
of any applicable franchise or similar taxes from the appropriate taxing
authority of each of such states, each dated a recent date or brought down
to a recent date prior to the Closing Date;
(ii) an officer's certificate of Borrower certifying (A) its
Constituent Documents, (B) resolutions of its Board of Directors
approving and authorizing the execution, delivery, and performance of
this Agreement and the other Loan Documents, certified as of the Closing
Date as being in full force and effect without modification or amendment,
and (C) signatures and incumbency of its officers executing this
Agreement and the other Loan Documents;
(iii) executed originals of this Agreement, any Notes requested
by any Lenders pursuant to SECTION 3.1(a)(ii), and the other Loan
Documents to be executed by Borrower; and
(iv) Uniform Commercial Code searches as Administrative Agent
may reasonably request covering Borrower, as debtor, and showing no Liens
on any of Borrower's assets (other than Permitted Liens).
(b) POI DOCUMENTS. Borrower shall deliver or cause to be delivered
to Administrative Agent the following, each, unless otherwise noted, dated as
of the Closing Date:
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(i) certified copies of POI's Constituent Documents, together with
a good standing certificate from the Secretary of State of the state of
its incorporation and each other Material State and, to the extent
generally available, a certificate or other evidence of good standing as
to payment of any applicable franchise or similar taxes from the
appropriate taxing authority of each of such states, each dated a recent
date or brought down to a recent date prior to the Closing Date;
(ii) an officer's certificate of POI certifying (A) its Constituent
Documents, (B) resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of the Loan Documents
to be executed by POI, certified as of the Closing Date as being in full
force and effect without modification or amendment, and (C) signatures and
incumbency of its officers executing the Loan Documents to be executed by
POI; and
(iii) executed originals of the POI Guaranty and the other Loan
Documents to be executed by POI.
(c) SUBSIDIARIES DOCUMENTS. Borrower shall deliver or cause to be
delivered to Administrative Agent the following with respect to each
Subsidiary Guarantor, each, unless otherwise noted, dated as of the Closing
Date:
(i) certified copies of its Constituent Documents, together with a
good standing certificate from the Secretary of State of the state of its
incorporation and each other Material State and, to the extent generally
available, a certificate or other evidence of good standing as to the
payment of any applicable franchise or other similar taxes from the
appropriate taxing authority of each of such states, each dated a recent
date or brought down to a recent date prior to the Closing Date;
(ii) an officer's certificate of each Subsidiary Guarantor
certifying (A) its Constituent Documents, (B) resolutions of its Board of
Directors approving and authorizing the execution, delivery, and
performance of the Loan Documents to which it is a party, certified as of
the Closing Date as being in full force and effect without modification or
amendment, and (C) signatures and incumbency of its officers executing the
Loan Documents to which it is a party; and
(iii) executed originals of the Loan Documents to which it is a
party.
(d) OPINIONS OF COUNSEL FOR THE COMPANIES. The Credit Parties and
their respective counsel shall have received originally executed copies of a
favorable written opinion of counsel for the Companies, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of
the Closing Date, and setting forth substantially the matters in the opinions
designated in EXHIBIT E and as to such other matters as Administrative Agent,
acting on behalf of the Credit Parties, may reasonably request, including,
without limitation, an opinion that the Debt incurred under this Agreement
and the related Loan Documents (i) has been incurred or entered into in
compliance with the requirements of the Senior Notes and all Subordinated
Debt, and (ii) constitutes "SENIOR INDEBTEDNESS" and "GUARANTOR SENIOR
INDEBTEDNESS" under the terms of all Subordinated Debt.
(e) FEES. Borrower shall have paid to Administrative Agent, for
distribution (as appropriate) to the Credit Parties, the fees payable on the
Closing Date referred to in SECTION 5.2.
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(f) NO MATERIAL ADVERSE EVENT. No Material Adverse Event has
occurred since September 30, 1998.
7.2 CONDITIONS TO ALL BORROWINGS. The obligations of Lenders to make
all Borrowings (including the initial Borrowing) and Administrative Agent to
issue all LCs (including the initial LC) are subject to the following
conditions precedent:
(a) NOTICE OF BORROWING; NOTICE OF LC. Administrative Agent shall
have received, (i) in the case of a Borrowing, in accordance with the
provisions of SECTIONS 2.1 and 2.4, an originally executed Notice of
Borrowing, and (b) in the case of an LC, in accordance with SECTION 2.2, a
Notice of LC.
(b) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. As of
the date of such Borrowing or the issuance of such LC, the representations
and warranties in Loan Documents are true, correct, and complete in all
material respects (unless they speak to a specific date or are based on facts
which have changed by transactions expressly contemplated or permitted by
this Agreement).
(c) NO DEFAULT. No Potential Default, Default, or Material Adverse
Event exits or would be caused by the making of such Borrowing or the
issuance of such LC.
(d) NO INJUNCTION OR RESTRAINING ORDER. No order, judgment, or
decree of any Governmental Authority shall purport to enjoin or restrain (i)
any Lender from making the Borrowing to be made by it, or (ii) Administrative
Agent from issuing such LC.
Each condition precedent in this Agreement is material to the transactions
contemplated in this Agreement, and time is of the essence in respect of each
thereof. Subject to the prior approval of Required Lenders, Lenders may fund
any Borrowing and Administrative Agent may issue any LC, without all
conditions being satisfied, but, to the extent permitted by Law, the same
shall not be deemed to be a waiver of the requirement that each such
condition precedent be satisfied as a prerequisite for any subsequent funding
or issuance, unless Required Lenders specifically waive each such item in
writing.
SECTION 8 REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
the Credit Parties as follows:
8.1 PURPOSE OF CREDIT FACILITY. Borrower will use (or will loan such
proceeds to the Companies to so use) all proceeds of Borrowings for general
working capital and other lawful corporate purposes (including Permitted
Acquisitions). No Company is 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 REGULATION U. No part
of the proceeds of any Borrowing will be used, directly or indirectly, for a
purpose which violates any Law, including, without limitation, the provisions
of REGULATIONS T, U, or X (as enacted by the Board of Governors of the
Federal Reserve System, as amended). "MARGIN STOCK" (as defined in
Regulation U) constitutes less than twenty-five percent (25%) of those assets
of the Companies that are subject to any limitation on sale, pledge, or
similar restrictions hereunder.
8.2 EXISTENCE, GOOD STANDING, AUTHORITY, AND AUTHORIZATIONS. Each
Company is duly organized, validly existing, and in good standing under the
Laws of its jurisdiction of organization (such jurisdictions as of the
Closing Date being identified on SCHEDULE 8.2). Each Company is duly
qualified to transact business and is in good standing in each jurisdiction
where the nature and extent of its business and
35
properties require the same except to the extent that the failure to so
qualify could not be a Material Adverse Event. Each Company possesses all
the Authorizations, franchises, permits, licenses, certificates of
compliance, and approvals and grants of authority necessary or required in
the conduct of its respective business(es), and the same are valid, binding,
enforceable, and subsisting without any defaults thereunder or enforceable
adverse limitations thereon and are not subject to any proceedings or claims
opposing the issuance, development, or use thereof or contesting the validity
thereof, except to the extent that the failure to have such Authorizations,
franchise, permit, license, or certificates of compliance, approvals, and
grants of authority, failure to maintain the validity thereof, or where such
default pursuant to the terms thereof, could not be a Material Adverse Event.
No Authorization, consent, approval, waiver, license, or formal exemptions
from, nor any filing, declaration, or registration with, any Governmental
Authority (federal, state, or local), or non-governmental entity, under the
terms of contracts or otherwise, is required by reason of or in connection
with the execution and performance of the Loan Documents by each Obligor
except for (a) Authorizations, consents, approvals, waivers, and licenses
that have been obtained, or (b) consents under immaterial contractual
obligations in which the failure to obtain such consents could not be a
Material Adverse Event.
8.3 SUBSIDIARIES; CAPITAL STOCK. The Companies have no Subsidiaries
except (a) Subsidiaries as of the Closing Date disclosed on SCHEDULE 8.3, and
(b) Subsidiaries formed or acquired after the Closing Date as a result of
transactions permitted by the Loan Documents. All of the outstanding Stock
of each Subsidiary is duly authorized, validly issued, fully paid, and
nonassessable and, as of the Closing Date, are owned of record and
beneficially as set forth on SCHEDULE 8.3, free and clear of any Liens,
restrictions, claims, or Rights of another Person, other than Permitted
Liens. Except as set forth in SCHEDULE 8.3, as of the Closing Date, no
Company has outstanding any warrant, option, or other Right of any Person to
acquire any of its Stock.
8.4 AUTHORIZATION AND CONTRAVENTION. The execution and delivery by
each Obligor of each Loan Document to which it is a party and the performance
by such Obligor of its obligations thereunder (a) are within the corporate
power of such Obligor, (b) have been duly authorized by all necessary
corporate action on the part of such Obligor, (c) require no action by or in
respect of, or filing with, any Governmental Authority, which action or
filing has not been taken or made on or prior to the Closing Date (or if
later, the date of execution and delivery of such Loan Document), (d) will
not violate any provision of the Constituent Documents of any Company, (e)
will not violate any provision of Law applicable to any Company, other than
such violations which individually or collectively could not be a Material
Adverse Event, (f) will not violate any material written or oral agreements,
contracts, commitments, or understandings to which any Company is a party,
other than such violations which could not be a Material Adverse Event, or
(g) will not result in the creation or imposition of any Lien on any material
asset of any Company.
8.5 BINDING EFFECT. Upon execution and delivery by all parties
thereto, each Loan Document will constitute a legal, valid, and binding
obligation of each Obligor that is a party thereto, enforceable against each
such Obligor in accordance with its terms, except as enforceability may be
limited by applicable Debtor Relief Laws and general principles of equity.
8.6 FINANCIAL STATEMENTS. The Current Financials were prepared in
accordance with GAAP (except as disclosed therein) and present fairly, in all
material respects, the consolidated financial condition, results of
operations, and cash flows of the Companies as of and for the portion of the
fiscal year ending on the date or dates thereof (subject only to normal
year-end audit adjustments). There were no material liabilities, direct or
indirect, fixed or contingent, of the Companies as of the date or dates of
the Current
36
Financials which are required under GAAP to be reflected therein or in the
notes thereto, and are not so reflected. Except for transactions directly
related to, or specifically contemplated by, the Loan Documents, there have
been no material changes in the consolidated financial condition of the
Companies from that shown in the Current Financials after such date which
could be a Material Adverse Event, nor has any Company incurred any liability
(including, without limitation, any liability under any Environmental Law),
direct or indirect, fixed or contingent, after such date which could be a
Material Adverse Event.
8.7 LITIGATION, CLAIMS, INVESTIGATIONS. Except as disclosed in
Borrower's FORM 10-KS and FORM 10-QS filed with the Securities and Exchange
Commission as of the date hereof, no Company is subject to, or aware of the
threat of, any Litigation which could reasonably be expected to be determined
adversely to any Company, and, if so adversely determined, could
(individually or collectively with other Litigation) be a Material Adverse
Event. There are no outstanding orders or judgments for the payment of money
in excess of $25,000,000 (individually or collectively) and not paid or
covered by insurance or indemnified in a manner reasonably acceptable to
Administrative Agent, or any warrant of attachment, sequestration, or
similar proceeding against the assets of any Company having a value
(individually or collectively) of $25,000,000 or more which is not either (a)
stayed on appeal, or (b) being contested in good faith by appropriate
proceedings diligently conducted, and against which reserves or other
provisions required by GAAP have been made. Except as disclosed in Borrower's
FORM 10-KS and FORM 10-QS filed with the Securities and Exchange Commission
as of the date hereof, there are no formal complaints, suits, claims,
investigations, or proceedings initiated at or by any Governmental Authority
pending or, to Borrower's knowledge, threatened by or against any Company
which, if adversely determined, could be a Material Adverse Event, nor any
judgments, decrees, or orders of any Governmental Authority outstanding
against any Company that could be a Material Adverse Event.
8.8 TAXES. All Tax returns of each Company required to be filed have
been filed (or extensions have been granted) prior to delinquency, except for
any such returns for which the failure to so file could not be a Material
Adverse Event, and all Taxes imposed upon each Company which are due and
payable have been paid prior to delinquency, other than Taxes (a) that are
being contested in good faith by appropriate proceedings diligently
conducted, and against which reserves or other provisions required by GAAP
have been made, or (b) for which nonpayment thereof could not be a Material
Adverse Event.
8.9 ENVIRONMENTAL MATTERS. No Company (a) knows of any environmental
condition or circumstance, such as the presence or Release of any Hazardous
Substance, on any property presently or previously owned or leased by any
Company that could be a Material Adverse Event, (b) knows of any violation by
any Company of any Environmental Law, except for such violations that could
not be a Material Adverse Event, or (c) knows that any Company is under any
obligation to remedy any violation of any Environmental Law, except for such
obligations that could not be a Material Adverse Event.
8.10 EMPLOYEE BENEFIT PLANS. (a) No Employee Plan has incurred an
accumulated funding deficiency, as defined in SECTION 302 of ERISA and
SECTION 412 of the Code, (b) neither Borrower nor any ERISA Affiliate has
incurred material liability which is currently due and remains unpaid beyond
the due date thereof under TITLE IV of ERISA to the PBGC or to an Employee
Plan in connection with any such Employee Plan, (c) neither Borrower nor any
ERISA Affiliate has withdrawn in whole or in part from participation in a
Multiemployer Plan as to which there is any material unsatisfied liability
(whether or not assessed), (d) Borrower has not engaged in any "PROHIBITED
TRANSACTION" (as defined in SECTION 406 of ERISA or SECTION 4975 of the Code)
which could be a Material Adverse Event, and (e) no Reportable Event has
occurred which is likely to result in the termination of an Employee Plan.
37
8.11 PROPERTIES; LIENS. Each Company has good and indefeasible title
with respect to all its material real property and good and sufficient title
with respect to all its material personal property reflected on the Current
Financials, except for property that (a) that is obsolete, or (b) has been
disposed of in the ordinary course of business or as otherwise permitted by
the Loan Documents. Except for Permitted Liens, there is no Lien on any
material property of any Company.
8.12 GOVERNMENT REGULATIONS. No Company is subject to regulation
under the INVESTMENT COMPANY ACT OF 1940, as amended, the PUBLIC UTILITY
HOLDING COMPANY ACT OF 1935, as amended, or any other Law (other than
REGULATIONS T, U, and X of the Board of Governors of the Federal Reserve
System) which regulates the incurrence of Debt.
8.13 MATERIAL AGREEMENTS. No Company is a party to any agreement,
contract, or instrument or is subject to any corporate restriction that is or
could be a Material Adverse Event.
8.14 LABOR MATTERS. There are no actual or, to Borrower's knowledge,
threatened strikes, labor disputes, slow downs, walkouts, or other concerted
interruptions of operations by the employees of any Company that could be a
Material Adverse Event. Hours worked by and payment made to employees of the
Companies have not been in violation of the FAIR LABOR STANDARDS ACT or any
other applicable Law dealing with such matters, other than any such
violations which could not, individually or collectively, be a Material
Adverse Event. All payments due from any Company on account of employee
health and welfare insurance have been paid or accrued as a liability on its
books, other than any such non-payment which could not, individually or
collectively, be a Material Adverse Event.
8.15 SOLVENCY. At the time of each Borrowing hereunder, each Company
is (and after giving effect to the transactions contemplated by the Loan
Documents, will be) Solvent.
8.16 INTELLECTUAL PROPERTY. Each Company owns or has sufficient and
legally enforceable rights to use all material licenses, patents, patent
applications, copyrights, service marks, trademarks, trademark applications,
and trade names necessary to continue to conduct its businesses as heretofore
conducted by it, now conducted by it, and now proposed to be conducted by it
other than those in which the failure to obtain or to apply for could not be
a Material Adverse Event. Each Company is conducting its business without
infringement or claim of infringement of any license, patent, copyright,
service xxxx, trademark, trade name, trade secret, or other intellectual
property right of others, other than any such infringements or claims which,
if successfully asserted against and determined adversely to any Company,
could not, individually or collectively, be a Material Adverse Event.
8.17 COMPLIANCE WITH LAWS. No Company is in violation of any Laws,
other than such violations which could not, individually or collectively, be
a Material Adverse Event. No Company has received notice alleging any
non-compliance with any Laws, except for such non-compliance which no longer
exists or which could not be a Material Adverse Event.
8.18 FULL DISCLOSURE. There is no material fact or condition relating
to the Loan Documents or the financial condition, business, or property of
any Company which could be a Material Adverse Event and which has not been
related, in writing, to Administrative Agent. All written information
heretofore furnished by any Company to any Credit Party in connection with
the Loan Documents was, and all such information hereafter furnished by any
Company to any Credit Party will be, true and accurate in all material
respects,
38
or in the case of projections, based on reasonable estimates and assumptions
on the date as of which such information is dated or certified.
8.19 YEAR 2000 COMPLIANCE. Except to the extent that the failure to
do any of the following could not reasonably be expected to be a Material
Adverse Event, Borrower has (a) initiated a review and assessment of all
areas within each Company's business and operations (including those affected
by suppliers and vendors) that could be adversely affected by the "YEAR 2000
PROBLEM" (that is, the risk that computer applications used by any Company
(or its suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any
date after December 31, 1999), (b) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (c) to date,
implemented that plan in accordance with that timetable. Borrower reasonably
believes that all computer applications (including those of its suppliers and
vendors) that are material to its or any of each Company's business and
operations will on a timely basis be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "YEAR
2000 COMPLIANT"), except to the extent that a failure to do so could not
reasonably be expected to be a Material Adverse Event.
8.20 SENIOR DEBT. The Obligation (and each Borrowing comprising the
Obligation) constitutes "SENIOR INDEBTEDNESS" and "GUARANTOR SENIOR
INDEBTEDNESS" under the terms of the Convertible Note Indenture, the Senior
Subordinated Note Indenture, and the Subordinated Note Indenture.
SECTION 9 AFFIRMATIVE COVENANTS. Borrower covenants and agrees to
perform, observe, and comply with each of the following covenants, from the
Closing Date until the payment in full of the Obligation and the termination
or cancellation of all outstanding LCs, if any:
9.1 USE OF PROCEEDS. Borrower shall use the proceeds of Borrowings
only for the purposes set forth in SECTION 8.1.
9.2 BOOKS AND RECORDS. Borrower shall, and shall cause each other
Company to, maintain books, records, and accounts necessary to prepare all
Financial Statements in accordance with GAAP.
9.3 ITEMS TO BE FURNISHED. Borrower shall cause the following to be
furnished to Administrative Agent (with sufficient copies for each Lender):
(a) ANNUAL FINANCIAL STATEMENTS. Promptly after preparation, and no
later than one hundred and twenty (120) days after the last day of each
fiscal year of POI, Financial Statements showing the consolidated financial
condition and results of operations for the Companies, as of, and for the
year ended on, such day, each accompanied by:
(i) the opinion of a firm of nationally-recognized independent
certified public accountants, based on an audit using generally accepted
auditing standards, that such Financial Statements were prepared in
accordance with GAAP and present fairly the consolidated financial
condition and results of operations of the Companies without a "GOING
CONCERN" or like qualification; and
(ii) a Compliance Certificate.
(b) PERIODIC FINANCIAL STATEMENTS. Promptly after preparation, and
no later than sixty (60) days after the last day of each fiscal quarter of
the Companies, Financial Statements showing the consolidated financial
condition and results of operations calculated for the Companies for such
fiscal quarter and for the
39
period from the beginning of the then-current fiscal year to, such last day,
accompanied by a Compliance Certificate with respect to such Financial
Statements.
(c) BUDGET. On or prior to March 31 of each fiscal year of the
Companies, the consolidated financial budget for the Companies for such
fiscal year.
(d) NOTICES OF LITIGATION, DEFAULTS, ETC. Notice, promptly after
Borrower knows or has reason to know of (i) the existence and status of any
Litigation which could, if adversely determined, reasonably be expected to be
a Material Adverse Event, or of any order or judgment for the payment of
money which (individually or collectively) is in excess of $25,000,000, or
any warrant of attachment, sequestration, or similar proceeding against the
assets of any Company having a value (individually or collectively) of
$25,000,000 and not covered by insurance or indemnified in a manner
reasonably acceptable to Administrative Agent, (ii) any material change in
any material fact or circumstance represented or warranted in any Loan
Document, (iii) a Potential Default or Default specifying the nature thereof
and what action Borrower or any other Company has taken, is taking, or
proposes to take with respect thereto, (iv) the receipt by any Company of
notice of any violation or alleged violation of any Environmental Law, which
violation or alleged violation could individually or collectively with other
such violations or allegations, be a Material Adverse Event, or (v) (A) the
occurrence of a Reportable Event that, alone or together with any other
Reportable Event, could reasonably be expected to result in liability of any
Company to the PBGC in an aggregate amount exceeding $25,000,000; (B) any
expressed statement in writing on the part of the PBGC of its intention to
terminate any Employee Plan or Plans; (C) Borrower's or an ERISA Affiliate's
becoming obligated to file with the PBGC a notice of failure to make a
required installment or other payment with respect to an Employee Plan; or
(D) the receipt by Borrower or an ERISA Affiliate from the sponsor of a
Multiemployer Plan of either a notice concerning the imposition of withdrawal
liability in an aggregate amount exceeding $25,000,000 or of the impending
termination or reorganization of such Multiemployer Plan.
(e) SEC FILINGS. Promptly after the filing thereof, a true, correct,
and complete copy of each FORM 10-K, FORM 10-Q, and FORM 8-K filed by or on
behalf of any Company with the Securities and Exchange Commission.
(f) CHANGE IN RATINGS. Promptly upon the receipt of notice thereof,
and in any event within five (5) Business Days after any change in the
Xxxxx'x Rating or the S & P Rating, notice of such change.
(g) OTHER INFORMATION. Promptly upon request therefor by any Credit
Party, such information (not otherwise required to be furnished under the
Loan Documents) respecting the business affairs, assets, and liabilities of
the Companies, and such opinions, certifications, and documents, in addition
to those mentioned in this Agreement, as reasonably requested (other than
privileged and confidential communications between any Company and its legal
advisors).
9.4 INSPECTIONS. Borrower shall, and shall cause each other Company
to, upon reasonable prior notice and during normal business hours, allow
Administrative Agent (or its Representatives) to inspect any of their
properties, to review reports, files, and other records and, if reasonably
requested, to make and take away copies thereof, to conduct tests or
investigations, and to discuss any of their affairs, conditions, and finances
with other directors, officers, employees, other representatives, and
independent accountants of the Companies, from time to time, during normal
business hours; PROVIDED THAT Administrative Agent shall notify
40
such Company and Borrower prior to any contacts with such accountants and
give such Company and Borrower the reasonable opportunity to participate in
such discussions.
9.5 TAXES. Borrower shall, and shall cause each other Company to (a)
promptly pay when due any and all Taxes other than Taxes (i) the
applicability, amount, or validity of which is being contested in good faith
by appropriate proceedings diligently conducted, and against which reserves
or other provisions required by GAAP have been made, and in respect of which
levy and execution of any lien securing same have been and continue to be
stayed, and (ii) in which the failure to so pay could not be a Material
Adverse Event, and (b) notify Administrative Agent immediately if the
Internal Revenue Service or any other taxing authority commences or notifies
any Company of its intention to commence an audit or investigation with
respect to any taxes of any kind due or alleged to be due from any Company.
9.6 MAINTENANCE OF EXISTENCE, ASSETS, AND BUSINESS. Except as
otherwise permitted by SECTION 10.11, Borrower shall, and shall cause each
other Company to, at all times: (a) maintain its existence and good standing
in the jurisdiction of its organization and its authority to transact
business in all other jurisdictions where the failure to so maintain its
authority to transact business could be a Material Adverse Event; (b)
maintain all licenses, permits, and franchises necessary for its business
where the failure to so maintain could be a Material Adverse Event; (c) keep
all of its material assets which are useful in and necessary to its business
in good working order and condition (ordinary wear and tear excepted) and
make all necessary repairs thereto and replacements thereof; and (d) do all
things necessary to obtain, renew, extend, and continue in effect all
Authorizations which may at any time and from time to time be necessary for
the Companies to operate their businesses in compliance with applicable Law,
where the failure to so renew, extend, or continue in effect could be a
Material Adverse Event.
9.7 INSURANCE. Borrower shall, and shall cause each other Company
to, maintain with financially sound, responsible, and reputable insurance
companies or associations insurance concerning its properties and businesses
against casualties and contingencies and of types and in amounts (and with
co-insurance and deductibles) as is customary in the case of similar
businesses. At Administrative Agent's request, Borrower shall, and shall
cause each Company to, promptly deliver to Administrative Agent evidence of
insurance for each policy of insurance and evidence of payment of all
premiums.
9.8 PRESERVATION AND PROTECTION OF RIGHTS. Borrower shall, and shall
cause each other Company to, perform such acts and duly authorize, execute,
acknowledge, deliver, file, and record any additional agreements, documents,
instruments, and certificates as Administrative Agent or Required Lenders may
reasonably deem necessary or appropriate in order to preserve and protect the
Rights of the Credit Parties under any Loan Document.
9.9 ENVIRONMENTAL LAWS. Borrower shall, and shall cause each other
Company to (a) conduct its business so as to comply in all material respects
with all applicable Environmental Laws and shall promptly take corrective
action to remedy any material non-compliance with any Environmental Law, and
(b) promptly investigate and remediate any known Release or threatened
Release of any Hazardous Substance on any property owned by any Company or at
any facility operated by any Company to the extent and degree necessary to
comply in all material respects with all applicable Environmental Laws.
9.10 YEAR 2000 COMPLIANCE. Borrower shall promptly notify Administrative
Agent in the event Borrower discovers or determines that any computer
application (including those of its suppliers and vendors) that is material to
any Company's business and operations will not be Year 2000 Compliant on a
timely basis,
41
except to the extent that such failure to be Year 2000 Compliant could not
reasonably be expected to be a Material Adverse Event.
9.11 COMPLIANCE WITH LAWS. Borrower shall, and shall cause each other
Company to, comply with the provisions of any Laws applicable to it, or any
material written or oral agreement, contract, commitment, or understanding to
which it is a party, if such non-compliance alone, or when aggregated with
all other such violations, could reasonably be expected to be a Material
Adverse Event.
9.12 AFTER-ACQUIRED SUBSIDIARIES. Borrower shall, and shall cause
each other Company to, cause each Material Subsidiary acquired or formed
after the Closing Date (an "AFTER-ACQUIRED SUBSIDIARY") to execute and
deliver to Administrative Agent, within thirty (30) days following the
acquisition or formation thereof, counterpart signature pages to the
Subsidiary Guaranty and to provide to Administrative Agent (a) certified
copies of such After-Acquired Subsidiary's Constituent Documents, together
with a good standing certificate, from the Secretary of State of the state of
its incorporation, and (b) an officer's certificate of such After-Acquired
Subsidiary certifying (i) its Constituent Documents, (ii) resolutions of its
Board of Directors approving and authorizing the execution, delivery, and
performance of the Loan Documents to be executed by such After-Acquired
Subsidiary, and (iii) signatures and incumbency of its officers executing the
Loan Documents to be executed by such After-Acquired Subsidiary.
9.13 OTHER REQUIRED GUARANTORS. Borrower shall cause each Other
Required Guarantor to execute and deliver to Administrative Agent, within
thirty (30) days after the execution of any guaranty required by SECTION 6.3,
(a) certified copies of such Other Required Guarantor's Constituent
Documents, together with a good standing certificate, from the Secretary of
State of the state of its incorporation, and (b) an officer's certificate of
such Other Required Guarantor certifying (i) its Constituent Documents, (ii)
resolutions of its Board of Directors approving and authorizing the
execution, delivery, and performance of the Loan Documents to be executed by
such Other Required Guarantor, and (iii) signatures and incumbency of its
officers executing the Loan Documents to be executed by such Other Required
Guarantor.
SECTION 10 NEGATIVE COVENANTS. Borrower covenants and agrees to perform,
observe, and comply with each of the following covenants, from the Closing
Date until the payment in full of the Obligation and the termination or
cancellation of all LCs, if any:
10.1 EMPLOYEE BENEFIT PLANS. Borrower shall not, and shall not permit
any ERISA Affiliate to, directly or indirectly, engage in any "PROHIBITED
TRANSACTION" (as defined in SECTION 406 of ERISA or SECTION 4975 of the
Code), and the Companies, and their respective ERISA Affiliates shall not,
directly or indirectly, (a) incur any "ACCUMULATED FUNDING DEFICIENCY" as
such term is defined in SECTION 302 of ERISA with respect to any Employee
Plan, (b) permit any Employee Plan to be subject to involuntary termination
proceedings pursuant to TITLE IV of ERISA, or (c) fully or partially withdraw
from any Multiemployer Plan, if such prohibited transaction, accumulated
funding deficiency, termination proceeding, or withdrawal could reasonably be
expected to be a Material Adverse Event.
10.2 DEBT OF FOREIGN SUBSIDIARIES. Borrower shall not permit any
Foreign Subsidiary to, directly or indirectly, create, incur, guarantee,
assume, or suffer to exist any Debt or any direct, indirect, fixed, or
contingent liability for any Debt other than (a) Debt payable to any Company,
(b) Capital Leases of C.E.T., S.A. existing on Closing Date and any
refinancings, renewals, or extensions thereof (without any increase in the
principal amount thereof), and (c) in addition to the Debt permitted by
CLAUSES (a) and (b)
42
above, other Debt in an aggregate principal amount for all Foreign
Subsidiaries not to exceed $25,000,000 at any time outstanding.
10.3 LIENS. Borrower shall not, and shall not permit any other
Company to, directly or indirectly, create, incur, or suffer or permit to be
created or incurred or to exist any Lien upon any of its assets, except the
following ("PERMITTED LIENS"):
(i) pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with worker's
compensation, unemployment insurance, pensions, or other social security
programs;
(ii) pledges or deposits made to secure performance of bids,
tenders, insurance or other contracts (other than for the repayment of
borrowed money), or leases, or to secure statutory obligations, surety or
appeal bonds, or indemnity, performance, or other similar bonds as all
such Liens arise in the ordinary course of business of the Companies;
(iii) encumbrances consisting of zoning restrictions, easements,
rights-of-way, covenants, minor exceptions to title, or other restrictions
on the use of real property, none of which impair in any material respect
the use of such property by the Person in question in the operation of its
business, and none of which is violated by existing or proposed structures
or land use (where such violation could be a Material Adverse Event);
(iv) Liens of landlords or of mortgagees of landlords on fixtures
and movable property located on premises leased in the ordinary course of
business;
(v) claims and Liens for Taxes (A) that are not due and payable,
or (B) in which the applicability, amount, or validity of which is being
contested in good faith by appropriate proceedings diligently conducted,
and against which reserves or other provisions required by GAAP have been
made and levy and execution thereon have been stayed and continue to be
stayed;
(vi) claims and Liens of mechanics, materialmen, warehousemen,
carriers, landlords, or other like Liens in which (A) the amounts due
thereunder are not overdue for a period of more than thirty (30) days, or
(B) the applicability, amount, or validity of which is being contested in
good faith by appropriate proceedings diligently conducted, and against
which reserves or other provisions required by GAAP have been made and
levy and execution thereon have been stayed and continue to be stayed;
(vii) Liens in existence on the date hereof listed on
SCHEDULE 10.3, securing Debt existing as of the Closing Date and any
refinancings, renewals, or extensions thereof (without any increase in the
principal amount thereof);
(viii) Liens on assets acquired pursuant to a Permitted Acquisition
securing Debt of any Company assumed in connection with such Permitted
Acquisition not to exceed fifteen percent (15%) of the aggregate
consideration for such Permitted Acquisition;
(ix) any interest or title of a lessor under any lease entered
into by any Company in the ordinary course of its business and covering
only the assets so leased;
43
(x) any obligations or duties affecting any of the properties of
any Company to any municipality or public authority with respect to any
franchise, grant, license, or permit which do not materially impair the
use of such property for the purposes for which it is held;
(xi) liens imposed by operation of law with respect to any
judgments or orders not constituting a Default;
(xii) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases entered into
by any Company in the ordinary course of business;
(xiii) licenses, leases, or subleases permitted hereunder granted to
others not interfering in any material respect with the business of any
Company;
(xiv) Liens in favor of banking institutions arising by operation
of law encumbering deposits (including the right of setoff) held by such
banking institution incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry; and
(xv) Liens not otherwise permitted by this SECTION 10.3 PROVIDED
THAT the aggregate outstanding principal amount of the obligations secured
thereby does not exceed $25,000,000 in the aggregate at any time
outstanding.
10.4 TRANSACTIONS WITH AFFILIATES. Borrower shall not, and shall not
permit any other Company to, enter into any transaction with any of its
Affiliates, other than transactions upon fair and reasonable terms not
materially less favorable than such Company could obtain or could become
entitled to in an arm's-length transaction with a Person that was not its
Affiliate; PROVIDED, HOWEVER, that the Companies shall be entitled to make
the following payments and/or enter into the following transactions:
(a) the payment of reasonable and customary fees and reimbursement of
expenses payable to directors of any Company;
(b) the employment arrangements with respect to the procurement of
services of directors, officers, and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith;
(c) the transactions, agreements, and arrangements described on
SCHEDULE 10.4; and
(d) any other transaction between Affiliates otherwise expressly
permitted by this Agreement.
10.5 COMPLIANCE WITH DOCUMENTS. Borrower shall not, and shall not
permit any other Company to, (a) violate the provisions of its Constituent
Documents, or (b) modify, repeal, replace, or amend any provision of its
Constituent Documents, in each case where such action could be a Material
Adverse Event.
10.6 FISCAL YEAR AND ACCOUNTING METHODS. Borrower shall not, and
shall not permit any other Company to, change its fiscal year for book
accounting purposes; PROVIDED THAT POI and Borrower may
44
change their respective fiscal year with the prior written consent of
Administrative Agent, such consent not to be unreasonably withheld.
10.7 NEW BUSINESS. Borrower shall not, and shall not permit any other
Company (other than Subsidiaries of POI that in the aggregate contribute five
percent (5%) or less of the consolidated total assets of the Companies as of
the last day of the immediately preceding fiscal year of the Companies) to,
directly or indirectly, permit or suffer to exist any material change in the
type of businesses in which it is engaged from the businesses of the
Companies as conducted on the Closing Date or reasonable extensions thereof.
10.8 LOANS, ADVANCES, AND INVESTMENTS. Borrower shall not, and shall
not permit any other Company to, make any loan, advance, extension of credit,
or capital contribution to, make any investment in, or purchase or commit to
purchase any Stock or evidences of Debt of, or interests in, any other
Person, other than: (a) readily marketable, direct, full faith and credit
obligations of the United States of America, or obligations guaranteed by the
full faith and credit of the United States of America, maturing within not
more than one year from the date of acquisition; (b) short term certificates
of deposit and time deposits, which mature within one year from the date of
issuance and which are fully insured by the Federal Deposit Insurance
Corporation; (c) commercial paper maturing in 365 days or less from the date
of issuance and rated either "P-1" by Xxxxx'x, or "A-1" by S & P; (d) debt
instruments of a domestic issuer which mature in one (1) year or less and
which are rated "A" or better by Xxxxx'x or S&P on the date of acquisition of
such investment; (e) demand deposit accounts which are maintained in the
ordinary course of business; (f) Permitted Acquisitions; (g) trade accounts
receivable which are for goods furnished or services rendered in the ordinary
course of business and are payable in accordance with customary trade terms;
(h) investments by the Companies in Domestic Subsidiaries as of the Closing
Date and formed in accordance with the terms of this Agreement; (i) loans and
advances by the Companies to their respective directors, officers, and
employees in an aggregate principal amount not to exceed $2,500,000 in the
aggregate at any time outstanding; (j) loans, advances, or investments
existing on the Closing Date and listed on SCHEDULE 10.8, and extensions,
renewals, modifications, restatements, or replacements thereof; (k)
investments consisting of Debt of any Company to any other Company; (l)
promissory notes and other similar non-cash consideration received by any
Company in connection with the dispositions permitted by SECTION 10.11; (m)
investments in Financial Hedge Agreements; (n) investments received in
connection with the bankruptcy or reorganization or suppliers and customers
in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business; (o)
investments of (i) the Companies (other than Foreign Subsidiaries) in Foreign
Subsidiaries in an aggregate amount not to exceed at any one time outstanding
fifteen percent (15%) of the consolidated total assets of the Companies
determined in accordance with GAAP for the most recent fiscal year (without
regard to any write down or write up thereof), and (ii) Foreign Subsidiaries
in other Foreign Subsidiaries; and (p) in addition to the foregoing, other
investments by the Companies in an aggregate amount not exceeding five
percent (5%) of the consolidated total assets of the Companies determined in
accordance with GAAP for the most recent fiscal year (without regard to any
write down or write up thereof).
10.9 DISTRIBUTIONS AND SUBORDINATED DEBT PAYMENTS.
(a) DISTRIBUTIONS. Borrower shall not, and shall not permit any
other Company to, directly or indirectly declare, make, or pay any
Distributions, other than (i) Distributions declared, made, or paid by any
Company wholly in the form of its capital Stock, and (ii) Distributions by
any Company to Borrower or Lifeline, (iii) so long as no Default exists or
would result from the payment thereof, Distributions by any Company to POI
and Distributions by POI to the holders of its Stock, in each case in an
aggregate amount
45
during any fiscal year of the Companies not to exceed the SUM of (A)
twenty-five percent (25%) of the consolidated net income of the Companies for
the immediately preceding fiscal year of the Companies, PLUS (B) an amount
for the purpose of making Distributions to the holders of POI's Stock equal
to the net proceeds from the issuance of POI's Stock, (iv) Distributions in
the form of Common Stock of POI issued in connection with the conversion of
the Convertible Notes, and (v) Distributions from any Subsidiary of POI to
POI the proceeds of which:
(A) shall be applied by POI directly to pay out-of- pocket
expenses, for administrative, legal, and accounting services provided by
third parties that are reasonable and customary and incurred in the
ordinary course of business for such professional services, or to pay
franchise fees and similar costs;
(B) will be used to repurchase the Stock of POI (x) from
directors, employees, or members of the management of any Company, at a
price not in excess of the fair market value of such Stock, in an
aggregate amount not in excess of $10,000,000 (net of the proceeds
received by POI as a result of any resales of any such Stock), or (y) in
order to fulfill the obligations of any Company under an employee Stock
purchase plan or similar plan covering employees of any Company as from
time to time in effect;
(C) will be used to pay taxes of the Companies as part of a
consolidated, combined, or unitary tax filing group or of the separate
operations of POI; or
(D) will be used to make investments in, or loans to, any
Subsidiary of POI otherwise permitted pursuant to this Agreement.
(b) SUBORDINATED DEBT. Borrower shall not, and shall not permit any
other Company to, make any payment on any Subordinated Debt (i) when it
violates the subordination provisions thereof, PROVIDED THAT so long as no
Default exists Borrower may (A) redeem, defease, or repurchase Subordinated
Debt with the proceeds of issuance of Stock of POI or Borrower, and (B)
refinance Subordinated Debt with the proceeds of other Subordinated Debt, or
(ii) with the proceeds of any Debt that is not Subordinated Debt if the
Leverage Ratio is, as of the most recent date of determination hereunder,
greater than 4.5 to 1.0.
10.10 RESTRICTIONS ON COMPANIES. Borrower shall not, and shall not
permit any other Company to, enter into or permit to exist any material
arrangement or agreement (other than the Loan Documents and, solely with
respect to Foreign Subsidiaries, the agreements evidencing the Debt permitted
by SECTION 10.2) which directly or indirectly prohibits any Subsidiary of
Borrower from (i) declaring, making, or paying, directly or indirectly, any
Distribution to Borrower, (ii) paying any Debt owed to Borrower, (iii) making
loans, advances, or investments to Borrower, or (iv) transferring any of its
property or assets to Borrower.
10.11 SALE OF ASSETS. Borrower shall not, and shall not permit any
other Company to, sell, assign, transfer, or otherwise dispose of any of its
assets, other than (a) sales of inventory and equipment leases (including,
without limitation, equipment leases originated or acquired by C.E.T., S.A.
or its Subsidiaries) in the ordinary course of business, (b) the sale,
discount, or transfer of delinquent accounts receivable in the ordinary
course of business for purposes of collection, (c) sales of immaterial assets
for consideration not less than the fair market value thereof, (d)
dispositions of obsolete assets and assets no longer useful in the respective
businesses of the Companies, (e) transfers resulting from any casualty or
condemnation of property of assets, (f) licenses or sublicenses of
intellectual property and general intangibles and licenses, leases, or
subleases of other property in each case in the ordinary course of business
and that do not materially interfere
46
with the business of any Company, (g) dispositions permitted by SECTION
10.12, and (h) other asset sales during any fiscal year of the Companies in
an aggregate amount not exceeding ten percent (10%) of the consolidated total
assets of the Companies determined in accordance with GAAP for the most
recent fiscal year (without regard to any write down or write up thereof).
10.12 MERGERS AND DISSOLUTIONS; SALE OF CAPITAL STOCK. Borrower shall
not, and shall not permit any other Company to, directly or indirectly, merge
or consolidate with any other Person, other than (a) as a result of a
Permitted Acquisition, (b) mergers or consolidations involving Borrower if
Borrower is the surviving entity, and (c) mergers among Wholly-owned
Companies; PROVIDED THAT in any merger involving Borrower (including a
Permitted Acquisition effected as a merger), Borrower must be the surviving
entity, and, in any merger involving any other Company (including a Permitted
Acquisition effected as a merger), a Company must be the surviving entity.
Borrower shall not, and shall not permit any other Company to, liquidate,
wind up, or dissolve (or suffer any liquidation or dissolution), other than
liquidations, wind ups, or dissolutions incident to mergers permitted under
this SECTION 10.12.
10.13 FINANCIAL COVENANTS. As calculated on a consolidated basis for
the Companies:
(a) LEVERAGE RATIO. Borrower shall not permit the Leverage Ratio, as
of the last day of any fiscal quarter of the Companies during the following
periods, to be greater than the ratio set forth opposite such period below:
--------------------------------------------------------------
PERIOD RATIO
--------------------------------------------------------------
Closing Date through 5.0 to 1.0
December 30, 1999
--------------------------------------------------------------
December 31, 1999 and 4.5 to 1.0
thereafter
--------------------------------------------------------------
(b) INTEREST COVERAGE. Borrower shall not permit the Interest
Coverage Ratio, as of the last day of any fiscal quarter of the Companies, to
be less than 2.75 to 1.0.
SECTION 11 DEFAULT. The term "DEFAULT" means the occurrence of any one or
more of the following events:
11.1 PAYMENT OF OBLIGATION.
(a) The failure or refusal of Borrower to pay any of the Obligation
(other than principal) when it becomes due and payable under the Loan
Documents and such failure shall continue for five (5) days after such
payment became due.
(b) The failure or refusal of Borrower to pay any principal of the
Obligation when it becomes due and payable under the Loan Documents
11.2 COVENANTS.
47
(a) The failure or refusal of Borrower (and, if applicable, any other
Material Company) to punctually and properly perform, observe, and comply
with any covenant, agreement, or condition contained in any SECTION 9.3 or
SECTION 10.
(b) The failure or refusal of Borrower (and, if applicable, any other
Material Company) to punctually and properly perform, observe, and comply
with any covenant, agreement, or condition contained in any Loan Document
(other than the covenants to pay the Obligation and the covenants in (a)
preceding) and, if such failure is capable of being cured within the
appropriate time, then such failure shall continue for thirty (30) days after
the earlier to occur of the date (i) any Responsible Officer knows of, or
(ii) Borrower receives notice from Administrative Agent of, such failure or
refusal.
11.3 DEBTOR RELIEF. Any Material Company (a) shall not be Solvent,
(b) fails to pay its Debts generally as they become due, (c) voluntarily
seeks, consents to, or acquiesces in the benefit of any Debtor Relief Law,
other than as a creditor or claimant, or (d) becomes a party to or is 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 Credit Party granted in the Loan Documents (UNLESS,
in the event such proceeding is involuntary, the petition instituting same is
dismissed within sixty (60) days after its filing).
11.4 JUDGMENTS AND ATTACHMENTS. Any Material Company fails, within
sixty (60) days after entry, to pay, bond, or otherwise discharge any
judgment or order for the payment of money in excess of $25,000,000
(individually or collectively) and not paid or covered by insurance or
indemnified in a manner reasonably acceptable to Administrative Agent, or any
warrant of attachment, sequestration, or similar proceeding against any
Material Company's assets having a value (individually or collectively) of
$25,000,000 which is not stayed on appeal.
11.5 MISREPRESENTATION. Any representation or warranty made by any
Company contained in any Loan Document shall at any time prove to have been
incorrect in any material respect when made.
11.6 CHANGE OF CONTROL.
(a) POI shall cease to own, directly or indirectly, one hundred
percent (100%) of the voting control (directly or indirectly) of Borrower; or
(b) Western Resources, Inc. shall cease to own, directly or
indirectly, more than fifty percent (50%) of the voting control (directly or
indirectly) of POI.
11.7 DEFAULT UNDER OTHER DEBT AND AGREEMENTS.
(a) The occurrence of any "DEFAULT" or "EVENT OF DEFAULT" or other
breach which remains uncured after the expiration of any period of grace,
notice, or right to cure, if any, or unwaived on any date of determination
under or with respect to the Senior Notes or any Subordinated Debt; or
(b) The trustee with respect to, or any holder of, the Senior Notes
or any Subordinated Debt shall effectively declare all or any portion of such
Debt or obligation thereunder due and payable prior to the stated maturity
thereof; or
48
(c) Any Material Company fails to pay when due (after lapse of any
applicable grace periods) any Debt of such Material Company (other than the
Obligation) in excess (individually or collectively) of $25,000,000.
11.8 EMPLOYEE BENEFIT PLANS.
(a) A "REPORTABLE EVENT" or "REPORTABLE EVENTS," or a failure to make
a required installment or other payment (within the meaning of SECTION
412(n)(1) of the Code), shall have occurred with respect to any Employee Plan
or Employee Plans that is reasonably expected to result in liability of
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$25,000,000; or
(b) Borrower or any ERISA Affiliate has provided to any affected
party a sixty (60) day notice of intent to terminate an Employee Plan
pursuant to a distress termination in accordance with SECTION 4041(c) of
ERISA if the liability reasonably expected to be incurred as a result of such
termination will exceed $25,000,000; or
(c) A trustee shall be appointed by a United States district court to
administer any Employee Plan; or
(d) the PBGC shall institute proceedings (including giving notice of
intent thereof) to terminate any Employee Plan; or
(e) (i) Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred withdrawal liability
(within the meaning of SECTION 4201 of ERISA) to such Multiemployer Plan,
(ii) Borrower or such ERISA Affiliate does not have reasonable grounds for
contesting such withdrawal liability or is not contesting such withdrawal
liability in a timely and appropriate manner and (iii) the amount of such
withdrawal liability specified in such notice, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with
withdrawal liabilities (determined as of the date or dates of such
notification), exceeds $25,000,000; or
(f) Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of TITLE IV of
ERISA, if solely as a result of such reorganization or termination the
aggregate annual contributions of Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or have been or are being
terminated have been or will be increased over the amounts required to be
contributed to such Multiemployer Plans for their most recently completed
plan years by an amount exceeding $25,000,000.
11.9 VALIDITY AND ENFORCEABILITY OF LOAN DOCUMENTS. Any Loan Document
shall, at any time after its execution and delivery and for any reason, cease
to be in full force and effect in any material respect or be declared to be
null and void (other than in accordance with the terms hereof or thereof)
and, if such invalidity is capable of being cured without materially
disadvantaging any Credit Party, Borrower fails to cure such invalidity
within thirty (30) days after Borrower receives written notice from
Administrative Agent of such invalidity, or the validity or enforceability
thereof shall be contested by any Company party thereto or any Company shall
deny in writing that it has any or any further liability or obligations under
any Loan Document to which it is a party.
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11.10 ENVIRONMENTAL LIABILITY. If any event or condition shall occur
or exist with respect to any activity or substance regulated under the
Environmental Law and as a result of such event or condition, any Company
shall have incurred or in the opinion of the banks be reasonably likely to
incur a liability in excess of $25,000,000 liability during any consecutive
twelve (12) month period.
SECTION 12 RIGHTS AND REMEDIES.
12.1 REMEDIES UPON DEFAULT.
(a) If a Default exists under SECTION 11.3(c) or 11.3(d), then the
commitment to extend credit hereunder shall automatically terminate and the
entire unpaid balance of the Obligation shall automatically become due and
payable without any action or notice of any kind whatsoever and Borrower
shall be required to provide cash collateral in an amount equal to one
hundred percent (100%) of the LC Exposure then existing in accordance with
SECTION 2.2(h).
(b) If any Default exists, then Administrative Agent may with the
consent of Required Lenders (and, subject to the terms of SECTION 13, shall
upon the request of Required Lenders) do any one or more of the following:
(i) if the maturity of the Obligation has not already been accelerated under
SECTION 12.1(a), then declare the entire unpaid balance of the Obligation, or
any part thereof, immediately due and payable, whereupon it shall be due and
payable; (ii) terminate the commitments of Lenders to extend credit
hereunder; (iii) reduce any claim to judgment; (iv) to the extent permitted
by Law, exercise (or request each Lender to, and each Lender shall be
entitled to, exercise) the Rights of offset or banker's Lien against the
interest of any Company in and to every account and other property of any
Company which are in the possession of any Credit Party to the extent of the
full amount of the Obligation (to the extent permitted by Law, Borrower being
deemed directly obligated to each Credit Party in the full amount of the
Obligation for such purposes); PROVIDED, HOWEVER, such Credit Party shall
thereafter promptly notify Borrower and Administrative after any such offset
and the application made by such Lender; (v) if the maturity of the
Obligation has not already been accelerated under SECTION 12.1(a), then
demand Borrower to provide cash collateral in an amount equal to one hundred
percent (100%) of the LC Exposure then existing in accordance with SECTION
2.2(h); and (vi) exercise any and all other legal or equitable Rights
afforded by the Loan Documents, the Laws of the State of Texas, or any other
applicable jurisdiction as Administrative Agent shall deem appropriate, or
otherwise, including, but not limited to, the Right to bring suit or other
proceedings before any Governmental Authority either for specific performance
of any covenant or condition contained in any of the Loan Documents or in aid
of the exercise of any Right granted to any Credit Party in any of the Loan
Documents.
12.2 COMPANY WAIVERS. To the extent permitted by Law, the Companies
and Guarantors hereby waive presentment and demand for payment, protest,
notice of intention to accelerate, notice of acceleration, and notice of
protest and nonpayment, and agree that their respective liability with
respect to the Obligation (or any part thereof) shall not be affected by any
renewal or extension in the time of payment of the Obligation (or any part
thereof), by any indulgence, or by any release or change in any security for
the payment of the Obligation (or any part thereof).
12.3 PERFORMANCE BY ADMINISTRATIVE AGENT. If any covenant, duty, or
agreement of any Company is not performed in accordance with the terms of the
Loan Documents, while a Default exists, then Administrative Agent may, at its
option (but subject to the approval of Required Lenders), perform or attempt to
perform such covenant, duty, or agreement on behalf of such Company. In such
event, any amount expended by Administrative Agent in such performance or
attempted performance shall be payable by the Obligors, jointly and severally,
to Administrative Agent on demand, shall become part of the Obligation, and
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shall bear interest at the Default Rate from the date of such expenditure by
Administrative Agent until paid. Notwithstanding the foregoing, it is
expressly understood that Administrative Agent does not assume, and shall
never have, except by its express written consent, any liability or
responsibility for the performance of any covenant, duty, or agreement of any
Company.
12.4 DELEGATION OF DUTIES AND RIGHTS. The Credit Parties may perform
any of their duties or exercise any of their Rights under the Loan Documents
by or through their respective Representatives.
12.5 NOT IN CONTROL. Nothing in any Loan Document shall, or shall be
deemed to (a) give any Credit Party the Right to exercise control over the
assets (including real property), affairs, or management of any Company, (b)
preclude or interfere with compliance by any Company with any Law, or (c)
require any act or omission by any Company that may be harmful to Persons or
property. Any "MATERIAL ADVERSE EVENT" or other materiality qualifier in any
representation, warranty, covenant, or other provision of any Loan Document
is included for credit documentation purposes only and shall not, and shall
not be deemed to, mean that any Credit Party acquiesces in any non-compliance
by any Company with any Law or document, or that any Credit Party does not
expect any Company to promptly, diligently, and continuously carry out all
appropriate removal, remediation, and termination activities required or
appropriate in accordance with all Environmental Laws. The Credit Parties
have no fiduciary relationship with or fiduciary duty to any Company arising
out of or in connection with the Loan Documents, and the relationship between
the Credit Parties, on the one hand, and the Companies, on the other hand, in
connection with the Loan Documents is solely that of debtor and creditor. The
power of the Credit Parties under the Loan Documents is limited to the Rights
provided in the Loan Documents, which Rights exist solely to assure payment
and performance of the Obligation and may be exercised in a manner calculated
by the Credit Parties in their respective good faith business judgment.
12.6 COURSE OF DEALING. The acceptance by any Credit Party at any
time and from time to time of partial payment on the Obligation shall not be
deemed to be a waiver of any Default then existing. No waiver by any Credit
Party of any Default shall be deemed to be a waiver of any other
then-existing or subsequent Default. No delay or omission by any Credit
Party in exercising any Right under the Loan Documents shall impair such
Right or be construed as a waiver thereof or any acquiescence therein, nor
shall any single or partial exercise of any such Right preclude other or
further exercise thereof, or the exercise of any other Right under the Loan
Documents or otherwise.
12.7 CUMULATIVE RIGHTS. All Rights available to the Credit Parties
under the Loan Documents are cumulative of and in addition to all other
Rights granted to the Credit Parties at law or in equity, whether or not the
Obligation is due and payable and whether or not the Credit Parties have
instituted any suit for collection, foreclosure, or other action in
connection with the Loan Documents.
12.8 APPLICATION OF PROCEEDS. Any and all proceeds ever received by
any Credit Party from the exercise of any Rights pertaining to the Obligation
shall be applied to the Obligation in the order and manner set forth in
SECTION 3.11.
12.9 CERTAIN PROCEEDINGS. Borrower will promptly execute and deliver,
or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers any
Credit Party may reasonably request in connection with the obtaining of any
consent, approval, registration, qualification, permit, license, or
Authorization of any Governmental Authority or other Person necessary or
appropriate for the effective exercise of any Rights under the Loan
Documents. Because
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Borrower agrees that the Credit Parties' remedies at Law for failure of
Borrower to comply with the provisions of this SECTION 12.9 would be
inadequate and that such failure would not be adequately compensable in
damages, Borrower agrees that the covenants of this SECTION 12.9 may be
specifically enforced.
12.10 EXPENDITURES BY LENDERS. Borrower shall promptly pay within
fifteen (15) Business Days after request therefor (a) all reasonable costs,
fees, and expenses paid or incurred by Administrative Agent and Lead
Arranger, incident to any Loan Document (including, but not limited to, the
reasonable fees and expenses of counsel to Administrative Agent and Lead
Arranger in connection with the negotiation, preparation, delivery,
execution, coordination, and administration of the Loan Documents and any
related amendment, waiver, or consent), and (b) all reasonable costs and
expenses of each Credit Party incurred by such Credit Party in connection
with the enforcement of the obligations of any Obligor arising under the Loan
Documents (including, without limitation, costs and expenses incurred in
connection with any workout or bankruptcy) or the exercise of any Rights
arising under the Loan Documents (including, but not limited to, reasonable
attorneys' fees including court costs and other costs of collection), all of
which shall be a part of the Obligation and shall bear interest at the
Default Rate from the date due until the date repaid.
12.11 INDEMNIFICATION. BORROWER SHALL, AND SHALL CAUSE EACH OTHER
COMPANY TO, INDEMNIFY AND HOLD HARMLESS EACH CREDIT PARTY AND EACH OF THEIR
RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ATTORNEYS, AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES
SUBJECT TO THE LIMITATIONS, IF ANY, SET FORTH IN SECTION 12.10 (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) THAT MAY BE INCURRED BY OR
ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING OUT
OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN
CONNECTION WITH ANY INVESTIGATION, LITIGATION, OR PROCEEDING OR PREPARATION
OF DEFENSE IN CONNECTION THEREWITH) THE LOAN DOCUMENTS, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, OR THE ACTUAL OR PROPOSED USE OF THE
PROCEEDS OF THE BORROWINGS (INCLUDING ANY OF THE FOREGOING ARISING FROM THE
ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY), EXCEPT TO THE EXTENT SUCH
CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO
INDEMNIFIED PARTY MAY SEEK INDEMNIFICATION HEREUNDER FOR LIABILITIES OR
EXPENSES OWED TO ANY COMPANY, TO THE EXTENT SUCH LIABILITIES OR EXPENSES
ARISE OUT OF SUCH INDEMNIFIED PARTY'S BREACH OF THIS AGREEMENT AS DETERMINED
IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION. IN
THE CASE OF AN INVESTIGATION, LITIGATION OR OTHER PROCEEDING TO WHICH THE
INDEMNITY IN THIS SECTION 12.11 APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE
WHETHER OR NOT SUCH INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY
BORROWER, ITS DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR
ANY OTHER PERSON OR ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO.
BORROWER AND EACH OTHER COMPANY AGREE NOT TO ASSERT ANY CLAIM AGAINST ANY
INDEMNIFIED PARTY ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO
THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, OR THE
ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE BORROWINGS. WITHOUT PREJUDICE
TO THE SURVIVAL OF ANY OTHER AGREEMENT OF BORROWER HEREUNDER, THE AGREEMENTS
AND OBLIGATIONS OF BORROWER CONTAINED IN THIS SECTION 12.11 SHALL SURVIVE THE
PAYMENT IN FULL OF THE BORROWINGS AND ALL OTHER AMOUNTS PAYABLE UNDER THIS
AGREEMENT.
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NOTWITHSTANDING THE FOREGOING, BORROWER SHALL HAVE NO OBLIGATION HEREUNDER TO
ANY INDEMNIFIED PARTY WITH RESPECT TO ANY AND ALL CLAIMS, DAMAGES, LOSSES,
LIABILITIES, COSTS, AND EXPENSES THAT ARE ATTRIBUTABLE TO ANY HAZARDOUS
MATERIALS THAT ARE FIRST USED, MANUFACTURED, EMITTED, GENERATED, TREATED,
LOCATED, RELEASED, STORED, OR DISPOSED OF ON ANY REAL PROPERTY OWNED,
OPERATED, OR LEASED BY A COMPANY AND ANY VIOLATION OF ENVIRONMENTAL LAWS,
WHICH IN EITHER CASE, FIRST OCCUR ON OR WITH RESPECT TO SUCH REAL PROPERTY
AFTER THE PROPERTY IS TRANSFERRED TO ANY OF THE INDEMNIFIED PARTIES OR THEIR
SUCCESSORS BY FORECLOSURE SALE, DEED IN LIEU OF FORECLOSURE, OR SIMILAR
TRANSFER, EXCEPT TO THE EXTENT SUCH MANUFACTURE, EMISSION, RELEASE,
GENERATION, TREATMENT, STORAGE, RELEASE, OR DISPOSAL OR VIOLATION IS ACTUALLY
CAUSED BY A COMPANY.
SECTION 13 AGREEMENT AMONG LENDERS.
13.1 ADMINISTRATIVE AGENT.
(a) APPOINTMENT. Each Lender hereby appoints NationsBank (and
NationsBank hereby accepts such appointment) as its nominee and agent, in its
name and on its behalf: (i) to act as nominee for and on behalf of such
Lender in and under all Loan Documents; (ii) to arrange the means whereby the
funds of Lenders are to be made available to Borrower under the Loan
Documents; (iii) to take such action as may be requested by any Lender under
the Loan Documents (when such Lender is entitled to make such request under
the Loan Documents and after such requesting Lender has obtained the
concurrence of such other Lenders as may be required under the Loan
Documents); (iv) to receive all documents and items to be furnished to
Lenders under the Loan Documents; (v) to timely distribute, and
Administrative Agent agrees to so distribute, to each Lender all material
information, requests, documents, and items received from any Company under
the Loan Documents; (vi) to promptly distribute to each Lender its ratable
part of each payment or prepayment (whether voluntary, as proceeds of
collateral upon or after foreclosure, as proceeds of insurance thereon, or
otherwise) in accordance with the terms of the Loan Documents; (vii) to
deliver to the appropriate Persons requests, demands, approvals, and consents
received from Lenders; and (viii) to execute, on behalf of Lenders, such
releases or other documents or instruments as are permitted by the Loan
Documents or as directed by Lenders from time to time; PROVIDED, HOWEVER,
Administrative Agent shall not be required to take any action which exposes
Administrative Agent to personal liability or which is contrary to the Loan
Documents or applicable Law.
(b) SUCCESSOR AGENT. Administrative Agent may resign at any time as
Administrative Agent under the Loan Documents by giving written notice thereof
to Lenders and may be removed as Administrative Agent under the Loan Documents
at any time with cause by Required Lenders. Should the initial or any successor
Administrative Agent ever cease to be a party hereto or should the initial or
any successor Administrative Agent ever resign or be removed as Administrative
Agent, then Required Lenders shall elect the successor Administrative Agent from
among Lenders (other than the resigning Administrative Agent) which successor
Administrative Agent shall, unless a Payment Default exists, be reasonably
acceptable to Borrower. If no successor Administrative Agent shall have been so
appointed by Required Lenders, within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of Lenders, appoint a successor Administrative Agent, which
shall be a commercial bank having a combined capital and surplus of at least
$1,000,000,000 and which successor Administrative Agent shall, unless a Payment
Default exists, be reasonably acceptable to Borrower. Upon the acceptance of
any appointment as Administrative Agent under the Loan Documents by a successor
Administrative Agent, such
53
successor Administrative Agent shall thereupon succeed to and become vested
with all the Rights of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations of
Administrative Agent under the Loan Documents (PROVIDED, HOWEVER, that when
used in connection with LCs issued and outstanding prior to the appointment
of the successor Administrative Agent, "ADMINISTRATIVE AGENT" shall continue
to refer solely to the bank that issued the outstanding LC; PROVIDED FURTHER
that any LCs issued or renewed after the appointment of any successor
Administrative Agent shall be issued by such successor Administrative Agent),
and each Lender shall execute such documents as any Lender may reasonably
request to reflect such change in and under the Loan Documents. After any
retiring Administrative Agent's resignation or removal as Administrative
Agent under the Loan Documents, the provisions of this SECTION 13 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent under the Loan Documents.
(c) RIGHTS AS LENDER. Administrative Agent, in its capacity as a
Lender, shall have the same Rights under the Loan Documents as any other
Lender and may exercise the same as though it were not acting as
Administrative Agent; the term "LENDER" shall, unless the context otherwise
indicates, include Administrative Agent; and any resignation, or removal of
by Administrative Agent hereunder shall not impair or otherwise affect any
Rights which it has or may have in its capacity as an individual Lender.
Each Lender and Borrower agree that Administrative Agent is not a fiduciary
for Lenders or for Borrower but simply is acting in the capacity described
herein to alleviate administrative burdens for both Borrower and Lenders,
that Administrative Agent has no duties or responsibilities to Lenders or
Borrower except those expressly set forth herein, and that Administrative
Agent in its capacity as a Lender has all Rights of any other Lender.
(d) OTHER ACTIVITIES. Administrative Agent and its Affiliates may
now or hereafter be engaged in one or more loan, letter of credit, leasing,
or other financing transactions with any Company, act as trustee or
depositary for any Company, or otherwise be engaged in other transactions
with any Company (collectively, the "OTHER ACTIVITIES") not the subject of
the Loan Documents. Without limiting the Rights of Lenders specifically set
forth in the Loan Documents, Administrative Agent and its Affiliates shall
not be responsible to account to Lenders for such other activities, and no
Lender shall have any interest in any other activities, any present or future
guaranties by or for the account of any Company which are not contemplated or
included in the Loan Documents, any present or future offset exercised by
Administrative Agent and its Affiliates in respect of such other activities,
any present or future property taken as security for any such other
activities, or any property now or hereafter in the possession or control of
Administrative Agent or its Affiliates which may be or become security for
the obligations of any Company arising under the Loan Documents by reason of
the general description of indebtedness secured or of property contained in
any other agreements, documents or instruments related to any such other
activities; provided that if any payments in respect of such guaranties or
such property or the proceeds thereof shall be applied to reduction of the
obligations of any Obligor arising under the Loan Documents, then each Lender
shall be entitled to share in such application ratably.
13.2 EXPENSES. Upon demand by Administrative Agent, each Lender shall
pay its Pro Rata Part of any reasonable expenses (including, without
limitation, court costs, reasonable attorneys' fees, and other costs of
collection) incurred by Administrative Agent in connection with any of the
Loan Documents if and to the extent Administrative Agent does not receive
reimbursement therefor from other sources within 60 days after incurred
(other than expenses incurred as a result of Administrative Agent's gross
negligence or willful misconduct); PROVIDED THAT each Lender shall be
entitled to receive its Pro Rata Part of any reimbursement for such expenses,
or part thereof, which Administrative Agent subsequently receives from such
other sources.
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13.3 PROPORTIONATE ABSORPTION OF LOSSES. Except as otherwise provided
in the Loan Documents, nothing in the Loan Documents shall be deemed to give
any Lender any advantage over any other Lender insofar as the Obligation
arising under the Loan Documents is concerned, or to relieve any Lender from
absorbing its Pro Rata Part of any losses sustained with respect to the
Obligation (except to the extent such losses result from unilateral actions
or inactions of any Lender that are not made in accordance with the terms and
provisions of the Loan Documents).
13.4 DELEGATION OF DUTIES; RELIANCE. Administrative Agent may perform
any of its duties or exercise any of its Rights under the Loan Documents by
or through its Representatives. Administrative Agent and its Representatives
shall (a) be entitled to rely upon (and shall be protected in relying upon)
any writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telecopy, telegram, telex or teletype message, statement, order,
or other documents or conversation believed by it or them to be genuine and
correct and to have been signed or made by the proper Person and, with
respect to legal matters, upon opinion of counsel selected by Administrative
Agent, (b) be entitled to deem and treat each Lender as the owner and holder
of the Principal Debt owed to such Lender for all purposes until, subject to
SECTION 14.13, written notice of the assignment or transfer thereof shall
have been given to and received by Administrative Agent (and any request,
authorization, consent, or approval of any Lender shall be conclusive and
binding on each subsequent holder, assignee, or transferee of the Principal
Debt owed to such Lender or portion thereof until such notice is given and
received), (c) not be deemed to have notice of the occurrence of a Potential
Default or Default unless a responsible officer of Administrative Agent, who
handles matters associated with the Loan Documents and transactions
thereunder, has received written notice from a Lender or Borrower and stating
that such notice is a "NOTICE OF DEFAULT," and (d) be entitled to consult
with legal counsel (including counsel for Borrower), independent accountants,
and other experts selected by Administrative Agent and shall not be liable
for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts.
13.5 LIMITATION OF LIABILITY.
(a) EXCULPATION. No Agent nor any of its Representatives shall be
liable for any action taken or omitted to be taken by it or them under the
Loan Documents in good faith and reasonably believed by it or them to be
within the discretion or power conferred upon it or them by the Loan
Documents or be responsible for the consequences of any error of judgment,
except for fraud, gross negligence, or willful misconduct; and no Agent nor
any of its Representatives has a fiduciary relationship with any Lender by
virtue of the Loan Documents (PROVIDED THAT nothing herein shall negate the
obligation of Administrative Agent to account for funds received by it for
the account of any Lender).
(b) INDEMNITY. Unless indemnified to its satisfaction against loss,
cost, liability, and expense, no Agent shall be compelled to do any act under
the Loan Documents or to take any action toward the execution or enforcement
of the powers thereby created or to prosecute or defend any suit in respect
of the Loan Documents. If any Agent requests instructions from Lenders or
Required Lenders, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with any
Loan Document, such Agent shall be entitled (but shall not be required) to
refrain (without incurring any liability to any Person by so refraining) from
such act or action unless and until it has received such instructions.
Except where action of Required Lenders or all Lenders is required in the
Loan Documents, each Agent may act hereunder in its own discretion without
requesting instructions. In no event, however, shall any Agent or any of its
Representatives be required to take any action which it or they determine
could incur for it or them
55
criminal or onerous civil liability. Without limiting the generality of the
foregoing, no Lender shall have any right of action against any Agent as a
result of such Agent's acting or refraining from acting hereunder in
accordance with the instructions of Required Lenders (or all Lenders if
required in the Loan Documents).
(c) RELIANCE. No Agent shall be responsible in any manner to any
Lender or any Participant for, and each Lender represents and warrants that
it has not relied upon any Agent in respect of, (i) the creditworthiness of
any Company and the risks involved to such Lender, (ii) the effectiveness,
enforceability, genuineness, validity, or the due execution of any Loan
Document, (iii) any representation, warranty, document, certificate, report,
or statement made therein or furnished thereunder or in connection therewith,
(iv) the existence, priority, or perfection of any Lien, if any, now or
hereafter granted or purported to be granted under any Loan Document, or (v)
observation of or compliance with any of the terms, covenants, or conditions
of any Loan Document on the part of any Company. EACH LENDER AGREES TO
INDEMNIFY EACH AGENT AND ITS RESPECTIVE REPRESENTATIVES AND HOLD THEM
HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDER'S PRO RATA PART OF) ANY
AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, REASONABLE EXPENSES, AND REASONABLE DISBURSEMENTS OF
ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, ASSERTED AGAINST, OR
INCURRED BY THEM IN ANY WAY RELATING TO OR ARISING OUT OF THE LOAN DOCUMENTS
OR ANY ACTION TAKEN OR OMITTED BY THEM UNDER THE LOAN DOCUMENTS (INCLUDING
ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF ADMINISTRATIVE AGENT OR
ITS REPRESENTATIVES), TO THE EXTENT ANY AGENT AND ITS RESPECTIVE
REPRESENTATIVES ARE NOT REIMBURSED FOR SUCH AMOUNTS BY ANY COMPANY (PROVIDED
THAT NO AGENT NOR ANY OF ITS REPRESENTATIVES SHALL NOT HAVE THE RIGHT TO BE
INDEMNIFIED HEREUNDER FOR ITS OR THEIR OWN FRAUD, GROSS NEGLIGENCE, OR
WILLFUL MISCONDUCT).
13.6 DEFAULT. Upon the occurrence and continuance of a Default,
Lenders agree to promptly confer in order that Required Lenders or Lenders,
as the case may be, may agree upon a course of action for the enforcement of
the Rights of Lenders; and Administrative Agent shall be entitled to refrain
from taking any action (without incurring any liability to any Person for so
refraining) unless and until Administrative Agent shall have received
instructions from Required Lenders. All rights of action under this
Agreement and the other Loan Documents and all rights to any collateral, if
any, hereunder may be enforced by Administrative Agent and any suit or
proceeding instituted by Administrative Agent in furtherance of such
enforcement shall be brought in their respective names as Administrative
Agent without the necessity of joining as plaintiffs or defendants any other
Credit Party, and the recovery of any judgment shall be for the benefit of
the Credit Parties subject to the expenses of Administrative Agent. In
actions with respect to any property of any Company, Administrative Agent is
acting for the ratable benefit of each Credit Party. Any and all agreements
to subordinate (whether made heretofore or hereafter) other indebtedness or
obligations of any Company to the Obligation shall be construed as being for
the ratable benefit of each Credit Party.
13.7 LIMITATION OF LIABILITY. To the extent permitted by Law, (a) no
Agent (acting in its respective agent capacity) shall incur any liability to
any other Credit Party or Participant except for acts or omissions resulting
from its own fraud, gross negligence or wilful misconduct, and (b) no Credit
Party shall incur any liability to any other Person for any act or omission
of any other Credit Party or any Participant.
13.8 RELATIONSHIP OF LENDERS. Nothing herein shall be construed as
creating a partnership or joint venture among the Credit Parties.
13.9 BENEFITS OF AGREEMENT. Except for the representations and
covenants in SECTIONS 13.1(a), 13.1(b), and 13.1(d) in favor of Borrower,
none of the provisions of this SECTION 13 shall inure to the benefit
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of any Company or any other Person other than the Credit Parties;
consequently, no Company or any other Person shall be entitled to rely upon,
or to raise as a defense, in any manner whatsoever, the failure of any Credit
Party to comply with such provisions.
13.10 AGENTS. No Lender identified in this Agreement as "SYNDICATION
AGENT" or "LEAD ARRANGER" shall have any rights, powers, obligations,
liabilities, responsibilities, or duties under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, no
Lender so identified as a "SYNDICATION AGENT" or "LEAD ARRANGER" shall have
or be deemed to have any fiduciary relationship with any other Credit Party.
13.11 OBLIGATIONS SEVERAL. The obligations of Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the
obligations of the other Lenders hereunder, nor will the failure of one
Lender to perform any of its obligations hereunder relieve the other Lenders
from the performance of their respective obligations hereunder.
SECTION 14 MISCELLANEOUS.
14.1 HEADINGS. The headings, captions, and arrangements used in any
of the Loan Documents are, unless specified otherwise, for convenience only
and shall not be deemed to limit, amplify, or modify the terms of the Loan
Documents, nor affect the meaning thereof.
14.2 NONBUSINESS DAYS. In any case where any payment or action is due
under any Loan Document on a day which is not a Business Day, such payment or
action may be delayed until the next-succeeding Business Day, but interest
and fees shall continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made; PROVIDED THAT if, in the case
of any such payment in respect of a Eurodollar Borrowing, the next-succeeding
Business Day is in the next calendar month, then such payment shall be made
on the next-preceding Business Day.
14.3 COMMUNICATIONS. Unless specifically otherwise provided, whenever
any Loan Document requires or permits any consent, approval, notice, request,
or demand from one party to another, such communication must be in writing
(which may be by telex or telecopy) to be effective and shall be deemed to
have been given (a) if by telex, when transmitted to the telex number, if
any, for such party, and the appropriate answer back is received, (b) if by
telecopy, when transmitted to the telecopy number for such party (and all
such communications sent by telecopy shall be confirmed promptly thereafter
by personal delivery or mailing in accordance with the provisions of this
SECTION 14.3; PROVIDED THAT any requirement in this parenthetical shall not
affect the date on which such telecopy shall be deemed to have been
delivered), (c) if by mail, on the third (3rd) Business Day after it is
enclosed in an envelope, properly addressed to such party, properly stamped,
sealed, and deposited in the appropriate official postal service, or (d) if
by any other means, when actually delivered to such party. Until changed by
notice pursuant hereto, the address (and telex and telecopy numbers, if any)
for Borrower and each Credit Party is set forth on SCHEDULE 2.1.
14.4 FORM AND NUMBER OF DOCUMENTS. Each agreement, document,
instrument, or other writing to be furnished under any provision of this
Agreement must be in form and substance and in such number of counterparts as
may be reasonably satisfactory to Administrative Agent and its counsel.
14.5 CONFIDENTIALITY. Each Credit Party agrees to keep confidential any
information furnished or made available to it by Borrower pursuant to this
Agreement in accordance with its customary procedures
57
for handling confidential information of this nature in accordance with safe
and sound banking or investment banking practices; PROVIDED THAT nothing
herein shall prevent any Credit Party from disclosing such information (a) to
any other Credit Party or any Affiliate of any Credit Party, or any officer,
director, employee, agent, or advisor of any Credit Party or Affiliate of any
Credit Party (PROVIDED THAT any such Affiliate shall be deemed to agree to
and shall be bound by the provisions of this SECTION 14.5), (b) to any other
Person if reasonably incidental to the administration of the credit facility
provided herein, (c) as required by any Law, (d) upon the order of any court
or administrative agency, (e) upon the request or demand of any regulatory
agency or authority, (f) that is or becomes available to the public or that
is or becomes available to any Credit Party other than as a result of a
disclosure by any Credit Party prohibited by this Agreement, (g) in
connection with any litigation to which such Credit Party or any of its
Affiliates may be a party, (h) to the extent necessary in connection with the
exercise of any remedy under this Agreement or any other Loan Document, and
(i) subject to provisions substantially similar to those contained in this
SECTION 14.5, to any actual or proposed Participant or assignee.
14.6 SURVIVAL. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents shall
survive all closings under the Loan Documents and, except as otherwise
indicated, shall not be affected by any investigation made by any party.
Unless otherwise specifically stated, all rights of, and provisions relating
to, reimbursement and indemnification of any Credit Party shall survive
termination of this Agreement and payment in full of the Obligation.
14.7 GOVERNING LAW. THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES TO THE
LOAN DOCUMENTS AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION OF THE LOAN DOCUMENTS.
14.8 INVALID PROVISIONS. If any provision in any Loan Document is
held to be illegal, invalid, or unenforceable, then such provision shall be
fully severable; the appropriate Loan Document shall be construed and
enforced as if such provision had never comprised a part thereof; and the
remaining provisions thereof shall remain in full force and effect and shall
not be affected by such provision or by its severance therefrom. Each Credit
Party and each Company party to such Loan Document agree to negotiate, in
good faith, the terms of a replacement provision as similar to the severed
provision as may be possible and be legal, valid, and enforceable.
14.9 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF THE COMPANIES AND THE
CREDIT PARTIES SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS, DOCUMENTS,
AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN SUCH PARTIES ARE
SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS AGREEMENT (AS AMENDED IN
WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY
ANY COMPANY AND/OR ANY CREDIT PARTY (TOGETHER WITH ALL COMMITMENT LETTERS AND
FEE LETTERS AS THEY RELATED TO THE PAYMENT OF FEES AFTER THE CLOSING DATE)
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES 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.
14.10 JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY
HERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY
(A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS LOCATED IN DALLAS, TEXAS, AND
58
AGREES AND CONSENTS THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE
OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY TEXAS LAW, (B) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF
OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION BROUGHT IN ANY
SUCH COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH HEREIN,
(E) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY HERETO
ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE OBLIGATION
SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED COURTS, AND (F) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY. The scope of each of
the foregoing waivers is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter
of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims.
The Companies and each other party to this Agreement acknowledge that this
waiver is a material inducement to the agreement of each party hereto to
enter into a business relationship, that each has already relied on this
waiver in entering into this Agreement, and each will continue to rely on
each of such waivers in related future dealings. The Companies and each
other party to this Agreement warrant and represent that they have reviewed
these waivers with their legal counsel, and that they knowingly and
voluntarily agree to each such waiver following consultation with legal
counsel. THE WAIVERS IN THIS SECTION 14.10 ARE IRREVOCABLE, MEANING THAT
THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF
THIS OR ANY OTHER LOAN DOCUMENT. In the event of Litigation, this Agreement
may be filed as a written consent to a trial by the court.
14.11 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS.
(a) Except as otherwise specifically provided, (i) this Agreement may
only be amended, modified or waived by an instrument in writing executed
jointly by Borrower and Required Lenders, and, in the case of any matter
affecting Administrative Agent (except removal of Administrative Agent as
provided in SECTION 13) by Administrative Agent, and may only be supplemented
by documents delivered or to be delivered in accordance with the express
terms hereof, and (ii) the other Loan Documents may only be the subject of an
amendment, modification, or waiver if Borrower and Required Lenders, and, in
the case of any matter affecting Administrative Agent (except as set forth
above), Administrative Agent, have approved same.
(b) Any amendment to or consent or waiver under this Agreement or any
Loan Document which purports to accomplish any of the following must be by an
instrument in writing executed by Borrower and executed (or approved, as the
case may be) by each Lender affected thereby, and, in the case of any matter
affecting Administrative Agent, by Administrative Agent: (i) extends the due
date or reduces the amount of any scheduled payment of the Obligation or any
scheduled reduction of the Total Commitment beyond the date specified in the
Loan Documents; (ii) reduces the interest rate or decreases the amount of
interest, fees, or other sums payable to the Credit Parties hereunder (except
such reductions as are contemplated by this
59
Agreement and reductions in the interest rate as a result of the waiver of
the payment of interest at the Default Rate); (iii) changes the definition of
"APPLICABLE MARGIN" (other than changes having the effect of increasing such
Applicable Margin) or "TOTAL COMMITMENT;" or (iv) changes this CLAUSE (b).
Without the consent of such Lender, no Lender's "COMMITTED SUM" may be
increased.
(c) Any amendment to or consent or waiver under this Agreement or any
Loan Document which purports to accomplish any of the following must be by an
instrument in writing executed by Borrower and executed (or approved, as the
case may be) by each Lender, and, in the case of any matter affecting
Administrative Agent, by Administrative Agent: (i) changes the definition of
"PRO RATA," "PRO RATA PART," "REQUIRED LENDERS," or "TERMINATION DATE;" (ii)
except as otherwise permitted by any Loan Document, waives compliance with,
amends, or releases (in whole or in part) any Guaranty or releases (in whole
or in part) or waives the requirement to provide any Guaranty or any
collateral, if any, for the Obligation except to the extent expressly
permitted herein or in any other Loan Document; (iii) changes this CLAUSE (c)
or any other matter specifically requiring the consent of all Lenders
hereunder; or (iv) subordinates any of the Obligation to any other Debt of
the Companies. Without the consent of such Lender, no Lender's "COMMITTED
SUM" may be increased.
(d) Any conflict or ambiguity between the terms and provisions herein
and terms and provisions in any other Loan Document shall be controlled by
the terms and provisions herein.
(e) No course of dealing nor any failure or delay by any Credit Party
or any of its Representatives with respect to exercising any Right of any
Credit Party hereunder shall operate as a waiver thereof. A waiver must be
in writing and signed by Administrative Agent and Required Lenders (or by all
Lenders, if required hereunder) to be effective, and such waiver will be
effective only in the specific instance and for the specific purpose for
which it is given.
(f) Notwithstanding the foregoing, any increase in the interest rate
or amount of interest, fees, or other sums payable to the Credit Parties may
be agreed to by Administrative Agent and Borrower without the prior written
consent of any Lender.
14.12 MULTIPLE COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original
for all purposes and all of which constitute, collectively, one agreement;
but, in making proof of this Agreement, it shall not be necessary to produce
or account for more than one such counterpart. It is not necessary that each
Lender execute the same counterpart so long as identical counterparts are
executed by Borrower, each Lender, and Administrative Agent. This Agreement
shall become effective when counterparts hereof shall have been executed and
delivered to Administrative Agent by each Lender, Administrative Agent, and
Borrower, or, when Administrative Agent shall have received telecopied,
telexed, or other evidence satisfactory to it that such party has executed
and is delivering to Administrative Agent a counterpart hereof.
14.13 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon, and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
(i) Borrower may not, directly or indirectly, assign or transfer, or attempt to
assign or transfer, any of its Rights, duties or obligations under any Loan
Documents without the express written consent of all Lenders, and (ii) except as
permitted under this SECTION 14.13, no Lender
60
may transfer, pledge, assign, sell any participation in, or otherwise
encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a
portion of its Rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, all or a portion of its Borrowings
and its Notes, if any); PROVIDED, HOWEVER, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's Rights and obligations under this
Agreement and the other Loan Documents, any such partial assignment shall
be in an amount at least equal to $5,000,000, but, in no event less than
$1,000,000;
(iii) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its Rights and obligations under this
Agreement;
(iv) the parties to such assignment shall execute and deliver to
Administrative Agent for its acceptance (such acceptance not to be
unreasonably withheld) an Assignment and Acceptance Agreement in the form
of EXHIBIT F hereto, together with any Notes subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and, to the extent
of such assignment, have the obligations, Rights, and benefits of a Lender
under the Loan Documents and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its obligations
under the Loan Documents. Upon the consummation of any assignment pursuant
to this SECTION, but only upon the request of the assignor or assignee made
through Administrative Agent, Borrower shall issue appropriate Notes upon
request to the assignor and the assignee, reflecting such Assignment and
Acceptance. If the assignee is not incorporated under the laws of the United
States of America or a state thereof, then it shall deliver to Borrower and
Administrative Agent certification as to exemption from deduction or
withholding of Taxes in accordance with SECTION 4.6(d).
(c) Administrative Agent shall maintain at its address referred to in
SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to
and accepted by it and a register for the recordation of the names and
addresses of Lenders and the Commitment, and principal amount of the
Borrowings owing to, each Lender from time to time (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower, Administrative Agent and Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Documents. The Register shall be
available for inspection by Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice. Upon the consummation of any
assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall
automatically be deemed amended (to the extent required) by Administrative
Agent to reflect the name, address, and respective Committed Sums of the
assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed
by the parties thereto, together with any Notes, if any, subject to such
assignment and payment of the processing fee,
61
Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of EXHIBIT F hereto, (i) accept
such Assignment and Acceptance Agreement, (ii) record the information
contained therein in the Register, and (iii) give prompt notice thereof to
the parties thereto.
(e) Subject to the provisions of this SECTION and in accordance with
applicable Law, any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable Law, at any time sell to
one or more Persons (each a "PARTICIPANT") participating interests in its
portion of the Obligation. In the event of any such sale to a Participant,
(i) such Lender shall remain a "LENDER" under this Agreement and the
Participant shall not constitute a "LENDER" hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender
shall remain solely responsible for the performance thereof, (iv) such Lender
shall remain the holder of its share of the Principal Debt for all purposes
under this Agreement, (v) Borrower and Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
Rights and obligations under the Loan Documents, and (vi) such Lender shall
be solely responsible for any withholding taxes or any filing or reporting
requirements relating to such participation and shall hold Borrower and
Administrative Agent and their respective successors, permitted assigns,
officers, directors, employees, agents, and representatives harmless against
the same. Participants shall have no Rights under the Loan Documents, other
than certain voting Rights as provided below. Subject to the following, each
Lender shall be entitled to obtain (on behalf of its Participants) the
benefits of SECTION 4 with respect to all participations in its part of the
Obligation outstanding from time to time so long as Borrower shall not be
obligated to pay any amount in excess of the amount that would be due to such
Lender under SECTION 4 calculated as though no participations have been made.
No Lender shall sell any participating interest under which the Participant
shall have any Rights to approve any amendment, modification, or waiver of
any Loan Document, except to the extent such amendment, modification, or
waiver extends the due date for payment of any amount in respect of principal
(other than mandatory prepayments), interest, or fees due under the Loan
Documents, reduces the interest rate or the amount of principal or fees
applicable to the Obligation (except such reductions as are contemplated by
this Agreement), or releases any material Guaranty or all or any substantial
portion of any collateral, if any, for the Obligation under the Loan
Documents (except such releases as are contemplated by this Agreement);
PROVIDED THAT in those cases where a Participant is entitled to the benefits
of SECTION 4 or a Lender grants Rights to its Participants to approve
amendments to or waivers of the Loan Documents respecting the matters
previously described in this sentence, such Lender must include a voting
mechanism in the relevant participation agreement or agreements, as the case
may be, whereby a majority of such Lender's portion of the Obligation
(whether held by such Lender or Participant) shall control the vote for all
of such Lender's portion of the Obligation. Except in the case of the sale
of a participating interest to another Lender, the relevant participation
agreement shall not permit the Participant to transfer, pledge, assign, sell
participations in, or otherwise encumber its portion of the Obligation,
unless the consent of the transferring Lender (which consent will not be
unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its
Borrowings and any Notes to any Federal Reserve Bank as collateral security
pursuant to REGULATION A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(g) Any Lender may furnish any information concerning the Companies
in the possession of such Lender from time to time to Eligible Assignees and
Participants (including prospective Eligible Assignees and Participants).
62
14.14 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The obligations of each Company under the Loan Documents
shall remain in full force and effect until termination of the Total
Commitment and payment in full of the Principal Debt and of all interest,
fees, and other amounts of the Obligation then due and owing, (and
termination of all outstanding LCs with any Lender, if any, UNLESS such
Lender shall otherwise consent) EXCEPT that the indemnification and payment
obligations set forth in SECTIONS 4, 12, and 14, and any other provisions
under the Loan Documents expressly intended to survive by the terms hereof or
by the terms of the applicable Loan Documents, shall survive such
termination. If at any time any payment of the Obligation is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy, or
reorganization of any Company or otherwise, then the obligations of each
Company under the Loan Documents with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
14.15 DESIGNATED SENIOR INDEBTEDNESS. Borrower hereby designates the
Obligation (and all Borrowings comprising the Obligation) as "DESIGNATED
SENIOR INDEBTEDNESS" for purposes of the Senior Subordinated Note Indenture.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
63
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
EXECUTED as of the day and year first above written.
PROTECTION ONE ALARM MONITORING INC., a
Delaware corporation, as Borrower
By: /s/ Xxxxxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Chief Financial Officer and
Secretary
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
NATIONSBANK, N.A.,
as Adminstrative Agent and a Lender
By: Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
FIRST UNION NATIONAL BANK,
as Syndication Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
TORONTO DOMINION (TEXAS), INC.,
as Documentation Agent and a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
CHASE MANHATTAN BANK,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
GUARANTY FEDERAL BANK, F.S.B.,
as a Lender
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
XXXXXX BANK PLC,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as a Lender
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Principal
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
UBS AG, STAMFORD BRANCH,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Associate Director
SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
AMONG
PROTECTION ONE ALARM MONITORING, INC., AS BORROWER,
NATIONSBANK, N.A., AS ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT DEFINED THEREIN,
THE DOCUMENTATION AGENT DEFINED THEREIN,
AND
THE LENDERS NAMED HEREIN
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
