Exhibit b(ii)
CREDIT AGREEMENT
Dated as of February 5, 2002
among
RANGER MERGER CORPORATION,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
JPMORGAN CHASE BANK,
as Syndication Agent,
AND
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
TABLE OF CONTENTS
Section Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms................................................................................5
1.02 Other Interpretive Provisions...............................................................28
1.03 Accounting Terms............................................................................29
1.04 Rounding....................................................................................29
1.05 References to Agreements and Laws...........................................................29
1.06 Construction................................................................................30
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans.............................................................................30
2.02 Term Loans..................................................................................30
2.03 Borrowings, Conversions and Continuations of Loans..........................................30
2.04 Letters of Credit...........................................................................32
2.05 Swing Line Loans............................................................................39
2.06 Prepayments.................................................................................42
2.07 Reduction or Termination of Revolving Commitments...........................................43
2.08 Repayment of Loans..........................................................................44
2.09 Interest....................................................................................45
2.10 Fees........................................................................................45
2.11 Computation of Interest and Fees............................................................46
2.12 Evidence of Debt............................................................................46
2.13 Payments Generally..........................................................................47
2.14 Sharing of Payments.........................................................................49
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.......................................................................................49
3.02 Illegality..................................................................................51
3.03 Inability to Determine Rates................................................................52
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans......52
3.05 Funding Losses..............................................................................53
3.06 Matters Applicable to all Requests for Compensation.........................................53
3.07 Survival....................................................................................54
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension......................................................54
4.02 Conditions to all Credit Extensions.........................................................56
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws....................................57
5.02 Authorization; No Contravention.............................................................57
5.03 Governmental Authorization..................................................................57
5.04 Binding Effect..............................................................................57
5.05 Financial Statements; No Material Adverse Effect............................................58
1
5.06 Litigation..................................................................................58
5.07 No Default..................................................................................58
5.08 Ownership of Property; Liens................................................................58
5.09 Environmental Compliance....................................................................58
5.10 Insurance...................................................................................59
5.11 Taxes.......................................................................................59
5.12 ERISA Compliance............................................................................59
5.13 Subsidiaries................................................................................60
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act..............60
5.15 Disclosure..................................................................................61
5.16 Intellectual Property; Licenses, Etc........................................................61
5.17 Businesses..................................................................................61
5.18 Common Enterprise...........................................................................61
5.19 Solvent.....................................................................................62
ARTICLE VI. AFFIRMATIVE COVENANTS
6.01 Financial Statements........................................................................62
6.02 Certificates; Other Information.............................................................62
6.03 Notices.....................................................................................63
6.04 Payment of Obligations......................................................................64
6.05 Preservation of Existence, Etc..............................................................64
6.06 Maintenance of Properties...................................................................64
6.07 Maintenance of Insurance....................................................................64
6.08 Compliance with Laws........................................................................64
6.09 Books and Records...........................................................................65
6.10 Inspection Rights...........................................................................65
6.11 Compliance with ERISA.......................................................................65
6.12 Use of Proceeds.............................................................................65
6.13 Further Assurances..........................................................................65
6.14 Subsidiaries................................................................................65
6.15 Interest Rate Protection....................................................................66
ARTICLE VII. NEGATIVE COVENANTS
7.01 Liens.......................................................................................66
7.02 Investments.................................................................................66
7.03 Indebtedness................................................................................67
7.04 Fundamental Changes.........................................................................69
7.05 Dispositions................................................................................69
7.06 Net Deferred Compensation Payments..........................................................70
7.07 Restricted Payments.........................................................................70
7.08 ERISA.......................................................................................71
7.09 Change in Nature of Business................................................................71
7.10 Transactions with Affiliates................................................................71
7.11 Burdensome Agreements.......................................................................71
7.12 Use of Proceeds.............................................................................72
7.13 Amendment of Organization Documents and Fiscal Year.........................................72
7.14 Issuance of Shares..........................................................................72
7.15 Financial Covenants.........................................................................72
2
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default...........................................................................73
8.02 Remedies Upon Event of Default..............................................................75
ARTICLE IX. ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.......................................76
9.02 Delegation of Duties........................................................................77
9.03 Liability of Administrative Agent...........................................................77
9.04 Reliance by Administrative Agent............................................................77
9.05 Notice of Default...........................................................................78
9.06 Credit Decision; Disclosure of Information by Administrative Agent..........................78
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.....................................................79
9.08 Administrative Agent in its Individual Capacity.............................................79
9.09 Successor Administrative Agent..............................................................79
9.10 Other Agents................................................................................80
ARTICLE X. MISCELLANEOUS
10.01 Amendments, Etc.............................................................................80
10.02 Notices and Other Communications; Facsimile Copies..........................................82
10.03 No Waiver; Cumulative Remedies..............................................................83
10.04 Attorney Costs, Expenses and Taxes..........................................................83
10.05 INDEMNIFICATION BY THE BORROWER.............................................................83
10.06 Payments Set Aside..........................................................................84
10.07 Successors and Assigns......................................................................85
10.08 Confidentiality.............................................................................87
10.09 Set-off.....................................................................................88
10.10 Interest Rate Limitation....................................................................89
10.11 Counterparts................................................................................89
10.12 Integration.................................................................................89
10.13 Survival of Representations and Warranties..................................................89
10.14 Severability................................................................................89
10.15 Foreign Lenders.............................................................................90
10.16 Removal and Replacement of Lenders..........................................................91
10.17 Exceptions to Covenants.....................................................................92
10.18 Governing Law...............................................................................92
10.19 Waiver of Right to Trial by Jury............................................................93
10.20 ENTIRE AGREEMENT............................................................................93
SIGNATURES.....................................................................................S-1
3
SCHEDULES
2.01 Revolving Commitments and Pro Rata Shares
2.02 Term Commitments and Pro Rata Shares
5.06 Litigation
5.13 Subsidiaries and Other Equity Investment
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Revolving Loan Notice
B Term Loan Notice
C Swing Line Loan Notice
D Revolving Loan Note
E Term Loan Note
F Swing Line Note
G Compliance Certificate
H Assignment and Acceptance
I Guaranty
J Security Agreement
K U. S. Tax Compliance Certificate
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of February 5,
2002, among RANGER MERGER CORPORATION, a Delaware corporation (the "Ranger
Merger"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
Ranger Merger has requested that the Lenders provide funds to (a)
consummate the Merger (as hereinafter defined), (b) pay certain fees and
expenses related to the Merger and (c) finance the working capital and general
corporate requirements of NCH Corporation, a Delaware corporation ("NCH"), and
its Subsidiaries. The Lenders have agreed to provide such financing, subject to
the terms and conditions set forth below.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
4
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Account" has the meaning given to such term in the Security Agreement.
"Acquisition" means the acquisition by any Person of (a) a majority of
the Capital Stock of another Person, (b) all or substantially all of the assets
of another Person or (c) all or substantially all of a line of business of
another Person, in each case (i) whether or not involving a merger or
consolidating with such other Person and (ii) whether in one transaction or a
series of related transactions.
"Acquisition Consideration" means the consideration given by the
Borrower or any of its Subsidiaries for an Acquisition, including but not
limited to the sum of (without duplication) (a) the fair market value of any
cash, property (including Redeemable Stock) or services given, plus (b) the
amount of any Indebtedness assumed, incurred or guaranteed (to the extent not
otherwise included) in connection with such Acquisition by the Borrower or any
of its Subsidiaries.
"Adjustment Date" means, for purposes of the Applicable Rate, the date
of receipt by the Administrative Agent of the financial statements required to
be delivered pursuant to Section 6.01 and the Compliance Certificate required
pursuant to Section 6.02(b).
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent appointed in accordance with the provisions of Section
9.09.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the Voting Shares (on a fully diluted basis) of such
Person; or (b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agent Fee Letter" has the meaning specified in Section 2.10(b).
"Agent-Related Persons" means the Administrative Agent, together with
its Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
5
"Aggregate Revolving Commitments" has the meaning specified in the
definition of "Revolving Commitment."
"Aggregate Term Commitments" has the meaning specified in the
definition of "Term Commitment."
"Agreement" means this Credit Agreement.
"Applicable Law" means (a) in respect of any Person, all provisions of
Laws applicable to such Person, and all orders and decrees of all courts and
determinations of arbitrators applicable to such Person and (b) in respect of
contracts made or performed in the State of Texas, "Applicable Law" shall also
mean the laws of the United States of America, including, without limitation the
foregoing, 12 USC Sections 85 and 86, as amended to the date hereof and as the
same may be amended at any time and from time to time hereafter, and any other
statute of the United States of America now or at any time hereafter prescribing
the maximum rates of interest on loans and extensions of credit, and the laws of
the State of Texas.
"Applicable Rate" means the following percentages per annum:
PRICING COMMITMENT EURODOLLAR RATE BASE
LEVEL LEVERAGE RATIO FEE LETTERS OF CREDIT RATE
1 Less than or equal to 1.00 to 1 0.250 1.250 0.000
2 Greater than 1.00 to 1 but less 0.300 1.500 0.000
than or equal to 1.50 to 1
3 Greater than 1.50 to 1 but less 0.375 1.750 0.250
than or equal to 2.00 to 1
4 Greater than 2.00 to 1 but less 0.500 2.000 0.500
than or equal to 2.50 to 1
5 Greater than 2.50 to 1 0.500 2.250 0.750
The Applicable Rate shall be adjusted on each Adjustment Date as tested
by using the Leverage Ratio set forth on the Compliance Certificate on each
Adjustment Date. If the financial statements required pursuant to Section 6.01
and the related Compliance Certificate required pursuant to Section 6.02(b) are
not received by the Administrative Agent by the date required, the Applicable
Rate shall be determined using Pricing Level 5 until such time as such financial
statements and Compliance Certificate are received. Notwithstanding the
foregoing, the Applicable Rate in effect from and after the Closing Date through
the date on which another Pricing Level would otherwise be in effect based on
the quarterly financial statements of the Borrower shall be Level 3.
"Approved Fund" has the meaning specified in Section 10.07(g).
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
6
"Asset Coverage Ratio" means, as of any date of determination, the
ratio of (a) the sum of (i) Accounts of the Borrower and its Domestic
Subsidiaries (excluding, however, Accounts which do not arise as a result of the
sale of Inventory in the ordinary course of business), plus (ii) Inventory of
the Borrower and its Domestic Subsidiaries, plus (iii) property, plant and
equipment (net of depreciation) of the Borrower and its Domestic Subsidiaries,
in each case as of such date, to (b) Funded Debt as of such date.
"Assets" means, as of any date, the assets which would be reflected on
a balance sheet of the Borrower and Subsidiaries on a combined and consolidated
basis prepared as of such date in accordance with GAAP.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit H.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of NCH and its Subsidiaries for the fiscal year ended April 30, 2001 and
the related consolidated statements of income, stockholders' equity and cash
flows for such fiscal year of NCH.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the Prime Rate in
effect for such day. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the effective date of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means immediately prior to the Merger, Ranger Merger, and
upon and after the Merger, NCH as the surviving corporation of the Merger;
provided, such term shall be subject to the terms set forth in Section 1.06.
"Borrowing" means a Revolving Borrowing, a Swing Line Borrowing or a
Term Loan Borrowing, as the context may require.
7
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
applicable offshore Dollar interbank market.
"Capital Expenditure" means for any period, the sum of the aggregate of
any expenditures by the Borrower or any Subsidiary during such period for an
asset which will be used in a year or years subsequent to the year in which the
expenditure is made and which asset is properly classifiable in relevant
financial statements of such Person as property, equipment or improvements,
fixed assets, or a similar type of capital asset in accordance with GAAP.
"Capital Lease" means, as of any date, any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on the balance sheet of the lessee.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
in any Person that is a corporation, each class of partnership interest in any
Person that is a partnership, and each class of membership interest in any
Person that is a limited liability company, and any warrants or options to
purchase or otherwise acquire any such equity interests.
"Cash and Cash Equivalents" means cash and (a) with respect to the
Borrower and each of its Subsidiaries (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year from the
date of acquisition, (ii) certificates of deposit and time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits
and demand deposits, in each case with any Lender or any domestic commercial
bank having capital and surplus in excess of $500,000,000, (iii) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (i) and (ii) entered into with any Lender or any
financial institution meeting the qualifications specified in clause (ii) above,
(iv) commercial paper issued by any Lender or the parent corporation of any
Lender, and commercial paper rated A-1 or the equivalent thereof by S&P or P-1
or the equivalent thereof by Xxxxx'x, and in each case maturing within six
months after the date of acquisition and (v) shares of money market funds that
invest solely in investments of the type described in clauses (i) through (iv)
above or that are subject to the risk limiting conditions of Rule 2a-7 or any
successor rule under the Investment Company Act of 1940, as amended, and (b)
with respect to any Foreign Subsidiary, securities and cash equivalents which
are held or made outside the United States of the same or similar quality as
described in subclauses (i) through (v) of clause (a) immediately preceding.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders) pursuant to the terms hereof. Derivatives of such term shall
have
8
corresponding meaning. The Borrower hereby grants the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, a Lien on all such cash and
deposit account balances, if any. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
"Change of Control of the Parent" means, with respect to the Parent, an
event or series of events by which:
(a) the Levy Group shall fail to own at least 75% of the
Voting Shares of the Parent; or
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of the Parent cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals within the Levy
Group.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived at the request of the Borrower in
accordance with Section 4.01 (or, in the case of Section 4.01(b), waived by the
Person entitled to receive the applicable payment).
"Code" means the Internal Revenue Code of 1986.
"Collateral" means any collateral in which a Lien is granted by any
Person to the Administrative Agent to secure the Obligations pursuant to the
Collateral Documents.
"Collateral Document" means the Security Agreements and any other
agreement contemplated thereby executed, delivered or performable by any Loan
Party as security for the Obligations.
"Commitments" mean, collectively, the Revolving Commitment and the Term
Commitment.
"Compensation Period" has the meaning specified in Section 2.13(d)(ii).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit G.
"Consequential Loss" means, with respect the Borrower's payment of all
or any portion of the then outstanding principal amount of a Lender's Eurodollar
Rate Loan on a day other than the last day of the Interest Period related
thereto, mean any loss, cost or expense incurred by such Lender as a result of
the timing of such payment or in redepositing such principal amount, including
the sum of (a) the interest (exclusive of the Applicable Rate) which, but for
such payment, such Lender would have earned from the Borrower in respect of such
principal amount so paid, for the remainder of the Interest Period applicable to
such sum, reduced, if such Lender
9
is able to redeposit such principal amount so paid for the balance of such
Interest Period, by the interest earned by such Lender as a result of so
redepositing such principal amount, plus (b) any expense or penalty incurred by
such Lender on redepositing such principal amount.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: (a) a Revolving
Borrowing, (b) a Term Loan Borrowing, (c) a Swing Line Borrowing, and (d) an L/C
Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of notice, the passage
of time, or both, would be an Event of Default.
"Deferred Compensation Payments" means those certain payment
obligations (including accrued interest in respect thereof) of the Borrower and
its Subsidiaries pursuant to its supplemental benefit plans, management
financial security plans and other similar plans whereby representatives and
employees of the Borrower and its Subsidiaries defer wages, earnings and income
owed to them to a later date.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by Applicable Law.
"Disposition" or "Dispose" means the sale, transfer or other
disposition (including any sale and leaseback transaction, but excluding a
Dividend) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.
"Dividends", in respect of any Person, means (a) cash dividends or any
other distributions of property, or otherwise, on, or in respect of, any class
of Capital Stock of such Person (other than dividends or other distributions
payable solely in common stock of such Person or options, warrants or other
rights to purchase common stock of such Person), and (b) any and all funds, cash
or other payments made in respect of the redemption, repurchase or acquisition
of such Capital Stock (specifically including, without limitation, a Treasury
Stock Purchase), unless such Capital Stock shall be redeemed or acquired through
the exchange of such Capital Stock with Capital Stock of the same class or
options or warrants to purchase such Capital Stock.
"Dollar" and "$" means lawful money of the United States of America.
10
"Domestic Subsidiary" means any Subsidiary of the Borrower other than a
Foreign Subsidiary.
"EBITDA" means, for any period, for the Borrower and its Subsidiaries,
on a consolidated basis, an amount equal to the sum of (a) Net Income for such
period (excluding therefrom, without duplication and to the extent included in
determining Net Income, any items of extraordinary gain, including net gains on
sales of assets other than asset sales in the ordinary course of business, and
any gains occurring solely as a result of an adjustment in the exchange rate for
currency or changes in the market value of annuities, and adding thereto, to the
extent included in determining Net Income, any items of extraordinary loss,
including net losses on sales of assets other than asset sales in the ordinary
course of business and any losses occurring solely as a result of an adjustment
in the exchange rate for currency or changes in the market value of annuities),
plus (b) without duplication and to the extent deducted in determining Net
Income for such period, (i) Interest Expense for such period, plus (ii) taxes
for such period, plus (iii) depreciation and amortization expenses for such
period, plus (iv) any non-cash expenses and charges (including without
limitation interest accruing on deferred compensation obligations), minus (v)
any non-cash credits, plus (vi) a one-time charge related to an employee loan
receivable not to exceed $2,200,000 in amount, plus (vii) non-cash book losses
resulting from closing operations of Foreign Subsidiaries (not to exceed
$300,000 in aggregate amount during any period of four fiscal quarters), plus
(viii) one-time costs and expenses with respect to the Merger and related
transactions not to exceed $8,500,000 in aggregate amount.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"Environmental Laws" means all Applicable Laws relating to human health
and the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business that is treated as a
single employer with the Borrower pursuant to Sections 414(b), 414(c), 414(m) or
414(o) of the Code or pursuant to Section 4001 of ERISA.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan if there is any potential liability therefor
or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as
a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which would constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under
Title IV of
11
ERISA with respect to a Pension Plan, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan (rounded upward to the nearest 1/100 of 1%):
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on page 3750
of the Telerate screen (or any successor thereto) that displays an
average British Bankers Association LIBOR Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the rate determined
by the Administrative Agent to be the offered rate on such other page
or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest at which deposits in
Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by the Administrative Agent and with a
term equivalent to such Interest Period would be offered by the
Administrative Agent's London Branch to major banks in the offshore
Dollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Revolving Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" means any of the events or circumstances specified
in Article VIII.
"Evergreen Letter of Credit" has the meaning specified in Section
2.04(b)(iii).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
12
"Fixed Charge Coverage Ratio" means, as of any date of determination,
the ratio of (a) the remainder of (i) EBITDA minus (ii) Capital Expenditures,
minus (iii) cash taxes deducted from the earnings of the Borrower and
Subsidiaries in order to obtain Net Income, in each case for the period of four
consecutive fiscal quarters ending on such date to (b) the sum of (i) Interest
Expense, plus (ii) all scheduled payments on Funded Debt (calculated for the
first four fiscal quarters after the Closing Date on an pro forma basis to
include amortization of the Term Loan of $2,000,000 for each such fiscal
quarter), plus (iii) Net Scheduled Deferred Compensation Payments, plus (iv)
Dividends, in each case (other than as set forth in the immediately preceding
parenthetical) for the period of four consecutive fiscal quarters ending on such
date.
"Foreign Lender" has the meaning specified in Section 10.15.
"Foreign Plan" means any pension plan or other deferred compensation
plan, program or arrangement maintained by a Foreign Subsidiary which, under
applicable local law, is required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" means (a) each Subsidiary of the Borrower which is
organized under the laws of a jurisdiction other than the United States of
America or any State thereof and (b) each Foreign U.S. Subsidiary.
"Foreign U.S. Subsidiary" means each Subsidiary of the Borrower which
is incorporated in the United States of America or any State thereof but whose
business is conducted solely outside of the United States of America.
"Fund" has the meaning specified in Section 10.07(g).
"Funded Debt" means, as to the Borrower and its Subsidiaries at a
particular time, all of the following (without duplication):
(a) obligations for borrowed money and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) obligations under Capital Leases;
(c) obligations in respect of any Redeemable Stock;
(d) any direct or contingent obligations arising under letters
of credit (including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments;
(e) all obligations to pay the deferred purchase price of
property or services (other than trade payables incurred in the
ordinary course of business or accrued liabilities arising in the
ordinary course of business that are not overdue or that are being
contested in good faith), and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed or is limited in recourse;
13
(f) Synthetic Lease Obligations;
(g) any Receivables Facility Attributed Indebtedness; and
(h) Guaranty Obligations with respect to obligations of the
type specified in subsections (a) through (h) above of Persons other
than the Borrower or any of its Subsidiaries.
"GAAP" means generally accepted accounting principles as in effect in
the United States as set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant
segment of the accounting profession, that are applicable to the circumstances
as of the date of determination, consistently applied. If at any time any change
in GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders); provided that, until so amended, (a) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (b) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means, collectively, each Material Domestic Subsidiary.
"Guaranty" means each Guaranty made by one or more of the Guarantors,
substantially in the form of Exhibit I.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of
14
the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligees in respect of such Indebtedness or other obligation of
the payment or performance thereof or to protect such obligees against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person;
provided, however, that the term "Guaranty Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guaranty Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guarantying Person in good faith.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under Applicable Law, any Lender is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower. For purposes of determining the Highest Lawful Rate under Applicable
Law, the indicated rate ceiling shall be the lesser of (a)(i) the "weekly
ceiling", as that expression is defined in Section 303.003 of the Texas Finance
Code, as amended, or (ii) if available in accordance with the terms thereof and
at the Administrative Agent's option after notice to the Borrower and otherwise
in accordance with the terms of Section 303.103 of the Texas Finance Code, as
amended, the "annualized ceiling" and (b)(i) if the amount outstanding under
this Agreement is less than $250,000, twenty-four percent (24%), or (ii) if the
amount under this Agreement is equal to or greater than $250,000, twenty-eight
percent (28%) per annum.
"Honor Date" has the meaning specified in Section 2.04(c)(i).
"ICC" has the meaning specified in Section 2.04(h).
"Indebtedness" means, as to any Person at a particular time, all of the
following:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) any direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
banker's acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations under any Swap Contract in an amount equal
to (i) if such Swap Contract has been closed out, the termination value
thereof, or (ii) if such Swap Contract has not been closed out, the
xxxx-to-market value thereof determined on the
15
basis of readily available quotations provided by any recognized dealer
in such Swap Contract;
(d) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(e) accrued obligations in respect of earnout or similar
payments payable in cash or which may be payable in cash at the
seller's or obligee's option;
(f) obligations under Capital Leases;
(g) Synthetic Lease Obligations;
(h) obligations in respect of Redeemable Stock of such Person;
(i) any Receivables Facility Attributed Indebtedness;
(j) any "withdrawal liability" of such Person as such term is
defined under Part I of Subtitle E of Title IV of ERISA; and
(k) all Guaranty Obligations of such Person in respect of any
of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person except for customary exceptions acceptable to the
Required Lenders. The amount of any Capital Lease or Synthetic Lease Obligation
as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Information" has the meaning set forth in Section 10.08.
"Interest Expense" means, with respect to any period, total interest
expense, whether paid or accrued (including the interest component of Capital
Leases), of the Borrower and Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and net costs under interest rate contracts and foreign exchange
contracts, but excluding, however, interest expense not payable in cash
(including amortization of discount and interest accruing on deferred
compensation obligations), all as determined in conformity with GAAP.
16
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each March, June, September, December and the Maturity Date.
"Interest Period" means as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Revolving Loan Notice
or Term Loan Notice, as the case may be; provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"Investment" means, as to any Person, any acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution (including a contribution of property) to, guaranty of
Indebtedness of, or purchase or other acquisition of any other Indebtedness or
equity participation or interest in, another Person, including any partnership
or joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of related transactions) of assets
of another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"Inventory" has the meaning given to such term in the Security
Agreement.
"IRS" means the United States Internal Revenue Service.
"Landlord Waivers" means a landlord's waiver with respect to Collateral
located on or about leased property of the Borrower or its Domestic Subsidiaries
in form and substance reasonably satisfactory to the Administrative Agent.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable
17
administrative orders, directed duties, licenses, authorizations and permits of,
and agreements with, any Governmental Authority, in each case whether or not
having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder
appointed in accordance with the provisions of Section 9.09.
"L/C Obligations" means, as of any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the Borrower and the Administrative Agent in
writing.
"Letter of Credit" means any letter of credit issued for the account of
the Borrower or its Subsidiaries by the L/C Issuer hereunder.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Revolving Commitments and $10,000,000. The Letter of Credit Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Leverage Ratio" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Funded
Debt as of such date to (b) EBITDA for the period of the four consecutive fiscal
quarters ending on such date.
"Levy Family and Related Persons" means any combination of Xxxxxx X.
Xxxx, Xxxxxx X. Xxxx, Xx. and Xxxxxx X. Xxxx and their respective spouses,
children, children's spouses,
18
grandchildren, whether born or adopted, and trusts for the primary benefit of
one or more of such individuals.
"Levy Group" means one or more of the following: the Levy Family and
Related Persons and any Person a majority of the Voting Shares of which are
owned by the Levy Family and Related Persons.
"Lien" means any mortgage, pledge, hypothecation, assignment as
security for Indebtedness, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable Laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation by or before any Government Authority, including, without
limitation, proceedings, claims, lawsuits, and/or investigations under or
pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, tax or other Law, or under or pursuant to any
contract, agreement or other instrument.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan, a Swing Line Loan or a Term Loan.
"Loan Documents" means this Agreement, the Notes, the Agent Fee Letter,
any Swap Contract entered into with any Lender or any Affiliate of any Lender,
each Guaranty, each Request for Credit Extension, each Compliance Certificate,
each Collateral Document, and any other agreement executed, delivered or
performable by any Loan Party in connection herewith or as security for the
Obligations.
"Loan Parties" means, collectively, the Borrower, each Guarantor, the
Parent, and each Material Foreign Subsidiary.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a whole, (b) the validity or
enforceability of any of the Loan Documents or (c) the ability of the Borrower
or any of its Subsidiaries, taken as a whole, to perform its or their
obligations under any of the Loan Documents to which it is or they are a party.
"Material Domestic Subsidiary" means any direct or indirect Domestic
Subsidiary of the Borrower in which one or more of the following are applicable,
(a) such Subsidiary has 5% or more of the total assets of the Borrower and its
Domestic Subsidiaries, on a consolidated basis (determined as of the last day of
the most recent fiscal quarter), (b) such Subsidiary has generated 5% or more of
the EBITDA of the Borrower and its Domestic Subsidiaries, on a consolidated
basis, for the four-quarter period ending as of the end of the most recent
fiscal quarter or (c) such Subsidiary has outstanding loans and investments from
the Borrower and its Domestic Subsidiaries in an aggregate amount of 5% or more
of the total assets of the Borrower and its
19
Domestic Subsidiaries, on a consolidated basis (determined as of the last day of
the most recent fiscal quarter).
"Material Foreign Subsidiary" means, as of the Closing Date, those
Subsidiaries designated as Material Foreign Subsidiaries on Schedule 5.13, and
thereafter such Subsidiaries and any other direct Foreign Subsidiary of the
Borrower or a Domestic Subsidiary in which one or more of the following are
applicable, (a) such Subsidiary has 5% or more of the total assets of all
Foreign Subsidiaries, on a consolidated basis (determined on the last day of the
most recent fiscal quarter), (b) such Subsidiary has generated 5% or more of the
EBITDA of all Foreign Subsidiaries, on a consolidated basis, for the
four-quarter period ending as of the most recent fiscal quarter or (c) such
Subsidiary has outstanding loans and investments from other Foreign Subsidiaries
in an aggregate amount of 5% or more of the total assets of all Foreign
Subsidiaries on a consolidated basis (determined as of the last day of the most
recent fiscal quarter).
"Maturity Date" means (a) March 31, 2007, or (b) such earlier date upon
which the Commitments may be terminated in accordance with the terms hereof.
"Merger" means the merger of Ranger Merger with and into NCH pursuant
to the Merger Agreement, with NCH as the surviving corporation.
"Merger Agreement" means, collectively, (a) the Agreement and Plan of
Merger, dated as of December 24, 2001 among NCH, the Parent and Ranger Merger,
and (b) the Articles of Merger merging Ranger Merger with and into NCH.
"Merger Documents" means the Merger Agreement and all other material
contracts, agreements or documents executed in connection therewith.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
rating agency.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any trade or
business treated as a single employer with the Borrower pursuant to Section
4001(b) of ERISA makes or is obligated to make contributions, or during the
preceding five calendar years, has made or been obligated to make contributions.
"Negative Pledge" means any agreement, contract or other arrangement
whereby the Borrower or any of its Subsidiaries is prohibited from, or would
otherwise be in default as a result of, creating, assuming, incurring or
suffering to exist, directly or indirectly, any Lien on any of its assets.
"Net Income" means, with respect to any period, the net income or loss
of the Borrower and its Subsidiaries on a consolidated basis for such period,
determined in accordance with GAAP; provided that there shall be excluded the
income or loss of any Person (other than a Subsidiary) of which the Borrower or
any Subsidiary owns Capital Stock, except to the extent of the amount of
Dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries during such period.
20
"Net Cash Proceeds" means, with respect to Disposition of any Asset
(including Capital Stock) by or of, or the issuance of Indebtedness to, any
Person, the cash proceeds received by such Person in connection with such
transaction (including any cash received in respect of non-cash proceeds, but
only and as when received) after deducting therefrom the aggregate, without
duplication, of the following amounts to the extent properly attributable to
such transaction or to any asset that may be the subject thereof: (i) reasonable
fees and commissions (including without limitation brokerage commissions, legal
fees, finder's fees, financial advisory fees, fees for solvency opinions,
accounting fees, underwriting fees, investment banking fees, survey, title
insurance, appraisals, notaries and other similar commissions and fees and
expenses), paid, payable or reimbursed by such Person; (ii) filing, recording or
registration fees or charges or similar fees or charges paid by such Person;
(iii) taxes paid or payable by such Person or any shareholder, partner or member
of such Person to governmental taxing authorities as a result of such sale or
other disposition or issuance (after taking into account any available tax
credits or deductions or any tax sharing arrangements to the extent actually
utilized); (iv) the amount paid or payable in respect of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Obligations) that is secured by a Lien on the
Capital Stock or Asset in question, if any, to the extent required to be paid
pursuant to the documentation evidencing such Indebtedness; and (vi) the amount
of any reserve reasonably maintained by the Borrower and its Subsidiaries with
respect to indemnification obligations owing pursuant to the definitive
documentation pursuant to which such event is consummated (with any unused
portion of such reserve to constitute Net Cash Proceeds on the date upon which
the indemnification obligations terminate or such reserve is reduced other than
in connection with a payment). In any Disposition of Assets (including Capital
Stock) and any issuance of Indebtedness issued pursuant to Section 7.03(f), no
less than 80% of the proceeds received upon such Disposition or such issuance
shall be cash.
"Net Deferred Compensation Payments" means, during any period, the
remainder of (a) the amount of Deferred Compensation Payments paid by the
Borrower and its Subsidiaries during such period minus (b) the amount of wages,
earnings and income deferred by representatives and employees of the Borrower
and its Subsidiaries during such period.
"Net Scheduled Deferred Compensation Payments" means, during any
period, the remainder of (a) the amount of Deferred Compensation Payments
scheduled to be paid by the Borrower and its Subsidiaries during such period
minus (b) the amount of wages, earnings and income deferred by representatives
and employees of the Borrower and its Subsidiaries during such period.
"Nonrenewal Notice Date" has the meaning specified in Section
2.04(b)(iii).
"Notes" means, collectively, the Revolving Loan Notes and the Swing
Line Note.
"Obligations" means all debts, liabilities and obligations of any Loan
Party arising under any Loan Document, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising. Without limiting the generality of the foregoing,
"Obligations" includes all amounts which would be owed by any Loan Party or any
other Person (other than Administrative Agent or Lenders) to Administrative
21
Agent, Lenders or any Affiliate of a Lender under any Loan Document, but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving any Loan Party or any
other Person (including all such amounts which would become due or would be
secured but for the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding of any other Loan Party or any
other Person under any Debtor Relief Law).
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Other Taxes" has the meaning set forth in Section 3.01(b).
"Outstanding Amount" means (i) with respect to Revolving Loans, Swing
Line Loans and Term Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of Revolving Loans, Swing Line Loans and Term Loans, as the case may
be, occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any
L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"Parent" means Ranger Holding LLC, a Delaware limited liability
company, and owner, after the Merger, of 100% of the Capital Stock of the
Borrower.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Permitted Liens" means: (a) Liens granted to secure payment of the
Obligations; (b) 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 or
insurance-related obligations; (c) carriers, materialmen's, mechanics,
warehousemen's and other like Liens imposed by Law and arising in the ordinary
course of business, securing obligations whose payment is not yet due or is
being contested in good faith;
22
(d) Liens (other than Liens arising under any Environmental Law and Liens in
favor of the IRS or the PBGC or any Plan) for taxes, assessments and
governmental charges or levies imposed upon a Person or upon such Person's
income or profits or property, if the same are not yet due and payable or if the
same are being contested in good faith and as to which adequate reserves have
been provided; (e) Liens to secure the performance of tenders, leases, real
estate bids or contracts (other than contracts involving the borrowing of
money), Liens to secure public or statutory obligations, obligations for
utilities, Liens to secure (or in lieu of) surety, stay, appeal or customs bonds
or other like bonds and Liens to secure the payment of taxes (not in favor of
the IRS), assessments, customs duties or other similar charges; (f) Liens
consisting of zoning restrictions, easements, or other restrictions on the use
of real Property, provided that such do not materially impair the use of such
property for the uses intended; (g) Liens securing Indebtedness permitted
pursuant to Section 7.03(e), but only to the extent that (i) such Lien does not
encumber any property other than the property financed by such Indebtedness and
(ii) the Indebtedness secured thereby does not exceed the cost of the property
being acquired on the date of acquisition; (h) Liens on the property or assets
of a Person which becomes a Subsidiary after the date hereof securing
Indebtedness permitted by Section 7.03(g), provided that (i) such Liens existed
at the time such Person became a Subsidiary and were not created in anticipation
thereof and (ii) any such Lien is not spread to cover any property or assets of
such Person after the time such Person becomes a Subsidiary; (i) Liens arising
by reason of any judgment, decree or order of any court or other Governmental
Authority, if appropriate legal proceedings which may have been duly initiated
for the review of such judgment, decree or order, are being diligently
prosecuted and shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired; (j) Liens existing on
assets or properties at the time of the acquisition thereof by the Borrower or
any of its Subsidiaries which do not materially interfere with the use,
occupancy, operation and maintenance of structures existing on the property
subject thereto or extend to or cover any assets or properties of the Borrower
or such Subsidiary other than the assets or property being acquired; (k) any
encumbrance or restriction (including, without limitation, put and call
agreements) with respect to the Capital Stock of any joint venture or similar
arrangement pursuant to the joint venture or similar agreement with respect to
such joint venture or similar arrangement, provided that no such encumbrance or
restriction affects in any way the ability of the Borrower or any of its
Subsidiaries to comply with Section 6.14; (l) Liens on patents, trademarks,
trade names, service marks, copyrights, technology, know-how and processes to
the extent such Liens arising from the granting of licenses to use such patents,
trademarks, trade names, service marks, copyrights, technology, know-how and
processes to any Person in the ordinary course of business of the Borrower and
its Subsidiaries; (m) Liens on the assets of any Foreign Subsidiaries securing
Indebtedness permitted under Section 7.03(i); and (n) Liens which are described
on Schedule 7.1, and Liens resulting from the refinancing, refunding, renewal or
extension of the related Indebtedness, provided that the Indebtedness secured
thereby shall not be increased and the Liens shall not cover additional assets
of the Borrower or its Subsidiaries on or after the Closing Date or the date of
such refinancing, as the case may be.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture or Governmental Authority.
23
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Pledged Foreign Subsidiary" means any Foreign Subsidiary 66% (or 100%
if such Foreign Subsidiary is a Foreign U.S. Subsidiary) of whose outstanding
Capital Stock has been pledged to secure the Obligations.
"Prime Rate" means, at any time, a base rate that Bank of America
establishes and serves as the basis upon which effective rates of interest are
calculated for the loans making reference thereto; it being understood that such
rate may not be the lowest rate of interest charged by Bank of America. Any
change in such rate announced by Bank of America shall take effect on the
opening of business on the day such change is announced by Bank of America.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments
and Aggregate Term Commitments set forth opposite the name of such Lender on
Schedule 2.01 and Schedule 2.02, respectively, as such share may be adjusted as
contemplated herein.
"Quarterly Date" means the last Business Day of each March, June,
September and December during the term of this Agreement.
"Receivables Facility Attributed Indebtedness" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction other than a purchase.
"Redeemable Stock" means any Capital Stock of the Borrower or any of
its Subsidiaries which prior to June 30, 2007 is (a) mandatorily redeemable, (b)
redeemable at the option of the holder thereof or (c) convertible into
Indebtedness.
"Register" has the meaning set forth in Section 10.07(c).
"Release Date" shall mean the date upon which all Obligations are paid
in full and the Commitments are terminated.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Revolving
Borrowing or a conversion or continuation of Revolving Loans, a Revolving Loan
Notice, (b) with respect to a Term Borrowing, conversion or continuation of Term
Loans, a Term Loan Notice, (c) with respect to an L/C Credit Extension, a Letter
of Credit Application, and (d) with respect to a Swing Line Loan, a Swing Line
Loan Notice.
"Required Lenders" means, as of any date of determination, two or more
Lenders whose Voting Percentages aggregate more than 50%.
24
"Responsible Officer" means the president, chief financial officer,
corporate controller, corporate treasurer, corporate secretary, or executive
vice president of a Loan Party. Any document delivered hereunder that is signed
by a Responsible Officer of a Loan Party shall be conclusively presumed to have
been authorized by all necessary corporate, partnership and/or other action on
the part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payments" means, collectively, (a) Dividends and (b) any
payment or prepayment of principal, interest, premium or penalty of any
Subordinated Debt of the Borrower or any of its Subsidiaries or any defeasance,
redemption, purchase, repurchase or other acquisition or retirement for value,
in whole or in part, of any Subordinated Debt (including, without limitation,
the setting aside or the deposit of funds therefor).
"Revolving Borrowing" means a borrowing by the Borrower consisting of
simultaneous Revolving Loans of the same Type and having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01, as
such amount may be reduced, increased or adjusted from time to time in
accordance with this Agreement (collectively, the "Aggregate Revolving
Commitments").
"Revolving Commitment Fee" has the meaning specified in Section
2.10(a).
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit D.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing,
(b) a conversion of Revolving Loans from one Type to the other, or (c) a
continuation of Revolving Loans as the same Type, pursuant to Section 2.03(a),
which, if in writing, shall be substantially in the form of Exhibit A.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., or any successor rating agency.
"Security Agreement" means any Security Agreement executed by one or
more of the Loan Parties, substantially in the form of Exhibit J.
"Solvent" means, with respect to any Person, as of any date of
determination, that the fair value of the assets of such Person (at fair
valuation) is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person
as of such date, that the present fair saleable value of the assets of such
Person will, as of such date, be greater than the amount that will be required
to pay the probable liability of such Person on its
25
debts as such debts become absolute and matured, and that, as of such date, such
Person will be able to pay all liabilities of such Person as such liabilities
mature and such Person does not have unreasonably small capital with which to
carry on its business. In computing the amount of contingent or unliquidated
liabilities at any time, such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability discounted to present value at rates believe to be reasonable by such
Person.
"Subordinated Debt" means any Indebtedness of the Borrower or any
Subsidiary which is expressly subordinated to the Obligations at all times
pursuant to terms satisfactory to the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the Voting Shares are at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified and subject
to Section 1.06, all references herein to a "Subsidiary" or to "Subsidiaries"
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, any cancellations, buy
backs or reversals, of any of the foregoing, or any other similar transactions
or any combination of any of the foregoing (including any options to enter into
any of the foregoing), whether or not any such transaction is governed by or
subject to any master agreement, and (b) any and all transactions of any kind,
and the related confirmations, which are subject to the terms and conditions of,
or governed by, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.
26
"Swing Line Borrowing" means a borrowing by the Borrower of a Swing
Line Loan.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Note" means a promissory note made by the Borrower in favor
of the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit F.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.05(b), which, if in writing, shall be substantially in the
form of Exhibit C.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$5,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Syndication Agent" means JPMorgan Chase Bank, in its capacity as
syndication agent under any of the Loan Documents.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning set forth in Section 3.01(a).
"Term Commitment" means, as to each Lender, its obligation to make Term
Loans to the Borrower pursuant to Section 2.02, in aggregate principal amount
not to exceed the amount set forth opposite such Lender's name on Schedule 2.02,
as terminated pursuant to Section 2.02 (collectively, the "Aggregate Term
Commitments").
"Term Loan" has the meaning specified in Section 2.02.
"Term Loan Borrowing" means a borrowing by the Borrower consisting of
Term Loans of the same Type and having the same Interest Period made by each of
the Lenders pursuant to Section 2.02.
"Term Loan Note" means a promissory note made by the Borrower in favor
of a Lender evidencing Term Loans made by such Lender, substantially in the form
of Exhibit E.
"Term Loan Notice" mans a notice of (a) a Term Loan Borrowing, (b) a
conversion of Term Loans from one Type to the other, or (c) a continuation of
Term Loans as the same Type, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit B.
27
"Treasury Stock Purchase" means any purchase, redemption, retirement,
cancellation, defeasance or other acquisition (including any sinking fund or
similar deposit for such purpose) by the Borrower or any Subsidiary of its
Capital Stock or any warrants, rights or options to acquire such Capital Stock.
"Type" means with respect to a Revolving Loan or a Term Loan, its
character as a Base Rate Loan or a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code of Texas or, where applicable
to specific Collateral, any other relevant state.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"Unreimbursed Amount" has the meaning set forth in Section 2.04(c)(i).
"Unused Portion" means an amount equal to the remainder of (a) the
Aggregate Revolving Commitments minus (b) the sum of the aggregate Outstanding
Amount of (i) Revolving Loans, plus (ii) L/C Obligations, plus (iii) Swing Line
Loans.
"US Tax Compliance Certificate" has the meaning specified in Section
10.15.
"Voting Percentage" means, as to any Lender, (a) at any time when the
Commitments are in effect, such Lender's Pro Rata Share and (b) at any time
after the termination of the Commitments, the percentage (carried out to the
ninth decimal place) which (i) the sum of (A) the Outstanding Amount of such
Lender's Loans, plus (B) such Lender's Pro Rata Share of the Outstanding Amount
of L/C Obligations, plus (C) such Lender's Pro Rata Share of the Outstanding
Amount of Swing Line Loans, then constitutes of (ii) the Outstanding Amount of
all Loans and L/C Obligations; provided, however, that if any Lender has failed
to fund any portion of the Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder, such
Lender's Voting Percentage shall be deemed to be zero, and the respective Pro
Rata Shares and Voting Percentages of the other Lenders shall be recomputed for
purposes of this definition and the definition of "Required Lenders" without
regard to such Lender's Commitments or the outstanding amount of its Loans, L/C
Advances and funded participations in Swing Line Loans, as the case may be.
"Voting Shares" of any Person means Capital Stock of any class or
classes having ordinary voting power for the election of at least a majority of
the members of the Board of Directors (or comparable governing body) of such
Person, other than Capital Stock having such power by reason of the happening of
a contingency.
1.02 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
28
(b)
(i) The words "herein" and "hereunder" and words of similar
import when used in any Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section,
Exhibit and Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically prescribed
herein. For purposes of computing the Leverage Ratio (and any financial
calculations required to be made or included within the Leverage Ratio) as of
the end of any fiscal quarter of any fiscal year, all components of the Leverage
Ratio for the four fiscal quarter period ending at the end of such fiscal
quarter shall include or exclude, as the case may be, without duplication, such
components of the Leverage Ratio attributable to (a) any business or assets that
have been acquired or disposed of by the Borrower or any of its Subsidiaries
(including through permitted Acquisitions) and (b) the incurrence, repayment or
retirement of any Indebtedness, in each case after the first date of such four
fiscal quarter period and prior to the end of such period, as determined in good
faith by the Borrower on a pro forma basis for such period as if such
acquisition, disposition, incurrence, repayment or retirement had occurred on
the first day of such period.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual
29
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to any
Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 CONSTRUCTION. All references to (a) the "Borrower" shall mean and
include: (i) prior to the consummation of the Merger, both Ranger Merger and NCH
and (ii) after the consummation of the Merger, NCH; (b) any "Subsidiary" of the
Borrower shall mean and include: (i) prior to the consummation of the Merger,
Subsidiaries, if any, of each of Ranger Merger and NCH and (ii) after the
consummation of the Merger, Subsidiaries of NCH, and (c) the "Borrower and its
Subsidiaries" shall mean and include (i) prior to the consummation of the
Merger, each of Ranger Merger and NCH, and each of their respective Subsidiaries
and (ii) after consummation of the Merger, NCH and its Subsidiaries. It is the
intention of the parties hereunder that all representations, warranties,
covenants and other provisions, unless the context otherwise specifically
provides, shall apply as though the Merger had occurred on or prior to the
execution of this Agreement.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make revolving loans (each such loan, a
"Revolving Loan") to the Borrower from time to time on any Business Day during
the period from the Closing Date to the Maturity Date, in an aggregate amount
not to exceed at any time outstanding the amount of such Lender's Revolving
Commitment; provided, however, that after giving effect to any Revolving
Borrowing, (i) the aggregate Outstanding Amount of all Revolving Loans, Swing
Line Loans and L/C Obligations shall not exceed the Aggregate Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender's Revolving Commitment. Within
the limits of each Lender's Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.06, and reborrow under this Section 2.01. Revolving Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 TERM LOANS. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make a term loan (each such loan, a "Term Loan")
to the Borrower on the Closing Date in an aggregate amount not to exceed the
amount of such Lender's Term Commitment. Immediately upon making of the Term
Loans, the Term Commitment shall be automatically terminated. Term Loans may not
be repaid and then reborrowed.
2.03 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Loans as the same Type shall be made upon the
Borrower's irrevocable notice to
30
the Administrative Agent, which may be given by telephone. Each such notice must
be received by the Administrative Agent not later than 10:00 a.m., Dallas, Texas
time (i) three Business Days prior to the requested date of any Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) one Business Day prior to the
requested date of any Borrowing of Base Rate Loans. Each such telephonic notice
must be confirmed promptly by delivery to the Administrative Agent of a written
Revolving Loan Notice or Term Loan Notice, as applicable, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof. Each Revolving Loan Notice or Term Loan Notice, as applicable (whether
telephonic or written), shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Loans as the same Type, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Revolving Loan Notice or Term Loan
Notice, as applicable, or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Revolving Loans
shall be made or continued as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Revolving Loan Notice or Term
Loan Notice, as applicable, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Revolving Loan Notice or Term Loan Notice,
as applicable, the Administrative Agent shall promptly notify each Lender of its
Pro Rata Share of the applicable Loans, and if no timely notice of a conversion
or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Revolving Borrowing or
the Term Borrowing, each Lender shall make the amount of its Loan available to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 12:00 noon, Dallas, Texas time, on the Business
Day specified in the applicable Revolving Loan Notice or Term Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to the Administrative Agent by the Borrower; provided,
however, that if, on the date of the Revolving Borrowing there are Swing Line
Loans and/or L/C Borrowings outstanding, then the proceeds of such Borrowing
shall be applied, first, to the payment in full of any such L/C Borrowings,
second, to the payment in full of any such Swing Line Loans, and third, to the
Borrower as provided above.
31
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default or Event of Default, no
Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders, and during the existence of an
Event of Default, the Required Lenders may demand that any or all of the then
outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than seven Interest Periods in effect with respect to
all Loans.
2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter
of Credit Expiration Date, to issue Letters of Credit for the account
of the Borrower or certain Subsidiaries, and to amend or renew Letters
of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for
the account of the Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter
of Credit, and no Lender shall be obligated to participate in, any
Letter of Credit if as of the date of such L/C Credit Extension, (x)
the Outstanding Amount of all L/C Obligations and all Revolving Loans
would exceed the Aggregate Revolving Commitments, (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender's Pro Rata Share of the Outstanding
Amount of all Swing Line Loans would exceed such Lender's Revolving
Commitment, or (z) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from
32
issuing such Letter of Credit, or any Law applicable to the
L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request
that the L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon the L/C Issuer with respect to such Letter
of Credit any restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursable loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in
good xxxxx xxxxx material to it;
(B) subject to Section 2.04(b)(iii), the expiry date
of any such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal,
unless the Required Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) such Letter of Credit is in a face amount less
than $100,000, in the case of a commercial Letter of Credit,
or $500,000, in the case of any other type of Letter of
Credit, or is to be denominated in a currency other than
Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Evergreen Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. Such L/C Application must be
received by the L/C Issuer not later than 10:00 a.m., Dallas, Texas
time (with a copy to the Administrative Agent), at least three Business
Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of
a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the
L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case
of any drawing
33
thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; and (G) such other
matters as the L/C Issuer may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer
may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or one
of its Subsidiaries or enter into the applicable amendment, as the case
may be, in each case in accordance with the L/C Issuer's usual and
customary business practices, subject to the terms hereof. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from
the L/C Issuer a participation in such Letter of Credit in an amount
equal to the product of such Lender's Pro Rata Share times the amount
of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in it sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Evergreen Letter of Credit"); provided
that any such Evergreen Letter of Credit must permit the L/C Issuer to
prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day
(the "Nonrenewal Notice Date") in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer, the Borrower shall not be
required to make a specific request to the L/C Issuer for any such
renewal. Once an Evergreen Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to permit the renewal of such Letter of Credit at any time
to a date not later than the Letter of Credit Expiration Date;
provided, however, that the L/C Issuer shall not permit any such
renewal if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof,
or (B) it has received notice (which may be by telephone or in writing)
on or before the Business Day immediately preceding the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such renewal or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied.
Notwithstanding anything to the contrary contained herein, the L/C
Issuer shall have no obligation to permit the renewal of any Evergreen
Letter of Credit at any time.
34
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also deliver
to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof.
Promptly after any payment by the L/C Issuer under a Letter of Credit
(each such date, an "Honor Date"), the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by 10:00 a.m., Dallas, Texas time on the Honor Date, the
Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and such Lender's Pro Rata Share thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Borrowing of
Base Rate Loans (to bear interest at the lesser of (y) the Highest
Lawful Rate or (z) the Base Rate plus the Applicable Rate, but not the
Default Rate) to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.03 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02 (other than
the delivery of a Revolving Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.04(c)(i)
may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to Section 2.04(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent's Office in an amount equal to its Pro Rata
Share of the Unreimbursed Amount not later than 12:00 noon, Dallas,
Texas time, on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.04(c)(iii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not
reimbursed pursuant to Section 2.04(c)(i) or fully refinanced by a
Revolving Borrowing of Base Rate Loans pursuant to Section 2.04(c)(i)
or otherwise because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so reimbursed or refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each
Lender's payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its
35
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.04.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.04(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Pro Rata Share of such amount shall be solely for the account
of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.04(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of
a Default or Event of Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing. Any such
reimbursement shall not relieve or otherwise impair the obligation of
the Borrower to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer
at a rate per annum equal to the Federal Funds Rate from time to time
in effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.04(c),
if the Administrative Agent receives for the account of the L/C Issuer
any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), or any payment of interest
thereon, the Administrative Agent will distribute to such Lender its
Pro Rata Share thereof in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned, each Lender shall pay to the Administrative
Agent for the account of the L/C Issuer its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date
of such
36
demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each Letter of Credit, and to repay each
L/C Borrowing, shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower or any other Loan Party may
have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), the L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Borrower or any other Loan Party.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Agent-Related Person
37
nor any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower's pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.04(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing (but subject to the foregoing proviso), the L/C Issuer may
accept documents that appear on their face to be in order, without
responsibility for further investigation, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent after
and during the continuance of an Event of Default, (i) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn, the Borrower shall immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations (in an amount equal to such
Outstanding Amount).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the
rules of the "International Standby Practices 1998" published by the Institute
of International Banking Law & Practice (or such later version thereof as may be
in effect at the time of issuance) shall apply to each Letter of Credit, and
(ii) the rules of the Uniform Customs and Practice for Documentary Credits, as
most recently published by the International Chamber of Commerce (the "ICC") at
the time of issuance (including the ICC decision published by the Commission on
Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit equal to the Applicable Rate
times the actual daily maximum amount available to be drawn under each Letter of
Credit. Such fee for each Letter of Credit shall be due and payable
38
on each Quarterly Date, commencing with the first Quarterly Date to occur after
the issuance of such Letter of Credit, and on the Letter of Credit Expiration
Date. If there is any change in the Applicable Rate during any quarter, the
actual daily amount of each Letter of Credit shall be computed and multiplied by
the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. In addition, the Borrower shall pay directly to
the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in effect.
Such fees and charges are due and payable on demand and are nonrefundable. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee
in an amount with respect to each Letter of Credit, equal to 1/8 of 1% per annum
of the amount of such Letter of Credit (but in no event less than $500), due and
payable on the issuance thereof.
(j) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
period from the Closing Date to the Maturity Date in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Outstanding Amount of Revolving Loans of the Swing Line Lender in its capacity
as a Lender of Revolving Loans, may exceed the amount of such Lender's Revolving
Commitment; provided, however, that after giving effect to any Swing Line Loan,
(i) the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans
and L/C Obligations shall not exceed the Aggregate Revolving Commitments, and
(ii) the aggregate Outstanding Amount of all Revolving Loans of any Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender's Revolving Commitment, and provided,
further, that the Swing Line Lender shall not make any Swing Line Loan to
refinance an outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.05, prepay under Section 2.06, and reborrow under this Section
2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
11:00 a.m., Dallas, Texas time, on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000 or a
whole multiple of $100,000 in excess thereof, and (ii) the requested borrowing
date, which shall
39
be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 1:00 p.m., Dallas, Texas time, on the date of the proposed
Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 2.05(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 2:00
p.m., Dallas, Texas time, on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower at
its office by crediting the account of the Borrower on the books of the Swing
Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably requests the Swing Line Lender to act on its behalf), that
each Lender make a Base Rate Loan in an amount equal to such Lender's
Pro Rata Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in accordance with the requirements of Section
2.03, without regard to the minimum and multiples specified therein for
the principal amount of Base Rate Loans, but subject to the unutilized
portion of the Aggregate Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with a
copy of the applicable Loan Notice promptly after delivering such
notice to the Administrative Agent. Each Lender shall make an amount
equal to its Pro Rata Share of the amount specified in such Loan Notice
available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent's
Office not later than 12:00 noon, Dallas, Texas time, on the day
specified in such Loan Notice, whereupon, subject to Section
2.05(c)(ii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing
Line Lender.
(ii) If for any reason any Revolving Borrowing cannot be
requested in accordance with Section 2.05(c)(i) or any Swing Line Loan
cannot be refinanced by such a Revolving Borrowing, the Revolving Loan
Notice submitted by the Swing Line Lender shall be deemed to be a
request by the Swing Line Lender that each of the Lenders fund its
participation in the relevant Swing Line Loan and each Lender's payment
to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.05(c)(i) shall be deemed payment in respect of
such participation.
40
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to
purchase and fund participations in Swing Line Loans pursuant to this
Section 2.05(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or Event of
Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing. Any such purchase of
participations shall not relieve or otherwise impair the obligation of
the Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender
will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's participation was
outstanding and funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender, each Lender shall pay to the
Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal
to the Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Loan or participation pursuant to
this Section 2.05 to refinance such Lender's Pro Rata Share of any Swing Line
Loan, interest in respect of such Pro Rata Share shall be solely for the account
of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
41
2.06 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Revolving Loans or Term Loans in
whole or in part without premium or penalty; provided that (i) such notice must
be received by the Administrative Agent not later than 10:00 a.m., Dallas, Texas
time, (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans, and (B) one Business Day prior to the date of prepayment of Base Rate
Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if
less, the aggregate outstanding amount of the Eurodollar Rate Loans); and (iii)
any prepayment of Base Rate Loans shall be in a principal amount of $1,000,000
or a whole multiple of $500,000 in excess thereof (or, if less, the aggregate
outstanding amount of the Base Rate Loans). Each such notice shall specify the
date and amount of such prepayment, the Type(s) of Loans to be prepaid and
whether such Loan is a Revolving Loan or a Term Loan. The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any voluntary prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together (if the Borrower shall have received demand
therefor from any Lender in accordance with the terms of Section 3.05 at least
two Business Days prior to such prepayment, provided the failure of any Lender
to make such demand by such time shall not limit or affect the obligation of the
Borrower to pay such amounts upon demand) with any additional amounts required
pursuant to Section 3.05. Each such prepayment shall be applied to the Revolving
Loans or Term Loans, as the case may be, of the Lenders in accordance with their
respective Pro Rata Shares. Any voluntary prepayment of the Term Loans shall be
applied pro rata to all of the unpaid scheduled installment payments of the Term
Loans.
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy
to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 12:00 noon, Dallas, Texas time, on the date
of the prepayment, and (ii) any such prepayment shall be in a principal amount
of $100,000 or a whole multiple of $100,000 in excess thereof. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Outstanding Amount of all Revolving Loans,
Swing Line Loans and L/C Obligations at any time exceeds the Aggregate Revolving
Commitments then in effect, the Borrower shall immediately prepay Revolving
Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess.
(d) Within 5 Business Days of the receipt of Net Cash Proceeds from the
Disposition by the Borrower or any of its Subsidiaries of any assets (including
the Capital Stock of any Subsidiary) other than any Dispositions permitted under
clauses (a) through (g) of Section 7.05 (or, if appropriate, within 5 Business
Days after the expiration of the 180 day period described in
42
Section 7.05(d)), the Borrower shall prepay Term Loans in an aggregate principal
amount equal to 100% of such Net Cash Proceeds (or, if appropriate, 100% of the
Net Cash Proceeds that remain after deducting any amounts reinvested by the
Borrower or any of its Subsidiaries during the 180 day period described in
Section 7.05(d)). At such time, if any, as the Term Loans are paid in full, the
Borrower shall prepay outstanding Revolving Loans, if any pursuant to this
Section 2.06 in an aggregate principal amount equal to 100% of such Net Cash
Proceeds. Each such mandatory prepayment shall be made and applied as provided
in Section 2.06(g).
(e) Concurrently with the receipt of Net Cash Proceeds from the
issuance of any Indebtedness permitted pursuant to Section 7.03(f) by the
Borrower, the Borrower shall prepay Term Loans in an aggregate principal amount
equal to 100% of such Net Cash Proceeds. At such time, if any, as the Term Loans
are paid in full, the Borrower shall prepay outstanding Revolving Loans, if any,
pursuant to this Section 2.06 in an aggregate principal amount equal to 100% of
such Net Cash Proceeds received. Each such mandatory prepayment shall be made
and applied as provided in Section 2.06(g).
(f) Concurrently with the receipt of Net Cash Proceeds from any
Disposition of Capital Stock of the Borrower other than such Dispositions
permitted under clauses (a) through (d) of Section 7.14, the Borrower shall
prepay Term Loans in an aggregate amount equal to 100% of such Net Cash
Proceeds. At such time, if any, as the Term Loans are paid in full, the Borrower
shall prepay outstanding Revolving Loans, if any, pursuant to this Section 2.06
in an aggregate principal amount equal to 100% of such Net Cash Proceeds
received. Each such mandatory prepayment shall be made and applied as provided
in Section 2.06(g).
(g) Any mandatory prepayment of Term Loans pursuant to Section 2.06(d),
(e) or (f) shall (i) include and be applied to interest to the date of such
prepayment on the principal amount prepaid and any additional amounts required
pursuant to Section 3.05, (ii) be applied pro rata to all of the unpaid
scheduled installment payments of the Term Loans, and (iii) not be subject to
any notice and minimum payment provisions.
2.07 REDUCTION OR TERMINATION OF REVOLVING COMMITMENTS. The Borrower
may, upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or permanently reduce the Aggregate Revolving Commitments to an
amount not less than the then Outstanding Amount of all Revolving Loans, Swing
Line Loans and L/C Obligations; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m., Dallas, Texas
time, five Business Days prior to the date of termination or reduction, and (ii)
any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof. The Administrative Agent shall
promptly notify the Lenders of any such notice of reduction or termination of
the Aggregate Revolving Commitments. Once reduced in accordance with this
Section, the Revolving Commitments may not be increased. The Aggregate Revolving
Commitment shall also be permanently reduced by the amount of Revolving Loans
required to be prepaid pursuant to Section 2.6(d), (e) and (f). Any reduction of
the Aggregate Revolving Commitments shall be applied to the Revolving Commitment
of each Lender according to its Pro Rata Share. All fees accrued until the
effective date of any
43
termination of the Aggregate Revolving Commitments shall be paid on the
effective date of such termination.
2.08 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Revolving Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the Maturity Date.
(c) To the extent not otherwise required to be paid earlier as provided
herein, the Borrower shall repay the Term Loans on each Quarterly Date and on
the Maturity Date in such amounts as set forth next to each such date set forth
below (subject to reduction after taking into account any prepayment of the Term
Loans pursuant to Section 2.06):
Payment Date Installment Amount
June 30, 2002 $2,000,000
September 30, 2002 $2,000,000
December 31, 2002 $2,000,000
March 31, 2003 $2,000,000
June 30, 2003 $2,250,000
September 30, 2003 $2,250,000
December 31, 2003 $2,250,000
March 31, 2004 $2,250,000
June 30, 2004 $2,500,000
September 30, 2004 $2,500,000
December 31, 2004 $2,500,000
March 31, 2005 $2,500,000
June 30, 2005 $2,750,000
September 30, 2005 $2,750,000
December 31, 2005 $2,750,000
March 31, 2006 $2,750,000
44
June 30, 2006 $3,000,000
September 30, 2006 $3,000,000
December 31, 2006 $3,000,000
March 31, 2007 $3,000,000
or such other amount of
Term Loans then outstanding
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the lesser of (y)
the Highest Lawful Rate or (z) the Eurodollar Rate for such Interest Period plus
the Applicable Rate; (ii) each Base Rate Loan other than a Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the lesser of (y) the Highest Lawful
Rate or (z) the Base Rate plus the Applicable Rate; and (iii) each Swing Line
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the lesser of (y) the
Highest Lawful Rate or (z) the Base Rate.
(b) If demanded by the Required Lenders, while any Event of Default
exists or after acceleration, the Borrower shall pay interest on the principal
amount of all outstanding Obligations at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
Applicable Law. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 FEES. In addition to certain fees described in subsection (i) of
Section 2.04:
(a) Revolving Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share, a Revolving Commitment Fee (herein so called) equal to the
Applicable Rate times the actual daily amount by which the Aggregate Revolving
Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and
(ii) the Outstanding Amount of L/C Obligations. The Revolving Commitment Fee
shall accrue at all times from the date of this Agreement until the Maturity
Date and shall be due and payable quarterly in arrears on each Quarterly Date,
commencing with the first Quarterly Date to occur after the Closing Date, and on
the Maturity Date. The Revolving Commitment Fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
45
separately for each period during such quarter that such Applicable Rate was in
effect. The Revolving Commitment Fee shall accrue at all times, including at any
time during which one or more of the conditions in Article IV is not met.
(b) Agent Fee Letter. The Borrower shall pay to the Administrative
Agent for the Administrative Agent's own account, the fees in the amounts and at
the times specified in the letter agreement, dated October 16, 2001 (the "Agent
Fee Letter"), between the Borrower and Bank of America. Such fees shall be fully
earned when paid and shall be nonrefundable for any reason whatsoever.
2.11 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed. Subject to Section 10.10,
computation of all other types of interest and all fees shall be calculated on
the basis of a year of 360 days and the actual number of days elapsed. Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on which
it is made shall bear interest for one day.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Loans and L/C
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of such Lender shall
control. Upon the request of any Lender made through the Administrative Agent,
such Lender's Loans may be evidenced by a Revolving Loan Note, Term Loan Note
and/or a Swing Line Note, as applicable, in addition to such accounts or
records. Each Lender may attach schedules to its Note(s) and endorse thereon the
date, Type (if applicable), amount and maturity of the applicable Loans and
payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall
control.
46
2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 12:00 noon,
Dallas, Texas time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent after 12:00 noon, Dallas, Texas time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. The Borrower authorizes the Administrative Agent to charge the account
of the Borrower maintained with Bank of America (account number _____________)
for each payment of principal, interest and fees as it becomes due hereunder.
(b) Subject to the definition of "Interest Period," if any payment to
be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward reasonable costs and expenses (including Attorney Costs and amounts
payable under Article III) incurred by the Administrative Agent and each Lender,
(ii) second, toward repayment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (iii) third, toward repayment of
principal of the Loans and any L/C Borrowings then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal of the
Loans and any L/C Borrowings then due to such parties. To the extent that any
payments are received under any Guaranty, any Security Agreement, such payments
shall be applied first, toward reasonable costs and expenses (including Attorney
Costs and amounts payable under Article III) incurred by the Administrative
Agent and each Lender, (ii) second, toward repayment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (iii) third, toward
repayment of principal of the Loans and any L/C Borrowings then due hereunder
and all other obligations guaranteed under such Guaranty or secured under such
Security Agreement, ratably among the Guarantied Parties (as defined in such
Guaranty) and the Secured Parties (as defined in such Security Agreement) in
accordance with the amounts of principal of the Loans and any L/C Borrowings and
such other obligations guaranteed under such Guaranty and secured under such
Security Agreement then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such
47
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Revolving Loan included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the Borrower, and
the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Credit Extension set forth
in Article IV are not satisfied or waived in accordance with the terms hereof,
the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Revolving Loan or
purchase its participation.
48
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of any Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it, any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Loans made by them and/or such subparticipations in the participations in
L/C Obligations or Swing Line Loans held by them, as the case may be, as shall
be necessary to cause such purchasing Lender to share the excess payment in
respect of such Loan or such participations, as the case may be, pro rata with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Except as provided below in this Section 3.01, any and all payments
by the Borrower to or for the account of the Administrative Agent or any Lender
under any Loan Document shall be made free and clear of and without deduction
for any and all present or future income, stamp or other taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, now or
hereafter imposed, and all liabilities with respect thereto, excluding, in the
case of the Administrative Agent and any Lender, or its applicable lending
office, or any branch or affiliate thereof, taxes imposed on or measured by its
net income (including net income taxes imposed by means of a backup withholding
tax) franchise taxes, branch taxes, taxes on doing business or taxes measured by
or imposed upon the overall capital or net worth of any
49
Lender or its applicable lending office, or any branch or affiliate thereof, in
each case imposed: (i) by the jurisdiction under the laws of which the
Administrative Agent, or such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which the principal executive office
of the Administrative Agent or any Lender is located, or any nation within which
such jurisdiction is located or any political subdivision thereof; or (ii) by
reason of any present or former connection between the jurisdiction imposing
such tax and the Administrative Agent or such Lender, applicable lending office,
branch or affiliate other than a connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligation under, or received payment under or enforced this Agreement (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary to yield to the Administrative Agent and such Lender an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Laws, and (iv) promptly (but in no event later than
30 days) after the date of such payment, the Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof; provided, however,
that the Borrower shall be entitled to deduct and withhold any Taxes and shall
not be required to increase any such amounts payable to any Lender with respect
to Taxes (i) that are directly attributable to such Lender's failure to comply
with the requirements of Section 10.15 or (ii) that are U.S. withholding taxes
imposed on amounts payable to such Lender at the time such Lender becomes a
party to this Agreement.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest on the Obligations is paid, such additional amount that such
Lender specifies as necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) such Lender
would have received if such Taxes or Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the
50
relevant Governmental Authority. Payment under this subsection (d) shall be made
within 30 days after the date the Lender or the Administrative Agent makes a
demand therefor.
(e) Any Lender claiming any additional amounts payable pursuant to this
Section 3.01 shall use its reasonable best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
lending office, if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts which may thereafter accrue
and would not, in the reasonable judgment of such Lender, be disadvantageous to
such Lender.
(f) Each Lender (and the Administrative Agent with respect to payments
to the Administrative Agent for its own account) agrees that (i) it will take
all reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding taxes (whether available by
treaty, existing administrative waiver, by virtue of the location of any
Lender's lending office) and (ii) otherwise cooperate with the Borrower to
minimize amounts payable by the Borrower under this Section 3.01; provided,
however, the Lenders and the Administrative Agent shall not be obligated by
reason of this Section 3.01(f) to contest the payment of any Taxes or Other
Taxes or to disclose any information regarding its tax affairs or tax
computations or reorder its tax or other affairs or tax or other planning.
Subject to the foregoing, to the extent the Borrower pays sums pursuant to this
Section 3.01 and any Lender or the Administrative Agent receives a refund of any
or all of such sums, such refund shall be applied to reduce any amounts then due
and owing under this Agreement or, to the extent that no amounts are due and
owing under this Agreement at the time such refunds are received, the party
receiving such refund shall promptly pay over all such refunded sums to the
Borrower, provided that no Default or Event of Default is in existence at such
time.
(g) The obligations of a Lender or Participant under this Section 3.01
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder and under the other Loan Documents.
3.02 ILLEGALITY. If any Lender determines that any change in Law on or
after the Closing Date has made it unlawful, or that any Governmental Authority
on or after the Closing Date has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans,
or materially restricts the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the applicable offshore Dollar market, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall (i) within two Business Days after demand from such Lender
(with a copy to the Administrative Agent), prepay or, (ii) if applicable, upon
demand from such Lender (with a copy to the Administrative Agent) convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day
of the Interest Period thereof, if such Lender may lawfully continue to maintain
such Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or
51
conversion, the Borrower shall also pay interest on the amount so prepaid or
converted. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent determines
in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to banks in
the applicable offshore Dollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Rate for such Eurodollar Rate Loan, or (c)
the Eurodollar Rate for such Eurodollar Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Eurodollar Rate Loan, the
Administrative Agent will promptly notify the Borrower and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a
Revolving Borrowing, conversion or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Revolving Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender in good faith determines that as a result of the
introduction of or any change in or in the interpretation of any Law on or after
the Closing Date, or such Lender's compliance therewith, there shall be any
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements contemplated by
Section 3.04(c)), then from time to time within three Business Days after demand
of such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender in good faith determines that the introduction of any
Law regarding capital adequacy or any change therein or in the interpretation
thereof on or after the Closing Date, or compliance by such Lender (or its
Lending Office) therewith, has the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender with respect
to this Agreement as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time within five
Business Days after demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
52
(c) The Borrower shall pay to each Lender, as long as such Lender shall
be required under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional costs on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be controlling, in absence of error),
which shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least 15 days' prior notice
(with a copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable 15 days from
receipt of such notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for the Consequential Loss incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the applicable offshore Dollar interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) Any demand or notice delivered by the Administrative Agent or any
Lender to the Borrower claiming compensation under this Article III shall be in
writing and shall certify (x) that one of the events described in this Article
III has occurred, describing in reasonable detail the nature of such event and
(y) as to the amount or amounts for which such Lender seeks compensation
hereunder, setting forth in reasonable detail the basis for and calculations of
such compensation. Such certification shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
53
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, or any Lender becoming unable or unwilling to make Eurodollar Rate
Loans under Section 3.02, the Borrower may remove or replace such Lender in
accordance with Section 10.16.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Commitments and payment in full of all the
other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent
with respect to immaterial matters or items specified in clause (vi) below with
respect to which the Borrower has given assurances satisfactory to the
Administrative Agent that such items shall be delivered promptly following the
Closing Date), the Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party (which is not a Material Foreign Subsidiary), each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) unless otherwise specified and each in form
and substance reasonably satisfactory to the Administrative Agent and its legal
counsel:
(i) executed counterparts of this Agreement, the Guaranty and the
Security Agreements (together with related UCC-1 financing statements,
stock certificates for all Capital Stock of the Borrower and each Material
Domestic Subsidiary, insurance certificates naming the Administrative
Agent as loss payee/mortgagee (insuring the value of the Collateral) and
additional insured), sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each
Lender, each in a principal amount equal to such Lender's Revolving
Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the
Swing Line Lender in the principal amount of the Swing Line Sublimit;
(iv) Term Loan Notes executed by the Borrower in favor of each
Lender, each in a principal amount equal to such Lender's Term Commitment;
(v) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party (which is not a Material Foreign Subsidiary) as the
Administrative Agent may reasonably require to establish the identities of
and verify the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
54
(vi) such evidence as the Administrative Agent may reasonably
require to verify that each Loan Party (which is not a Material Foreign
Subsidiary) is duly organized or formed, validly existing, in good
standing and qualified to engage in business in each jurisdiction in which
it is required to be qualified to engage in business, including certified
copies of each such Loan Party's Organization Documents, certificates of
good standing and/or qualification to engage in business and tax clearance
certificates;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, and (B) that there has been no event or circumstance
since the date of the Audited Financial Statements which has or could be
reasonably expected to have a Material Adverse Effect;
(viii) an opinion of counsel to each Loan Party (which is not a
Material Foreign Subsidiary) in form and substance reasonably satisfactory
to the Administrative Agent;
(ix) Landlord Waivers for leased property on which all inventory
Collateral of the Borrower and its Material Domestic Subsidiaries (other
than such Collateral not to exceed $2,000,000 in aggregate amount) is
located;
(x) a Compliance Certificate (prepared on a pro forma basis,
taking into account the Merger and the making of the initial Loans and any
Letters of Credit issued hereunder on the Closing Date, with a pro forma
calculation of the Leverage Ratio, Fixed Charge Coverage Ratio and Asset
Coverage Ratio indicating that the Leverage Ratio does not exceed 2.25 to
1, the Fixed Charge Coverage Ratio is not less than 1.15 to 1 and the
Asset Coverage Ratio is not less than 1.25 to 1), which has been completed
and duly executed by a Responsible Officer of the Borrower, and which is
dated as of October 31, 2001;
(xi) all Merger Documents, which shall be reasonably satisfactory
to the Administrative Agent;
(xii) the Merger shall occur contemporaneously on the terms and
conditions provided in the Merger Agreement (including satisfaction of the
conditions set forth therein). There shall not have been any material
modification, amendment, supplement or waiver to the Merger Agreement
without the prior written consent of the Administrative Agent;
(xiii) if an opinion is rendered as to the fairness of the Merger, a
copy of such opinion;
(xiv) consolidated and consolidating financial statements of the
Borrower and its Subsidiaries for the fiscal quarter ending October 31,
2001; and
(xv) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
55
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced prior
to or on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
The making of the initial Loans by the Lenders hereunder shall conclusively be
deemed to constitute an acknowledgment by the Administrative Agent and each
Lender that each of the conditions precedent set forth in this Section 4.01
shall have been satisfied in accordance with its respective terms or shall have
been irrevocably waived by such Person, except to the extent that certain
conditions precedent are required by the Lenders to be obtained and/or delivered
after the Closing Date.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension (other than a Revolving Loan Notice or
Term Loan Notice requesting only a conversion of the Loans to the other Type or
a continuation of Loans as the same Type) is subject to the following conditions
precedent:
(a) The representations and warranties contained in Article V, or which
are contained in any Loan Document furnished at any time under or in connection
herewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date.
(b) No Default or Event of Default shall exist, or would result from
such proposed Credit Extension.
(c) No order, judgment, injunction or decree of any Governmental
Authority shall purport to enjoin or restrain any Lender or the L/C Issuer from
making such proposed Credit Extension.
(d) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Revolving Loan Notice or
Term Loan Notice requesting only a conversion of the Loans to the other Type or
a continuation of Loans as the same Type) submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
56
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. The
Borrower and each of its Subsidiaries (a) is a corporation, partnership or
limited liability company duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the Loan
Documents to which it is a party, (c) is duly qualified and is licensed and in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws, except (i) in
clause (b) with respect to licenses, authorizations, consents and approvals and
power and authority to own its assets and carry on its business only, and (ii)
in each case referred to in clause (c) or this clause (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any material
Contractual Obligation to which such Person is a party or any order, injunction,
writ or decree of any Governmental Authority to which such Person or its
property is subject; or (c) violate any Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Borrower or
any of its Subsidiaries of this Agreement or any other Loan Document, other than
those already obtained or made, and except for filings in connection with the
Collateral Documents.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, subject as to enforcement of
remedies to any Debtor Relief Laws and by general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
57
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the in all material
respects financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other material liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including material
liabilities for taxes, material commitments and Indebtedness in accordance with
GAAP consistently applied throughout the period covered thereby.
(b) Since the date of the Audited Financial Statements, there has been
no event or circumstance that has or could reasonably be expected to have a
Material Adverse Effect.
(c) The projected consolidated financial statements of the Borrower and
its Subsidiaries delivered to the Administrative Agent and the Lenders prior to
the Closing Date are based on good faith estimates and assumptions made by the
management of the Borrower and believed to be reasonable at the time made, it
being recognized by the Lenders that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results.
5.06 LITIGATION. Except as specifically disclosed in Schedule 5.06, there
is no Litigation pending or, to the knowledge of the Borrower, threatened, at
law, in equity, in arbitration or before any Governmental Authority, by or
against the Borrower or any of its Subsidiaries or against any of their
properties or revenues which (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions contemplated hereby, or
(b) if determined adversely, which in either case of (a) or (b) immediately
preceding, could reasonably be expected to have a Material Adverse Effect. As of
the Closing Date, there are no outstanding judgments or orders for the payment
of money against the Borrower or any Subsidiary.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or in the aggregate,
have a Material Adverse Effect. As of the Closing Date, the property of the
Borrower and its Subsidiaries is subject to no Liens, other than Permitted
Liens.
5.09 ENVIRONMENTAL COMPLIANCE. Neither the Borrower nor any of its
Subsidiaries has any current actual knowledge that any substance deemed
hazardous by any applicable
58
Environmental Law, is present or has been located (i) on any real property fee
title to which is now owned by the Borrower or any of its Subsidiaries or (ii)
by the Borrower or any of its Subsidiaries on any real property leased by the
Borrower or any of its Subsidiaries, in either case in a manner which could
constitute a violation of Environmental Laws which could reasonably be expected
to have a Material Adverse Effect. The Borrower and its Subsidiaries are not the
subject of any existing, pending or, to the Borrower's knowledge, threatened,
investigation or inquiry by any governmental authority or in violation of or the
subject of any material remedial obligations under any Environmental Laws which
could reasonably be expected to have a Material Adverse Effect. The Borrower and
its Subsidiaries have obtained all permits, licenses, and authorizations
required by Environmental Laws, except where failure to obtain such permits
could not reasonably be expected to have a Material Adverse Effect. The Borrower
and its Subsidiaries have no knowledge that any hazardous substances have been
disposed of or otherwise released (except in material compliance with
Environmental Laws) (i) on or to the real property fee title to which is owned
by the Borrower or any of its Subsidiaries or (ii) by the Borrower or any of its
Subsidiaries on or to any real property leased by the Borrower or any of its
Subsidiaries, all within the meaning of the Environmental Laws, which could
reasonably be expected to have a Material Adverse Effect. No Lien arising under
any Environmental Law has attached to any property or revenues of the Borrower
or any of its Subsidiaries.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies of similar financial condition and
strength engaged in similar businesses and owning similar properties in
localities where the Borrower or its Subsidiaries operate.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other tax returns and reports required to be filed, and have paid all
Federal, state and other taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those (a) which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP or (b) with respect to which the failure to file or pay, in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws, except to the
extent that any non-compliance could not reasonably be expected to have a
Material Adverse Effect. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS or
an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred
which would prevent, or cause the loss of, such qualification. The Borrower and
each ERISA Affiliate have made all required contributions to each Plan, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any
59
Plan. Each Foreign Plan is in substantial compliance in all material respects
with Applicable Laws of any applicable foreign jurisdictions.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could be reasonably expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
(d) The obligations of the Borrower in respect of the Deferred
Compensation Payments are made under a Plan that is unfunded for purposes of
ERISA and is maintained for the purpose of providing deferred compensation for a
select group of management or highly compensated employees.
(e) As of the Closing Date, the Borrower and the ERISA Affiliates are
not, and have not been at any time during the past six years, (i) obligated to
make any contributions to a Multiemployer Plan or (ii) the sponsor of a Pension
Plan.
5.13 SUBSIDIARIES. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Schedule 5.13 and has no
equity investments in any other corporation or entity other than those
specifically disclosed in Schedule 5.13. As of the Closing Date, the Material
Domestic Subsidiaries and the Material Foreign Subsidiaries are those
Subsidiaries designated as such on Schedule 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as
one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board), or
extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the
60
meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
5.15 DISCLOSURE. No factual information, taken as a whole, heretofore or
hereafter furnished in writing by any Loan Party in any Loan Document or
furnished to the Administrative Agent or any Lender by or on behalf of any Loan
Party in connection with any Loan Document contains or will contain any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. There is no fact known
to the Borrower or any of its Subsidiaries and not known to the public generally
which as of the date of this Agreement materially adversely affects its assets
or in the future may reasonably be expected to (so far as the Borrower or any of
its Subsidiaries can now foresee) result in a Material Adverse Effect, which has
not been disclosed to the Administrative Agent and the Lenders by or on behalf
of the Borrower or any of its Subsidiaries prior to the Closing Date in
connection with the transactions contemplated hereby.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights that are reasonably necessary for the
operation of their respective businesses (except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect), without
conflict with the rights of any other Person to the extent such conflict would
reasonably be expected to have a Material Adverse Effect.
5.17 BUSINESSES. The Borrower is presently engaged directly or through
wholly-owned Subsidiaries in the following businesses: the manufacturing and
marketing of an extensive line of maintenance, repair and supply products and
services.
5.18 COMMON ENTERPRISE. The Borrower and its Subsidiaries are engaged in
the businesses set forth in Section 5.17 as of the Closing Date, as well as in
certain other businesses. These operations require financing on a basis such
that the credit supplied can be made available from time to time to the Borrower
and various of its Subsidiaries, as required for the continued successful
operation of the Borrower and its Subsidiaries as a whole. The Borrower has
requested the Lender to make credit available hereunder primarily for the
purposes set forth in Section 6.12 and generally for the purposes of financing
the operations of the Borrower and its Subsidiaries. The Borrower and each of
its Subsidiaries expects to derive benefit (and the Board of Directors of the
Borrower and each of its Subsidiaries has determined that such Subsidiary may
reasonably be expected to derive benefit), directly or indirectly, from a
portion of the credit extended by the Lenders hereunder, both in its separate
capacity and as a member of the group of companies, since the successful
operation and condition of the Borrower and each of its Subsidiaries is
dependent on the continued successful performance of the functions of the group
as a whole. The Borrower acknowledges that, but for the agreement by each of the
Guarantors to execute and deliver the Guaranty, the Administrative Agent and the
Lenders would not have made available the credit facilities established hereby
on the terms set forth herein.
61
5.19 SOLVENT. The Borrower is, and the Borrower and its Subsidiaries are
on a consolidated basis, Solvent.
ARTICLE VI.
AFFIRMATIVE COVENANTS
From the Closing Date, so long as any Lender shall have any Commitment
hereunder, any Loan or other Obligations shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding:
6.01 FINANCIAL STATEMENTS. The Borrower shall deliver to the
Administrative Agent and each Lender, in form and detail reasonably satisfactory
to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Borrower, a consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal year,
and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be
prepared in accordance with GAAP and shall not be subject to any qualifications
or exceptions as to the scope of the audit nor to any qualifications and
exceptions not reasonably acceptable to the Required Lenders; and
(b) as soon as available, but in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of the Borrower,
a consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
and consolidating statements of income, stockholders' equity and cash flows for
such fiscal quarter and for the portion of the Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
6.02 CERTIFICATES; OTHER INFORMATION. The Borrower shall deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), a certificate of its independent certified public
accountants reporting on such financial statements and stating that in making
the audit necessary therefor no knowledge was obtained of any Default or Event
of Default with respect to Section 7.16, insofar as the same relates to any
financial accounting matters covered by their audit, or, if any such Default or
Event of Default shall exist, stating the nature and status of such event;
62
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of the Borrower;
(c) promptly after requested by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other material report or communication sent to
the stockholders (but only to the extent that stockholders of a public company
would receive similar reports and communications) and the Board of Directors of
the Borrower; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may from time to time reasonably request.
6.03 NOTICES. The Borrower shall promptly notify the Administrative Agent
and each Lender:
(a) as soon as a Responsible Officer of the Borrower knows thereof, of
the occurrence of any Default or Event of Default;
(b) as soon as a Responsible Officer of the Borrower knows thereof, of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii)
any Litigation between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
Litigation affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(c) as soon as a Responsible Officer of the Borrower knows thereof, of
any Litigation affecting any Loan Party in which the damages, penalties, fines
or other sanctions could reasonably be expected to exceed $1,000,000 (to the
extent not covered by independent third-party insurance) or in which injunctive
relief or similar relief is sought, which relief, if granted, could be
reasonably expected to have a Material Adverse Effect;
(d) as soon as a Responsible Officer of the Borrower knows thereof, of
the occurrence of any ERISA Event;
(e) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; and
(f) of the formation of any Multiemployer Plan or Pension Plan.
63
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement or other
Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. The Borrower shall, and shall cause each of
its Subsidiaries to, pay and discharge as the same shall become due and payable,
all its material obligations and liabilities, including (a) all material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets; (b) all material lawful claims which, if unpaid, would by
law become a Lien upon its property; and (c) all material Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness in each case unless the
same are being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Borrower or such
Subsidiary.
6.05 PRESERVATION OF EXISTENCE, ETC. The Borrower shall, and shall cause
each other Loan Party to, preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the jurisdiction of its
organization; take all reasonable action to maintain all material rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except in a transaction permitted by Section
7.04 or 7.05; and preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. The Borrower shall, and shall cause each
other Loan Party to, (a) maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good
working order and condition, ordinary wear and tear excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. The Borrower shall, and shall cause each
other Loan Party to, maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its
properties and business against loss or damage of the kinds customarily insured
against by Persons of similar financial condition and strength engaged in the
same or similar business and owning similar properties in localities where the
Borrower or the other Loan Parties operate, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. The Borrower shall, and shall cause each of
its Subsidiaries to, comply in all material respects with the requirements of
all Laws applicable to it or to its business or property, except in such
instances in which (i) such requirement of Law is being contested in good faith
or a bona fide dispute exists with respect thereto; or (ii) the failure to
comply therewith could not be reasonably expected to have a Material Adverse
Effect.
64
6.09 BOOKS AND RECORDS. The Borrower shall, and shall cause each of its
Subsidiaries to, maintain proper books of record and account, in which full,
true and correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and business
of the Borrower or such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. The Borrower shall, and shall cause each of its
Subsidiaries to, subject to Section 10.08, permit representatives and
independent contractors of the Administrative Agent and each Lender to visit and
inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all prior to the occurrence of an Event of Default, at the
expense of the Lenders (other than an annual field exam which, if required at
the option of the Administrative Agent, shall be at the cost of the Borrower)
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon request of the Required Lenders or the Administrative
Agent and reasonable advance notice to the Borrower; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
6.11 COMPLIANCE WITH ERISA. The Borrower shall, and shall cause each of
its Subsidiaries to, do, and cause each of its ERISA Affiliates to do, each of
the following: (a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other Federal or state law
and maintain each Foreign Plan in compliance in all material respects with all
Applicable Laws; (b) preclude each Plan which is qualified under Section 401(a)
of the Code from being determined to be disqualified in any final assessment by
the IRS; and (c) make all required contributions to any Plan subject to Section
412 of the Code and make all contributions required under its Foreign Plans.
6.12 USE OF PROCEEDS. The Borrower shall use the proceeds of the Credit
Extensions to consummate the Merger and for working capital and other general
corporate purposes not in contravention of any Law or of any Loan Document.
6.13 FURTHER ASSURANCES. At any time or from time to time upon reasonable
request by the Administrative Agent, the Borrower shall or shall cause the
Parent or any of the Borrower's Subsidiaries to execute and deliver such further
documents and do such other acts and things as the Administrative Agent may
reasonably request in order to effect fully the purposes of this Agreement and
the other Loan Documents and to provide for payment of the Obligations in
accordance with the terms of this Agreement and the other Loan Documents.
6.14 SUBSIDIARIES. Within five days after the time that any Person
becomes a Material Domestic Subsidiary as a result of the creation of such
Subsidiary or an Acquisition, (a) such Subsidiary shall execute a Guaranty of
the Obligations and Collateral Documents granting a first priority Lien in all
Inventory and Accounts and related collateral of such Subsidiary, to secure the
Obligations, (b) 100% of such Subsidiary's Capital Stock shall be pledged to
secure the Obligations, and (c) the Lenders shall receive such board
resolutions, officer's certificates, corporate and other documents and opinions
of counsel as the Administrative Agent shall
65
reasonably request in connection with the actions described in clauses (a) and
(b) above. Within thirty days after the time that any Person becomes a Material
Foreign Subsidiary as a result of the creation of such Subsidiary or an
Acquisition, (a) 66% of such Subsidiary's Capital Stock (or 100% of such
Subsidiary's Capital Stock if such Subsidiary is a Foreign U.S. Subsidiary)
shall be pledged to secure the Obligations and (b) the Lenders shall receive
such board resolutions, officer's certificates, corporate and other documents
and opinions of counsel as the Administrative Agent shall reasonably request in
connection with such pledge.
6.15 INTEREST RATE PROTECTION. No later than 90 days after the Closing
Date, the Borrower shall enter into, and thereafter maintain in effect, one or
more interest rate protection agreements on such terms and with parties as shall
be reasonably satisfactory to the Administrative Agent, the effect of which
(when taken together with the other fixed rate debt and interest rate protection
agreements) shall be to mitigate or limit the interest cost to the Borrower with
respect to at least 50% of the outstanding Term Loan for a period of at least
three years.
ARTICLE VII.
NEGATIVE COVENANTS
From the Closing Date, so long as any Lender shall have any Commitment
hereunder, any Loan or other Obligation shall remain unpaid or unsatisfied, or
any Letter of Credit shall remain outstanding, the Borrower shall not, and shall
not permit its Subsidiaries to:
7.01 LIENS. Create, incur, assume or suffer to exist, any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than Permitted Liens. The Borrower shall not, and shall not permit any
Subsidiary to, become subject to a Negative Pledge other than any industrial
revenue or development bonds, agreements governing any purchase money Liens,
acquisition agreements, operating leases or Capital Leases otherwise permitted
hereby (in which case, any prohibition or limitation shall only be effective
against the assets financed, acquired or leased thereby).
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments other than those permitted by subsections (b) through
(l) below existing on the Closing Date and listed on Schedule 7.02;
(b) Investments in Cash and Cash Equivalents;
(c) Investments of any Subsidiary in the Borrower or a Guarantor;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of goods
or services in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Guaranty Obligations permitted by Section 7.03;
(f) Investments permitted by Section 7.04;
66
(g) Investments as a result of Acquisitions, if (i) immediately before
and after giving effect to such Acquisition, no Default or Event of Default
shall have occurred and be continuing, (ii) immediately after giving effect to
the proposed Acquisition, the (A) aggregate Acquisition Consideration for
Acquisitions during the term of this Agreement shall not exceed $30,000,000, (B)
the aggregate Acquisition Consideration for any single Acquisition (whether in
one transaction or a series of related transactions) shall not exceed
$10,000,000, and (C) the Unused Portion shall be no less than $10,000,000, (iii)
such Acquisition shall not be opposed by the board of directors of the Person
being acquired, (iv) the Administrative Agent shall have received written notice
thereof at least 20 Business Days prior to the date of such Acquisition, (v) the
Administrative Agent shall have received prior to the date of such Acquisition a
Compliance Certificate setting forth the covenant calculations both on or prior
to and after giving effect to the proposed Acquisition, (vi) the assets,
property or business acquired shall be in the business described in Section
5.17, (vii) if such Acquisition results in a Domestic Subsidiary, (A) such
Subsidiary shall execute a Guaranty and Collateral Documents granting a first
priority Lien (except for Permitted Liens) in its Accounts and to secure the
Obligations, (B) 100% of such Subsidiary's Capital Stock shall be pledged to
secure the Obligations and (C) the Administrative Agent on behalf of the Lenders
shall have received such board resolutions, officer's certificates and opinions
of counsel as the Administrative Agent shall reasonably request in connection
with the actions described in clauses (A) and (B) above, and (viii) if such
Acquisition results in a Material Foreign Subsidiary which has the Borrower or a
Domestic Subsidiary as its direct parent, (A) 65% of such Subsidiary's Capital
Stock shall be pledged to secure the Obligations and (B) the Administrative
Agent on behalf of the Lenders shall have received such board resolutions,
officer's certificates and opinions of counsel as the Administrative Agent shall
reasonably request in connection with clause (A) immediately preceding;
(h) Investments constituting Capital Expenditures, to the extent
otherwise permitted hereunder;
(i) Investments under any Swap Contract meeting the requirements of Swap
Contracts set forth in Section 7.03(d);
(j) Investments in the nature of pledges or deposits with respect to
leases or utilities provided to third parties in the ordinary course of business
or otherwise described in the definition of Permitted Liens;
(k) Investments in Subsidiaries which are not Guarantors as a result of
intercompany loans and advances not to exceed $2,000,000 in aggregate amount for
each fiscal year during the term of this Agreement; and
(l) Investments not otherwise permitted by subsections (a) through (k)
above not to exceed $5,000,000 in aggregate amount at any time outstanding.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
67
(b) Indebtedness outstanding on the Closing Date and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing plus an amount equal to
any existing commitments unutilized thereunder;
(c) Guaranty Obligations of the Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of the Borrower or any Subsidiary;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under (a) any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person and not for purposes of speculation; and (ii) such Swap Contract does not
contain any provision exonerating the non-defaulting party from its obligation
to make payments on outstanding transactions to the defaulting party or (b) any
Swap Contract entered into pursuant to Section 6.15;
(e) Indebtedness in respect of Capital Leases and purchase money
obligations for fixed or capital assets in aggregate principal amount not to
exceed $5,000,000 at any time outstanding;
(f) Unsecured Indebtedness, the Net Cash Proceeds of which are applied
in accordance with pursuant to Section 2.06(e);
(g) Indebtedness of a Person which becomes a Subsidiary after the date
hereof, provided that (i) such Indebtedness existed at the time such Person
became a Subsidiary and was not created in anticipation thereof, (ii)
immediately after giving effect to the acquisition of such Person by the
Borrower no Default or Event of Default shall have occurred and be continuing,
and (iii) such Indebtedness, together with Indebtedness permitted under
subsections (m) and (n) below, shall not exceed $5,000,000 at any time
outstanding;
(h) Indebtedness arising from the honoring of a check, draft or similar
instrument against insufficient funds; provided that such Indebtedness is
extinguished within five Business Days of its incurrence;
(i) Indebtedness of Foreign Subsidiaries of the Borrower for working
capital purposes (including in respect of overdrafts and letters of credit
issued for the account of any Foreign Subsidiary) not exceeding, as to all such
Foreign Subsidiaries, $5,000,000 in aggregate principal amount at any one time
outstanding;
(j) Indebtedness of the Borrower to any Guarantor or of any Guarantor to
the Borrower or any Guarantor, or Indebtedness of any Subsidiary that is not a
Guarantor to the Borrower or any Subsidiary;
68
(k) Indebtedness arising under commercial letters of credit and surety
bonds;
(l) Indebtedness consisting of trade payables incurred in the ordinary
course of business or accrued liabilities arising in the ordinary course of
business;
(m) Indebtedness consisting of accrued obligations in respect of earnout
or similar payments in an aggregate principal amount not to exceed, together
with Indebtedness permitted under subsection (g) above and subsection (n) below,
$5,000,000 at any time outstanding; and
(n) Unsecured Indebtedness not otherwise permitted pursuant to
subsections (a) through (m) above in an aggregate principal amount not to
exceed, together with Indebtedness permitted under subsections (g) and (m)
above, $5,000,000 at any time outstanding.
7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, (ii) any Guarantor or
(iii) in the case of any such Subsidiary that is not a Guarantor, any
Subsidiary;
(b) any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to a Guarantor and any
Subsidiary that is not a Guarantor may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary;
(c) the Borrower or any Subsidiary may make Dispositions permitted
pursuant to Section 7.05; and
(d) as contemplated by the Merger Documents.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of Inventory in the ordinary course of business;
(c) Dispositions of Cash and Cash Equivalents in the ordinary course of
business;
(d) Dispositions of assets (including the Capital Stock of any
Subsidiary) in which the Net Cash Proceeds thereof are used within 180 days of
such Disposition to purchase assets useful in the business of the Borrower and
its Subsidiaries, provided that the aggregate amount of Net Cash Proceeds
outstanding and pending reinvestment pursuant to this clause (d) shall not
exceed $1,500,000 at any time;
69
(e) Dispositions (i) between the Borrower and the Guarantors and among
the Guarantors and (ii) from any Subsidiary that is not a Guarantor to the
Borrower or any Subsidiary;
(f) Dispositions permitted by Section 7.04;
(g) Dispositions not otherwise permitted in subsections (a) through (f)
above during any fiscal year, the aggregate Net Cash Proceeds or fair market
value of which do not exceed $1,000,000; provided that without limiting the
foregoing, the Borrower or any of its Subsidiaries may make Dispositions of
Assets during the term of this Agreement consisting of business units that, in
the reasonable business judgment of the Borrower, are no longer
income-producing, the aggregate Net Cash Proceeds of which do not exceed
$10,000,000 or, if such Net Cash Proceeds exceed $10,000,000, such excess is
applied as provided in clauses (d) or (j) of this Section 7.05;
(h) the sale or discount without recourse of accounts receivable or
notes receivable or the conversion or exchange of accounts receivable into or
for notes receivable, in each case in connection with the compromise or
collection thereof, provided that, in the case of any Foreign Subsidiary of the
Borrower, any such sale or discount may be with recourse if such sale or
discount is consistent with customary practice in such Foreign Subsidiary's
country of business;
(i) the abandonment, sale or other disposition of patents, trademarks or
other intellectual property that are, in the reasonable judgment of the
Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Borrower and its Subsidiaries taken as a whole;
and
(j) Dispositions of assets (including Capital Stock of a Subsidiary) not
otherwise permitted in subsections (a) through (i) above, the Net Cash Proceeds
of which (less any reinvested amount) are applied in accordance with Section
2.06(d);
provided, however, that any Disposition pursuant to clauses (a) through (j)
(other than (e)) shall be for fair market value.
7.06 NET DEFERRED COMPENSATION PAYMENTS. Make or incur any obligation
(contingent or otherwise) to make, directly or indirectly, any Deferred
Compensation Payment, except that the Borrower and its Subsidiaries may make Net
Deferred Compensation Payments (after giving effect to any tax benefit derived
therefrom) during the term of this Agreement in an aggregate amount not in
excess of $25,000,000; provided, however, no more than $12,500,000 in aggregate
amount of such Net Deferred Compensation Payments may be made during any fiscal
year.
7.07 RESTRICTED PAYMENTS. Declare or make or incur any obligation
(contingent or otherwise) to declare or make, directly or indirectly, any
Restricted Payment, except (a) Dividends payable by a Subsidiary to the Borrower
or a Domestic Subsidiary or by a Foreign Subsidiary to a Foreign Subsidiary
owned directly by the Borrower or a Domestic Subsidiary; (b) Dividends payable
with proceeds of Dispositions permitted pursuant to the proviso of Section
7.05(g) not to exceed $10,000,000 in aggregate amount during the term of this
70
Agreement; (c) the Borrower and its Subsidiaries may (i) declare and make
payments of Dividends in addition to those set forth in clauses (a) and (b)
immediately preceding not to exceed $5,000,000 in aggregate amount during any
fiscal year and (ii) make regularly scheduled payment of principal and interest
on Subordinated Debt; and (d) the Borrower may make dividends or other
distributions to the Parent or any Subsidiary of the Parent in an amount
sufficient (i) to allow the Parent to pay expenses incurred in the ordinary
course of business, (ii) to cover reasonable and necessary expenses (including
professional fees and expenses) incurred by the Parent in connection with (A)
compliance with reporting obligations under this Agreement or any Loan Document
or under federal or state laws and (B) indemnification and reimbursement of
directors, officers and employees in respect of liabilities relating to their
serving in any such capacity not to exceed in the case of both (A) and (B)
immediately preceding $500,000 in aggregate amount for any fiscal year, and
(iii) to pay combined federal, state, local and foreign tax liabilities of the
Parent in an aggregate amount not to exceed the cash taxes that would otherwise
be payable by the Borrower if its financial results were not consolidated or
combined with the Parent and the Borrower was treated as a corporation for state
tax purposes (and, if the Parent makes a subchapter "S" election under the Code,
to pay the tax liabilities of the shareholders of the Borrower or the Parent
(or, if the shareholder is a trust, the tax liability of a beneficiary of the
trust who is taxed on the income of the trust) in respect of taxes of such
shareholders solely attributable to such shareholders' ownership in the Borrower
or the Parent, calculated using the highest combined marginal effective federal,
state and local tax rates on ordinary income applicable to individuals located
in the jurisdiction where such shareholders are residents); provided that
immediately before and immediately after any such Restricted Payment (other than
to the Borrower or the payment of tax liabilities set forth in subclause (iii)
immediately preceding) no Default or Event of Default exists or would result
therefrom.
7.08 ERISA. At any time engage in a transaction which could be subject to
Section 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any
non-exempt "prohibited transaction" (as defined in Section 4975 of the Code);
(b) fail to comply in any material respect with ERISA or any other Applicable
Laws; or (c) incur any material "accumulated funding deficiency" (as defined in
Section 302 of ERISA), which, with respect to each event listed above, could be
reasonably expected to have a Material Adverse Effect.
7.09 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof and businesses reasonably
related thereto.
7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind
with any Affiliate of the Borrower (other than any Subsidiary), other than (i)
arm's-length transactions with Affiliates, (ii) transactions otherwise permitted
hereunder (including pursuant to Section 7.07), (iii) transactions with
Affiliates in the ordinary course of business, and (iv) deferred compensation
arrangements with officers or employees of the Parent or any of its Subsidiaries
consistent with those in place as of the Closing Date.
7.11 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation that
limits the ability of any Subsidiary to make Dividends or other distributions to
the Borrower or to otherwise transfer property to the Borrower other than (a)
this Agreement and the other Loan
71
Documents and any related documents and (b) any industrial revenue or
development bonds, agreements governing any purchase money Liens, acquisition
agreements or Capital Leases or operating leases entered into in the ordinary
course of business otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed, acquired or
leased thereby).
7.12 USE OF PROCEEDS. Other than as contemplated by the Merger Agreement,
use the proceeds of any Credit Extension, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the Board) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
7.13 AMENDMENT OF ORGANIZATION DOCUMENTS AND FISCAL YEAR. Amend, modify,
or waive any of its rights under any Organization Documents in a manner adverse
to the Lenders. The Borrower shall not, and shall not permit any Subsidiary to,
change its fiscal quarters or fiscal year.
7.14 ISSUANCE OF SHARES. Issue, sell or otherwise dispose of, any shares
of its Capital Stock or other securities, or rights, warrants or options to
purchase or acquire any shares or securities except:
(a) to the Parent or a Subsidiary of the Parent;
(b) to any employee of the Borrower or any of its Subsidiaries;
(c) to any seller in connection with an Acquisition by the Borrower or
any of its Subsidiaries;
(d) Capital Stock issued in respect of an initial capitalization of a
Subsidiary; and
(e) if the Net Cash Proceeds from the issuance thereof are applied as
required pursuant to Section 2.06(f).
7.15 FINANCIAL COVENANTS.
(a) Leverage Ratio. Permit the Leverage Ratio to be greater than (a)
2.75 to 1 at the end of any fiscal quarter occurring during the period from and
including January 31, 2002 through and including April 30, 2003 and (b) 2.50 to
1 at the end of any fiscal quarter thereafter.
(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio
to be less than (a) 1.15 to 1 at the end of any fiscal quarter occurring during
the period from and including January 31, 2002 through and including April 30,
2003 and (b) 1.25 to 1 at the end of any fiscal quarter thereafter.
(c) Asset Coverage Ratio. Permit the Asset Coverage Ratio to be less
than (a) 1.25 to 1 at the end of any fiscal quarter occurring during the period
from and including January 31,
72
2002 through and including April 30, 2003 and (b) 1.50 to 1 at the end of any
fiscal quarter thereafter.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower fails to pay (i) when due, any amount of
principal of any Loan or any L/C Obligation or (ii) within 2 Business Days of
the date when due any interest on any Loan or on any L/C Obligation, any
commitment or other fee due hereunder, or any other amount payable hereunder or
under any other Loan Document; or
(b) Specific Covenants. The Borrower or any other Loan Party fails to
perform or observe any term, covenant or agreement contained in any of Section
6.03(a) or (b), 6.05, 6.10, 6.12, 6.15 or Article VII; or
(c) Other Defaults. The Borrower or any other Loan Party fails to
perform or observe any other covenant or agreement (not specified in subsection
(a), (b) or (c) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation or warranty made
or deemed made by the Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
proves to have been incorrect in any material respect as of the date made or
deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $3,000,000 or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event occurs, the effect of which default or other event is to cause, or
to permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of any Guaranty Obligation with respect to such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid or
redeemed (automatically or otherwise) or such Guaranty Obligation to become
payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap Contract
as to which the Borrower or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which the Borrower or any Subsidiary is an Affected
73
Party (as so defined) and, in either event, the Swap Termination Value owed by
the Borrower or such Subsidiary as a result thereof is greater than $3,000,000;
or
(f) Insolvency Proceedings, Etc. The Borrower or any other Loan Party
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or
(g) Involuntary Proceedings. Any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of the Borrower or any other Loan Party, or any
proceeding under any Debtor Relief Law relating to the Borrower or any other
Loan Party, or to all or any part of its property is instituted without the
consent of such Person, and such appointment or proceeding shall remain
undismissed, unbonded and unstayed for a period of 45 consecutive days; or
(h) Inability to Pay Debts; Attachment. (i) The Borrower or any other
Loan Party becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 45 days after its issue or levy; or
(i) Judgments. There is entered against the Borrower or any Subsidiary a
final judgment or order for the payment of money in an aggregate amount
exceeding $1,000,000) and (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(j) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $2,000,000,
(ii) the Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $2,000,000 or (iii) the Borrower or any
Foreign Subsidiary shall become obligated to pay any obligation with respect to
any Foreign Plan which could reasonably be expected to have a Material Adverse
Effect; or
(k) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than the agreement of all
the Lenders or satisfaction in full of all the Obligations, ceases to be in full
force and effect other than pursuant to the terms hereof or thereof, or is
declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or
74
(l) Change of Control. (i) There occurs a Change of Control of the Parent,
or (ii) the Parent shall fail to own directly or indirectly 100% of the Capital
Stock of the Borrower; or
(m) Collateral Documents. Any Collateral Document shall for any reason
(other than as expressly provided or permitted pursuant to the terms thereof)
cease to create a valid and perfected first priority Lien (subject to Permitted
Liens) in any Collateral; or
(n) Business of Parent. The Parent shall engage in any business other than
owning 100% of the Capital Stock of the Borrower and activities incidental or
relating thereto; or
(o) Material Domestic Subsidiaries. (i) The aggregate assets of the
Borrower and each of its Subsidiaries that is a Guarantor shall fail as of the
last date of any fiscal quarter to comprise at least 95% of the aggregate assets
of the Borrower and its Domestic Subsidiaries, (ii) as of the last date of any
fiscal quarter, the aggregate EBITDA for the period of the four consecutive
fiscal quarters ending on such date generated by the Borrower and each of its
Subsidiaries that is a Guarantor shall fail to comprise at least 95% of the
aggregate EBITDA generated by the Borrower and its Domestic Subsidiaries during
such period and any such failure set forth in clauses (i) or (ii) above
continues for 40 days following the end of the fiscal quarter on the last day of
which such failure occurs, provided that no Default shall occur under this
Section 8.01(o) as a result of the creation or Acquisition of a Subsidiary after
the Closing Date if no Event of Default has occurred with respect to Section
6.14 hereof, or
(p) Material Foreign Subsidiaries. (i) The aggregate assets of the Pledged
Foreign Subsidiaries shall fail as of the last date of any fiscal quarter to
comprise at least 80% of the aggregate assets of all Foreign Subsidiaries, (ii)
as of the last date of any fiscal quarter, the aggregate EBITDA for the period
of four consecutive fiscal quarters ending on such date generated by the Pledged
Foreign Subsidiaries shall fail to comprise at least 80% of the aggregate EBITDA
generated by all Foreign Subsidiaries during such period and any such failure
set forth in clauses (i) or (ii) above continues for 90 days following the end
of the fiscal quarter on the last date of which such failure occurs; provided
that no Default shall occur under this Section 8.01(p) as a result of the
creation or Acquisition of a Subsidiary after the Closing Date if no Event of
Default has occurred with respect to Section 6.14 hereof.
(q) Material Foreign Subsidiary Capital Stock. Subject to the following
proviso, the outstanding Capital Stock of each Material Foreign Subsidiary as of
the Closing Date shall fail to be pledged to secure the Obligations by the date
which is ninety days after the Closing Date, provided that in no event shall
more than 66% of any series of Capital Stock of any Material Foreign Subsidiary
(other than any Foreign U.S. Subsidiary) be required to be pledged pursuant to
this Agreement or any other Loan Document.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs,
the Administrative Agent shall, at the request of, or may, with the consent
of, the Required Lenders,
(a) by notice in writing to the Borrower, declare the commitment of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;
75
(b) by notice in writing to the Borrower, declare the unpaid principal
amount of all outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other Loan Document to
be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or Applicable Law;
provided, however, that upon the occurrence of any event specified in
subsections (f) or (g) of Section 8.01, the obligation of each Lender to make
Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without notice or further act of the Administrative Agent or any Lender.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
Applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the Administrative Agent may agree at the
request of the Required Lenders to act for the L/C Issuer with respect thereto;
provided, however, that the L/C Issuer shall have all of the
76
benefits and immunities (i) provided to the Administrative Agent in this Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Article IX included the L/C Issuer with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to the L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
(including counsel to any Loan Party) and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant
77
thereto shall be binding upon all the Lenders and participants. Where this
Agreement expressly permits or prohibits an action unless the Required Lenders
otherwise determine, the Administrative Agent shall, and in all other instances,
the Administrative Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility
78
to provide any Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it (WHETHER OR NOT
ARISING OUT OF THE NEGLIGENCE OF SUCH AGENT RELATED PERSON); provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent. THE FOREGOING INDEMNITY SHALL APPLY TO THE NEGLIGENCE OF
THE AGENT-RELATED PERSON (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
THE AGENT-RELATED PERSON).
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Loan Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the L/C Issuer hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
as Administrative Agent upon 30 days' notice to the Lenders and the Borrower;
provided that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer and Swing
79
Line Lender. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent (which shall be a bank) for the Lenders which successor administrative
agent shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent (which shall be a bank) from
among the Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent", "L/C Issuer", and "Swing Line Lender"
shall mean such successor administrative agent, Letter of Credit issuer and
swing line lender, and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated, and the retiring L/C
Issuer's and Swing Line Lender's rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue Letters of Credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
9.10 OTHER AGENTS. None of the Lenders identified on the facing page or
signature pages of this Agreement as a "syndication agent", "documentation
agent", or "co-agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of the Lenders so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC.. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall, unless in writing and signed by each of the Lenders
directly
80
affected thereby and by the Borrower, and acknowledged by the Administrative
Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 2.07 or Section 8.02);
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce or subordinate the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of
the proviso below) any fees or other amounts payable hereunder or under any
other Loan Document;
(d) change the percentage specified in the definition of "Required
Lenders";
(e) change the Pro Rata Share or the Voting Percentage of any Lender;
(f) amend this Section, or any provision herein providing for consent or
other action by all the Lenders;
(g) other than pursuant to a transaction permitted hereunder or under any
other Loan Document, release all of, or substantially all of, the Guarantors
from any Guaranty or subordinate the obligation of all or substantially all of
the Guarantors under the Guaranties; or
(h) other than pursuant to a transaction permitted hereunder or under any
other Loan Document, release all of, or substantially all of, the Collateral or
subordinate the Lien granted pursuant to the Collateral Documents in all of, or
substantially all of, the Collateral;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Required Lenders or all
the Lenders, as the case may be, affect the rights or duties of the L/C Issuer
under this Agreement or any Letter of Credit Application relating to any Letter
of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to the
Required Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Required Lenders or all the Lenders, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; and (iv) the Agent Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, any Lender that has failed to
fund any portion of the Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder shall
not have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Pro Rata Share of such Lender may not be increased
without the consent of such Lender.
81
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower, the
Administrative Agent, the L/C Issuer or the Swing Line Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be designated
by such party in a notice to the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the intended recipient and (ii) (A) if delivered by hand or by
courier, when signed for by the intended recipient; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered
by facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent, the L/C Issuer and
the Swing Line Lender pursuant to Article II shall not be effective until
actually received by such Person. Any notice or other communication permitted to
be given, made or confirmed by telephone hereunder shall be given, made or
confirmed by means of a telephone call to the intended recipient at the number
specified on Schedule 10.02, it being understood and agreed that a voicemail
message shall in no event be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to Applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements, notices of Borrowings and confirmations of same and other
information, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall acting in good faith be entitled to rely and act upon any
notices (including telephonic Revolving Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Borrower,
except to the extent such losses, costs, expenses and liabilities result from
the gross negligence or willful misconduct of any Agent-Related Person or,
82
in the case of the indemnification of any Lender, such Lender. All telephonic
notices to and other communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all reasonable costs and
expenses incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all reasonable search,
filing, recording charges and fees and taxes related thereto, and other
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
reasonable cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. The agreements in this
Section shall survive the termination of the Commitments and repayment of all
the other Obligations.
10.05 Indemnification by the Borrower. WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE CONSUMMATED, THE BORROWER AGREES TO INDEMNIFY, SAVE AND
HOLD HARMLESS EACH AGENT-RELATED PERSON AND EACH LENDER AND ITS AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, AGENTS AND ATTORNEYS-IN-FACT
(COLLECTIVELY THE "INDEMNITEES") FROM AND AGAINST: (a) ANY AND ALL CLAIMS,
DEMANDS, ACTIONS OR CAUSES OR ACTION THAT MAY AT ANY TIME (INCLUDING AT ANY TIME
FOLLOWING REPAYMENT OF THE OBLIGATIONS AND THE RESIGNATION OR REMOVAL OF THE
ADMINISTRATIVE AGENT OR THE REPLACEMENT OF ANY LENDER) BE ASSERTED OR IMPOSED
AGAINST ANY INDEMNITEE, ARISING OUT OF OR RELATING TO, THE LOAN DOCUMENTS, THE
COMMITMENTS, THE USE OR CONTEMPLATED USE OF THE PROCEEDS OF ANY CREDIT
EXTENSION, OR THE RELATIONSHIP OF ANY LOAN PARTY, THE ADMINISTRATIVE AGENT AND
THE LENDERS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT; (b) ANY
ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANY GOVERNMENTAL
83
AUTHORITY ARISING OUT OF OR RELATED TO A CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION DESCRIBED IN SUBSECTION (a) ABOVE; AND (c) ANY AND ALL LIABILITIES
(INCLUDING LIABILITIES UNDER INDEMNITIES), LOSSES, COSTS OR EXPENSES (INCLUDING
ATTORNEY COSTS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF THE
ASSERTION OF ANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING,
OR AS A RESULT OF THE PREPARATION OF ANY DEFENSE IN CONNECTION WITH ANY
FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING, IN ALL CASES,
WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF AN INDEMNITEE, AND, WHETHER OR
NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
PROCEEDING (ALL THE FOREGOING, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES");
PROVIDED THAT THE BORROWER SHALL HAVE NO OBLIGATION HEREUNDER (i) TO ANY
AGENT-RELATED PERSON WITH RESPECT TO ANY CLAIMS, DEMANDS, ACTIONS OR CAUSES OF
ACTIONS, ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING, OR ANY LIABILITIES ARISING
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY AGENT-RELATED PERSON OR
(ii) TO ANY LENDER OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL,
AGENTS OR ATTORNEYS-IN-FACT WITH RESPECT TO CLAIMS, DEMANDS, ACTIONS OR CAUSES
OF ACTIONS, ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING, OR ANY LIABILITIES
ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH LENDER OR ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, AGENTS OR
ATTORNEYS-IN-FACT, PROVIDED FURTHER NO INDEMNITEE SHALL BE ENTITLED TO
INDEMNIFICATION FOR ANY CLAIM CAUSED BY ITS OWN GROSS NEGLIGENCE WITH RESPECT TO
ANY LOSS ASSERTED AGAINST IT BY ANOTHER INDEMNITEE. THE FOREGOING INDEMNITY
SHALL APPLY TO THE NEGLIGENCE OF THE INDEMNITEE (BUT NOT THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE INDEMNITEE). THE AGREEMENTS IN THIS SECTION SHALL
SURVIVE THE TERMINATION OF THE COMMITMENTS AND REPAYMENT OF ALL THE OTHER
OBLIGATIONS.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a payment
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, to the
extent not prohibited by Applicable Law, and (b) each Lender severally agrees to
pay to the Administrative Agent upon demand its applicable share of any amount
so recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the
84
date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing Line Loans) at
the time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitments and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitments (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent, shall not be less than $5,000,000 unless each of
the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the Commitments
assigned, except that this clause (ii) shall not apply to rights in respect of
outstanding Swing Line Loans, and (iii) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 (provided no such fee
shall be required for an assignment to an Affiliate of a Lender). Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Acceptance, the Eligible Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.07 and 10.04 (which accrued to such Lender prior to such
assignment), and 10.05). Upon request, the Borrower (at its expense) shall
execute and deliver new or replacement Notes to the assigning Lender and the
assignee Lender. Any Notes so replaced shall be surrendered by the assigning
Lender to the Administrative Agent (whereupon the Administrative Agent shall
promptly return the same to the Borrower, marked "canceled").
85
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitments
and/or the Loans (including such Lender's participations in L/C Obligations
and/or Swing Line Loans) owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification that would (i) postpone any date upon
which any payment of money is scheduled to be paid to such Participant, (ii)
reduce the principal, interest, fees or other amounts payable to such
Participant, (iii) release all or substantially all of the Guarantors from the
Guaranty, or (iv) release all or substantially all of the Collateral. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to but only to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section (and without duplication of any
amounts payable to any Lender). To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.09 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.14 as though
it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Notes, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve
86
Bank, without the requirement for notice to or consent of any Person or the
payment of any fee; provided that no such pledge or assignment shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by the Administrative Agent, in the case of any
assignment of a Revolving Loan, the L/C Issuer, the Swing Line Lender and,
unless (x) such Person is taking delivery of an assignment in connection
with physical settlement of a credit derivative transaction or (y) an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided, however,
neither the Borrower nor any of its Affiliates shall qualify as an
Eligible Assignee.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon five Business
Days' notice to the Borrower, terminate the Swing Line. In the event of any such
resignation as L/C Issuer or termination of the Swing Line, the Borrower shall
be entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Bank of America as
L/C Issuer or the termination of the Swing Line, as the case may be. Bank of
America shall retain all the rights and obligations of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of
its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans or
fund participations in Unreimbursed Amounts pursuant to Section 2.04(c)). If
Bank of America terminates the Swing Line, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such termination, including
the right to require the Lenders to make Base Rate Loans or fund participations
in outstanding Swing Line Loans pursuant to Section 2.05(c).
10.08 CONFIDENTIALITY. Each of the Administrative Agent and each Lender
agrees (on behalf of itself and each of its Affiliates, directors, officers,
employees, agents and attorneys-in-fact) to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
87
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and required to keep such Information confidential)
with respect to the monitoring and administration of this Agreement or any other
Loan Documents provided that the Administrative Agent or such Lender, as the
case may be shall inform each such accountant, legal counsel and other advisor
of the agreement under this Section 10.08 and take reasonable actions to cause
compliance by any such Person with this Agreement (including, where appropriate,
to cause any such Person to acknowledge its agreement to be bound by the
agreement under this Section 10.08); (b) to the extent compelled by any
regulatory authority; (c) to the extent required by Applicable Laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Borrower;
(g) with the written consent of the Borrower; (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower; or (i) only to the
extent required, to the National Association of Insurance Commissioners or any
other similar organization or any nationally recognized rating agency that
requires access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower, its Affiliates
or their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligations to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential Information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided,
88
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the Highest Lawful Rate. If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Highest
Lawful Rate, the excess interest shall be applied to the principal of the Loans
or, if it exceeds such unpaid principal, refunded to the Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person
may, to the extent permitted by Applicable Law, (a) characterize any payment
that is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A counterpart hereof (or
signature page thereto) signed and transmitted by any Person party hereto to the
Administrative Agent (or its counsel) by facsimile machine, telecopier or
electronic mail is to be treated as an original. The signature of such Person
thereon, for purposes hereof, is to be considered as an original signature, and
the counterpart (or signature page thereto) so transmitted is to be considered
to have the same binding effect as an original signature on an original
document.
10.12 INTEGRATION. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which the Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without
89
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.15 FOREIGN LENDERS. Each Lender that is not a United States person
(as defined in Section 7701(a)(30) of the Code (a "Foreign Lender") shall
(a) provide to the Borrower and the Administrative Agent, prior to any
payment by the Borrower under this Agreement to such Person (or after accepting
an assignment of an interest herein by any such Person), two duly and accurately
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from U.S. withholding
tax on all payments to be made to such Person by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Person by the Borrower pursuant to this Agreement) or such
other evidence reasonably satisfactory to the Borrower and the Administrative
Agent that such Person is entitled to an exemption from U.S. withholding tax.
Thereafter, each such Person shall (i) submit to the Borrower and the
Administrative Agent, prior to the expiration or obsolescence of any such form
and after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, such additional duly and accurately
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations or such evidence as is satisfactory to the Borrower and the
Administrative Agent of any available exemption from United States withholding
taxes in respect of all payments to be made to such Person by the Borrower
pursuant to this Agreement, (ii) obtain such extensions of time for filing and
completing such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent and (iii) promptly notify the Borrower and
the Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption, and
(b) in the case of any such Lender that is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and that is not entitled to comply with
Section 10.15(a) hereof, (i) represent to the Borrower to such Person (for the
benefit of each of the Borrowers and the Administrative Agent) that it is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, (ii) agree to
furnish to the Borrower prior to any payment by the Borrower, with a copy to the
Administrative Agent, (x) a certificate substantially in the form of Exhibit K
(and such certificate a "U.S. Tax Compliance Certificate") and (y) two duly
signed and accurately complete original signed copies of Internal Revenue
Service Form W-8BEN, or successor applicable form certifying to such Lender's
legal entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 871(h) or successor applicable
form certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the provisions of
Section 871(h) or 881(c) of the Code with respect to payments to be made under
this Agreement (each such Person shall (m) submit to the Borrower and
Administrative Agent, prior to the expiration or obsolescence of any such form
and after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, such additional duly and accurately
completed copies of one of such forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing authorities) as
may then be available under then current United States laws and regulations and
90
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from United States withholding taxes in respect of all
payments to be made to such person by the Borrower pursuant to this Agreement,
(n) obtain such extension of time for filing and completing such forms or
certifications as may reasonably be requested by the Borrower or the
Administrative Agent and (o) promptly notify the Borrower and the Administrative
Agent of any change in circumstances which would modify or render invalid any
claimed exemption), and (iii) agree, to the extent legally entitled to do so,
upon reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments under this Agreement
and any Notes (for the avoidance of doubt, in determining the reasonableness of
a request under this clause (iii), such Lender shall be entitled to consider the
cost (to the extent unreimbursed by the Borrower) which would be imposed on such
Lender of complying with such respect). Each such Person shall promptly notify
the Borrower and the Administrative Agent of any change in circumstances that
would modify or render invalid any claimed exemption;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders any such
forms inapplicable (or other such evidence) or which would prevent such Lender
from duly completing and delivering any such form (or other such evidence) with
respect to it.
10.16 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the Borrower
shall have the right to remove or replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative Agent, (i)
remove such Lender by terminating such Lender's Commitments or (ii) replace such
Lender by causing such Lender to assign its Commitments (without payment of any
assignment fee) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrower; provided, however, that if the
Borrower elects to exercise such right with respect to any Lender pursuant to
Section 3.06(b), it shall be obligated to remove or replace, as the case may be,
all Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04. The Borrower shall (x) pay in full all principal, interest, fees
and other amounts owing to such Lender through the date of termination or
assignment (including any amounts payable pursuant to Section 3.05), (y) provide
appropriate assurances and indemnities (which may include letters of credit) to
the L/C Issuer and the Swing Line Lender as each may reasonably require with
respect to any continuing obligation to purchase participation interests in any
L/C Obligations or any Swing Line Loans then outstanding, and (z) release such
Lender from its obligations under the Loan Documents. Any Lender being replaced
shall (i) execute and deliver an Assignment and Acceptance with respect to such
Lender's Commitments and outstanding Credit Extensions and (ii) return to the
Administrative Agent any Notes held by it (whereupon the Administrative Agent
shall promptly return the same to the Borrower, marked "canceled"). The
Administrative Agent shall distribute an amended Schedules 2.01 and 2.02, which
shall be deemed incorporated into this Agreement, to reflect changes in the
identities of the Lenders and adjustments of their respective Commitments and/or
Pro Rata Shares resulting from any such removal or replacement.
91
(b) In order to make all the Lenders' interests in any outstanding Credit
Extensions ratable in accordance with any revised Pro Rata Shares after giving
effect to the removal or replacement of a Lender, the Borrower shall pay or
prepay, if necessary, on the effective date thereof, all outstanding Loans of
all Lenders, together with any amounts due under Section 3.05. The Borrower may
then request Loans from the Lenders in accordance with their revised Pro Rata
Shares. The Borrower may net any payments required hereunder against any funds
being provided by any Lender or Eligible Assignee replacing a terminating
Lender. The effect for purposes of this Agreement shall be the same as if
separate transfers of funds had been made with respect thereto.
(c) This section shall supersede any provision in Section 10.01 to
the contrary.
10.17 EXCEPTIONS TO COVENANTS. Neither the Borrower nor any Subsidiary
shall be deemed to be permitted to take any action or fail to take any action
which is permitted as an exception to any of the covenants contained herein or
which is within the permissible limits of any of the covenants contained herein
if such action or omission would result in the breach of any other covenant
contained herein.
10.18 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
the LAW OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT EACH PARTY SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) The parties hereto agree that Chapter 346 (other than 346.004) of the
Texas Finance Code (which regulates certain revolving credit accounts and
revolving tri-party accounts) shall not apply to Loans under this Agreement.
(c) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING
IN DALLAS COUNTY, TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS (DALLAS DIVISION), AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
92
10.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.20 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
--------------------------------------------------------------------------------
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
--------------------------------------------------------------------------------
93
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
RANGER MERGER CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Chairman and President
--------------------------
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------
Title: Vice President
--------------------------
BANK OF AMERICA , N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
--------------------------
Title: Senior Vice President
--------------------------
GUARANTY BANK
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
--------------------------
Title: Vice President
--------------------------
S-1
BNP PARIBAS
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------
Title: Vice President
--------------------------
By: /s/ Xxxxx Xxx
---------------------------------
Name: Xxxxx Xxx
--------------------------
Title: Managing Director
--------------------------
BANK ONE, N.A.
By: /s/ Xxxx Points
---------------------------------
Name: Xxxx Points
--------------------------
Title: FVP
--------------------------
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------
Title: Vice President
--------------------------
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
--------------------------
Title: Vice President
--------------------------
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Title: Senior Vice President
--------------------------
S-2
WASHINGTON MUTUAL BANK
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
--------------------------
Title: Vice President
--------------------------
S-3
