EXHIBIT 10.1
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[Published CUSIP Number: ______________]
CREDIT AGREEMENT
DATED AS OF MAY 17, 2007
AMONG
NORTH AMERICAN GALVANIZING & COATINGS, INC.,
AS BORROWER,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, SWING LINE LENDER
AND L/C ISSUER,
AND
THE OTHER LENDERS PARTY HERETO
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TABLE OF CONTENTS
Section Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS....................................1
1.01 Defined Terms.....................................................1
1.02 Other Interpretive Provisions....................................23
1.03 Accounting Terms.................................................23
1.04 Rounding.........................................................24
1.05 Times of Day.....................................................24
1.06 Letter of Credit Amounts.........................................24
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS.............................24
2.01 Committed Loans..................................................24
2.02 Borrowings, Conversions and Continuations of Committed Loans.....25
2.03 Letters of Credit................................................26
2.04 Swing Line Loans.................................................33
2.05 Prepayments......................................................36
2.06 Termination or Reduction of Commitments..........................37
2.07 Repayment of Loans...............................................38
2.08 Interest.........................................................38
2.09 Fees.............................................................39
2.10 Computation of Interest and Fees; Retroactive Adjustments of
Applicable Margin................................................39
2.11 Evidence of Debt.................................................40
2.12 Payments Generally; Agent's Clawback.............................40
2.13 Sharing of Payments..............................................42
2.14 Increase in Aggregate Commitments................................43
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY...........................45
3.01 Taxes............................................................45
3.02 Illegality.......................................................46
3.03 Inability to Determine Rates.....................................46
3.04 Increased Costs..................................................47
3.05 Compensation for Losses..........................................48
3.06 Mitigation Obligations...........................................49
3.07 Survival.........................................................49
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.........................49
4.01 Conditions of Initial Credit Extension...........................49
4.02 Conditions to all Credit Extensions..............................52
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ARTICLE V. REPRESENTATIONS AND WARRANTIES.....................................52
5.01 Existence, Qualification and Power...............................52
5.02 Authorization; No Contravention..................................53
5.03 Governmental Authorization; Other Consents.......................53
5.04 Binding Effect...................................................53
5.05 Financial Statements; No Material Adverse Effect.................53
5.06 Litigation.......................................................53
5.07 No Default.......................................................54
5.08 Ownership of Property; Liens.....................................54
5.09 Environmental Compliance.........................................54
5.10 Insurance........................................................54
5.11 Taxes............................................................54
5.12 ERISA Compliance.................................................54
5.13 Subsidiaries.....................................................55
5.14 Margin Regulations; Investment Company Act.......................55
5.15 Disclosure.......................................................55
5.16 Compliance with Laws.............................................56
5.17 Taxpayer Identification Number...................................56
5.18 Intellectual Property; Licenses, Etc.............................56
5.19 Rights in Collateral; Priority of Liens..........................56
ARTICLE VI. AFFIRMATIVE COVENANTS.............................................56
6.01 Financial Statements.............................................56
6.02 Certificates; Other Information..................................57
6.03 Notices..........................................................60
6.04 Payment of Obligations...........................................60
6.05 Preservation of Existence, Etc...................................60
6.06 Maintenance of Properties........................................60
6.07 Maintenance of Insurance.........................................61
6.08 Compliance with Laws.............................................61
6.09 Books and Records................................................61
6.10 Inspection Rights................................................61
6.11 Use of Proceeds..................................................61
6.12 Financial Covenants..............................................61
6.13 Subsidiaries.....................................................62
6.14 Collateral Records...............................................62
6.15 Security Interests...............................................62
6.16 Principal Depository.............................................63
6.17 Real Property; Letter of Credit..................................63
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ARTICLE VII. NEGATIVE COVENANTS...............................................63
7.01 Liens............................................................63
7.02 Investments; Acquisitions........................................64
7.03 Indebtedness.....................................................65
7.04 Fundamental Changes..............................................65
7.05 Dispositions.....................................................66
7.06 Restricted Payments..............................................66
7.07 Change in Nature of Business.....................................67
7.08 Transactions with Affiliates.....................................67
7.09 Burdensome Agreements............................................67
7.10 Use of Proceeds..................................................67
7.11 Minimum Availability.............................................67
7.12 Capital Expenditures.............................................67
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES..................................68
8.01 Events of Default................................................68
8.02 Remedies Upon Event of Default...................................70
8.03 Application of Funds.............................................70
8.04 Marshalling; Order of Realization................................71
ARTICLE IX. ADMINISTRATIVE AGENT..............................................71
9.01 Appointment and Authorization of Administrative Agent............71
9.02 Rights as a Lender...............................................72
9.03 Exculpatory Provisions...........................................72
9.04 Reliance by Administrative Agent.................................73
9.05 Delegation of Duties.............................................73
9.06 Resignation of Agent.............................................73
9.07 Non-Reliance on Agent and Other Lenders..........................74
9.08 No Other Duties, Etc.............................................74
9.09 Administrative Agent May File Proofs of Claim....................74
9.10 Guaranty Matters.................................................75
9.11 Collateral Matters...............................................75
ARTICLE X. MISCELLANEOUS......................................................77
10.01 Amendments, Etc..................................................77
10.02 Notices; Effectiveness; Electronic Communications................78
10.03 No Waiver; Cumulative Remedies...................................80
10.04 Expenses; Indemnity; Damage Waiver...............................80
10.05 Payments Set Aside...............................................82
10.06 Successors and Assigns...........................................82
10.07 Treatment of Certain Information; Confidentiality................86
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10.08 Right of Setoff..................................................87
10.09 Interest Rate Limitation.........................................87
10.10 Counterparts; Integration; Effectiveness.........................87
10.11 Survival of Representations and Warranties.......................88
10.12 Severability.....................................................88
10.13 Governing Law; Jurisdiction; Etc.................................88
10.14 Waiver of Jury Trial.............................................89
10.15 No Advisory or Fiduciary Responsibility..........................89
10.16 USA PATRIOT ACT Notice...........................................90
10.17 Time of the Essence..............................................90
SCHEDULES
2.01 Commitments and Applicable Percentages
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Permitted Acquisition Certificate
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of May 17,
2007 (the "Effective Date"), among NORTH AMERICAN GALVANIZING & COATINGS, INC.,
a Delaware corporation ("Borrower"), each lender from time to time party hereto
(collectively, "Lenders" and individually, a "Lender"), and BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Borrower has requested that Lenders provide a revolving credit
facility, that the L/C Issuer provide a letter of credit subfacility, and that
the Swing Line Lender provide a swing line subfacility, and Lenders, Swing Line
Lender and L/C Issuer are willing to do so on the terms and conditions set forth
herein. In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
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" shall have the meaning assigned to such term in Revised
Article Nine of the UCC.
"Account Debtor" means a Person obligated on an Account.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of fifty percent (50%) of
the Equity Interests of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary).
"Administrative Agent" or "Agent" means Bank of America in its capacity
as administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means Agent's address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or
account as Agent may from time to time notify Borrower and Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by Agent.
"Adverse Environmental Determination" means: (a) a judgment is entered
against the Borrower or any Guarantor by a court of competent jurisdiction, (b)
a written agreement by the Borrower or any Guarantor, (c) an order, decree or
official pronouncement by a Governmental Authority, or (d) a determination is
made by any Person authorized to do so by the Borrower or any Guarantor, in any
of such cases, that either:
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(i) the total cost to remediate the alleged environmental
contamination at the Lake River facility previously operated by the
former subsidiary of Borrower, Lake River Corporation (the "Lake River
Remediation Cost"), is greater than $5 million (and the liability of
Borrower and its Subsidiaries on a consolidated basis therefor has not
been fully and finally determined to be less than $2.5 million),
(ii) the liability of Borrower and its Subsidiaries on a
consolidated basis for the Lake River Remediation Cost is greater than
$2.5 million,
(iii) the cost to remediate any alleged environmental
contamination of any other land that occurred as a result of the
operation of the Lake River facility (the "Third Party Lake River
Cost") is greater than $5 million (and the liability of Borrower and
its Subsidiaries on a consolidated basis therefor has not been fully
and finally determined to be less than $2.5 million),
(iv) the liability of Borrower and its Subsidiaries on a
consolidated basis for the Third Party Lake River Cost is greater than
$2.5 million,
(v) the sum of the Lake River Remediation Cost and Third Party
Lake River Cost exceeds $5 million (and the liability of Borrower and
its Subsidiaries on a consolidated basis therefor has not been fully
and finally determined to be less than $2.5 million in the aggregate),
or
(vi) the liability of Borrower and its Subsidiaries on a
consolidated basis for the Lake River Remediation Cost and Third Party
Lake River Cost exceeds $2.5 million in the aggregate;
provided that in all cases above the following that may be paid or
agreed to be paid by Borrower shall be ignored: (A) the cost of any site
assessments or environmental reports and (B) the cost incurred by Borrower, if
any, to remove storage tanks, pumping equipment, pipelines, boilers, steam lines
and appurtenances thereto from the Lake River facility site.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Commitments of all Lenders.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, from time to time, the following percentages
per annum, based upon the Leverage Ratio as set forth in the most recent
Compliance Certificate received by Agent pursuant to Section 6.02(b):
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Applicable Margin
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Applicable Applicable
Base Rate LIBOR Fixed LIBOR
Pricing Applicable Rate Margin Floating Rate Commitment
Level Leverage Ratio Margin (bps) (bps) Margin (bps) Fee (bps)
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I Greater than 3.00x 25 200 200 25.0
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II Greater than or equal to 12.5 175 175 20.0
2.50x but less than 3.00x
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III Greater than or equal to 0 150 150 17.5
2.00x but less than 2.50x
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IV Greater than or equal to -12.5 125 125 15.0
1.50x but less than 2.00x
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V Greater than or equal to -25 100 100 12.5
1.00x but less than 1.50x
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VI Less than 1.00x -37.5 75 75 10.0
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Any increase or decrease in the Applicable Margin resulting from a
change in the Leverage Ratio shall become effective as of the first Business Day
of the month immediately following the date a Compliance Certificate is
delivered pursuant to Section 6.02(b); provided, however, that if a Compliance
Certificate is not delivered when due in accordance with such Section, then
Pricing Level I shall apply as of the first Business Day of the month following
the date such Compliance Certificate was required to have been delivered and
shall remain in effect until the fifth (5th) Business Day after Agent's receipt
of the Compliance Certificate. The Applicable Margin in effect from the Closing
Date through the first Business Day of the month immediately following the date
a Compliance Certificate is delivered pursuant to Section 6.02(b) shall be
determined based upon Pricing Level VI.
Notwithstanding anything to the contrary contained in this definition,
the determination of Applicable Margin for any period shall be subject to the
provisions of Section 2.10(b).
"Applicable Percentage" means with respect to any Lender at any time,
the percentage (carried out to the ninth decimal place) of the Aggregate
Commitments represented by such Lender's Commitment at such time. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable Percentage of
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each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments. The
initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.
"Asset Coverage Ratio" means, as of any date of determination, the
ratio of (a) the sum of (i) cash and cash equivalents of the Borrower and its
Domestic Subsidiaries as of such date plus (ii) Accounts of the Borrower and its
Domestic Subsidiaries as of such date plus (iii) Inventory of the Borrower and
its Domestic Subsidiaries as of such date (valued at the lower of cost
determined on a LIFO basis or market value) plus (iv) the depreciated book value
of property, plant and equipment of the Borrower and its Domestic Subsidiaries
as of such date to (b) Consolidated Funded Indebtedness of the Borrower and its
Subsidiaries as of such date.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.06(b)), and accepted by Agent, in substantially the form
of Exhibit E or any other form approved by Agent.
"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 Borrower and its Subsidiaries for the fiscal year ended December 31,
2006, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of Borrower and its
Subsidiaries, including the notes thereto.
"AutoBorrow Agreement" means that certain agreement between Borrower
and Bank of America, dated as of the date of this Agreement, with respect to the
services provided by Bank of America to the Borrower that constitute Bank of
America's AutoBorrow program.
"Availability Period" means the period from and including the Closing
Date to the earliest of (a) the Maturity Date, (b) the date of termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the date of
termination of the commitment of each Lender to make Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly
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announced from time to time by Bank of America as its "prime rate." The "prime
rate" is a rate set by Bank of America based upon various factors including Bank
of America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such rate
announced by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Basic Fixed Charge Coverage Ratio" means the ratio of (a) the sum of
Operating Cash Flow, minus income tax expense, dividends, capital stock
repurchases, and Maintenance Capital Expenditures, plus rent and lease expense,
all for the applicable rolling four fiscal quarters, to (b) current maturities
of long term liabilities, current maturities of Capitalized Lease Obligations
and Implied Amortization as of the last day of such rolling four quarters, plus
interest expense, lease expense and rent expense during such four rolling fiscal
quarters.
"BBA LIBOR" has the meaning assigned to such term in the definition of
"Eurodollar Base Rate."
"Bond Audit" means the Internal Revenue Service review of the Xxxxxx
County Industrial Development Corporation Adjustable Rate Industrial Development
Bonds, Series 2000, issued in 2000.
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrower Materials" has the meaning specified in Section 6.02.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"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 Administrative Agent's Oklahoma office is
located and, if such day relates to any Eurodollar Fixed Rate Loan, means any
such day on which dealings in Dollar deposits are conducted by and between banks
in the London interbank eurodollar market.
"Capitalized Lease" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
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"Change in Law" means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right,
an "option right")), directly or indirectly, of 35% or more of the
equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a
fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option
right); or
(ii) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of such Person cease to be composed of individuals (a) who were
members of that board or equivalent governing body on the first day of
such period, (b) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (a) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (c) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (a) and (b) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (b) and clause (c), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of
an actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).
"Chase L/C" means a certain Letter of Credit in favor of JPMorgan Chase
Bank, N.A. in the amount of $6,000,000.00.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
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"Collateral" shall mean any and all assets and rights and interests in
or to property of Borrower and each of the other Loan Parties, whether real or
personal, tangible or intangible, in which a Lien is granted or purported to be
granted pursuant to the Collateral Documents.
"Collateral Documents" means all agreements, instruments and documents
now or hereafter executed and delivered in connection with this Agreement
pursuant to which Liens are granted or purported to be granted to Agent in
Collateral securing all or part of the Obligations each in form and substance
reasonably satisfactory to Agent.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to 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 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"Commitment Increase" has the meaning assigned to such term in Section
2.14(a).
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Fixed Rate
Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurodollar Fixed Rate Loans, pursuant to Section 2.02(a), which,
if in writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit D.
"Consolidated Funded Indebtedness" means, for Borrower and its
Subsidiaries on a consolidated basis, the sum of the following (without
duplication): (i) all Indebtedness for borrowed money, (ii) all Indebtedness for
the deferred purchase price of property or services, (iii) all Indebtedness
evidenced by a note, acceptance or other like instrument, (iv) all Capitalized
Lease Obligations, (v) all cash overdrafts, and (vi) the aggregate undrawn and
available amount of all outstanding Letters of Credit.
"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.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Credit Extension" means each of the following: (a) a Borrowing and (b)
an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
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 or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other
than L/C Fees an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Margin, if any, applicable to Base Rate Loans plus (iii) 2% per
annum; provided, however, that with respect to a Eurodollar Fixed Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Margin) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to L/C Fees, a rate equal to 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder unless such
failure has been cured, (b) has otherwise failed to pay over to Agent or any
other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute or
unless such failure has been cured, or (c) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) 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.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means a Subsidiary that is organized, formed or
chartered under the laws of any state of the United States of America or the
District of Columbia.
"Eligible Account" shall mean an Account that meets the following
standards until the same is collected in full: (a) the Account is genuine and in
all respects what it purports to be; (b) the Account was created in the ordinary
course of business of Borrower or a Domestic Subsidiary; (c) the Account arises
from (i) the bona fide performance of services by Borrower or a Domestic
Subsidiary that have been fully performed, acknowledged and accepted by the
Account Debtor or (ii) the bona fide sale or lease of goods by Borrower or a
Domestic Subsidiary, and such goods have been completed in accordance with the
Account Debtor's specifications (if any) and delivered to and accepted by the
Account Debtor; (d) the Account is unconditionally due and owing from an Account
Debtor; (e) the sum of money does not remain unpaid for a period in excess of
ninety (90) days beyond the Invoice Date; (f) the Account is not
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a contra account and is not otherwise subject to any dispute, set-off,
recoupment, counterclaim or other claim or to any rescission, cancellation or
avoidance which would reduce or eliminate the amount to be paid by the Account
Debtor, and the Account Debtor has not received or requested permission to pay
the same in installments at dates later than were originally due and payable; it
being further understood that contract retainages will not constitute Eligible
Accounts; (g) the Account is not subject to any concession or understanding with
the Account Debtor of any kind that is not disclosed to and approved by Agent in
writing; (h) the Account does not result from the sale or lease of any goods
held on consignment; (i) the Account Debtor is not an Affiliate of Borrower or
any Subsidiary; and (j) the Account Debtor is not a director, officer or an
employee of Borrower or any Subsidiary, nor a member of the family of any
director, officer or employee of Borrower or any Subsidiary, nor any
proprietorship or partnership owned in whole or in part by any such director,
officer or employee of Borrower or any Subsidiary, or by any member of the
family of any such Person. The specifications with respect to the term "Eligible
Accounts" are adopted for the purpose of determining Implied Amortization and
the designation of such specifications shall not be interpreted to limit in any
respect any Lien granted to Agent in Accounts.
"Eligible Assignee" means any Person that meets the requirements to be
an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents,
if any, as may be required under Section 10.06(b)(iii)).
"Environmental Laws" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
9
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by 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 Borrower or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Section 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 constitutes 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 ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.
"Eurodollar Base Rate" has the meaning specified in the definition of
Eurodollar Fixed Rate.
"Eurodollar Fixed Rate" means for any Interest Period with respect to a
Eurodollar Fixed Rate Loan, a rate per annum determined by Agent pursuant to the
following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period the
rate per annum equal to the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as designated by Agent from
time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period. If such rate is not available
at such time for any reason, then the "Eurodollar Base Rate" for such
Interest Period shall be the rate per annum determined by Agent to be
the rate 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 Fixed Rate Loan being made, continued or converted by Bank
of America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00
a.m. (London time) two Business Days prior to the commencement of such
Interest Period.
10
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to
time by the Board of Governors of the Federal Reserve System of the
United States for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred
to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Fixed Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurodollar Reserve
Percentage.
"Eurodollar Fixed Rate Loan" means a Committed Loan that bears interest
at a rate based on the Eurodollar Fixed Rate.
"Eurodollar Floating Rate" means a fluctuating rate of interest per
annum equal to the BBA LIBOR, as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as selected by Agent from
time to time) as determined for each banking day at approximately 11:00 a.m.
London time two (2) Business Days prior to the date in question, for U.S. Dollar
deposits (for delivery on the first day of such interest period) with a one
month term, as adjusted from time to time in the Agent's sole discretion for
reserve requirements, deposit insurance assessment rates and other regulatory
costs. If such rate is not available at such time for any reason, then the rate
for that interest period will be determined by such alternate method as
reasonably selected by the Agent.
"Eurodollar Floating Rate Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Floating Rate.
"Eurodollar Rate Loan" means a Committed Loan that bears interest at a
rated based on the Eurodollar Fixed Rate or the Eurodollar Floating Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means, with respect to Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of Borrower hereunder, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, and (b) any branch profits taxes imposed
by the United States or any similar tax imposed by any other jurisdiction in
which
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if 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
11
Funds Rate for such day shall be the average rate (rounded upward, if necessary,
to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on
such transactions as determined by Agent.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States 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 in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing 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 or level of
income or cash flow of 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 obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee 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 (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee 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 Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantor" means, separately and collectively, the following: (i)
NORTH AMERICAN GALVANIZING COMPANY, a Delaware corporation, (ii) NAGALV-OHIO,
INC., a Delaware corporation, (iii) XXXXXX GALVANIZING COMPANY - KANSAS CITY, an
Oklahoma corporation, (iv) PREMIER COATINGS, INC., an Oklahoma
12
corporation, and (v) REINFORCING SERVICES, INC., an Oklahoma corporation, and
all future Domestic Subsidiaries.
"Guaranty" means the Guaranty made by each Guarantor in favor of Agent
and for the benefit of the Lenders, in form and substance reasonably
satisfactory to Agent.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Implied Amortization" as of any date shall be an amount equal to (a)
(i) the sum of (A) the Outstanding Amount of all Loans as of such date and (B)
all Unreimbursed Amounts as of such date less (ii) the sum of (A) 50% of raw
material Inventory of Borrower and all Domestic Subsidiaries as of such date and
(B) 80% of Eligible Accounts as of such date (but in no event less than 0)
divided by (b) 7.
"Increasing Lender" means a Lender that agrees to increase its
Commitment pursuant to Section 2.14 or a new Lender that becomes a party to this
Agreement pursuant to Section 2.14.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(i) 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;
(ii) all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar
instruments;
(iii) net obligations of such Person under any Swap Contract;
(iv) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts
payable in the ordinary course of business and, in each case, not past
due for more than 90 days after the date on which such trade account
payable was created unless such amounts are being contested in good
faith by proceedings diligently conducted);
(v) 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;
(vi) capital leases and Synthetic Lease Obligations;
13
(vii) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;
and
(viii) all Guarantees 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 (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. 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 Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Interest Payment Date" means, (a) as to any Eurodollar Fixed Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Fixed 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 Eurodollar Floating Rate Loan and any Base Rate
Loan (including a Swing Line Loan), the last Business Day of each June,
September, December and March and the Maturity Date.
"Interest Period" means, as to each Eurodollar Fixed Rate Loan, the
period commencing on the date such Eurodollar Fixed Rate Loan is disbursed or
converted to or continued as a Eurodollar Fixed Rate Loan and ending on the date
one (1), two (2), three (3), six (6) or nine (9) months thereafter, as selected
by Borrower in its Committed Loan Notice; 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 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 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 Maturity
Date.
"Inventory" means all inventory that is owned by the Borrower and its
Domestic Subsidiaries and is located at the Borrower's or its Domestic
Subsidiaries' places of business or
14
other inventory locations acceptable to Agent, and that, in Agent's reasonable
opinion, is in good and saleable condition and is not obsolete or unmerchantable
and that Agent, in its reasonable judgment, deems to be eligible Inventory,
based on the credit and collateral considerations that Agent customarily may
deem appropriate. Inventory shall not include goods or materials that are (a)
not in good condition, (b) not in conformance with all applicable standards
imposed by any Governmental Authority, (c) not currently saleable or usable in
the normal course of business of the Borrower or its Domestic Subsidiaries, (d)
damaged in shipment or (e) returned from customers as defective merchandise.
"Investment" means, as to any Person, any direct or indirect
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 to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of 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.
"Invoice Date" means the date of the invoice for the services rendered
or the goods sold or leased to an Account Debtor of Borrower or any Guarantor.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice, Inc. (or such later version thereof as may be in effect at the time
of issuance).
"Issuer Documents" means with respect to any Letter of Credit, the L/C
Application, and any other document, agreement and instrument entered into by
the L/C Issuer and Borrower (or any Subsidiary) or in favor of the L/C Issuer
and relating to such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
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 funding
of its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C 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.
15
"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 Committed 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 increase of the
amount thereof.
"L/C Expiration Date" means the day that is the Maturity Date then in
effect (or, if such day is not a Business Day, the next preceding Business Day).
"L/C Fee" has the meaning specified in Section 2.03(i).
"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.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"L/C Sublimit" means an amount equal to $2,000,000.00 plus an amount
equal to the face amount of the Chase L/C; provided that after the earlier of
June 30, 2007 and the Honor Date as to the Chase L/C, the L/C Sublimit shall be
$2,000,000.00. The L/C Sublimit is part of, and not in addition to, the
Aggregate Commitments.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify Borrower and
Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
"Leverage Ratio" shall mean the ratio of Consolidated Funded
Indebtedness to Operating Cash Flow calculated in the manner set forth in
Section 6.12(a).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
16
"Loan" means an extension of credit by a Lender to Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Issuer Document,
each Collateral Document and each Guaranty.
"Loan Parties" means, collectively, Borrower and each Person (other
than Agent, the L/C Issuer, Swing Line Lender, or any Lender) executing a Loan
Document including, without limitation, each Guarantor and each Person executing
a Collateral Document.
"Maintenance Capital Expenditures" means, for any period, Borrower's
depreciation expense for such period.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), or financial condition of Borrower and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.
"Maturity Date" means May 17, 2012; provided, however, that if such
date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.
"MWR Suit" means the case styled Metropolitan Water Reclamation
District of Greater Chicago v. Lake River Corporation et al, Case No.
03-cv-00754, pending in the United States District Court for the Northern
District of Illinois, Eastern Division, along with any appeals from any orders
or judgments entered therein.
"Note" means a promissory note made by Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
"Operating Cash Flow" means, for Borrower and its Subsidiaries on a
consolidated basis, for any period: (a) net income or loss for such period,
excluding (i) extraordinary gains and losses, if any, for such period and (ii)
the write-up or write-down of assets for such period, plus
17
(b) the sum of (i) depreciation expense for such period, (ii) amortization
expense for such period, (iii) interest expense during such period, (iv) income
tax expense during such period and (v) Target Operating Cash Flow for such
period, in each case determined in accordance with GAAP and each for the
twelve-month period ended as of the date of determination; provided, however,
that for purposes of the term "Operating Cash Flow," (A) expenses associated
with the MWR Suit and/or paid as a result of an Adverse Environmental
Determination up to an aggregate of $1,500,000 incurred after the Closing Date
shall be considered extraordinary losses, and (B) expenses associated with the
Bond Audit up to an aggregate of $200,000 incurred after the Closing Date shall
be considered extraordinary losses.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization 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 or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp, intangible or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Committed
Loans and Swing Line 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 by
Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(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 Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
18
"Permitted Acquisition" means any individual Acquisition which is not
otherwise prohibited by this Agreement and with respect to which each of the
following conditions shall have been satisfied:
(i) As of the closing of the Acquisition, after giving effect
to such Acquisition, no Default or Event of Default shall exist or
occur as a result of, and after giving effect to, such Acquisition;
(ii) The total consideration paid by Borrower for such
Acquisition shall not, without Required Lenders' written approval,
exceed $5,000,000.00;
(iii) The total consideration paid by Borrower for all
Acquisitions during the current fiscal year, in the aggregate, after
giving effect to the Acquisition, shall not exceed $10,000,000.00;
(iv) Borrower has provided to Agent and Lenders all
information and documentation reasonably requested by Agent and Lenders
regarding the Acquisition;
(v) the prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent governing body of
the Target is obtained;
(vi) the Target is in the same or similar line of business as
Borrower;
(vii) in the case of an Acquisition that entails a merger or
consolidation or other combination with another Person, the Borrower is
the surviving entity; and
(viii) not less than five (5) Business Days prior to the
closing of such Acquisition, Agent shall have received a certificate in
a form substantially similar to that form attached hereto as Exhibit F
and otherwise acceptable to Agent, dated on or immediately prior to the
date of the Acquisition, executed by the president or a vice president
of Borrower confirming that all representations and warranties set
forth in the Loan Documents continue to be true and correct in all
material respects immediately prior to and after giving effect to the
Acquisition and the transactions contemplated thereby, and, for any
Acquisition in which the total consideration is $5,000,000 or more,
certifying pro formal financial statements of the Borrower and its
Subsidiaries demonstrating compliance with the covenants set forth in
Sections 6.12(a) and (b) including in such calculation Target Operating
Cash Flow (as if the business, assets, or Person acquired had been
acquired since the first (1st) day of the period for which such pro
forma financial statements are delivered and had been managed and
conducted in accordance with the Borrower's standard business
practices) for the prior four (4) fiscal quarters of the Borrower and
its Subsidiaries.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by Borrower or, with respect to any such plan
that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
19
"Platform" has the meaning specified in Section 6.02.
"Public Lender" has the meaning specified in Section 6.02.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the thirty (30) day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a L/C Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
(including in all cases Bank of America) having in the aggregate more than 50%
of the Aggregate Commitments or, if the commitment of each Lender to make Loans
and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.02, Lenders (including in all cases Bank of
America) holding in the aggregate more than 50% of the Total Outstandings (with
the aggregate amount of each Lender's risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed "held" by
such Lender for purposes of this definition); provided that the Commitment of,
and the portion of the Total Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.
"Responsible Officer" means the chief executive officer, president,
chief financial officer, treasurer, assistant treasurer or controller of a Loan
Party and, solely for purposes of notices given pursuant to Article II, any
other officer or employee of the applicable Loan Party so designated by any of
the foregoing officers in a notice to Agent. 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 Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other Equity Interest of Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest
or on account of any return of capital to Borrower's stockholders, partners or
members (or the equivalent Person thereof).
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
20
"Security Agreement" means a security agreement in form reasonably
acceptable to Agent, to be entered by Borrower and each Domestic Subsidiary in
favor of the Agent, in order to grant the Agent, for the ratable benefit of the
Lenders, a security interest in and to (i) substantially all personal property
of Borrower and the Domestic Subsidiaries, and (ii) all shares of capital stock
or other Equity Interests of Borrower or any Domestic Subsidiary in all Domestic
Subsidiaries, provided that in the case of such capital stock or other Equity
Interests, such security agreement may be in the form of a separate pledge
agreement.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
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, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
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, 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 a Lender or any Affiliate of a
Lender).
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
21
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Swing Line Sublimit" means $10,000,000.00.
"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).
"Target" means any Person that has been or may be acquired pursuant to
an Acquisition permitted under this Agreement.
"Target Operating Cash Flow" means, for any Target,
(a) with respect to pro forma calculations required pursuant to
subparagraph (vii) of the definition of "Permitted Acquisition," either (i) the
actual Operating Cash Flow of the Target for the four quarter period ended
immediately prior to the date of such Acquisition or (ii) an amount agreed upon
by Borrower and Required Lenders for the four (4) quarter period ended
immediately prior to the date of such Acquisition; and
(b) with respect to the calculation of any financial covenant as
reported by Borrower pursuant to the requirements of Section 6.12 or applicable
to the calculation of the Applicable Margin, either (i) the actual Operating
Cash Flow for each Target for the portion of the four (4) quarter period ended
on the date of determination that is prior to the date of the Acquisition of
such Target or (ii) an amount agreed upon by Borrower and Required Lenders for
the portion of the four (4) quarter period ended on the date of determination
that is prior to the date of the Acquisition of such Target.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Threshold Amount" means $750,000.00.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan, a Eurodollar Fixed Rate Loan or a Eurodollar Floating Rate Loan.
"UCC" means the Uniform Commercial Code as adopted and in effect in the
State of Oklahoma from time to time.
22
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02 Other Interpretive Provisions. With reference to this Agreement
and each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) 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."
(c) Section headings herein and in 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.
(a) Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be
23
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.
(b) Changes in GAAP. 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 Borrower or the Required Lenders shall so request,
Agent, Lenders and 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, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) Borrower shall
provide to Agent and Lenders financial statements and other documents required
under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All
references herein to consolidated financial statements of Borrower and its
Subsidiaries or to the determination of any amount for Borrower and its
Subsidiaries on a consolidated basis or any similar reference shall, in each
case, be deemed to include each variable interest entity that Borrower is
required to consolidate pursuant to FASB Interpretation No. 46 - Consolidation
of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as
if such variable interest entity were a Subsidiary as defined herein.
1.04 Rounding. Any financial ratios required to be maintained by
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 Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Central time (daylight or standard, as
applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified herein the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
Loan") to Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings shall
not exceed
24
the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. Within the limits of each Lender's Commitment, and
subject to the other terms and conditions hereof, Borrower may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans. (a)
Each Committed Borrowing, each conversion of Committed Loans from one Type to
the other, and each continuation of Eurodollar Fixed Rate Loans shall be made
upon Borrower's irrevocable notice to Agent, which may be given by telephone.
Each such notice must be received by Agent not later than Noon (i) three (3)
Business Days prior to the requested date of any Borrowing of Eurodollar Fixed
Rate Loans, of any conversion to or continuation of Eurodollar Fixed Rate Loans,
or of any conversion of Eurodollar Fixed Rate Loans to Eurodollar Floating Rate
Loans or Base Rate Committed Loans, and (ii) on the requested date of any
Borrowing of Base Rate Committed Loans or Eurodollar Floating Rate Loans, of any
conversion of Base Rate Committed Loans to Eurodollar Floating Rate Loans or of
any conversion of Eurodollar Floating Rate Loans to Base Rate Committed Loans.
Each telephonic notice by Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of Borrower. Each
Borrowing of Eurodollar Fixed Rate Loans, conversion to Eurodollar Fixed Rate
Loans, or continuation of Eurodollar Fixed Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Except
as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to
Base Rate Committed Loans or Eurodollar Floating Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether Borrower is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurodollar Fixed Rate
Loans, (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
Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Committed Loans shall be made
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 Fixed Rate Loans. If Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Fixed Rate
Loans in any such Committed Loan Notice, 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 Committed Loan Notice, Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by Borrower, 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 Committed Borrowing, each Lender shall
make the amount of its Committed Loan available to Agent in immediately
available funds at
25
Administrative Agent's Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed 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), Agent shall make all funds so received
available to Borrower in like funds as received by Agent either by (i) crediting
the account of 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 (and reasonably acceptable to) Agent by Borrower;
provided, however, that if, on the date the Committed Loan Notice with respect
to such Borrowing is given by Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing first, shall be applied, to the payment in
full of any such L/C Borrowings, and second, shall be made available to Borrower
as provided above.
(c) Except as otherwise provided herein, a Eurodollar Fixed Rate
Loan may be continued or converted only on the last day of an Interest Period
for such Eurodollar Fixed Rate Loan. During the existence of a Default, no Loans
may be requested as, converted to or continued as Eurodollar Fixed Rate Loans
without the consent of the Required Lenders, and the Required Lenders may demand
that any or all of the then outstanding Eurodollar Fixed Rate Loans be converted
immediately to Base Rate Committed Loans or Eurodollar Floating Rate Loans and
Borrower agrees to pay all amounts due under Section 3.05 in accordance with the
terms thereof due to any such conversion.
(d) Agent shall promptly notify Borrower and Lenders of the
interest rate applicable to any Interest Period for Eurodollar Fixed Rate Loans
upon determination of such interest rate.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than six (6)
Interest Periods in effect with respect to Eurodollar Fixed Rate Loans.
2.03 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 2.03, (1) from time to time
on any Business Day during the period from the Closing Date until the
L/C Expiration Date, to issue Letters of Credit for the account of
Borrower, and to amend or extend Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of Borrower and
any drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Lender's Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's
26
Commitment, or (z) the Outstanding Amount of the L/C Obligations shall
not exceed the L/C Sublimit. Each request by Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a
representation by Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, Borrower's ability to obtain Letters of Credit shall
be fully revolving, and accordingly 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 not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of
Credit would occur more than twelve (12) months after the date
of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of
Credit would occur after the L/C Expiration Date, unless all
the Lenders have approved such expiry date.
(iii) 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 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 unreimbursed 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) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
letters of credit generally;
(C) except as otherwise agreed by Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount
less than $50,000;
(D) such Letter of Credit is to be denominated in a
currency other than Dollars;
(E) a default of any Lender's obligations to fund
under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered
into satisfactory arrangements with Borrower or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender;
or
27
(F) unless specifically provided for in this
Agreement, such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such Letter
of Credit in its amended form under the terms hereof.
(v) 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.
(vi) 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, and the L/C Issuer shall have all of the benefits
and immunities (A) provided to Agent in 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
Issuer Documents pertaining to such Letters of Credit as fully as if
the term "Administrative Agent" or "Agent" as used in Article IX
included the L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of Borrower delivered to the L/C Issuer
(with a copy to Agent) in the form of a L/C Application, appropriately
completed and signed by a Responsible Officer of Borrower. Such L/C
Application must be received by the L/C Issuer and Agent not later than
Noon at least two (2) Business Days (or such later date and time as
Agent and the L/C Issuer may agree in a particular instance in their
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 L/C 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 thereunder; (F)
the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; (G) the purpose and nature of the
requested Letter of Credit; and (H) 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 L/C 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. Additionally,
Borrower shall furnish to the L/C Issuer and Agent such other documents
and information pertaining to such requested Letter of Credit issuance
or amendment, including any Issuer Documents, as the L/C Issuer or
Agent may require.
28
(ii) Promptly after receipt of any L/C Application at the
address set forth in Section 10.02 for receiving L/C Applications and
related correspondence, the L/C Issuer will confirm with Agent (by
telephone or in writing) that Agent has received a copy of such L/C
Application from Borrower and, if not, the L/C Issuer will provide
Agent with a copy thereof. Unless the L/C Issuer has received written
notice from any Lender, Agent or any Loan Party, at least one Business
Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions in
Article IV shall not then be satisfied, 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 Borrower 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.
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 risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Applicable
Percentage times the amount of such Letter of Credit.
(iii) 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 Borrower and Agent a true and complete copy of such Letter of Credit
or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify Borrower and Agent thereof. Not later than Noon on the
date of any payment by the L/C Issuer under a Letter of Credit (each
such date, an "Honor Date"), Borrower shall reimburse the L/C Issuer
through Agent in an amount equal to the amount of such drawing. If
Borrower fails to so reimburse the L/C Issuer by such time, Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of
such Lender's Applicable Percentage thereof. In such event, Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate
Loans 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 2.02 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 Committed Loan Notice). Any notice given by the L/C
Issuer or Agent pursuant to this Section 2.03(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 shall upon any notice pursuant to Section
2.03(c)(i) make funds available to Agent for the account of the L/C
Issuer at the Administrative Agent's Office in an amount equal to its
Applicable Percentage of the Unreimbursed Amount not later than 1:00
p.m. on the Business Day specified in such notice by Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender that so
makes
29
funds available shall be deemed to have made a Base Rate Committed Loan
to Borrower in such amount. Agent shall remit the funds so received to
the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, 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 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 Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment
in respect of its 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 2.03.
(iv) Until each Lender funds its Committed Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such
Lender's Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the L/C Issuer, Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02 (other
than delivery by Borrower of a Committed Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of
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 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 2.03(c) by the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled
to recover from such Lender (acting through 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 greater of the
Federal Funds Rate and a rate determined by the L/C issuer in
accordance with banking industry rules on interbank compensation, plus
any administrative, processing or similar fees customarily charged by
the LC/ Issuer in connection with the foregoing. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender's Committed Loan included in the relevant
Committed Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any
30
Lender (through 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 2.03(c),
if Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether
directly from Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by Agent), Agent will distribute to such
Lender its Applicable Percentage thereof in the same funds as those
received by Agent.
(ii) If any payment received by Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned
under any of the circumstances described in Section 10.05 (including
pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to Agent for the account of the L/C
Issuer its Applicable Percentage thereof on demand of Agent, plus
interest thereon from the date of such 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. The obligations of Lenders
under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.
(e) Obligations Absolute. The obligation of 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 Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that Borrower or any Subsidiary 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
31
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, Borrower or any Subsidiary.
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 Borrower's instructions or
other irregularity, Borrower will immediately notify the L/C Issuer.
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 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. None of the L/C Issuer,
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee 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 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 Issuer Document.
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 Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, Agent,
any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, Borrower
may have a claim against the L/C Issuer, and the L/C Issuer may be liable to
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by Borrower which 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, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and 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 Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has
32
resulted in an L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C
Obligation for any reason remains outstanding, Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. Sections 2.05 and 8.02(c) set forth certain additional requirements
to deliver Cash Collateral hereunder. For purposes hereof, "Cash Collateralize"
means to pledge and deposit with or deliver to 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 satisfactory to
Agent and the L/C Issuer (which documents are hereby consented to by Lenders) in
an amount not to exceed the then Outstanding Amount of all L/C Obligations.
Derivatives of such term have corresponding meanings. Borrower hereby grants to
Agent, for the benefit of the L/C Issuer and Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by the L/C Issuer and Borrower when a Letter of Credit is issued, (i) the
rules of the ISP shall apply to each standby 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 shall apply to each commercial Letter of Credit.
(i) L/C Fees. Borrower shall pay to Agent for the account of each
Lender in accordance with its Applicable Percentage a L/C fee (the "L/C Fee")
for each standby Letter of Credit equal to one percent (1%) per annum on the
entire amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.06. L/C Fees shall be (i) due and payable on the last Business Day of each
March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the L/C Expiration Date
and thereafter on demand and (ii) computed on a quarterly basis in arrears.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Lenders, while any Event of Default exists, all L/C Fees shall
accrue at the Default Rate.
(j) Documentary and Processing Charges Payable to L/C Issuer.
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 individual customary fees and standard costs and charges
are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Documents, the terms hereof
shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, Swing Line Lender agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, to consider in its sole and absolute
discretion making loans (each such loan, a "Swing Line Loan") to Borrower from
time to time on any Business Day during the Availability
33
Period 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 Applicable Percentage of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender's Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Committed Loans of any Lender, plus such Lender's Applicable Percentage of
the Outstanding Amount of all L/C Obligations, plus such Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender's Commitment. The Swing Line is a discretionary, uncommitted
facility and Swing Line Lender may terminate or suspend the Swing Line at any
time in its sole discretion upon notice to Borrower which notice may be given by
Swing Line Lender before or after Borrower requests a Swing Line Loan hereunder.
All Swing Line Loans shall either be Base Rate Loans or Eurodollar Floating Rate
Loans, depending on the interest rate in effect therefor pursuant to Section
2.08(a). Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal to the product of such Lender's Applicable Percentage times the amount of
such Swing Line Loan.
(b) Borrowing Procedures. Unless the Swing Line has been
terminated or suspended by the Swing Line Lender as provided in subsection (a)
above, each Swing Line Borrowing shall be made upon Borrower's irrevocable
notice to Swing Line Lender and Agent, which may be given by telephone. Each
such notice must be received by Swing Line Lender and Agent not later than 1:00
p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing
date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to Swing Line Lender and Agent of a written Swing
Line Loan Notice, appropriately completed and signed by a Responsible Officer of
Borrower. Promptly after receipt by Swing Line Lender of any telephonic Swing
Line Loan Notice, Swing Line Lender will confirm with Agent (by telephone or in
writing) that Agent has also received such Swing Line Loan Notice and, if not,
Swing Line Lender will notify Agent (by telephone or in writing) of the contents
thereof. Unless (x) the Swing Line has been terminated or suspended by the Swing
Line Lender as provided in subsection (a) above, or (y) the Swing Line Lender
has received notice (by telephone or in writing) from Agent (including at the
request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line
Borrowing (A) directing Swing Line Lender not to make such Swing Line Loan as a
result of the limitations set forth in the proviso to the first sentence of
Section 2.04(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, Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to Borrower. Lenders agree that Swing Line Lender may agree to modify
the borrowing procedures used in connection with the Swing Line in its
discretion and without affecting any of the obligations of Lenders hereunder
other than notifying Agent of a Swing Line Loan Notice. In the event of any
conflict between the terms hereof and the terms of the AutoBorrow Agreement with
respect to the administration of the borrowing, funding and repayment of the
Swing Line Loans between the Borrower and the Swing Line Lender, the terms of
the AutoBorrow Agreement shall control. In all other matters related to
34
Swing Line Loans, including the obligations of the Lenders to purchase
participations in the Swing Line Loans, the terms of this Agreement shall
control.
(c) Refinancing of Swing Line Loans.
(i) Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of Borrower (which hereby irrevocably
authorizes Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such
Lender's Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02,
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. Swing Line Lender shall furnish Borrower with a copy of
the applicable Committed Loan Notice promptly after delivering such
notice to Agent. Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan
Notice available to Agent in immediately available funds for the
account of Swing Line Lender at the Administrative Agent's Office not
later than 1:00 p.m. on the day specified in such Committed Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate
Committed Loan to Borrower in such amount. Agent shall remit the funds
so received to Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Committed Loans submitted by
Swing Line Lender as set forth herein shall be deemed to be a request
by Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's payment
to Agent for the account of Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to Agent for the
account of Swing Line Lender 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)(i), Swing Line Lender shall be
entitled to recover from such Lender (acting through 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 Swing Line Lender at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus
any administrative, processing or similar fees customarily charged by
Swing Line Lender in connection with the foregoing. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender's Committed Loan included in the relevant
Committed Borrowing or funded participation in the relevant Swing Line
Loan, as the case may be. A certificate of Swing Line Lender submitted
to any Lender (through Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
35
(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 2.04(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against Swing Line Lender, Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Lender's obligation
to make Committed Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of
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
risk participation in a Swing Line Loan, if Swing Line Lender receives
any payment on account of such Swing Line Loan, Swing Line Lender will
distribute to such Lender its Applicable Percentage thereof in the same
funds as those received by Swing Line Lender.
(ii) If any payment received by Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to be
returned by Swing Line Lender under any of the circumstances described
in Section 10.05 (including pursuant to any settlement entered into by
Swing Line Lender in its discretion), each Lender shall pay to Swing
Line Lender its Applicable Percentage thereof on demand of 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. Agent
will make such demand upon the request of Swing Line Lender. The
obligations of Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. Swing Line Lender
shall be responsible for invoicing Borrower for interest on the Swing Line
Loans. Until each Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.04 to refinance such Lender's
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of Swing Line Lender.
(f) Payments Directly to Swing Line Lender. Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to Swing Line Lender.
2.05 Prepayments.
(a) Borrower may, upon notice to Agent, at any time or from time
to time voluntarily prepay Committed Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by Agent not later
than Noon (A) three Business Days prior to any date of prepayment of Eurodollar
Fixed Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans
or Eurodollar Floating Rate Loans; (ii) any prepayment of Eurodollar Fixed Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
36
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans or Eurodollar Floating Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurodollar Fixed Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender's
Applicable Percentage of such prepayment. If such notice is given by Borrower,
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Fixed Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Committed Loans of
Lenders in accordance with their respective Applicable Percentages.
(b) Borrower may, upon notice to Swing Line Lender (with a copy to
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 Swing Line Lender and Agent not later than 1:00 p.m. on the date
of the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by Borrower, 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 Total Outstandings at any time exceed
the Aggregate Commitments then in effect, Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess; provided, however, that Borrower shall not be required to Cash
Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after
the prepayment in full of the Loans the Total Outstandings exceed the Aggregate
Commitments then in effect.
2.06 Termination or Reduction of Commitments. Borrower may, upon notice
to Agent, terminate the Aggregate Commitments, or from time to time permanently
reduce the Aggregate Commitments; provided that (i) any such notice shall be
received by Agent not later than Noon three Business Days prior to the date of
termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $1,000,000 or any whole multiple of $500,000 in excess
thereof, (iii) Borrower shall not terminate or reduce the Aggregate Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder, the
Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after
giving effect to any reduction of the Aggregate Commitments, the L/C Sublimit or
the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. Agent will
promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable Percentage.
All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.
37
2.07 Repayment of Loans.
(a) Borrower shall repay to Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on such date.
(b) Borrower shall repay to Swing Line Lender each Swing Line Loan
on the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Fixed Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Fixed Rate for such Interest Period plus the Applicable Margin; (ii)
each Eurodollar Floating Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Eurodollar Floating Rate plus the Applicable Margin; and (iii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Margin; and (iv) 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 either (A) the Base Rate plus the
Applicable Margin or (B) the Eurodollar Floating Rate plus the Applicable
Margin, provided that all Swing Line Loans shall bear interest at the Eurodollar
Floating Rate plus the Applicable Margin from the Closing Date until Borrower
provides notice of its desire to change the rate applicable to Swing Line Loans
to the Base Rate plus the Applicable Margin pursuant to the following sentence.
Borrower may change the rate of interest applicable to Swing Line Loans upon
Borrower's notice to Agent, which may be given by telephone and which must be
received by Agent on the requested date of any such change in the interest rate.
(b) (i) If any amount of principal of any Loan is not paid when
due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable
by Borrower under any Loan Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any
Event of Default exists, Borrower shall pay interest on the principal
amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable upon
demand.
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(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.
2.09 Fees. In addition to certain fees described in subsections
(i) and (j) of Section 2.03:
(a) Commitment Fee. Borrower shall pay to Agent for the account of
each Lender in accordance with its Applicable Percentage, a commitment fee equal
to the Applicable Margin times the actual daily amount by which the Aggregate
Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue
at all times during the Availability Period, including at any time during which
one or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
Closing Date, and on the last day of the Availability Period. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Margin during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Margin separately for each period during such
quarter that such Applicable Margin was in effect.
(b) Upfront Fee. On the Effective Date, Borrower shall pay to
Agent an upfront fee in an amount of $31,250.00. Such upfront fee is fully
earned on the date paid. The upfront fee is nonrefundable for any reason
whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of
Applicable Margin.
(a) All computations of interest for the following shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed: (i) Base Rate Loans when the Base Rate is determined by Bank of
America's "prime rate," (ii) Eurodollar Floating Rate Loans and (iii) Commitment
Fees. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest,
as applicable, being paid than if computed on the basis of a 365-day year).
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, subject to Section 2.12(a), bear interest for one
day. Each determination by Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to
the financial statements of Borrower or for any other reason, Borrower or the
Lenders determine that (i) the Financial Covenant used in the definition
"Applicable Margin" as calculated by Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of such Financial Covenant would have
resulted in different pricing for such period, then either (as applicable) (A)
Borrower shall immediately and retroactively be obligated to pay to Agent for
the account of the applicable
39
Lenders, promptly on demand by Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to Borrower under the
Bankruptcy Code of the United States, automatically and without further action
by Agent, any Lender or the L/C Issuer), an amount equal to the excess of the
amount of interest and fees that should have been paid for such period over the
amount of interest and fees actually paid for such period or (B) the applicable
Lenders shall credit to Borrower an amount equal to the excess of the amount of
interest and fees actually paid for such period over the amount of interest and
fees that should have been paid for such period. This paragraph shall not limit
the rights of Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The obligations
under this paragraph shall survive the termination of the Aggregate Commitments
and the repayment of all other Obligations hereunder.
2.11 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 Agent in the
ordinary course of business. The accounts or records maintained by Agent and
each Lender shall be conclusive absent manifest error of the amount of the
Credit Extensions made by Lenders to Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrower hereunder to pay any amount
owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
Agent in respect of such matters, the accounts and records of Agent shall
control in the absence of manifest error. Upon the request of any Lender made
through Agent, Borrower shall execute and deliver to such Lender (through Agent)
a Note, which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and 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 Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of Agent shall control in the absence of manifest error.
2.12 Payments Generally; Agent's Clawback.
(a) (i) General. All payments to be made by Borrower shall be
made without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by Borrower
hereunder shall be made to 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 on the date specified
herein. Agent will promptly distribute to each Lender its Applicable Percentage
(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 Agent after 12:00 noon shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by Borrower shall
40
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.
(ii) On each date when the payment of any principal, interest
or fees are due hereunder or under any Note, Borrower agrees to
maintain on deposit in an ordinary checking account maintained by
Borrower with Agent (as such account shall be designated by Borrower in
a written notice to Agent from time to time, the "Borrower Account") an
amount sufficient to pay such principal, interest or fees in full on
such date. Borrower hereby authorizes Agent (A) to deduct automatically
all principal, interest or fees when due hereunder or under any Note
from the Borrower Account, and (B) if and to the extent any payment of
principal, interest or fees under this Agreement or any Note is not
made when due to deduct any such amount from any or all of the accounts
of Borrower maintained at Agent. Agent agrees to provide written notice
to Borrower of any automatic deduction made pursuant to this Section
2.12(a)(ii) showing in reasonable detail the amounts of such deduction.
Lenders agree to reimburse Borrower based on their Applicable
Percentage for any amounts deducted from such accounts in excess of
amount due hereunder and under any other Loan Documents.
(b) (i) Funding by Lenders; Presumption by Agent. Unless Agent
shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Fixed Rate Loans (or, in the case of any
Committed Borrowing of Base Rate Loans or Eurodollar Floating Rate Loans, prior
to 12:00 noon on the date of such Committed Borrowing) that such Lender will not
make available to Agent such Lender's share of such Committed Borrowing, Agent
may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base
Rate Loans, that such Lender has made such share available in accordance with
and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to Borrower a corresponding amount. In such event, if
a Lender has not in fact made its share of the applicable Committed Borrowing
available to Agent, then the applicable Lender and Borrower severally agree to
pay to Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the date
such amount is made available to Borrower to but excluding the date of payment
to Agent, at (A) in the case of a payment to be made by such Lender, the greater
of the Federal Funds Rate and a rate determined by Agent in accordance with
banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by Agent in connection with the
foregoing and (B) in the case of a payment to be made by Borrower, the interest
rate applicable to Base Rate Loans. If Borrower and such Lender shall pay such
interest to Agent for the same or an overlapping period, Agent shall promptly
remit to Borrower the amount of such interest paid by Borrower for such period.
If such Lender pays its share of the applicable Committed Borrowing to Agent,
then the amount so paid shall constitute such Lender's Committed Loan included
in such Committed Borrowing. Any payment by Borrower shall be without prejudice
to any claim Borrower may have against a Lender that shall have failed to make
such payment to Agent.
(ii) Payments by Borrower; Presumptions by Agent. Unless Agent
shall have received notice from Borrower prior to the date on which any
payment is due
41
to Agent for the account of the Lenders or the L/C Issuer hereunder
that Borrower will not make such payment, Agent may assume that
Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to Lenders or the L/C
Issuer, as the case may be, the amount due. In such event, if Borrower
has not in fact made such payment, then each of Lenders or the L/C
Issuer, as the case may be, severally agrees to repay to Agent
forthwith on demand the amount so distributed to such Lender or the L/C
Issuer, in immediately available funds with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to Agent, at the greater of the Federal
Funds Rate and a rate determined by Agent in accordance with banking
industry rules on interbank compensation. A notice of Agent to any
Lender or Borrower with respect to any amount owing under this
subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes
available to Agent funds for any Loan to be made by such Lender as provided in
the foregoing provisions of this Article II, and such funds are not made
available to Borrower by Agent because the conditions to the applicable Credit
Extension set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of Lenders
hereunder to make Committed Loans, to fund participations in Letters of Credit
and Swing Line Loans and to make payments under Section 10.04(c) are several and
not joint. The failure of any Lender to make any Committed Loan, to fund any
such participation or to make any payment under Section 10.04(c) 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 Committed Loan, purchase its
participation or to make its payment under Section 10.04(c):
(e) Funding Source. 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.
2.13 Sharing of Payments. If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in
such Lender's receiving payment of a proportion of the aggregate amount of such
Committed Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify Agent of such fact, and (b) purchase (for
cash at face value) participations in the Committed Loans and subparticipations
in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided that:
42
(i) if any such participations or subparticipations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest; and
(ii) the provisions of this Section shall not be construed to
apply to (x) any payment made by Borrower pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by
a Lender as consideration for the assignment of or sale of a
participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other
than to Borrower or any Subsidiary thereof (as to which the provisions
of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
2.14 Increase in Aggregate Commitments.
(a) Upon notice to Agent (which shall promptly notify Lenders),
Borrower may from time to time request an increase of the Aggregate Commitments
(a "Commitment Increase") of up to $10,000,000.00; provided that (i) any
Commitment Increase shall not be less than $5,000,000.00 (and shall be in
integral multiples of $5,000,000.00 if in excess thereof); (ii) no Commitment
Increase shall increase the Aggregate Commitments to an amount in excess of
$35,000,000.00; and (iii) no Default or Event of Default exists. At the time of
sending such notice, Borrower (in consultation with Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no
event be less than ten (10) Business Days from the date of delivery of such
notice to Lenders). Each Lender shall notify Agent within such time period
whether or not it agrees to increase its Commitment, and, if so, whether by an
amount equal to, greater than, or less than its Applicable Percentage of such
requested Commitment Increase. Any Lender not responding within such time period
shall be deemed to have declined to increase its Commitment. Agent shall notify
Borrower and each Lender of the Lenders' responses to each request for a
Commitment Increase hereunder. To achieve the full amount of a requested
Commitment Increase, Borrower may also invite additional Eligible Assignees to
become Lenders. Any increase in the Aggregate Commitments must be effected by an
amendment that is executed in accordance with Section 10.01 by the Borrower,
Agent and the one or more Lenders who have agreed to increase their Commitments
or by new Lenders who have agreed to new Commitments in accordance with Section
10.01.
(b) If any Commitments are increased in accordance with this
Section 2.14, Agent and Borrower shall determine the effective date of such
increase (the "Commitment Increase Effective Date"). Agent and Borrower shall
promptly notify Lender of the final allocation of such Commitment Increase and
the Commitment Increase Effective Date. As a condition precedent to such
Commitment Increase, Borrower shall deliver or cause to be delivered to Agent
(i) a certificate of each Loan Party dated as of the Commitment Increase
43
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer thereof, (A) certifying and attaching the resolutions adopted by such
Loan Party or its governing body, approving or consenting to such Commitment
Increase, (B) in the case of Borrower, including a Compliance Certificate
demonstrating pro forma compliance with the representations and warranties
contained in this Agreement after giving effect to such Commitment Increase and
(C) certifying that, before and after giving effect to such Commitment Increase,
the representations and warranties contained in Article V are true and correct
on and as of the Commitment Increase Effective Date and no Default or Event of
Default exists, (ii) opinions of counsel (substantially similar to the forms of
opinions provided for in Section 4.01 modified to apply to the Commitment
Increase and each Note executed and delivered in connection therewith); (iii)
written consents from the Guarantors evidencing their consent to the Commitment
Increase and agreeing that their Guaranties continue in full force and effect;
and (iv) such other instruments and documents as the Agent shall have reasonably
requested in connection with such Commitment Increase. Each new Lender acquiring
a Commitment shall be a "Lender" under this Agreement.
(c) On the Commitment Increase Effective Date, each Increasing
Lender shall make a payment to Agent in an amount sufficient, upon the
application of such payments by all Increasing Lenders to the reduction of the
outstanding Loans held by the Lenders, to cause the principal amount outstanding
under the Loans made by each Lender (including, as applicable, any Increasing
Lender) to be in the amount of its Applicable Percentage (upon the effective
date of such increase). Borrower hereby irrevocably authorizes each Increasing
Lender to fund to the Agent the payment required to be made pursuant to the
immediately preceding sentence for application to the reduction of the
outstanding Loans held by the other Lenders hereunder. If, as a result of the
repayment of the Loans provided for in this Section 2.14(c), any payment of a
Eurodollar Fixed Rate Loan occurs on a day which is not the last day of the
applicable Interest Period, Borrower will pay to Agent for the benefit of any of
the Lenders holding a Eurodollar Fixed Rate Borrowing any loss or cost incurred
by such Lender resulting therefrom in accordance with Section 3.05. Upon the
effective date of any Commitment Increase, all Loans outstanding hereunder
(including any Loans made by the Increasing Lenders on such date) shall be Base
Rate Loans, subject to Borrower's right to convert the same to Eurodollar Rate
Loans on or after such date in accordance with the provisions of Section 2.02.
(d) Upon the Commitment Increase Effective Date and the making of
Loans by the Increasing Lenders in accordance with the provisions of Section
2.14(c), each Increasing Lender shall also be deemed to have irrevocably and
unconditionally purchased and received, without recourse or warranty, from the
Lenders party to this Agreement immediately prior to the effective date of such
increase, an undivided interest and participation in any Letters of Credit then
outstanding, ratably, such that each Lender (including each Increasing Lender)
holds a participation interest in each such Letter of Credit in proportion equal
to its Applicable Percentage upon the effective date of such increase in the
Aggregate Commitments.
(e) Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment or agreement on the part of Borrower or Agent to give
or grant any Lender the right to increase its Commitment hereunder at any time
or a commitment or agreement on the part of any Lender to increase its
Commitment hereunder at any time, and no Commitment of a Lender
44
shall be increased without its prior written approval, which it may grant or
deny in its sole discretion.
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by Borrower to or
on account of any obligation of Borrower hereunder or under any other Loan
Document shall be made free and clear of and without reduction or withholding
for any Indemnified Taxes or Other Taxes, provided that if Borrower shall be
required by any applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), Agent, Lender or L/C
Issuer, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions, and (iii) Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by Borrower. Without limiting the
provisions of subsection (a) above, Borrower shall timely pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by Borrower. Provided that Agent, any Lender
or the L/C Issuer provides notice to Borrower of such payment or makes demand
hereunder on or before the date one (1) year after such payment, Borrower shall
indemnify Agent, each Lender and the L/C Issuer, within 10 days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) paid by Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Borrower by a Lender or the L/C Issuer (with a copy to
Agent), or by Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority,
Borrower shall deliver to Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably
satisfactory to Agent.
(e) Status of Lenders. Any Lender, if requested by Borrower or
Agent, shall deliver such documentation prescribed by applicable law or
reasonably requested by Borrower or Agent as will enable Borrower or Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.
(f) Treatment of Certain Refunds. If Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to
45
which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this Section, it shall pay to Borrower an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that Borrower, upon the request
of Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to Agent, such Lender or the L/C Issuer in the event
Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require Agent,
any Lender or the L/C Issuer to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to Borrower or any
other Person.
3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund any
Type of Eurodollar Rate Loans, or to determine or charge interest rates based
upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars in the London interbank market, then, on notice thereof by
such Lender to Borrower through Agent, any obligation of such Lender to make
Eurodollar Rate Loans, continue Eurodollar Fixed Rate Loans, convert Base Rate
Committed Loans to Eurodollar Rate Loans or convert Swing Line Loans from Base
Rate Loans to Eurodollar Floating Rate Loans shall be suspended until such
Lender notifies Agent and Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, Borrower shall, upon
demand from such Lender (with a copy to Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either (i)
in the case of Eurodollar Fixed Rate Loans, on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Fixed Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans or (ii) in the case of
Eurodollar Floating Rate Loans, immediately. Upon any such prepayment or
conversion, Borrower shall also pay accrued interest on the amount so prepaid or
converted and all amounts due under Section 3.05 in accordance with the terms
thereof due to such prepayment or conversion.
3.03 Inability to Determine Rates. If Agent determines in connection
with any request for a Eurodollar Fixed Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to banks in
the London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Fixed Rate Loan, (b) adequate and reasonable means do
not exist for determining the Eurodollar Base Rate for any requested Interest
Period with respect to a proposed Eurodollar Fixed Rate Loan, or (c) the
Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Fixed Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, Agent will promptly so notify
Borrower and each Lender. Thereafter, the obligation of Lenders to make or
maintain Eurodollar Fixed Rate Loans shall be suspended until Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such
notice, Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Fixed Rate
46
Loans or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified
therein.
3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement reflected in the Eurodollar Rate) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit,
any participation in a Letter of Credit or any Eurodollar Fixed Rate
Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of, or
any change in the rate of, any Excluded Tax payable by such Lender or
the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or Eurodollar Fixed Rate Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any Eurodollar Fixed
Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating
in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to
reduce the amount of any sum received or receivable by such Lender or
the L/C Issuer hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the L/C Issuer, and
provided that Agent, any Lender or the L/C Issuer has provided Borrower
notice of such increased cost or reduction of amount received or
receivable, or has made a request or demand hereunder, on or before the
date one (1) year after actual knowledge of such increased cost or
reduction is acquired by the Commercial Banking Group - Central Region
of Bank of America, Borrower will pay to such Lender or the L/C Issuer,
as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the L/C Issuer
determines that any Change in Law affecting such Lender or the L/C Issuer or any
Lending Office of such Lender or such Lender's or the L/C Issuer's holding
company, if any, regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the L/C Issuer's capital or on
the capital of such Lender's or the L/C Issuer's holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the L/C Issuer, to a level below that which such Lender or
the L/C Issuer or such Lender's or the L/C Issuer's holding
47
company could have achieved but for such Change in Law (taking into
consideration such Lender's or the L/C Issuer's policies and the policies of
such Lender's or the L/C Issuer's holding company with respect to capital
adequacy), then from time to time Borrower will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding
company for any such reduction suffered, provided that as to any such reduction,
Agent, any Lender or the L/C Issuer has provided Borrower notice of such
reduction or made demand hereunder, on or before the date one (1) year after
actual knowledge of such reduction is acquired by the Commercial Banking Group -
Central Region of Bank of America.
(c) Certificates for Reimbursement. A certificate of a Lender or
the L/C Issuer setting forth the amount or amounts necessary to compensate such
Lender or the L/C Issuer or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to Borrower
shall be conclusive absent manifest error. Borrower shall pay such Lender or the
L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender
or the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender's or the L/C Issuer's
right to demand such compensation, provided that Borrower shall not be required
to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine months prior to the date that such Lender or the L/C Issuer, as the case
may be, notifies Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the L/C Issuer's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to
Agent) from time to time, Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan or Eurodollar Floating Rate Loan on a day other
than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan or a Eurodollar Floating Rate Loan on the date or in
the amount notified by Borrower;
including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. Borrower shall also pay any customary administrative fees charged
by such Lender in connection with the foregoing. For purposes of calculating
amounts payable by Borrower to Lenders under this Section 3.05, each
48
Lender shall be deemed to have funded each Eurodollar Fixed Rate Loan made by it
at the Eurodollar Base Rate used in determining the Eurodollar Fixed Rate for
such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurodollar Fixed Rate Loan was in fact so funded.
3.06 Mitigation Obligations. If any Lender requests compensation under
Section 3.04, or Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender
shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
3.07 Survival. All of Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent:
(a) Agent's receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to Agent and each of the Lenders:
(i) executed counterparts of this Agreement, all Collateral
Documents and each Guaranty, sufficient in number for distribution to
Agent, each Lender and Borrower;
(ii) a Note executed by Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as Agent may require evidencing the
identity, 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;
49
(iv) such documents and certifications as Agent may reasonably
require to evidence that each Loan Party is duly organized or formed,
and that each Loan Party is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its
business requires such qualification, except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse
Effect;
(v) a Guaranty duly executed by each Guarantor;
(vi) (A) a Security Agreement, duly executed by Borrower and
each of the Guarantors, together with any other supplemental agreement
to be executed and delivered by the terms of the Security Agreement,
(B) certificates evidencing all of the outstanding shares of capital
stock or other Equity Interests (to the extent evidenced by
certificates) in each of the Subsidiaries and stock powers or other
instruments of transfer, endorsed in blank, with respect to such
certificates, and (C) any other documents or instruments reasonably
requested by the Agent to create or perfect the Liens intended to be
created under the Security Agreement;
(vii) Certified results of UCC searches of all applicable UCC
filing offices reflecting that there are no effective financing
statements currently on file in such offices naming Borrower or any
Subsidiary as debtor, other than financing statements relating to Liens
permitted to exist under the terms of Section 7.01;
(viii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect,
including without limitation a certificate of Borrower's insurance
broker summarizing the insurance coverage maintained by Borrower and
its Subsidiaries and showing compliance with Section 6.07. Such
certificate shall summarize the property and casualty insurance program
carried by Borrower and each of its Subsidiaries, including the
insurer's or insurers' name(s), policy number(s), expiration date(s),
amount(s) of coverage, type(s) of coverage, exclusion(s), and
deductibles, and shall also specify the location(s) to which each
certificate applies;
(ix) favorable opinions of counsel to the Loan Parties
acceptable to Agent addressed to Agent and each Lender in form and
substance satisfactory to Agent, from (i) King & Spalding and (ii) Xxxx
Xxxxxx;
(x) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of 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
50
Audited Financial Statements that has had or could be reasonably
expected to have, either individually or in the aggregate, a Material
Adverse Effect;
(xii) a duly completed Compliance Certificate as of the last
day of the fiscal quarter of Borrower most recently ended prior to the
Closing Date, signed by a Responsible Officer of Borrower;
(xiii) such documents as Agent may require for satisfactory
review of the resolution or current status of the MWR Suit, the final
resolution or status of the Bond Audit, and the status of the
environmental situation associated with the Xxxxxxxx Zinc site;
(xiv) receipt and review of information regarding litigation,
tax, accounting, labor, insurance, background checks, pension
liabilities (actual and contingent), real estate leases, environmental
matters, material contracts, debt agreements, property ownership,
contingent liabilities and management of the Borrower and each
Guarantor, with results satisfactory to Agent and its counsel;
(xv) a payoff letter or other agreement in form satisfactory
to Agent from JPMorgan Chase Bank, N.A. providing that, among other
things, it will release all its liens encumbering property of Borrower
and its Subsidiaries upon receipt of payments in certain amounts and
the Chase L/C; and
(xvi) such other assurances, certificates, documents, consents
or opinions as Agent, the L/C Issuer, Swing Line Lender or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all
reasonable fees, charges and disbursements of counsel to Agent (directly to such
counsel if requested by Agent) to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such reasonable fees, charges and
disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements 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 Borrower and Agent).
(d) The Closing Date shall have occurred on or before May 18, 2007.
Without limiting the generality of the provisions of the last sentence
of Section 9.03(d), for purposes of determining compliance with the conditions
specified in this 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 required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
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4.02 Conditions to all Credit Extensions. The obligation of each Lender
to honor any Request for Credit Extension is subject to the following conditions
precedent:
(a) The representations and warranties of Borrower and each other
Loan Party contained in Article V or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, 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, and except that for purposes of this Section
4.02, (i) the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (ii)
the representations and warranties contained in subsection (b) of Section 5.02
shall apply considering only any Contractual Obligation, order, injunction,
writ, decree or arbitral award, as the case may be, that involves any liability
or property of Borrower and its Subsidiaries in excess of the Threshold Amount,
(iii) the representations and warranties in subsection (c) of Section 5.02 shall
apply only to violations of Law that would reasonably be expected to have a
Material Adverse Effect, and (iv) each of the representations and warranties in
subsection (c) of Section 5.12 shall apply only to the extent it would
reasonably be expected to have a Material Adverse Effect or exceed the Threshold
Amount.
(b) No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.
(c) Agent and, if applicable, the L/C Issuer or Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.
(d) Agent shall have received, in form and substance satisfactory
to it, such other assurances, certificates, documents or consents related to the
foregoing as Agent or the Required Lenders reasonably may require.
Each Request for Credit Extension submitted by Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and the Lenders that:
5.01 Existence, Qualification and Power. Each Loan Party and each
Subsidiary thereof (a) is duly organized or formed, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own or lease its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, and (c)
is duly qualified and is licensed and, as applicable, 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; except in
each case referred to in clause (b)(i), or (c), to the extent that failure to do
so would not reasonably be expected to have a Material Adverse Effect.
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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, or require any
payment to be made under (i) any Contractual Obligation to which such Person is
a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject;
or (c) violate any Law.
5.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
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.
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 financial
condition of 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
liabilities, direct or contingent, of Borrower and its Subsidiaries as of the
date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(b) Reserved.
(c) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate, that has
had or would reasonably be expected to have a Material Adverse Effect.
(d) The consolidated forecasted balance sheet and statements of
income and cash flows of Borrower and its Subsidiaries delivered pursuant to
Section 6.01(c) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in light of the conditions existing
at the time of delivery of such forecasts, and represented, at the time of
delivery, Borrower's best estimate of its future financial condition and
performance.
5.06 Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or
53
against Borrower or any of its Subsidiaries or against any of their properties
or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) except as
specifically disclosed in Schedule 5.06, either individually or in the
aggregate, if determined adversely, would reasonably be expected to have a
Material Adverse Effect, and there has been no adverse change in the status, or
financial effect on any Loan Party or any Subsidiary thereof, of the matters
described on Schedule 5.06.
5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is
in default under or with respect to any Contractual Obligation that would,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No 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. Each of 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, reasonably be expected to have a Material Adverse Effect. The
property of Borrower and its Subsidiaries is subject to no Liens, other than
Liens permitted by Section 7.01.
5.09 Environmental Compliance. Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof Borrower has reasonably concluded that, except as
specifically disclosed in Schedule 5.09, such Environmental Laws and claims
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.10 Insurance. The properties of Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of Borrower, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where Borrower or the applicable
Subsidiary operates.
5.11 Taxes. Borrower and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid
all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against 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 material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to
54
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
Borrower, nothing has occurred which would prevent, or cause the loss of, such
qualification. Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, 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 Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that would 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
would reasonably be 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
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
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 Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
5.13 Subsidiaries. As of the Closing Date, Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of
the outstanding Equity Interests in such Subsidiaries have been validly issued,
are fully paid and nonassessable and are owned directly or indirectly by
Borrower as set forth on Schedule 5.13, free and clear of all Liens. Borrower
has no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13.
5.14 Margin Regulations; Investment Company Act.
(a) 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 FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
(b) None of Borrower, any Person Controlling Borrower, or any
Subsidiary is, or is required to be registered as, an "investment company" under
the Investment Company Act of 1940.
5.15 Disclosure. Borrower has disclosed to Agent and Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Loan
Party to
55
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof
is in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
5.17 Taxpayer Identification Number. Borrower's true and correct U.S.
taxpayer identification number is set forth on Schedule 10.02.
5.18 Intellectual Property; Licenses, Etc. 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, without conflict with the rights of
any other Person. To the best knowledge of Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by Borrower or any Subsidiary
infringes upon any rights held by any other Person. No claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of Borrower,
threatened, which, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
5.19 Rights in Collateral; Priority of Liens. Borrower and each other Loan Party
own the property granted by it as Collateral under the Collateral Documents,
free and clear of any and all Liens in favor of third parties. Upon the proper
filing of UCC financing statements, and the taking of the other actions required
by the Required Lenders, the Liens granted pursuant to the Collateral Documents
will constitute valid and enforceable first, prior and perfected Liens on the
Collateral in favor of Agent, for the ratable benefit of Agent and Lenders.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, Borrower shall, and shall (except in the case
of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 Financial Statements. Deliver to Agent a sufficient number of
copies for delivery by Agent to each Lender, in form and detail satisfactory to
Agent and the Required Lenders:
56
(a) as soon as available, but in any event within 150 days after
the end of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' 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 and prepared in
accordance with GAAP, such consolidated statements to be 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 generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit; and
(b) as soon as available, but in any event within 45 days after
the end of each fiscal quarter of each fiscal year of Borrower, a consolidated
and consolidating balance sheet of Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated and consolidating
statements of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of Borrower's fiscal year then ended, all in
reasonable detail, such consolidated statements to be certified by the chief
executive officer, chief financial officer, treasurer or controller of Borrower
as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes and such consolidating statements to be certified by the
chief executive officer, chief financial officer, treasurer or controller of
Borrower to the effect that such statements are fairly stated in all material
respects when considered in relation to the consolidated financial statements of
Borrower and its Subsidiaries; and
(c) as soon as available, but in any event on or before the end of
each fiscal year of Borrower, forecasts prepared by management of Borrower, in
form reasonably satisfactory to Agent and the Required Lenders, of consolidated
balance sheets, statements of income or operations and cash flows, and capital
expenditures, of Borrower and its Subsidiaries for the immediately following
fiscal year (including the fiscal year in which the Maturity Date occurs).
6.02 Certificates; Other Information. Deliver to Agent a sufficient
number of copies for delivery by Agent to each Lender, in form and detail
satisfactory to 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 certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or, if any such Default shall exist, stating the nature and status of
such event;
(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 the chief executive officer, chief financial officer, treasurer or
controller of Borrower;
57
(c) concurrently with the delivery of the financial statements
referred to in Section 6.01(b), all the following, certified by the chief
executive officer, chief financial officer, treasurer or controller of Borrower
as being true and correct, prepared as of the last day of the immediately
preceding fiscal quarter just ended: (i) schedules showing (A) the name of
Borrower's and all its Subsidiaries' Account Debtors and others with like
obligations payable to Borrower or such Subsidiaries, (B) the amounts due and
owing from each Account Debtor, (C) "aging" of each such Account dating from the
invoice date and shown by categories, as follows: (1) one (1) day to and
including thirty (30) days, (2) thirty-one (31) days to and including sixty (60)
days, (3) sixty-one (61) days to and including ninety (90) days, and (4) over
ninety (90) days, (D) any modification of the customary due date of any such
Account, and (ii) a detailed listing of all the Inventory of Borrower and all
the Subsidiaries that includes, without limitation, a specification of the
amount of such Inventory consisting of raw materials;
(d) Not less than five (5) Business Days prior to the closing of
any Acquisition, a certificate in form acceptable to Agent dated on or
immediately prior to the date of the Acquisition, executed by the president or a
vice president of Borrower, (i) confirming that all representations and
warranties set forth in the Loan Documents continue to be true and correct in
all material respects immediately prior to and after giving effect to the
Acquisition and the transactions contemplated thereby, and (ii) for any
Acquisition in which the total consideration is $5,000,000 or more, certifying
pro formal financial statements of the Borrower and its Subsidiaries
demonstrating compliance with the covenants set forth in Sections 6.12(a) and
(b) including in such calculation Target Operating Cash Flow (as if the
business, assets, or Person acquired had been acquired since the first (1st) day
of the period for which such pro forma financial statements are delivered and
had been managed and conducted in accordance with the Borrower's standard
business practices) for the prior four (4) fiscal quarters of the Borrower and
its Subsidiaries;
(e) promptly after any request by 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
Borrower by independent accountants in connection with the accounts or books of
Borrower or any Subsidiary, or any audit of any of them;
(f) promptly after the same are available, notice of the filing of
(i) each annual report, proxy or financial statement or other report or
communication sent to the stockholders of Borrower, and (ii) all annual,
regular, periodic and special reports and registration statements which Borrower
may file or be required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to Agent pursuant hereto;
(g) promptly after the furnishing thereof, copies of any statement
or report furnished to any holder of debt securities of any Loan Party or any
Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lenders
pursuant to Section 6.01 or any other clause of this Section 6.02;
(h) promptly, and in any event within five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of each
notice or other correspondence received from the Securities and Exchange
Commission (or comparable agency in any
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applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and
(i) promptly, such additional information regarding the business,
financial or corporate affairs of Borrower or any Subsidiary, or compliance with
the terms of the Loan Documents, as Agent or any Lender may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
Borrower posts such documents, or provides a link thereto on Borrower's website
on the Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents are posted on Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and Agent have access (whether a
commercial, third-party website or whether sponsored by Agent); provided that:
(i) Borrower shall deliver paper copies of such documents to Agent or any Lender
that requests Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by Agent or such Lender and (ii) Borrower
shall notify Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
Borrower hereby acknowledges that (a) Agent will make available to
Lenders and the L/C Issuer materials and/or information provided by or on behalf
of Borrower hereunder (collectively, "Borrower Materials") by posting Borrower
Materials on IntraLinks or another similar electronic system (the "Platform")
and (b) certain of the Lenders (each, a "Public Lender") may have personnel who
do not wish to receive material non-public information with respect to Borrower
or its Affiliates or the respective securities of any of the foregoing, and who
may be engaged in investment and other market-related activities with respect to
such Persons' securities. Borrower hereby agrees (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," Borrower shall be deemed to have authorized Agent, the L/C Issuer and
the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to Borrower or its securities for purposes
of United States Federal and state securities laws (provided, however, that to
the extent such Borrower Materials constitute Information, they shall be treated
as set forth in Section 10.07); (y) all Borrower Materials marked "PUBLIC" are
permitted to be made available through a portion of the Platform designated
"Public Investor;" and (z) Agent shall be entitled to treat any Borrower
Materials that are not marked "PUBLIC" as being suitable only for posting on a
portion of the Platform not designated "Public Investor."
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6.03 Notices. Promptly notify Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or would reasonably be
expected to result in a Material Adverse Effect, including without limitation
(i) breach or non-performance of, or any default under, a Contractual Obligation
of Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial
reporting practices by Borrower or any Subsidiary including any determination by
Borrower referred to in Section 2.10 (b).
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of Borrower setting forth details of the
occurrence referred to therein and stating what action 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 and
any other Loan Document that have been breached.
6.04 Payment of Obligations. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so would
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which would reasonably be expected to have a
Material Adverse Effect.
6.06 Maintenance of Properties. (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 would 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.
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6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies not Affiliates of Borrower, insurance with respect
to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance compatible
with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days'
prior notice to Agent of termination, lapse or cancellation of such insurance.
6.08 Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, write, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith would not reasonably be expected to have a
Material Adverse Effect.
6.09 Books and Records. (a) 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 Borrower or such Subsidiary, as the case
may be; and (b) maintain such books of record and account in material conformity
with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over Borrower or such Subsidiary, as the case may be. Borrower
shall maintain at all times books and records pertaining to the Collateral in
such detail, form and scope as Agent or any Lender shall reasonably require.
6.10 Inspection Rights. Permit representatives and independent
contractors of 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
at the expense of Borrower (provided that Agent and Lenders shall, when no Event
of Default exists, use their best efforts to minimize any third party costs and
internal costs) and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to Borrower;
provided, however, that when an Event of Default exists Agent or any Lender (or
any of their respective representatives or independent contractors) may do any
of the foregoing at the expense of Borrower at any time during normal business
hours and without advance notice.
6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (a) to
refinance existing Indebtedness, (b) to pay fees and expenses incurred in
connection with this Agreement, (c) to pay for Permitted Acquisitions, and (d)
for working capital and other general corporate purposes not in contravention of
any Law or of any Loan Document.
6.12 Financial Covenants.
(a) Leverage Ratio. Maintain a ratio of Consolidated Funded
Indebtedness as of the last day of each fiscal quarter to Operating Cash Flow
for the four rolling fiscal quarters ending on the same day, of less than or
equal to 3.25 to 1.00, based upon the consolidated financial statements provided
pursuant to Section 6.01.
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(b) Asset Coverage Ratio. Maintain an Asset Coverage Ratio of at
least 1.50 to 1.00, tested as of the last day of each fiscal quarter based upon
the consolidated financial statements provided pursuant to Section 6.01.
(c) Basic Fixed Charge Coverage Ratio. Maintain a Basic Fixed
Charge Coverage Ratio for each period of four rolling fiscal quarters of at
least 1.25 to 1.00, tested as of the last day of each fiscal quarter based upon
the consolidated financial statements provided pursuant to Section 6.01.
6.13 Subsidiaries.
(a) Domestic Subsidiaries. Notify Agent at the time that any
Person becomes a Domestic Subsidiary, and promptly thereafter (and in any event
within thirty (30) days), Borrower shall (i) cause such Person to (A) become a
Guarantor by executing and delivering to Agent a Guaranty or such other document
as Agent shall deem appropriate for such purpose, and (B) execute and deliver a
Security Agreement in favor of Agent, (ii) pledge or caused to be pledged to
Agent, to secure the Obligations, 100% of the Equity Interests of such Domestic
Subsidiary pursuant to a pledge agreement in favor of Agent in form and
substance reasonably satisfactory to Agent, and (iii) deliver to Agent documents
of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (i) and (ii)), all in form, content and
scope reasonably satisfactory to Agent.
(b) Foreign Subsidiaries. Notify Agent at any time that any Person
becomes a Subsidiary that is not a Domestic Subsidiary, and promptly thereafter
(and in any event within thirty (30) days), Borrower shall (i) pledge or cause
to be pledged to Agent, to secure the Obligations, up to sixty-five percent
(65%) of the Equity Interests of such Subsidiary pursuant to a pledge agreement
in favor of Agent in form and substance reasonably satisfactory to Agent, and
(ii) deliver or cause to be delivered to Agent documents of the types referred
to in causes (iii) and (iv) of Section 4.01(a) and favorable opinions of counsel
to such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in cause
(i)), all in form, content and scope reasonably satisfactory to Agent.
6.14 Collateral Records. To execute and deliver promptly, and to cause
each other Loan Party to execute and deliver promptly, to Agent, from time to
time, solely for Agent's convenience in maintaining a record of the Collateral,
such written statements and schedules as Agent may reasonably require
designating, identifying or describing the Collateral. The failure by Borrower
or any other Loan Party, however, to promptly give Agent such statements or
schedules shall not affect, diminish, modify or otherwise limit the Liens on the
Collateral granted pursuant to the Collateral Documents.
6.15 Security Interests. To, and to cause each other Loan Party to, (a)
defend the Collateral against all claims and demands of all Persons at any time
claiming the same or any interest therein, (b) comply with the requirements of
all state and federal laws in order to grant to Agent and Lenders valid and
perfected first priority security interests in the Collateral, with perfection,
in the case of any investment property, deposit account or letter of credit,
being effected by giving Agent control of such investment property or deposit
account or letter of
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credit, rather than by the filing of a Uniform Commercial Code financing
statement with respect to such investment property, and (c) do whatever Agent
may reasonably request, from time to time, to effect the purposes of this
Agreement and the other Loan Documents, including filing notices of liens,
financing statements, fixture filings and amendments, renewals and continuations
thereof; cooperating with Agent's representatives; keeping stock records;
obtaining waivers from landlords and mortgagees and from warehousemen and their
landlords and mortgages; and, paying claims which might, if unpaid, become a
Lien on the Collateral. Agent is hereby authorized by Borrower to file any
financing statements covering the Collateral whether or not Borrower's
signatures appear thereon.
6.16 Principal Depository. On or before July 11, 2007, to, and to cause
each other Loan Party to, establish, and thereafter maintain, Bank of America as
its principal depository bank, including for the maintenance of business, cash
management, operating and administrative deposit accounts.
6.17 Real Property; Letter of Credit. On or before the date thirty (30)
days after the Effective Date, to provide Agent (i) evidence of the status of
title to all real property owned by Borrower or any of its Subsidiaries
reasonably satisfactory to Agent, reflecting, among other things, that such
property is subject to no Liens or other encumbrances other than those permitted
to exist under Section 7.01 and (ii) an assignment of that certain letter of
credit in the amount of $ 1,000,000.00 issued by Key Bank National Association
for the account of Xxxxxxx Industries, Inc. in favor of NAGalv-Ohio, Inc., in a
form sufficient to provide Agent "control" thereof pursuant to ss.1-9-107 of the
UCC and otherwise in form reasonably satisfactory to Agent.
ARTICLE VII. NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
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 the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions thereof, provided that (i) the property covered
thereby is not changed, (ii) the amount secured or benefited thereby is not
increased except as contemplated by Section 7.03(b), (iii) the direct or any
contingent obligor with respect thereto is not changed, and (iv) and any renewal
or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of
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more than 30 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts
and leases (other than Indebtedness), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h); and
(i) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time 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.
7.02 Investments; Acquisitions. Make any Investments, acquire any
properties or assets other than in the ordinary course of business, or make or
commit to make any Acquisitions, except:
(a) Investments held by Borrower or such Subsidiary in the form of
cash equivalents or cash equivalent investments, including without limitation
short term U.S. government obligations, commercial paper rated A-1/P-1, tax-free
municipal bonds rated AAA/Aaa maturing in three years or less, demand deposits
in the ordinary course of business, certificates of deposit and time deposits
that are fully insured or with financial institutions rated A or better by
Standard and Poor's or A2 or better by Moody's;
(b) advances to Persons, including without limitation officers,
directors and employees of Borrower and Subsidiaries, in an aggregate amount not
to exceed $500,000 at any time outstanding;
(c) Investments of Borrower in any wholly-owned Subsidiary and
Investments of any wholly-owned Subsidiary in Borrower or in another
wholly-owned Subsidiary;
(d) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant of trade
credit 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;
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(e) Guarantees permitted by Section 7.03; and
(f) Acquisitions that are Permitted Acquisitions.
7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that (i) 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 and by an amount equal
to any existing commitments unutilized thereunder and (ii) the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing,
refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in
any material respect to the Loan Parties or Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;
(c) Guarantees of Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of Borrower or any wholly-owned
Subsidiary;
(d) obligations (contingent or otherwise) of Borrower or any
Subsidiary existing or arising under 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 or taking a "market view;" 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; and
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets within
the limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $2,500,000.00.
7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with
or into another Person, undertake any Acquisition other than Permitted
Acquisitions, or 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 exists or would result therefrom:
(a) any Subsidiary may merge with (i) Borrower, provided that
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, provided that when any wholly-owned Subsidiary is merging
with another Subsidiary, the wholly-owned
65
Subsidiary shall be the continuing or surviving Person, and, provided further
that if a Guarantor is merging with another Subsidiary, the Guarantor shall be
the surviving Person; and
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to Borrower or to another
Subsidiary; provided that if the transferor in such a transaction is a
wholly-owned Subsidiary, then the transferee must either be Borrower or a
wholly-owned Subsidiary and, provided further that if the transferor of such
assets is a Guarantor, the transferee must either be Borrower or a Guarantor.
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 equipment or real property to the extent that
(i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by any Subsidiary to Borrower or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Guarantor, the transferee thereof must either be Borrower or a Guarantor; and
(e) Dispositions permitted by Section 7.04.
provided, however, that any Disposition pursuant to clauses (a) through
(e) shall be for fair market value.
7.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any Equity Interests, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or
would result therefrom:
(a) each Subsidiary may make Restricted Payments to Borrower,
Guarantors and any other Person that owns an Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;
(b) Borrower may declare and make cash dividend payments on
account of its common stock;
(c) Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common Equity Interests of such Person; and
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(d) Borrower and each Subsidiary may purchase, redeem or otherwise
acquire Equity Interests issued by it with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
Equity Interests.
7.07 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.08 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
Borrower or such Subsidiary as would be obtainable by Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among Borrower and any Guarantor or between and among
Guarantors.
7.09 Burdensome Agreements. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to Borrower or any
Guarantor or to otherwise transfer property to Borrower or any Guarantor, (ii)
of any Subsidiary to Guarantee the Indebtedness of Borrower or (iii) of Borrower
or any Subsidiary to create, incur, assume or suffer to exist Liens on property
of such Person; provided, however, that this clause (iii) shall not prohibit any
such limitations that (A) are set forth in any of the Loan Documents, (B) apply
to any property that is the subject of a Lien allowed pursuant to Section
7.01(b), (C) run in favor of any holder of Indebtedness permitted under Section
7.03(e) solely to the extent any such limitation relates to the property
financed by or the subject of such Indebtedness, (D) are set forth in any
agreement not otherwise prohibited by this Agreement relating to the sale of
assets pending such sale, or (E) are set forth in leases and other agreements
not prohibited elsewhere in this Agreement and not addressed in subparagraph (B)
or (C) above restricting the assignment, sublease or pledge of the particular
property that is the subject of such lease or other agreement; or (b) requires
the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person.
7.10 Use of Proceeds. 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 FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
7.11 Minimum Availability. Allow or cause the sum of the Outstanding
Amount of all Loans plus all Unreimbursed Amounts to exceed $22,500,000.00.
7.12 Capital Expenditures. Spend or incur obligations (including the
total amount of any capital leases) to acquire fixed assets in the aggregate
amount of more than $5,000,000.00 during any fiscal year.
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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. Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. Borrower fails to perform or observe (or
cause to be performed or observed by other Loan Parties, where applicable) any
term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.10,
6.11, or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days or any default or Event of Default occurs under
any other Loan Document; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading when made or deemed made; or
(e) Cross-Default. (i) 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 or Guarantee
(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 the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee 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 such Guarantee (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, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee 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 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 Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by
Borrower or such Subsidiary as a result thereof is greater than the Threshold
Amount; or
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(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries 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 any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Borrower or any
Subsidiary 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 30 days after its issue or levy; or
(h) Judgments. There is entered against Borrower or any Subsidiary
(i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments or orders) exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of 10 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect; or
(i) 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 Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) 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 the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any Loan
Document or any provision thereof; 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 any provision thereof; or
(k) Change of Control. There occurs any Change of Control with
respect to Borrower and/or any Guarantor; or
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(l) Adverse Environmental Determination. There occurs any Adverse
Environmental Determination.
8.02 Remedies Upon Event of Default. If any Event of Default occurs and
is continuing, Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:
(a) 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;
(b) 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 Borrower;
(c) require that Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer
all rights and remedies available to it, the Lenders and the L/C Issuer under
the Loan Documents and applicable Law;
provided, however, that upon the occurrence of an actual or deemed
entry of an order for relief with respect to Borrower under the Bankruptcy Code
of the United States, 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 Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of Agent or any Lender.
8.03 Application of Funds. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to Agent (including fees and time charges for attorneys
who may be employees of Agent) and amounts payable under Article III) payable to
Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest and L/C
Fees) payable to Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuer (including
fees and time charges for attorneys who may be employees of any Lender or the
L/C Issuer) and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second payable to
them;
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Third, to payment of that portion of the Obligations constituting
accrued and unpaid L/C Fees and interest on the Loans, L/C Borrowings and other
Obligations, ratably among Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among Lenders and the
L/C Issuer in proportion to the respective amounts described in this clause
Fourth held by them;
Fifth, to Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Letters of Credit as they occur.
If any amount remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
8.04 Marshalling; Order of Realization. Borrower waives any right it
may have to require marshaling of assets or Collateral for repayment of any of
the Obligations upon the occurrence of any Default or Event of Default. Upon any
Default or Event of Default, Agent and the Lenders may, at their option, realize
or foreclose upon any of the Collateral or any portion or part of the Collateral
in any order. Borrower waives any and all rights it may have under 12 Okla.
Stat. ss. 686 or any other applicable law that may require or arguably require
the Bank to proceed first against any Collateral or portion of the Collateral in
lieu of or prior to proceeding upon any Collateral or portion of the Collateral
the Agent may choose upon which to proceed first for satisfaction or partial
satisfaction of the Obligations.
ARTICLE IX. ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent. (a) Each of
the Lenders and the L/C issuer hereby irrevocably appoints Bank of America to
act on its behalf as Administrative Agent hereunder and under the other Loan
Documents and authorizes Agent to take such actions on its behalf and to
exercise such powers as are delegated to Agent by the terms hereof and thereof,
together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of Agent, the Lenders and
the L/C Issuer, and neither Borrower nor any other Loan Party shall have rights
as a third party beneficiary of any of such provisions.
(b) Agent shall also act as the "collateral agent" under the Loan
Documents, and each of the Lenders and the L/C Issuer hereby irrevocably
appoints and authorizes Agent to act as the agent of such Lender and the L/C
Issuer for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Loan Parties to secure any of the Obligations,
together with such powers and discretion as are reasonably incidental thereto.
In this connection, Agent, as "collateral agent" and any co-agents, sub-agents
and attorneys-in-fact
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appointed by Agent pursuant to Section 9.05 or otherwise for purposes of holding
or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Collateral Documents, or for exercising any rights and remedies thereunder
at the direction of Agent), shall be entitled to the benefits of all provisions
of this Article IX and Article X, as though such co-agents, sub-agents and
attorneys-in-fact were the "collateral agent" under the Loan Documents as if set
forth in full herein with respect thereto.
9.02 Rights as a Lender. The Person serving as Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not Agent and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not Agent hereunder and without
any duty to account therefor to Lenders.
9.03 Exculpatory Provisions. Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that Agent is
required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose Agent to liability or that is contrary to any Loan Document or
applicable Law;
(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as Agent or
any of its Affiliates in any capacity; and
(d) shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 8.02 and 10.01) or (ii) in the absence of its own gross negligence or
willful misconduct. Agent shall be deemed not to have knowledge of any Default
unless and until written notice describing such Default is given to Agent by
Borrower, a Lender or the L/C Issuer. Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or
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therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to Agent.
9.04 Reliance by Administrative Agent. Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to
the making of such Loan or the issuance of such Letter of Credit. Agent may
consult with legal counsel (who may be counsel for Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05 Delegation of Duties. Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by
or through any one or more sub-agents appointed by Agent. Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Agent.
9.06 Resignation of Agent. Agent may at any time give notice of its
resignation to Lenders, the L/C Issuer and Borrower. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with Borrower, to appoint a successor, which shall be a bank with
an office in the United States, or an Affiliate of any such bank with an office
in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may
on behalf of Lenders and the L/C Issuer, appoint a successor Agent meeting the
qualifications set forth above; provided that if Agent shall notify Borrower and
the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
collateral security held by Agent on behalf of the Lenders or the L/C Issuer
under any of the Loan Documents, the retiring Agent shall continue to hold such
collateral security until such time as a successor Agent is appointed) and (2)
all payments, communications and determinations provided to be made by, to or
through Agent shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders appoint a successor Agent as
provided for above in this Section. Upon the acceptance of a successor's
appointment as Agent hereunder, such successor shall succeed to and
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become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring Agent shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees
payable by Borrower to a successor Agent shall be the same as those payable to
its predecessor unless otherwise agreed between Borrower and such successor.
After the retiring Agent's resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall continue in
effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon
the acceptance of a successor's appointment as Agent hereunder, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the
retiring L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters
of Credit.
9.07 Non-Reliance on Agent and Other Lenders. Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon Agent
or any other Lender or any of their Related Parties and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and the L/C Issuer also
acknowledges that it will, independently and without reliance upon Agent or any
other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
9.08 No Other Duties, Etc. Anything herein to the contrary
notwithstanding, no Lender holding a title listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as Agent, a Lender
or the L/C Issuer hereunder.
9.09 Administrative Agent May File Proofs of Claim. In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether Agent shall
have made any demand on Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to
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have the claims of Lenders, the L/C Issuer and Agent (including any claim for
the reasonable compensation, expenses, disbursements and advances of Lenders,
the L/C Issuer and Agent and their respective agents and counsel and all other
amounts due Lenders, the L/C Issuer and Agent under Sections 2.03(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and the L/C Issuer to make such payments to Agent and,
in the event that Agent shall consent to the making of such payments directly to
Lenders and the L/C Issuer, to pay to Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agent and its agents and
counsel, and any other amounts due Agent under Sections 2.09 and 10.04. Nothing
contained herein shall be deemed to authorize Agent to authorize or consent to
or accept or adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or the L/C Issuer or to authorize Agent to vote in
respect of the claim of any Lender or the L/C Issuer in any such proceeding.
9.10 Guaranty Matters. Each Lender and the L/C Issuer hereby
irrevocably authorizes Agent, at its option and in its discretion, to release
any Guarantor from its obligations under the Guaranty if such Person ceases to
be a Subsidiary as a result of a transaction permitted hereunder. Upon request
by Agent at any time, each Lender and the L/C Issuer will confirm in writing
Agent's authority to release any Guarantor from its obligations under the
Guaranty pursuant to this Section 9.10.
9.11 Collateral Matters. (a) Each Lender and the L/C Issuer hereby
irrevocably authorizes and directs Agent to enter into the Collateral Documents
for the benefit of such Lender and the L/C Issuer. Each Lender and the L/C
Issuer hereby agrees, and each holder of any Note by the acceptance thereof will
be deemed to agree, that, except as otherwise set forth in Section 10.01, any
action taken by the Required Lenders, in accordance with the provisions of this
Agreement or the Collateral Documents, and the exercise by the Required Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
Lenders and the L/C Issuer. Agent is hereby authorized (but not obligated) on
behalf of all of Lenders and the L/C Issuer, without the necessity of any notice
to or further consent from any Lender or the L/C Issuer from time to time prior
to, an Event of Default, to take any action with respect to any Collateral or
Collateral Documents which may be necessary to perfect and maintain perfected
the Liens upon the Collateral granted pursuant to the Collateral Documents.
(b) Each Lender and the L/C issuer hereby irrevocably authorize
Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by
Agent under any Loan Document (A) upon termination of the Aggregate
Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and
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the expiration or termination of all Letters of Credit, (B) that is
sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, (C) subject to Section
10.01, if approved, authorized or ratified in writing by the Required
Lenders, or (D) in connection with any foreclosure sale or other
disposition of Collateral after the occurrence of an Event of Default;
and
(ii) to subordinate any Lien on any property granted to or
held by Agent under any Loan Document to the holder of any Lien on such
property that is permitted by this Agreement or any other Loan
Document.
Upon request by Agent at any time, each Lender and the L/C
Issuer will confirm in writing Agent's authority to release or
subordinate its interest in particular types or items of Collateral
pursuant to this Section 9.11.
(c) Subject to (b) above, Agent shall (and is hereby irrevocably
authorized by each Lender and the L/C Issuer, to execute such documents as may
be necessary to evidence the release or subordination of the Liens granted to
Agent for the benefit of Agent and Lenders and the L/C Issuer herein or pursuant
hereto upon the applicable Collateral; provided that (i) Agent shall not be
required to execute any such document on terms which, in Agent's opinion, would
expose Agent to or create any liability or entail any consequence other than the
release or subordination of such Liens without recourse or warranty and (ii)
such release or subordination shall not in any manner discharge, affect or
impair the Obligations or any Liens upon (or obligations of Borrower or any
other Loan Party in respect of) all interests retained by Borrower or any other
Loan Party, including the proceeds of the sale, all of which shall continue to
constitute part of the Collateral. In the event of any sale or transfer of
Collateral, or any foreclosure with respect to any of the Collateral, Agent
shall be authorized to deduct all expenses reasonably incurred by Agent from the
proceeds of any such sale, transfer or foreclosure.
(d) Agent shall have no obligation whatsoever to any Lender, the
L/C Issuer or any other Person to assure that the Collateral exists or is owned
by Borrower or any other Loan Party or is cared for, protected or insured or
that the Liens granted to Agent herein or in any of the Collateral Documents or
pursuant hereto or thereto have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to any particular
priority, or to exercise or to continue exercising at all or in any manner or
under any duty of care, disclosure or fidelity any of the rights, authorities
and powers granted or available to Agent in this Section 9.11 or in any of the
Collateral Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, Agent may act in any
manner it may deem appropriate, in its sole discretion, given Agent's own
interest in the Collateral as one of Lenders and that Agent shall have no duty
or liability whatsoever to Lenders or the L/C Issuer.
(e) Each Lender and the L/C Issuer hereby appoints each other
Lender as agent for the purpose of perfecting Lenders' and the L/C Issuer's
security interest in assets which, in accordance with Article 9 of the UCC can
be perfected only by possession. Should any Lender or the L/C Issuer (other than
Agent) obtain possession of any such Collateral, such Lender or the L/C Issuer
shall notify Agent thereof, and, promptly upon Agent's request therefor shall
deliver such Collateral to Agent or in accordance with Agent's instructions.
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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
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and Borrower or the applicable Loan Party, as the
case may be, and acknowledged by 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:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender; provided, however, in the sole discretion of
Agent, only a waiver by Agent shall be required with respect to immaterial
matters or items specified in Section 4.01(a) (iii) or (iv) with respect to
which Borrower has given assurances satisfactory to Agent that such items shall
be delivered promptly following the Closing Date;
(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to Lenders (or any of them) hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document, without the written consent of each Lender
directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary (i) to amend the definition of "Default
Rate" or to waive any obligation of Borrower to pay interest or L/C Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(e) change Section 2.13 or Section 8.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Lender; or
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;
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 Lenders
required above, affect the rights or duties of the L/C Issuer under this
Agreement or any Issuer Document 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 Swing Line Lender in addition to the Lenders required above,
affect the
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rights or duties of Swing Line Lender under this Agreement; and (iii) no
amendment, waiver or consent shall, unless in writing and signed by Agent in
addition to the Lenders required above, affect the rights or duties of Agent
under this Agreement or any other Loan Document. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
10.02 Notices; Effectiveness; Electronic Communications. (a) Notices
Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to Borrower, Agent, the L/C Issuer or Swing Line
Lender, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 ; and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
(iii) Notices sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been
given when received; notices sent by telecopier shall be deemed to have
been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in
such subsection (b).
(b) Electronic Communications. Notices and other communications to
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by Agent, provided that the foregoing shall not apply to
notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or
the L/C Issuer, as applicable has notified the Agent that it is incapable of
receiving notices under such Article by electronic communication. Agent or
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications. Unless Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address shall
be deemed received upon the sender's receipt of an acknowledgement from the
intended recipient (such as by the "return receipt requested" function, as
available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours
of the recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
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(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT
PARTY IN CONNECTION WITH BORROWER MATERIALS OR THE PLATFORM. In no event shall
Agent or any of its Related Parties (collectively, the "Agent Parties") have any
liability to Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of Borrower's or Agent's transmission of
Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of Borrower, Agent, the L/C
Issuer and Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
Borrower, Agent, the L/C Issuer and Swing Line Lender. In addition, each Lender
agrees to notify Agent from time to time to ensure that Agent has on record (i)
an effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public
Lender agrees to cause at least one individual at or on behalf of such Public
Lender to at all times have selected the "Private Side Information" or similar
designation on the content declaration screen of the Platform in order to enable
such Public Lender or its delegate, in accordance with such Public Lender's
compliance procedures and applicable Law, including United States Federal and
state securities Laws, to make reference to Borrower Materials that are not made
available through the "Public Side Information" portion of the Platform and that
may contain material non-public information with respect to the Borrower or its
securities for purposes of United States Federal or state securities laws.
(e) Reliance by Agent. L/C Issuer and Lenders. Agent, the L/C
Issuer and Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of 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. Borrower shall indemnify Agent,
the L/C Issuer, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of Borrower. All
telephonic notices to and other telephonic communications with Agent may be
recorded by Agent, and each of the parties hereto hereby consents to such
recording.
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10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the L/C
Issuer or 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 provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for Agent), in connection
with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by Agent,
any Lender or the L/C Issuer (including the fees, charges and disbursements of
any counsel for Agent, any Lender or the L/C Issuer), and shall pay all fees and
time charges for attorneys who may be employees of Agent, any Lender or the L/C
Issuer, in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) Indemnification by Borrower. Borrower shall indemnify Agent
(and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, or the consummation of the transactions contemplated hereby or
thereby, or, in the case of Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan Documents,
(ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding
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relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by Borrower or any other Loan Party,
and regardless of whether any Indemnitee is a party thereto IN ALL CASES,
WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that
such indemnity shall not, as to any Indemnitee, be available (x) to the extent
that such losses, claims, damages, liabilities or related expenses (A) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (B) result from a claim brought by Borrower or any other Loan
Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if Borrower or such Loan
Party has obtained a final and nonappealable judgment in its favor on such claim
as determined by a court of competent jurisdiction or (y) as to any particular
loss, claim, damage, liability or related expense to the extent that, if such
Indemnitee is Agent or Bank of America, such Indemnitee does not provide
Borrower notice thereof or make demand hereunder within one (1) year from the
date actual knowledge of such loss, claim, damage, liability or related expense
is acquired by the Commercial Banking Group - Central Region of Bank of America.
(c) Reimbursement by Lenders. To the extent that Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to Agent (or any sub-agent thereof), the L/C
Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to Agent (or any such sub-agent), the L/C Issuer or such Related
Party, as the case may be, such Lender's Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against Agent (or any such sub-agent) or the L/C
Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for Agent (or any such sub-agent) or L/C Issuer in connection
with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, Borrower shall not assert, and hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed to such unintended recipients by
such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable
not later than ten Business Days after demand therefor.
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(f) Survival. The agreements in this Section shall survive the
resignation of Agent, the L/C Issuer and the Swing Line Lender, the replacement
of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside. To the extent that any payment by or on
behalf of Borrower is made to Agent, the L/C Issuer or any Lender, or Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff 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 Agent, the L/C Issuer 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 setoff had not occurred, and (b)
each Lender and the L/C Issuer severally agrees to pay to Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid
by Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect. The obligations of the Lenders and the L/C Issuer under clause
(b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
10.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither Borrower nor any other Loan Party may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of
Agent, the L/C Issuer and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties of
each of Agent, the L/C Issuer and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to
one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans (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 any such assignment
shall be subject to the following conditions:
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(i) Minimum Amounts
(A) in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the
Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender no minimum amount need
be assigned; and
(B) in any case not described in subsection (b)(i)(A)
of this Section, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if
the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender
subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is
delivered to Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000, unless each of Agent and, so long as no
Event of Default has occurred and is continuing, Borrower
otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single
Eligible Assignee (or to an Eligible Assignee and members of
its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been
met;
(ii) Proportionate Amounts. Each partial assignment shall be
made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to the Swing Line Lender's rights and obligations in
respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:
(A) the consent of Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (1)
an Event of Default has occurred and is continuing at the time
of such assignment or (2) such assignment is to a Lender or an
Affiliate of a Lender;
(B) the consent of Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such
assignment is to a Person that is not a Lender or an Affiliate
of such Lender.
(C) the consent of the L/C Issuer (such consent not
to be unreasonably withheld or delayed) shall be required for
any assignment that increases the obligation of the assignee
to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and
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(D) the consent of the Swing Line Lender (such
consent not to be unreasonably withheld or delayed) shall be
required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment
shall execute and deliver to Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of
$3,500.00; provided, however, that the Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the
case of any assignment. The assignee, if it is not a Lender, shall
deliver to Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be
made to Borrower or any of Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment
shall be made to a natural person.
Subject to acceptance and recording thereof by Agent pursuant
to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder
shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to
the effective date of such assignment. Upon request, Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. Agent, acting solely for this purpose as an agent of
Borrower, shall maintain at Administrative Agent's Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans 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 Borrower, 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 Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, Borrower or Agent, sell participations to any Person
(other than a natural person or Borrower or any of Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a
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portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment 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) Borrower,
Agent, the L/C Issuer and the 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 described in the first
proviso to Section 10.01 that affects such Participant. Subject to subsection
(e) of this Section, Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) Limitations upon Participant Rights. 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 Borrower's prior written consent.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
record keeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Deemed Consent of Borrower. If the consent of Borrower to an
assignment to an Eligible Assignee is required hereunder (including a consent to
an assignment which does not meet the minimum assignment threshold specified in
Section 10.06(b)(i)(B)), Borrower shall be deemed to have given its consent five
Business Days after the date notice thereof has been delivered to Borrower by
the assigning Lender (through Agent) unless such consent is expressly refused by
Borrower prior to such fifth Business Day.
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(i) Resignation as L/C Issuer or Swing Line Lender.
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 Borrower and the
Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to Borrower,
resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, Borrower shall be entitled to appoint from among Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by Borrower to appoint any such successor shall affect the resignation
of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If
Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties 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 Committed Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as
Swing Line Lender, it shall retain all the rights of Swing Line Lender provided
for hereunder with respect to Swing Line Loans made by it and outstanding as of
the effective date of such resignation, including the right to require the
Lenders to make Base Rate Committed Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment
of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and
(b) the successor L/C Issuer shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to Bank of America to effectively assume
the obligations of Bank of America with respect to such Letters of Credit.
10.07 Treatment of Certain Information; Confidentiality. Each of Agent,
Lenders and the L/C Issuer agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its Affiliates and to its and its Affiliates' respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to Borrower and its obligations, (g) with the consent of Borrower or
(h) to the extent such Information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to Agent, any
Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than Borrower. For purposes of this
Section, "Information" means all information received from Borrower or any
Subsidiary relating to Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to Agent, any
86
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by
Borrower or any Subsidiary, provided that, in the case of information received
from Borrower or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable Law, including
Federal and state securities Laws.
10.08 Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of Agent, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of Borrower
or any other Loan Party against any and all of the obligations of Borrower or
such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer or any such Affiliate, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under
this Agreement or any other Loan Document and although such obligations of
Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the L/C Issuer and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each
Lender and the L/C Issuer agrees to notify Borrower and Agent promptly after any
such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.
10.09 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 maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to Borrower. In determining whether the interest
contracted for, charged, or received by Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations
hereunder.
10.10 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.
87
This Agreement and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by Agent and when Agent shall have
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
10.11 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 Agent and
each Lender, regardless of any investigation made by Agent or any Lender or on
their behalf and notwithstanding that Agent or any Lender may have had notice or
knowledge of any 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 hereunder
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.12 Severability. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.13 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF OKLAHOMA.
(b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF OKLAHOMA SITTING IN
TULSA COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF
OKLAHOMA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH OKLAHOMA STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO
88
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT, ANY LENDER OR THE L/C ISSUER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING
IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
10.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.15 No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), Borrower and each other Loan Party acknowledges and agrees and
acknowledges its Affiliates' understanding that that: (i) (A) the services
regarding this Agreement provided by Agent are arm's-length commercial
transactions between Borrower, each other Loan Party and their respective
Affiliates, on the one hand, and
89
Agent, on the other hand, (B) each of Borrower and the other Loan Parties have
consulted their own legal, accounting, regulatory and tax advisors to the extent
they have deemed appropriate, and ( C) Borrower and each other Loan Party is
capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) Agent is and has been acting solely as a principal and,
except as expressly agreed in writing by the relevant parties, has not been, is
not, and will not be acting as an advisor, agent or fiduciary, for Borrower, any
other Loan Party, or any of their respective Affiliates, or any other Person and
(B) Agent does not have any obligation to Borrower, any other Loan Party or any
of their Affiliates with respect to the transaction contemplated hereby except
those obligations expressly set forth herein and in the other Loan Documents;
and (iii) Agent and its Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of Borrower, the
other Loan Parties and their respective Affiliates, and Agent has no obligation
to disclose any of such interests to Borrower , any other Loan Party of any of
their respective Affiliates. To the fullest extent permitted by law, each of
Borrower and the other Loan Parties hereby waive and release, any claims that it
may have against Agent with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
10.16 USA PATRIOT ACT Notice. Each Lender that is subject to the Act
(as hereinafter defined) and Agent (for itself and not on behalf of any Lender)
hereby notifies Borrower that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
"Act"), it is required to obtain, verify and record information that identifies
Borrower, which information includes the name and address of Borrower and other
information that will allow such Lender or Agent, as applicable, to identify
Borrower in accordance with the Act.
10.17 Time of the Essence. Time is of the essence of the Loan
Documents.
90
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
NORTH AMERICAN GALVANIZING &
COATINGS, INC., a Delaware corporation
By:/s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx, Vice-President, CFO and
Secretary
BANK OF AMERICA, N.A.,
as Administrative Agent
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx, Senior Vice
President
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx, Senior Vice
President
91
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
LENDER COMMITMENT APPLICABLE PERCENTAGE
--------------------------------------------------------------------------------
Bank of America, N.A. $25,000,000.00 100.0000000000%
Total $25,000,000.00 100.000000000%
SCHEDULE 5.06
LITIGATION
NONE.
SCHEDULE 5.09
ENVIRONMENTAL MATTERS
NONE.
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Direct Subsidiary - 100% owned by Borrower:
North American Galvanizing Company, a Delaware corporation
Indirect Subsidiaries - 100% owned by North American
Galvanizing Company, a Delaware corporation:
NAGALV-Ohio, Inc., a Delaware corporation
Xxxxxx Galvanizing Company - Kansas City, an Oklahoma
corporation
Premier Coatings, Inc., an Oklahoma corporation
Reinforcing Services, Inc., an Oklahoma corporation
Part (b). Other Equity Investments.
None.
SCHEDULE 7.01
EXISTING LIENS PERMITTED TO EXIST
---------------------------------------------------------------------------------------------------------------------
Original
Filing Filing
Loan Party Filing Number Date Office Lien-holder
---------------------------------------------------------------------------------------------------------------------
North American Galvanizing Company 33398826 12/24/06 DE SOS Xxxxxx B-Line, Inc.
---------------------------------------------------------------------------------------------------------------------
North American Galvanizing Company 63702131 10/24/06 DE SOS Toyota Motor Credit
Corporation
---------------------------------------------------------------------------------------------------------------------
North American Galvanizing Company 2003002138726 02/24/03 OK SOS NMHG Financial
Services, Inc.
---------------------------------------------------------------------------------------------------------------------
NAGALV-Ohio, Inc. 20070698810 2/23/07 DE SOS Citicorp Leasing
---------------------------------------------------------------------------------------------------------------------
NAGALV-Ohio, Inc. 20071346963 4/11/07 DE SOS Citicorp Leasing
---------------------------------------------------------------------------------------------------------------------
North American Galvanizing & 63964269 11/14/06 DE SOS Citicorp Leasing
Coatings, Inc.
---------------------------------------------------------------------------------------------------------------------
North American Galvanizing & N/A 6/20/06 Master Lease TCF Equipment
Coatings, Inc. Finance, Inc.
---------------------------------------------------------------------------------------------------------------------
North American Galvanizing & N/A 6/20/06 Master Lease TCF Equipment
Coatings, Inc. Finance, Inc.
---------------------------------------------------------------------------------------------------------------------
SCHEDULE 7.03
EXISTING INDEBTEDNESS
1. Capital Leases with TCF totaling $202,930
2. Capital Lease with Toyota totaling $55,382
3. Capital Leases with Citicorp $91,020
4. Unsecured loan from the Industrial Development Guaranty Corp.
for West Tulsa Sanitary Sewer debt in the amount of $16,482.47
5. From the Closing Date until the earliest of (i) June 30, 2007,
(ii) the date the Indebtedness under or attributable to such
bonds is paid in full and (iii) the date the Issuing Bank
honors a draw request under the Chase L/C for an amount which,
when added to all previous draw requested honored under the
Chase L/C, equals or exceeds $5,640,000: $9,050,000 in
original principal amount Xxxxxx County Industrial Development
Corporation (Texas) Adjustable Rate Industrial Development
Bonds, Series 2000, North American Galvanizing Company Project
(the "Bonds"), which have a principal balance of approximately
$5,640,000 as of the date of this Agreement.
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE,
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
North American Galvanizing & Coatings, Inc.
0000 X. Xxxx, Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxx X. Xxxx, Vice President and CFO
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxxxx@xxxxxx.xxx
Website Address: www.______________________
U.S. Taxpayer Identification Number: 00-0000000
WITH COPY TO:
King & Spalding
0000 Xxxxxxxxx Xx., XX
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Electronic Mail: xxxxxxxxx@xxxxx.xxx
With copy email to: xxxxxxxxx@xxxxx.xxx
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
0000 Xxxx Xxxxxx, 0xx Xxxxx
XX0-000-00-00
Xxxxxx, XX 00000
Attention: Notice Desk
Facsimile: 000-000-0000
Account No.:
Ref:
ABA# 000000000
All Other Notices to Administrative Agent:
Bank of America, N.A.
000 X Xxxxxxx Xxx, 10th Floor
OK2-200-10-51
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
LENDER:
Notices to Bank of America, as Lender:
Bank of America, N.A.
000 X Xxxxxxx Xxx, 10th Floor
OK2-200-10-51
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
L/C ISSUER:
Bank of America, N.A.
000 X Xxxxxxx Xxx, 10th Floor
OK2-200-10-51
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
SWING LINE LENDER:
Bank of America, N.A.
000 X Xxxxxxx Xxx, 10th Floor
OK2-200-10-51
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 17,
2007 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among North American Galvanizing & Coatings, Inc., a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned hereby requests (select one):
______ A Borrowing of Committed Loans ______ A conversion or
continuation of Committed Loans:
1. On (a Business Day).
2. In the amount of $ .
3. If a conversion, Committed Loan is currently comprised
of _____________ [Type of Committed Loan to be converted]
4. Type of Committed Loan requested: ________________________.
5. For Eurodollar Fixed Rate Loans: with an Interest Period of
months.
The Committed Borrowing, if any, requested herein complies with the
provisos to the first sentence of Section 2.01 of the Agreement.
NORTH AMERICAN GALVANIZING &
COATINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
A-1
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 17,
2007 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among North American Galvanizing & Coatings, Inc., a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On (a Business Day).
2. In the amount of $.
The Swing Line Borrowing requested herein complies with the
requirements of the provisos to the first sentence of Section 2.04(a) of the
Agreement.
NORTH AMERICAN GALVANIZING &
COATINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
B-1
EXHIBIT C
FORM OF NOTE
$_______________
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby promises to
pay to _____________________ or registered assigns ("Lender"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Loan from time to time made by the Lender to Borrower under that
certain Credit Agreement, dated as of May 17, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among Borrower, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement.
Except as otherwise provided in Section 2.04(f) of the Agreement with respect to
Swing Line Loans, all payments of principal and interest shall be made to Agent
for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. This Note is also entitled to the
benefits of the Guaranties and is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Agreement.
Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender
may also attach schedules to this Note and endorse thereon the date, amount and
maturity of its Loans and payments with respect thereto.
Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF OKLAHOMA.
C-1
NORTH AMERICAN GALVANIZING &
COATINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
C-2
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
End of Principal or Principal
Type of Amount of Interest Interest Paid Balance This Notation
Date Loan Made Loan Made Period This Date Date Made By
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
C-3
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ______________,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 17,
2007 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among North American Galvanizing & Coatings, Inc., a
Delaware corporation ("Borrower"), the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the of Borrower, and that, as such, he/she is authorized
to execute and deliver this Certificate to Agent on the behalf of Borrower, and
that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. The Borrower has delivered the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of Borrower
ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. The Borrower has delivered the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of Borrower
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of Borrower and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
Borrower during the accounting period covered by such financial statements.
3. A review of the activities of Borrower during such fiscal period has
been made under the supervision of the undersigned with a view to determining
whether during such fiscal period Borrower performed and observed all its
Obligations under the Loan Documents, and
[select one:]
D-1
[to the best knowledge of the undersigned during such fiscal period,
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[to the best knowledge of the undersigned, during such fiscal period,
the following covenants or conditions have not been performed or observed and
the following is a list of each such Default and its nature and status: ]
4. The representations and warranties of Borrower contained in Article
V of the Agreement, and/or any representations and warranties of Borrower or any
other Loan Party that are contained in any document furnished at any time under
or in connection with the Loan Documents, are true and correct on and as of the
date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Compliance
Certificate, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01 of the Agreement, including the statements in connection with which this
Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on
Schedules 2 and 3 attached hereto are true and accurate on and as of the date of
this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
THIS ______ day of ________, ____.
NORTH AMERICAN GALVANIZING &
COATINGS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
D-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. Section 6.12(a) - Leverage Ratio.
A. Consolidated Funded Indebtedness $ _____________
B. Operating Cash Flow (See Line III.A.10 below) $ _____________
C. Ratio (Line I.A / Line I.B) _____ to 1.0
Maximum allowed: 3.25 to 1.0
II. Section 6.12(b) - Asset Coverage Ratio.
A. Current Assets (for Borrower and Domestic Subsidiaries):
1. Cash and cash equivalents $ _____________
2. Accounts $ _____________
3. Inventory (LIFO basis or market value) $ _____________
4. Depreciated book value of property, plant and equipment $ _____________
5. Total Current Assets (sum of Lines 1-4) $ _____________
B. Consolidated Funded Indebtedness $ _____________
C. Ratio (Line II.A.5 / Line II.B): _____ to 1.0
Minimum allowed: 1.50 to 1.0
III. Section 6.12(c) - Basic Fixed Charge Coverage Ratio.
A. Operating Cash Flow (with adjustments)
1. net income or loss: $ _____________
2. less extraordinary gains or plus extraordinary losses $ _____________
(excluding items addressed in Line III.A.8)
3. less income or plus losses from the write-up or
write-down of assets $ _____________
4. plus depreciation expense $ _____________
D-3
5. plus amortization expense $ _____________
6. plus interest expense $ _____________
7. plus income tax expense $ _____________
8. plus Adjustments to Operating Cash Flow for MWR Suit,
Adverse Environmental Determination and Bond Audit
(See Sum of Parts 1 and 2 of Schedule 3) $ _____________
9. plus Sum of Target Operating Cash Flow for all
Targets (See Schedule 3) $ _____________
10. Total Operating Cash Flow (sum of 1 through 9) $ _____________
11. minus income tax expense $ _____________
12. minus dividends $ _____________
13. minus capital stock repurchases $ _____________
14. minus Maintenance Capital Expenditures $ _____________
15. plus rent and lease expense $ _____________
16. Total: Line 10 less Lines 11 through 14 plus Line 15 $ _____________
B. Fixed Charges:
1. current maturities of long term liabilities $ _____________
2. plus current maturities of Capitalized Lease Obligations $ _____________
3. plus interest expense $ _____________
4. plus rent and lease expense $ _____________
5. plus Implied Amortization:
(i) Outstanding Amount of all Loans $
(ii) All Unreimbursed Amounts $
(iii) Raw Material Inventory x .50 ($ )
D-4
(iv) Eligible Accounts x .80 ($ )
(v) Subtotal (sum of Lines II.B.5.(i) through II.B.5.(iv))
(If less than $0, enter $0) $ _____________
(vi) Total Implied Amortization (Line II.B.(v)) divided by 7 $ _____________
6. Total Fixed Charges (sum of Lines II.B.1 through $ _____________
II.B.4 plus Line II.B.5.(vi))
C. Ratio (Line III.A.15 / Line III.B.6): _____ to 1.0
Minimum allowed: 1.25 to 1.0
IV. Other Matters
---------------------------------------------------------------------------------------------------------------------
Covenant Section Required Actual
---------------------------------------------------------------------------------------------------------------------
Advances to Officers, Directors, 7.02(b) No greater than $500,000 $
Employees, Third Parties at any one time
outstanding
---------------------------------------------------------------------------------------------------------------------
Indebtedness in respect of capital 7.03(e) No greater than $2,500,000
leases, Synthetic Lease at any one time
Obligations and purchase money outstanding
obligations for fixed or capital
assets $
---------------------------------------------------------------------------------------------------------------------
Minimum Availability - Sum of 7.11 No greater than $22,500,000 at
Outstanding Amounts of Loans any one time $
and Unreimbursed Amounts
---------------------------------------------------------------------------------------------------------------------
Capital Expenditures 7.12 No greater than $5 million $
during any fiscal year
fiscal year to date
---------------------------------------------------------------------------------------------------------------------
D-5
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 3
to the Compliance Certificate
($ in 000's)
Adjustments to Operating Cash Flow:
1. Expense associated with MWR Suit or paid as a result of Adverse
Environmental Determination (up to $1,500,000 aggregate after Closing
Date)
Date Explanation Amount
---- ----------- ------
Subtotal
2. Expense associated with Bond Audit (up to $200,000 aggregate after
Closing Date) Date Explanation Amount
Date Explanation Amount
---- ----------- ------
Subtotal
Sum of Parts 1 and 2: $
----------------------
D-6
3. Target Operating Cash Flow
Target:
----------------------------------------------------------------
Date of Acquisition:
---------------------------------------------------
A. Actual Operating Cash Flow - Rolling Four Fiscal Quarters
applicable to calculation $ _____________
B. Amount of Operating Cash Flow for such Target Agreed
Upon by Borrower and Required Lenders $ _____________
C. Months Per Year 12
D. Number of Months Borrower has Owned / Operated Target _____________
E. Number of Months operated under previous Ownership
(Line C minus Line D) _____________
F. Factor to Use in Calculating Target Operating Cash Flow
(Line E divided by Line C) _____________
G. Target Operating Cash Flow for this Target $ _____________
(Line A or B, as applicable, multiplied by Line F)
D-7
Target:
----------------------------------------------------------------
Date of Acquisition:
---------------------------------------------------
A. Actual Operating Cash Flow - Rolling Four Fiscal Quarters
applicable to calculation $ _____________
B. Amount of Operating Cash Flow for such Target Agreed
Upon by Borrower and Required Lenders $ _____________
C. Months Per Year 12
D. Number of Months Borrower has Owned / Operated Target _____________
E. Number of Months operated under previous Ownership
(Line C minus Line D) _____________
F. Factor to Use in Calculating Target Operating Cash Flow
(Line E divided by Line C) _____________
G. Target Operating Cash Flow for this Target $ _____________
(Line A or B, as applicable, multiplied by Line F)
D-8
Target:
----------------------------------------------------------------
Date of Acquisition:
---------------------------------------------------
A. Actual Operating Cash Flow - Rolling Four Fiscal Quarters
applicable to calculation $ _____________
B. Amount of Operating Cash Flow for such Target Agreed
Upon by Borrower and Required Lenders $ _____________
C. Months Per Year 12
D. Number of Months Borrower has Owned / Operated Target _____________
E. Number of Months operated under previous Ownership
(Line C minus Line D) _____________
F. Factor to Use in Calculating Target Operating Cash Flow
(Line E divided by Line C) _____________
G. Target Operating Cash Flow for this Target $ _____________
(Line A or B, as applicable, multiplied by Line F)
[ADD AS NECESSARY FOR ADDITIONAL TARGETS]
TOTAL Target Operating Cash Flow
(Total of Target Operating Cash Flow for all Targets Listed
Above) $ _____________
D-9
EXHIBIT E
FORM
OF
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [the][each] Assignor identified in item 1 below ([the][each, an]
"Assignor") and [the][each] Assignee identified in item 2 below ([the][each, an]
"Assignee"). [It is understood and agreed that the rights and obligations of
[the Assignors][the Assignees] hereunder are several and not joint.].
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably
sells and assigns to [the Assignee][the respective Assignees], and [the][each]
Assignee hereby irrevocably purchases and assumes from [the Assignor][the
respective Assignors], subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by Agent
as contemplated below (i) all of [the Assignor's][the respective Assignors']
rights and obligations in [its capacity as a Lender][their respective capacities
as Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
[the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and Swing
Line Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other
right of [the Assignor (in its capacity as a Lender)][the respective Assignors
(in their respective capacities as Lenders)] against any Person, whether known
or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the][any] Assignee
pursuant to clauses (i) and (ii) above being referred to herein collectively as,
[the][an] "Assigned Interest"). Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any]
Assignor.
1. Assignor[s]: ______________________________
2. Assignee[s]: ______________________________ for each
Assignee, indicate Affiliate of [identify Lender]]
3. Borrower(s): ______________________________
E-1
4. Administrative Agent: Bank of America, N. A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: [Credit Agreement, dated as of ________, among
________________, the Lenders from time to time party thereto, Bank of America,
N.A., as Administrative Agent[, L/C Issuer and Swing Line Lender]]
6. Assigned Interest[s]:
-----------------------------------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Commitment/ Commitment/ Assigned of
Facility Loans for all Loans Commitment/ CUSIP
Assignor[s] Assignee[s] Assigned Lenders Assigned Loans No.
===========================================================================================================
-----------------------------------------------------------------------------------------------------------
$____________ $____________ __________% ____
-----------------------------------------------------------------------------------------------------------
$____________ $____________ __________% ____
-----------------------------------------------------------------------------------------------------------
$____________ $____________ __________% ____
-----------------------------------------------------------------------------------------------------------
[7. Trade Date: __________________]
Effective Date: __________________, 20__ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-------------------------------------
Title:
----------------------------------
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
----------------------------------
E-2
[Consented to and] Accepted:
Bank of America, N. A., as Administrative
Agent
By:
-------------------------------------
Title:
----------------------------------
[Consented to:]
By:
-------------------------------------
Title:
----------------------------------
E-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. [The][Each] Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of [the][the relevant] Assigned
Interest, (ii) [the][such] Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b)
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries
or Affiliates or any other Person obligated in respect of any Loan Document or
(iv) the performance or observance by Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. [The][Each] Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all the requirements to be an assignee under Section
10.06(b)(iii),(v) and (vi) of the Credit Agreement (subject to such consents, if
any, as may be required under Section 10.06(b)(iii) of the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent of [the][the
relevant] Assigned Interest, shall have the obligations of a Lender thereunder,
and (iv) it is sophisticated with respect to decisions to acquire assets of the
type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received a
copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered
pursuant to Section [__] thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision
to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest ,and (vi) it has independently and without reliance upon Agent
or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest; and (b)
agrees that (i) it will, independently and without reliance upon Agent,
[the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in accordance with their terms all of the obligations which
by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of
principal, interest, fees and other
E-4
amounts) to [the][the relevant] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the relevant] Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Oklahoma.
E-5
EXHIBIT F
FORM OF PERMITTED ACQUISITION CERTIFICATE
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of May 17,
2007 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among North American Galvanizing & Coatings, Inc., a
Delaware corporation ("Borrower"), the Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.
This Certificate is provided to you pursuant to the Agreement and the
proposed Acquisition of ___________________________________________________ by
__________________________________________________.
The undersigned president or vice president of Borrower hereby
certifies to the Agent and Lenders as of the date hereof as follows:
1. The consideration paid for the proposed Acquisition is
$___________________ (must be less than $5,000,000.00 unless Required Lenders
approve).
2. The consideration paid for all Acquisitions during the current
fiscal year is $_____________________________ (must be less than
$10,000,000.00).
3. After giving effect to the Acquisition:
a. All representations and warranties set forth in the Loan Documents
continue to be true and correct in all material respects immediately prior to
and after giving effect to the Acquisition and the transactions contemplated
thereby.
b. No Default or Event of Default shall exist or occur as a result of,
and after giving effect to, the Acquisition.
4. If the total consideration for the Acquisition is equal to or
greater than $5,000,000, Borrower has attached as Schedule A pro forma financial
statements of Borrower that demonstrate compliance with the covenants set forth
in Sections 6.12(a) and (b), including in such calculation Target Operating Cash
Flow as set forth on Schedule B (as if the business, assets, or Person acquired
had been acquired since the first (1st) day of the period for which such pro
forma financial statements are delivered and had been managed and conducted in
accordance with the Borrower's standard business practices) for the prior four
(4) fiscal quarters of the Borrower and its Subsidiaries.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
THIS ____ day of ________, ____.
F-1
NORTH AMERICAN GALVANIZING &
COATINGS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2
