REVOLVING CREDIT AGREEMENT
Effective February 17, 1998
BY AND AMONG
SUPERIOR ENERGY SERVICES, INC.
as Borrower,
WHITNEY NATIONAL BANK,
as Agent
and
THE BANKS NAMED HEREIN,
as Banks,
_________________________________________________________________
TABLE OF CONTENTS
Page
SECTION 1. TERM 1
SECTION 2. DEFINITIONS 1
2.1 Definitions 1
2.2 Accounting Terms and Determinations 19
SECTION 3. THE REVOLVING CREDIT LOANS 20
3.1 Revolving Credit Commitments 20
3.2 The Swing Line 20
3.3 Method of Borrowing 21
3.4 Revolving Credit Notes 22
3.5 Termination or Reduction of Commitments 23
3.6 Maturity 23
3.7 Special Swing Loan Provisions 23
SECTION 4. LETTERS OF CREDIT 24
4.1 Letter of Credit Commitment 24
4.2 Participation by Other Banks 26
4.3 Disbursements 27
4.4 Reimbursement 27
4.5 Replacement or Collateralization of Letters of Credit 27
4.6 Nature of Reimbursement Obligations 28
4.7 Indemnity 29
SECTION 5. GENERAL PROVISIONS FOR ALL LOANS 29
5.1 Duration of Interest Periods and Selection of Interest
Rates 29
5.2 Interest Rates; Interest Payments 30
5.3 Fees 31
5.4 Early Payments 31
5.5 General Provisions as to Payments 32
5.6 Funding Losses 32
5.7Basis for Determining Interest Rate Inadequate or Unfair 33
5.8 Illegality 33
5.9 Increased Cost 33
5.10 Base Rate Loans Substituted for Affected LIBOR Loans 35
5.11 Capital Adequacy 35
5.12 Survival of Provisions 35
5.13 Discretion of Bank as to Manner of Funding 35
5.14 Computation of Interest 36
5.15 Collateral 36
SECTION 6. PRECONDITIONS TO LOANS AND LETTERS OF CREDIT 37
6.1 Initial Revolving Credit Loan, Initial Swing Loan
or Letter of Credit 37
6.2 All Loans 38
6.3 Letters of Credit 39
SECTION 7. REPRESENTATIONS AND WARRANTIES 40
7.1 Corporate Existence and Power 40
7.2 Corporate Authorization 40
7.3 Binding Effect 40
7.4 Financial Statements 40
7.5 Litigation 41
7.6 ERISA 41
7.7 Tax Payment 41
7.8 Subsidiaries 41
7.9 Compliance With Other Instruments; None Burdensome 42
7.10 Other Debt, Guarantees, Capitalized Leases 42
7.11 Labor Matters 42
7.12 Title to Property 42
7.13 Regulation U 43
7.14 Investment Company Act of 1940: Public Utility
Holding Company Act of 1935 43
7.15 Patents, Licenses, Trademarks, Etc. 43
7.16 Environmental and Safety and Health Matters 43
7.17 Investments 44
7.18 No Default 44
7.19 No Burdensome Restrictions 44
7.20 Disclosure 44
SECTION 8. COVENANTS 45
8.1 Affirmative Covenants of Borrower 45
(a)Information 45
(b)Payment of Indebtedness 46
(c)Maintenance of Books and Records; Consultations
and Inspections 47
(d)Payment of Taxes 47
(e)Payment of Claims 48
(f)Corporate Existence 48
(g)Maintenance of Property 48
(h)Compliance with Laws, Regulations, Etc. 48
(i)Environmental Matters 48
(j)ERISA Compliance 49
(k)Notices 50
(l)Insurance 50
(m)Financial Covenants 51
(i) Minimum Consolidated Current Ratio 51
(ii) Minimum Consolidated Debt Service Coverage51
(iii) Maximum Consolidated Funded Debt to
Consolidated EBITDA 51
(iv) Minimum Consolidated Tangible Net Worth 51
(n)Further Assurances 51
(o)Accountant 51
(p)Subsidiaries 51
(q)Agreements 52
8.2 Negative Covenants of Borrower 52
(a)Limitation on Indebtedness 52
(b)Consolidation, Merger, Sale of Assets,
Dissolution, Etc. 53
(c)Sale and Leaseback Transactions 54
(d)Sale or Discount of Accounts 54
(e)Transactions with Affiliates 54
(f)Changes in Nature of Business 54
(g)Fiscal Year 54
(h)Distributions 54
(i)Pension Plans 54
(j)Restricted Investments 54
(k)Ownership of Subsidiaries 55
(l)Capital Expenditures 55
(m)Change in Control 55
(n)Change in Management 55
(o)Operating Lease Obligations 55
8.3 Use of Proceeds 55
SECTION 9. EVENTS OF DEFAULT 55
SECTION 10. AGENT 58
10.1 Appointment 58
10.2 Powers 59
10.3 General Immunity 59
10.4 No Responsibility for Loans, Recitals, etc. 59
10.5 Right to Indemnity 59
10.6 Action Upon Instructions of Required Banks 60
10.7Reliance on Documents; Employment of Agents and Counsel 60
10.8 May Treat Payee as Owner 60
10.9 Agent's Reimbursement 61
10.10 Rights as a Bank 61
10.11 Independent Credit Decision 61
10.12 Resignation of Agent 61
10.13 Duration of Agency 61
SECTION 11. GENERAL 62
11.1 No Waiver 62
11.2 Right of Setoff 62
11.3 Cost and Expenses 62
11.4 Environmental Indemnity 63
11.5 General Indemnity 63
11.6 Authority to Act 64
11.7 Notices 64
11.8 Consent to Jurisdiction 64
11.9 Sharing of Payments 65
11.10 Governing Law 65
11.11 Amendments and Waivers 65
11.12 References; Headings for Convenience 66
11.13 Successors and Assigns, Participations 66
11.14 Assignment Agreements 67
11.15 Binding Agreement 67
11.16 No Oral Agreements, Entire Agreement 67
11.17 Severability 68
11.18 Counterparts 68
11.19 Resurrection of Borrower's Obligations 68
11.20 Independence of Covenants 68
11.21 Confidentiality 69
11.22 Conflicting Provisions 69
SCHEDULES
2 Existing Liens
4.1(a) Existing Letters of Credit
7.8 Subsidiaries
7.10 Debts and Guarantees
7.11 Wage Claims Unpaid and Unaccrued
7.16 Environmental and OSHA Matters
EXHIBITS
A Revolving Credit Note
B Swing Line Note
C Continuing Guarantee
D Form of Standby Letter of Credit Application
E Letter of Credit Request
F Letter of Warranty and Representation
G Assignment and Assumption Agreement
H(1) Borrower Security Agreement
H(2) Subsidiary Security Agreement
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is
effective the 17th day of February, 1998, and is made and entered
into by and among SUPERIOR ENERGY SERVICES, INC., a Delaware
corporation ("Borrower") and the undersigned Banks, including
Whitney National Bank in its capacity as a Bank hereunder and as
Agent for the Banks under this Agreement.
WITNESSETH:
WHEREAS, the Borrower has requested the Banks (as
hereinafter defined) to make revolving loans to the Borrower in
an aggregate principal amount not exceeding Forty-Five Million
Dollars ($45,000,000.00) and a swing line available thereunder
from Whitney in the maximum principal amount of One Million
Dollars ($1,000,000.00);
WHEREAS, the Borrower has requested that Whitney issue
letters of credit for the account of the Borrower and its
Subsidiaries from time to time during the Letter of Credit Period
as part of the aggregate principal amount of the commitment of
the Banks to Borrower hereunder, but such letters of credit shall
not in any event exceed in the aggregate an available amount of
Two Million Dollars ($2,000,000.00) at any one time outstanding;
and
WHEREAS, the Banks have severally agreed, upon the terms,
provisions and conditions set forth herein, to lend such amounts
to, and take participations in such letters of credit for the
account of Borrower.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby mutually promise and agree as follows:
SECTION l. TERM.
The "Term" of this Agreement shall commence on the effective
date hereof and shall end on April 30, 2000, unless earlier
terminated pursuant to the terms hereof.
SECTION 2. DEFINITIONS.
2.1 Definitions. In addition to the terms defined
elsewhere in this Agreement or in any Exhibit or Schedule hereto,
when used in this Agreement, the following terms shall have the
following meanings (such meanings shall be equally applicable to
the singular and plural forms of the terms used, as the context
requires):
Acquisition shall mean the purchase, merger with or other
acquisition by Borrower or any Subsidiary, after the date hereof,
of (i) the stock or other equity interest (in whole or in part)
in any entity, which, after such Acquisition will be a Subsidiary
and will be primarily engaged in the Company Business or (ii) all
or substantially all of the assets of any entity which will be
used in the Company Business.
Affiliate shall mean any Person (a) which directly or
indirectly through one or more intermediaries controls, is
controlled by or is under common control of or with Borrower or
any Subsidiary, (b) which beneficially owns or holds or has the
power to direct the voting power of twenty percent (20%) or more
of any class of capital stock of Borrower or any Subsidiary, (c)
which has twenty percent (20%) or more of any class of its
capital stock (or, in the case of a Person which is not a
corporation, twenty percent (20%) or more of its equity interest)
beneficially owned or held, directly or indirectly, by Borrower
or any Subsidiary, or (d) who is a director, officer or employee
of Borrower or any Subsidiary. For purposes of this definition,
"control" shall mean the power to direct the management and
policies of a Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise.
Agent shall mean Whitney National Bank in its capacity as
agent for the Banks hereunder and its successors in such
capacity.
Applicable Margin shall mean, the rate of interest per annum
shown in the applicable column below:
Xxxxx Xxxxx Xxxxx Xxxxx Xxxxx
X II III IV V
If Ratio of > 2.0 < 2.0 < 1.50 <1.00 <.500
Consolidated Total Debt - - -
as of the end of the > 1.5 > 1.00 >.500
immediately preceding
fiscal quarter to
Consolidated EBITDA for
the immediately
preceding four (4)
fiscal quarters is
Applicable Margin 2.500% 2.250% 2.000% 1.750% 1.500%
Commitment Fee .325% .300% .275% .250% .250%
The Applicable Margin shall commence at Level V and shall be
adjusted on the first day of each March, June, September and
December (or, if such day is not a Business Day, on the next
succeeding Business Day), based on the ratio of Consolidated
Total Debt as of the end of the immediately preceding fiscal
quarter to Consolidated EBITDA for the immediately preceding four
(4) fiscal quarters. If Borrower should fail to deliver the
certificate required by Section 8.1(a)(vi) hereof within the time
period set forth in Section 8.1(a)(vi), then, until Borrower
shall have provided such certificate, it shall be presumed that
the ratio of Consolidated Total Debt as of the end of the
immediately preceding fiscal quarter to Consolidated EBITDA for
the immediately preceding four (4) fiscal quarters was greater
than 2.0 (and, from the date of the delivery of such certificate,
the Applicable Margin shall be determined by reference to such
certificate).
Assignment Agreement shall mean any of those certain
Assignment Agreements described in Section 11.14 herein.
Banks shall collectively mean the banks listed on the
signature page hereof, and their respective successors and
assigns, with each being a Bank.
Base Rate shall mean the interest rate per annum, determined
on any day, equal to the greater of: (i) the Prime Rate then in
effect or (ii) the sum of the Fed Funds Rate then in effect, plus
One-Half of One Percent (.50%).
Base Rate Loan shall mean any Loan bearing interest at the
Base Rate.
Board of Directors shall mean, with respect to any Person,
the Board of Directors of such Person or any committee of the
Board of Directors of such Person authorized, with respect to any
particular matter, to exercise the power of the Board of
Directors of such Person.
Borrower's Obligations shall mean, without duplication, any
and all present and future indebtedness (including, without
limitation, principal, interest, fees, collection costs and
expenses, attorneys' fees and other amounts), liabilities and
obligations (including, without limitation, reimbursement
obligations with respect to Letters of Credit issued by Whitney
under this Agreement) of Borrower to the Agent and/or any one or
more of the Banks evidenced by or arising under or in connection
with this Agreement, the Notes, the Letter of Credit
Application(s), and/or any of the other Transaction Documents,
whether direct or contingent, due or to become due or now
existing or hereafter arising.
Business Day shall mean (a) any day except a Saturday,
Sunday or legal holiday observed by the Agent or by commercial
banks in New Orleans, Louisiana; and (b) relative to the making,
continuing, prepaying or repaying of any LIBOR Loans, any day on
which dealings in U.S. Dollars are carried on in the London
interbank market.
Capital Expenditure shall mean any expenditure which, as
determined in accordance with GAAP, is required to be capitalized
on the balance sheet of the Person making the same, but excluding
(i) expenditures for the restoration or replacement of fixed
assets to the extent funded out of the proceeds of an insurance
policy and (ii) Permitted Acquisitions.
Capitalized Lease shall mean any lease of Property, whether
real and/or personal, by a Person as lessee which as determined
in accordance with GAAP is required to be capitalized on the
balance sheet of such Person.
Capitalized Lease Obligations of any Person shall mean, as
of the date of any determination thereof, the amount at which the
aggregate rental obligations due and to become due under all
Capitalized Leases under which such Person is a lessee would be
reflected as a liability on a balance sheet of such Person as
determined in accordance with GAAP.
CERCLA shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
''9601 et seq., and as the same may from time to time be further
amended, and shall include any and all regulations issued
pursuant thereto.
Change in Control shall mean (i) an event or series of
events as a result of which any "person" or "group" (as such
terms are used in Sections 13(d)(3) and 14(d) of the Exchange
Act) (excluding Borrower or any wholly owned subsidiary thereof)
is or becomes, directly or indirectly, the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, whether
or not applicable) of more than 50% of the combined voting power
of the then outstanding securities entitled to vote generally in
elections of directors, managers or trustees, as applicable, of
Borrower or any successor entity ("Voting Stock") or (ii) the
completion of any consolidation with or merger of Borrower into
any other Person, or sale, conveyance, transfer or lease by
Borrower of all or substantially all of its assets to any Person,
or any merger of any other Person into Borrower in a single
transaction or series of related transactions, and, in the case
of any such transaction or series of related transactions, the
outstanding common stock of Borrower is changed or exchanged as a
result, unless the stockholders of the Borrower immediately
before such transaction own, directly or indirectly, immediately
following such transaction, at least a majority of the combined
voting power of the outstanding voting securities of the Person
resulting from such transaction in substantially the same
proportion as their ownership of the Voting Stock immediately
before such transaction.
Code shall mean the Internal Revenue Code of 1986, as
amended, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from
time to time. References to sections of the Code shall be
construed to also refer to any successor sections.
Commitment shall mean, with respect to each Bank, the sum of
such Bank's Revolving Credit Commitment, and its Swing Line
Commitment, if any.
Company Business shall mean the (i) sale, lease,
distribution, repair and manufacture of oil and gas related
equipment, parts and supplies, (ii) the providing of services
relating to the exploration, development or production of oil and
gas and (iii) any other activities ancillary to the foregoing.
Consolidated Current Ratio shall mean, as of any date for
which its is being determined, the ratio of (a) current assets of
Borrower and its Subsidiaries as of such date, as determined on a
consolidated basis in accordance with GAAP, to (b) current
liabilities of Borrower and its Subsidiaries as of such date, as
determined on a consolidated basis in accordance with GAAP, but
excluding the principal amount of the Loans outstanding as of
such date.
Consolidated Debt Service Coverage Ratio shall mean, as of
any date for which it is being determined, the ratio of (a)
Consolidated EBITDA for the immediately preceding four (4) fiscal
quarters (including any fiscal quarter ending on such date) minus
Capital Expenditures of Borrower or any Subsidiary during the
immediately preceding four (4) fiscal quarters (including any
fiscal quarter ending on such date) minus all provisions for any
federal, state, local and/or foreign income taxes made by
Borrower or any Subsidiary during the immediately preceding four
(4) fiscal quarters (including any fiscal quarter ending on such
date), to (b) Consolidated Interest Expense for the immediately
preceding four (4) fiscal quarters (including any fiscal quarter
ending on such date) plus Consolidated Scheduled Principal
Payments for the immediately preceding four (4) fiscal quarters
(including any fiscal quarter ending on such date) plus the
principal portion of Capitalized Lease Obligations payable by
Borrower or any Subsidiary in respect of the immediately
preceding four (4) fiscal quarters (including any fiscal quarter
ending on such date).
Consolidated EBITDA shall mean, for any period, the sum of
the following: (a) Consolidated Net Income during such period
plus (b) to the extent deducted in determining Consolidated Net
Income, the sum of (i) Consolidated Interest Expense during such
period, plus (ii) all provisions for any federal, state, local
and/or foreign income taxes made by Borrower or any Subsidiary
during such period (whether paid or deferred) plus (iii) all
depreciation and amortization expenses and all other non-cash
items of Borrower or any Subsidiary during such period, all
determined on a consolidated basis as determined in accordance
with GAAP plus (c) to the extent not already included in
Consolidated Net Income, the sum of (i) the earnings before
depreciation, amortization, interest expense, extraordinary items
and taxes during such period of any Subsidiaries acquired during
such period as determined in accordance with GAAP plus (ii) any
additional amount requested by Borrower and approved by the
Required Banks that is appropriate to reflect any additional
earnings during such period of any Subsidiaries acquired during
such period that would have been recognized if they had been a
Subsidiary for the entire period minus to the extent not already
included in Consolidated Interest Expense, the estimated interest
expense, in an amount approved by the Required Banks, that
Borrower or any Subsidiary would have incurred during such period
had any Indebtedness that Borrower or any Subsidiary incurred in
connection with the acquisition of any Subsidiaries during such
period been in existence for the entire period.
Consolidated Funded Debt shall mean, as of any date of
determination thereof, (a) the sum of the following, without
duplication: (i) all Indebtedness of Borrower or any Subsidiary,
other than Borrower's Obligations, which matures in not less than
twelve months from the date of incurrence, whether or not
represented by bonds, debentures, notes or other securities, for
the repayment of money borrowed or for the payment of the
purchase price of property or assets purchased, unless secured by
a Letter of Credit issued by an Whitney pursuant to this
Agreement plus (ii) all Borrower's Obligations plus (iii) all
Indebtedness of Borrower or any Subsidiary, which matures in not
less than twelve months from the date of incurrence, secured by
any mortgage, pledge, security interest or lien existing on
property owned by Borrower or any Subsidiary, whether or not the
Indebtedness secured thereby shall have been assumed by the owner
thereof plus (iv) all Capitalized Lease Obligations of Borrower
or any Subsidiary plus (v) all obligations of Borrower or any
Subsidiary, contingent or otherwise, relative to the face amount
of all letters of credit (as may be reduced pursuant to their
terms), whether or not drawn.
Consolidated Interest Expense shall mean, for the period in
question, without duplication, all interest expense of Borrower
and its Subsidiaries (including, without limitation, capitalized
interest expense, the interest portion of Capitalized Lease
Obligations and the interest portion of any deferred payment
obligation) during such period, all determined on a consolidated
basis as determined in accordance with GAAP.
Consolidated Net Income and Consolidated Net Loss shall
mean, for the period in question, the after-tax net income or
loss of Borrower and its Subsidiaries during such period,
determined on a consolidated basis as determined in accordance
with GAAP, but excluding in any event the following to the extent
included in the computation of net income:
(i) any net gain or net loss (net of expenses and taxes
applicable thereto) for such period resulting from the sale,
transfer or other disposition of fixed or capital assets (other
than inventory and other property held for resale in the ordinary
course of business) as determined by GAAP;
(ii) any gains or losses resulting from any reappraisal,
revaluation or write-up or write-down of assets;
(iii) any equity of Borrower or any Subsidiary in the
undistributed earnings of any corporation which is not a
Subsidiary and is accounted for on the equity method as
determined in accordance with GAAP;
(iv) gains or losses from the acquisition or disposition of
Investments;
(v) gains from the retirement or extinguishment of any Debt;
(vi) gains on collections from insurance policies or
settlements (net of premiums paid or other expenses incurred with
respect to such gains during the fiscal period in which the gain
occurs, to the extent such premiums or other expenses are not
already reflected in Consolidated Net Income for such period);
(vii) any gains or losses during such period from any change
in accounting principles, from any discontinued operations or the
disposition thereof or from any prior period adjustments; and
(viii) any extraordinary gains and/or losses;
all determined in accordance with GAAP; provided that the gains,
losses and other amounts set forth in subparagraphs (i) though
(viii) of this definition of Consolidated Net Income and
Consolidated Net Loss are not required to be excluded from the
calculation of Consolidated Net Income unless the exclusion
thereof would result in an increase or decrease in Consolidated
Net Income in excess of $250,000.00 in the aggregate for any
fiscal quarter. If the preceding calculation results in a number
less than zero such amount shall be considered a Consolidated Net
Loss.
Consolidated Scheduled Principal Payments shall mean, for
the period in question, without duplication, all scheduled
principal payments of Borrower and its Subsidiaries on
Indebtedness for the applicable period, all determined on a
consolidated basis as determined in accordance with GAAP;
provided that any balloon principal payment on Debt of Borrower
and its Subsidiaries which is extended to a maturity date beyond
the applicable period shall not be included in the calculation of
Consolidated Scheduled Principal Payments.
Consolidated Tangible Net Worth shall mean at a particular
date, the excess, if any, of (a) all amounts which would be
included under shareholders' equity on a consolidated balance
sheet of Borrower and its Subsidiaries as of such date,
determined on a consolidated basis as determined in accordance
with GAAP (including, without limitation, capital stock,
additional paid-in-capital and retained earnings) at such date
minus (b) all assets of Borrower and its Subsidiaries as of such
date, determined on a consolidated basis as determined in
accordance with GAAP, that would be classified as intangible
assets in accordance with GAAP, but in any event including,
without limitation, the following intangible assets: unamortized
organization and reorganization expense, patents, trade or
service marks, franchises, trade names and goodwill.
Consolidated Total Debt shall mean, as of the date of any
determination thereof, all Debt of Borrower and its Subsidiaries
as of such date, determined on a consolidated basis as determined
in accordance with GAAP at such date; provided that any
Subordinated Indebtedness shall be excluded from Consolidated
Total Debt.
Continuing Guarantee shall mean the unlimited continuing
guarantee of all of Borrower's Obligations executed now or at any
time hereafter by each Subsidiary and delivered to Agent, in the
form of Exhibit C attached hereto and incorporated herein by
reference.
Default shall mean any event or condition the occurrence of
which would, with the lapse of time or the giving of notice or
both, become an Event of Default as defined in Section 9 hereof.
Debt of any Person shall mean, as of the date of
determination thereof, the sum of (a) all Indebtedness of such
Person for borrowed money or which has been incurred to acquire
Property plus (b) all Capitalized Lease Obligations of such
Person.
Disbursement Date shall have the meaning ascribed thereto in
Section 4.3.
Distribution in respect of any corporation shall mean:
(a) dividends or other distributions of cash, stock,
assets or other property on or in respect of any shares of any
class of stock of such corporation; and
(b) the redemption, repurchase or other acquisition of
any shares of any class of any stock of such corporation or of
any warrants, rights or other options to purchase any such stock
(except when solely in exchange for such stock).
Environmental Claim shall mean any administrative,
regulatory or judicial action, judgment, order, consent decree,
suit, demand, demand letter, claim, Lien, notice of noncompliance
or violation, investigation or other proceeding arising (a)
pursuant to any Environmental Law or governmental or regulatory
approval issued under any such Environmental Law, (b) from the
presence, use, generation, storage, treatment, Release,
threatened Release, disposal, remediation or other existence of
any Hazardous Substance, (c) from any removal, remedial,
corrective or other response action pursuant to an Environmental
Law or the order of any Governmental Authority, (d) from any
third party seeking damages, contribution, indemnification, cost
recovery, compensation, injunctive or other relief in connection
with a Hazardous Substance or arising from alleged injury or
threat of injury to health, safety, natural resources or the
environment or (e) from any Lien against any Property owned,
leased or operated by Borrower or any Subsidiary in favor of any
governmental or regulatory authority or agency in connection with
a Release, threatened Release or disposal of a Hazardous
Substance.
Environmental Law shall mean any federal, state or local
statute, law, rule, regulation, order, consent decree, judgment,
permit, license, code, deed restriction, common law, treaty,
convention, ordinance or other governmental requirement relating
to public health, safety or the environment, including, without
limitation, those relating to Releases, discharges or emissions
to air, water, land or groundwater, to the use of groundwater, to
the use and handling of polychlorinated biphenyls or asbestos, to
the disposal, treatment, storage or management of hazardous or
solid waste, Hazardous Substances or crude oil, or any fraction
thereof, to exposure to toxic or hazardous materials, to the
handling, transportation, discharge or release of gaseous or
liquid Hazardous Substances, in each case applicable to any of
the Property owned, leased or operated by Borrower or any
Subsidiary or the operation, construction or modification of any
such Property, including, without limitation, the following:
CERCLA, the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid
Waste Amendments of 1984, the Hazardous Materials Transportation
Act, as amended, the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1976, the Safe Drinking Water
Control Act, the Clean Air Act of 1966, as amended, the Toxic
Substances Control Act of 1976, the Occupational Safety and
Health Act of 1977, as amended, the Emergency Planning and
Community Right-to-Know Act of 1986, the National Environmental
Policy Act of 1975, the Oil Pollution Act of 1990 and any similar
or implementing state or local law, and any state or local
statute and any further amendments to these laws providing for
financial responsibility for cleanup or other actions with
respect to the Release or threatened Release of Hazardous
Substances or crude oil, or any fraction thereof and all rules
and regulations promulgated thereunder.
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA shall
be construed to also refer to any successor sections.
ERISA Affiliate shall mean any corporation, trade or
business that is, along with Borrower and any Subsidiary, a
member of a controlled group of corporations or a controlled
group of trades or businesses, as described in Sections 414(b)
and 414(c), respectively, of the Code or Section 4001 of ERISA.
Event of Default shall have the meaning ascribed thereto in
Section 9.
Exchange Act shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated by the
Securities Exchange Commission.
Fed Funds Rate shall mean, for any day, the rate per annum
(rounded upwards, if necessary to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of 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 Funds Rate for such day shall be the average rate
charged to the Agent on such day on such transactions.
GAAP shall mean generally accepted accounting principles at
the time in the United States.
Governmental Authority shall mean any sovereign state or
nation or government, any state or other political subdivision
thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining
to government.
Guarantee by any Person shall mean any obligation (other
than endorsements of negotiable instruments for deposit or
collection in the ordinary course of business), contingent
or otherwise, of such Person guaranteeing, or in effect
guaranteeing, any Indebtedness, liability, dividend or other
obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement,
contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or obligation or any Property or assets constituting
security therefor, (b) to advance or supply funds (i) for the
purchase or payment of such Indebtedness or obligation, (ii) to
maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or
payment of such Indebtedness or obligation, (iii) to lease
property or to purchase securities or other property or services
primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor
to make payment of the Indebtedness or obligation or (iv)
otherwise to assure the owner of the Indebtedness or obligation
of the primary obligor against loss in respect thereof. For the
purposes of all computations made under this Agreement, a
Guarantee in respect of any Indebtedness for borrowed money shall
be deemed to be Indebtedness equal to the then outstanding
principal amount of such Indebtedness for borrowed money which
has been guaranteed or such lesser amount to which the maximum
exposure of the guarantor shall have been specifically limited,
and a Guarantee in respect of any other obligation or liability
or any dividend shall be deemed to be Indebtedness equal to the
maximum aggregate amount of such obligation, liability or
dividend or such lesser amount to which the maximum exposure of
the guarantor shall have been specifically limited. Guarantee
when used as a verb shall have a correlative meaning.
Hazardous Substance shall mean any hazardous or toxic
material, substance or waste, pollutant or contaminant which is
regulated under any Environmental Law, including, without
limitation, any material, substance or waste which is: (a)
defined as a hazardous substance under Section 311 of the Federal
Water Pollution Control Act (33 U.S.C. ''1317), as amended; (b)
regulated as a hazardous waste under Section 1004 or Section 3001
of the Federal Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act (42 U.S.C. ''6901 et
seq.), as amended; (c) defined as a hazardous substance under
Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. ''9601 et seq.), as
amended; or (d) defined or regulated as a hazardous substance or
hazardous waste under any rules or regulations promulgated under
any of the foregoing statutes.
Indebtedness shall mean, with respect to any Person, without
duplication, all indebtedness, liabilities and obligations of
such Person, and in any event shall include all (i) obligations
of such Person for borrowed money or for the deferred purchase
price of Property or services (including, without limitation, all
notes payable and all obligations evidenced by bonds, debentures,
notes or other similar instruments but excluding trade payables
incurred in the ordinary course of business), (ii) obligations
secured by any Lien on, or payable out of the proceeds of
production from, any Property or assets owned by such Person,
whether or not such Person has assumed or become liable for the
payment of such obligations, (iii) indebtedness, liabilities and
obligations of third parties, including joint ventures and
partnerships of which such Person is a venturer or general
partner, recourse to which may be had against such Person, (iv)
obligations created or arising under any conditional sale or
other title retention agreement with respect to Property acquired
by such Person, notwithstanding the fact that the rights and
remedies of the seller, lender or lessor under such agreement in
the event of default are limited to repossession or sale of such
Property, (v) Capitalized Lease Obligations of such Person, (vi)
indebtedness, liabilities and obligations of such Person under
Guarantees and (vii) all obligations of such Person, contingent
or otherwise, relative to the face amount of all letters of
credit (as may be reduced pursuant to their terms), whether or
not drawn.
Indemnitees shall have the meaning ascribed thereto in
Section 11.4.
Interest Period shall mean with respect to each LIBOR Loan:
(i) initially, the period commencing on the date of such
Loan and ending 1, 2, 3 or 6 months thereafter (or such other
period agreed upon in writing by Borrower and all of the Banks),
as the Borrower may elect in the applicable Notice of Borrowing;
and
(ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Loan and
ending 1, 2, 3 or 6 months thereafter (or such other period
agreed upon in writing by Borrower and all of the Banks), as
Borrower may elect pursuant to Section 5.1;
provided that:
(iii) subject to clause (iv) below, if any Interest
Period would otherwise end on a day which is not a Business Day,
such Interest Period 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
immediately next preceding Business Day; and
(iv) no Interest Period for a LIBOR Loan shall extend
beyond the last day of the Revolving Credit Period.
Investment shall mean any investment by Borrower or any
Subsidiary in any Person, whether payment therefor is made in
cash or capital stock of Borrower or any Subsidiary, and whether
such investment is by acquisition of stock or Indebtedness, or by
loan, advance, transfer of property out of the ordinary course of
business, capital contribution, equity or profit sharing
interest, extension of credit on terms other than those normal in
the ordinary course of business, Guarantee or otherwise becoming
liable (contingently or otherwise) in respect of the Indebtedness
of any Person, or otherwise.
Letter of Credit and Letters of Credit shall have the
meanings ascribed thereto in Section 4.1(a).
Letter of Credit Application shall mean an application and
agreement for standby letter of credit in substantially the form
of Exhibit D attached hereto and incorporated herein by reference
executed by Borrower and any Subsidiary (if the Letter of Credit
is to be for the account of a Subsidiary) and delivered to a Bank
pursuant to Section 4.1(a), as the same may from time to time be
amended modified, extended or renewed.
Letter of Credit Commitment shall have the meaning ascribed
thereto in Section
4.1(a).
Letter of Credit Commitment Fee shall have the meaning
ascribed thereto in Section 4.1(c).
Letter of Credit Loan and Letter of Credit Loans shall have
the meaning ascribed thereto in Section 4.3.
Letter of Credit Period shall mean the period commencing on
the effective date hereof and ending April 30, 2000.
Letter of Credit Request shall have the meaning ascribed
thereto in Section 4.1(a).
LIBOR Base Rate means, for an Interest Period, (a) the LIBOR
Index Rate for such Interest Period, if such rate is available,
or (b) if the LIBOR Index Rate cannot be determined, the
arithmetic average of the rates of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which
deposits in U.S. dollars in immediately available funds are
offered to the Agent at 11:00 a.m. (New Orleans time), or as soon
thereafter as practicable, two (2) Business Days before the
beginning of such Interest Period by two (2) or more major banks
in the London interbank market selected by the Agent for a period
equal to such Interest Period and in an amount equal or
comparable to the principal amount of the LIBOR Loan scheduled to
be made available by the Banks. As used herein, "LIBOR Index
Rate" means, for any Interest Period, the London interbank
offered rate per annum (rounded upwards, if necessary, to the
next higher one hundred-thousandth of a percentage point) for
deposits in U.S. Dollars for a period equal to such Interest
Period, which appears on the Telerate Page 3875 as of 9:00 a.m.
(New Orleans time) on the day two Business Days before the
commencement of such Interest Period.
LIBOR Loan shall mean a loan bearing interest at the LIBOR
Rate.
LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base
Rate divided by (ii) one minus the applicable LIBOR Reserve
Percentage plus (b) the Applicable Margin. The LIBOR Rate shall
be adjusted automatically on and as of the effective date of any
change in the LIBOR Reserve Percentage and Agent shall notify
Borrower and Banks of any such change.
LIBOR Reserve Percentage shall mean for any day the reserve
percentage (including any supplemental percentage applied on a
marginal basis or any other reserve requirement having a similar
effect), expressed as a decimal, which is in effect on the first
day of the applicable Interest Period, as prescribed by the Board
of Governors of the Federal Reserve System (or any successor)
under Regulation D (or any other then applicable regulation of
the Board of Governors (or any successor)) with respect to
"Eurocurrency Liabilities".
Lien shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner
of the Property, whether such interest is based on common law,
statute or contract, including, without limitation, any security
interest, mortgage, deed of trust, pledge, assignment, judgment
lien or other lien or encumbrance of any kind or nature
whatsoever, any conditional sale or trust receipt, and any
consignment or bailment for security purposes. The term "Lien"
shall include reservations, exceptions, encroachments, easements,
servitudes, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting
Property.
Loans shall collectively mean the Revolving Credit Loans,
the Swing Loans, and the Letter of Credit Loans, with each being
a Loan, and shall include all principal, interest, attorneys'
fees and costs owed thereon.
Material Adverse Effect shall mean a material adverse effect
on the Properties, assets, liabilities, business, operations,
prospects, income or condition (financial or otherwise) of
Borrower and its Subsidiaries taken as a whole.
Moody's shall mean Xxxxx'x Investors Service, Inc.
Multi-Employer Plan shall mean a "multi-employer plan" as
defined in Section 4001(a)(3) of ERISA which is maintained for
employees of Borrower, any Subsidiary or any ERISA Affiliate or
to which Borrower, any Subsidiary or any ERISA Affiliate has
contributed in the past or currently contributes.
Notes shall mean all of the Revolving Credit Notes and the
Swing Line Note.
Notice of Borrowing shall have the meaning ascribed thereto
in Section 3.3.
Obligor shall mean Borrower, each Subsidiary and each other
Person who is or shall at any time hereafter become primarily or
secondarily liable on any of Borrower's Obligations.
Occupational Safety and Health Laws shall mean the
Occupational Safety and Health Act of 1970, as amended, and any
other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning employee
health and/or safety, as now or at any time hereafter in effect.
Operating Lease shall mean any lease of Property, whether
real and/or personal, by a Person as lessee which is not a
Capitalized Lease.
Operating Lease Obligations of any Person shall mean, as of
any date for which it is being determined, all of the rental
obligations due and to become due in less than twelve months from
the date of determination thereof under all Operating Leases
under which such Person is a lessee.
PBGC shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
Pension Plan shall mean a "pension plan," as such term is
defined in Section 3(2) of ERISA, which is established or
maintained by Borrower, any Subsidiary or any ERISA Affiliate,
and includes, without limitation, a Multi-Employer Plan.
Permitted Acquisition shall mean an Acquisition:
(a) acquired with the consent of the Required Banks; or
(b) acquired after the date hereof complying with each of
the following requirements: (i) the Purchase Price for such
Acquisition plus the Purchase Price of any other Acquisitions
made after the date of this Agreement will not in the aggregate
exceed $5,000,000.00, (ii) such Acquisition will not cause a
Default or an Event of Default, and (iii) after the Acquisition,
the Total Revolver Outstandings will not exceed $43,000,000.00
and Borrower will still have the ability to obtain a Revolving
Credit Loan in the amount of $2,000,000.00.
Permitted Liens shall mean any of the following:
(a) Liens for property taxes and assessments or
governmental charges or levies, provided that payment thereof is
not at the time required by Section 8.1(d);
(b) (i) Deposits to secure the performance of bids,
tenders, trade contracts or leases (other than Capitalized
Leases) or to secure statutory obligations, surety or appeal
bonds or other Liens of like general nature incurred in the
ordinary course of business and not in connection with the
borrowing of money or the acquisition of inventory or other
Property and (ii) Liens (other than any Liens imposed by ERISA)
arising in the ordinary course of business or incidental to the
ownership of Properties and assets (including Liens in connection
with worker's compensation, unemployment insurance and other like
laws, carrier's, mechanic's, materialmen's, repairmen's,
vendor's, warehousemen's and attorneys' liens and statutory
landlords' liens); provided in each case (x) the obligation
secured is not overdue or, if overdue, is being contested in good
faith by appropriate actions or proceedings being diligently
conducted and for which adequate provision as determined in
accordance with GAAP has been made, (y) payment thereof is not at
the time required by Section 8.1(d) or 8.1(e), and (z) if the
obligations secured thereby are in excess of $50,000.00, Agent is
provided written notice of such Lien within twenty days after the
date on which the Lien becomes overdue;
(c) Survey exceptions, issues with regard to the
merchantability of title, easements or reservations, or rights of
others for rights-of-way, servitudes, utilities and other similar
purposes, or zoning or other restrictions as to the use of real
properties, which could not reasonably be expected to have a
Material Adverse Effect;
(d) Liens permitted by the Required Banks in writing;
(e) Liens on Properties in respect of judgments or
awards, the Indebtedness with respect to which is permitted by
Section 8.2(a)(vi);
(f) leases of or purchase money security interests
against specific equipment with a book value not greater than
$1,000,000.00 in the aggregate at any one time outstanding;
(g) Liens not otherwise permitted hereby against any
Subsidiary acquired by Borrower or any Subsidiary after the date
of this Agreement not in existence for more than 90 days after
the date of such Acquisition so long as the Indebtedness secured
thereby is paid in full within ten (10) business days after the
acquisition of such Subsidiary;
(h) Liens outstanding on the date hereof listed on
Schedule 2 attached hereto; provided that Borrower shall use its
best efforts to have the collateral chattel mortgage and the
chattel mortgages listed on Schedule 2 attached hereto cancelled;
and
(i) Any Lien granted by any Subsidiary securing
Indebtedness incurred in connection with the acquisition of such
Subsidiary so long as such Lien is expressly subordinate pursuant
to a subordination agreement acceptable to Agent to the security
interest in favor of Agent for the benefit of the Banks granted
by such Subsidiary pursuant to a Security Agreement.
Person shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, entity or government
(whether national, federal, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
Prime Rate shall mean the "PRIME RATE" of interest as
published daily in the Money Rates Section of the Wall Street
Journal as defined as "the base rate on corporate loans posted by
at least 75% of the nations 30 largest banks" (which rate shall
fluctuate as and when said prime rate shall change); provided
that, if such "PRIME RATE" becomes unavailable, Prime Rate shall
mean the interest rate announced from time to time by Citibank,
N.A. at its main office in New York as its "prime rate" on
commercial loans (which rate shall fluctuate as and when said
prime rate shall change).
Property shall mean any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or
intangible. Properties shall mean the plural of Property. For
purposes of this Agreement, Borrower and each Subsidiary shall be
deemed to be the owner of any Property which it has acquired or
holds subject to a conditional sale agreement, financing lease or
other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security
purposes.
Pro Rata Share shall mean with respect to each Bank, the
percentage amount equal to the sum of such Bank's Revolving
Credit Commitment, divided by the sum of all of the Banks'
Revolving Credit Commitments.
Purchase Price shall mean any cash provided by Borrower or
any Subsidiary plus any Indebtedness assumed by Borrower or any
Subsidiary in consideration for an Acquisition.
RCRA shall mean the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act of 1976 and Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. ''6901 et seq., and
any future amendments, and shall include any and all regulations
issued pursuant thereto.
Regulation D shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as amended.
Regulatory Change shall have the meaning ascribed thereto in
Section 5.9.
Release shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing into the environment, including, without
limitation, the abandonment or discarding of barrels, drums,
containers, tanks and/or other receptacles containing or
previously containing any Hazardous Substance.
Reportable Event shall have the meaning given to such term
in ERISA.
Required Banks shall mean at any time Banks having Sixty-Six
and Two-Thirds Percent (66 2/3 %) of the aggregate amount of
Loans and the face amount of Letters of Credit then outstanding
or, if no Loans or Letters of Credit are then outstanding, Sixty-
Six and Two-Thirds Percent (66 2/3 %) of the total Commitments of
all of the Banks.
Responsible Officer shall mean the chief executive officer,
president, chief operating officer, chief financial officer or
chief accounting officer of Borrower or any other officer of
Borrower involved in the financial administration or
controllership function of Borrower.
Restricted Investment shall mean any Investment, or any
expenditure or any incurrence of any liability to make any
expenditure for an Investment, other than:
(a) Guarantees, loans and/or advances by Borrower or a
Subsidiary to any Subsidiary;
(b) Guarantees, loans and/or advances by any Subsidiary
to Borrower which are subordinated in writing to the payment of
the Borrower's Obligations in form and substance satisfactory to
Agent;
(c) Direct obligations of the United States of America or
any instrumentality or agency thereof, the payment of which is
unconditionally guaranteed by the United States of America or any
instrumentality or agency thereof (all of which Investments must
mature within twelve (12) months from the time of acquisition
thereof);
(d) Investments in readily marketable commercial paper
which, at the time of acquisition thereof by Borrower or any
Subsidiary, is rated investment grade or better by S&P or Moody's
and which matures within 270 days from the date of acquisition
thereof, provided that the issuer of such commercial paper shall,
at the time of acquisition of such commercial paper, have a
senior long-term debt rating of at least A by S&P and Moody's;
(e) Negotiable certificates of deposit or negotiable
bankers acceptances issued by (i) any of the Banks or (ii) any
other bank or trust company organized under the laws of the
United States of America or any state thereof, which bank or
trust company (other than the Banks to which such restrictions
shall not apply) is a member of both the Federal Deposit
Insurance Corporation and the Federal Reserve System and is rated
B or better by Xxxxxxxx Bank Watch Service (all of which
Investments must mature within twelve (12) months from the time
of acquisition thereof);
(f) Repurchase agreements, which shall be collateralized
for at least 100% of face value, issued by (i) any of the Banks
or (ii) any other bank or trust company organized under the laws
of the United States or any state thereof, which bank or trust
company (other than the Banks to which such restrictions shall
not apply) is a member of both the Federal Deposit Insurance
Corporation and the Federal Reserve System and is rated B or
better by Xxxxxxxx Bank Watch Service (all of which Investments
must mature within twelve (12) months from the time of
acquisition thereof);
(g) Investments in mutual funds the Investments of which
are limited to the Investments described in subparagraphs (c),
(d), (e) and (f) of this definition of Restricted Investments;
(h) Guarantees, loans or advances other than in the
ordinary course of business to officers or employees of Borrower
or a Subsidiary in the aggregate principal amount of up to
$200,000.00 at any one time outstanding;
(i) Permitted Acquisitions;
(j) The Subsidiaries of Borrower as of the effective date
hereof and Subsidiaries of Borrower formed after the date hereof
pursuant to Section 7.8 hereof so long as such Subsidiaries have
each executed a Continuing Guarantee and a Security Agreement in
favor of Agent for the benefit of the Banks; and
(k) Shares of capital stock of Borrower acquired in
connection with the administration of the 1995 Stock Incentive
Plan of Borrower as in existence on the date of this Agreement.
Revolving Credit Commitment shall mean for each Bank,
subject to termination or reduction as set forth in Section 3.5,
the principal amount set forth as the Revolving Credit Commitment
for such Bank next to its name on the signature pages hereof,
which commitments in the aggregate equal the principal amount of
$45,000,000.00.
Revolving Credit Loan and Revolving Credit Loans shall have
the meanings ascribed thereto in Section 3.1.
Revolving Credit Notes shall have the meaning ascribed
thereto in Section 3.4(a).
Revolving Credit Period shall mean the period commencing on
the effective date of this Agreement and ending April 30, 2000.
S&P shall mean Standard and Poor's Ratings Group.
Security Agreements shall collectively mean the Security
Agreement executed now or at any time hereafter by Borrower in
the form of Exhibit H(1) attached hereto and incorporated herein
by reference and the Security Agreement executed now or at any
time hereafter by each Subsidiary in the form of Exhibit H(2)
attached hereto and incorporated herein by reference and
delivered to Agent, with each being a Security Agreement.
Stock Pledge Agreement shall have the meaning ascribed
thereto in Section 5.15.
Subsidiary shall mean (a) any corporation of which more than
fifty percent (50%) of the issued and outstanding capital stock
entitled to vote for the election of directors (other than by
reason of default in the payment of dividends) is at the time
owned directly or indirectly by Borrower and/or any one or more
Subsidiaries, or (b) any partnership, limited liability company,
business trust, or any other similar entity of which more than
fifty percent (50%) of the voting interests is at the time owned
directly or indirectly by Borrower and/or any one or more
Subsidiaries, and specifically including, but not limited to,
each of the entities described on Schedule 7.8 hereto.
Subordinated Indebtedness shall mean all Indebtedness of
Borrower which is subordinated in writing (either by its terms or
pursuant to a subordination agreement) to the payment and
priority of all of the Borrower's Obligations in form and
substance satisfactory to the Agent.
Swing Loans and Swing Loan shall have the meanings ascribed
thereto in Section 3.2.
Swing Line Note shall have the meaning ascribed thereto in
Section 3.2.
Swing Line Commitment shall mean the aggregate principal
amount of $1,000,000.00 at any one time outstanding.
Telerate Page 3875 means the display designated as "Page
3875" of the Dow Xxxxx Telerate Service (or such other page as
may replace Page 3875 on that service or such other service as
may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar Deposits).
Term shall have the meaning ascribed thereto in Section 1.
Total Revolver Outstandings shall mean the sum of (i) the
aggregate principal amount of all outstanding Revolving Credit
Loans, plus (ii) the aggregate principal amount of all
outstanding Swing Loans plus (iii) the aggregate principal amount
of all outstanding Letter of Credit Loans plus (iv) the aggregate
undrawn face amount of all outstanding Letters of Credit.
Transaction Documents shall mean this Agreement, the Notes,
the Letter of Credit Application(s), the Continuing Guarantees,
the Stock Pledge Agreement, the Security Agreements, and all
other agreements, documents and instruments heretofore, now or
hereafter delivered to the Agent or any of the Banks with respect
to or in connection with or pursuant to this Agreement, any Loans
made hereunder or thereunder, any Letters of Credit issued
hereunder or thereunder, or any other of Borrower's Obligations,
and executed by or on behalf of Borrower or any Subsidiary, all
as the same may from time to time be amended, modified, extended
or renewed.
Whitney shall mean Whitney National Bank, a national banking
association, in its individual corporate capacity as a Bank
hereunder, including, without limitation, its capacity as a Bank
hereunder with respect to its Pro-Rata Share of the Revolving
Credit Loans, with respect to its making of Swing Loans and with
respect to its issuance of Letters of Credit.
2.2 Accounting Terms and Determinations. Except as
otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder
shall be made and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent
(except for changes accompanied by a concurrence from Borrower's
independent certified public accountants) with the most recent
audited financial statements of Borrower delivered to the Banks.
SECTION 3. THE REVOLVING CREDIT LOANS.
3.1 Revolving Credit Commitments. Subject to the terms and
conditions set forth in this Agreement and so long as no Default
or Event of Default under this Agreement has occurred and is
continuing, during the Revolving Credit Period, each Bank
severally agrees to lend to Borrower from time to time
(individually, a "Revolving Credit Loan" and collectively, the
"Revolving Credit Loans") amounts not to exceed, in the aggregate
at any one time outstanding, the lesser of: (a) such Bank's
Revolving Credit Commitment, or (b) such Bank's Pro Rata Share of
the sum of the total Revolving Credit Commitments of all of the
Banks minus the aggregate principal amount of all outstanding
Letter of Credit Loans minus the aggregate undrawn face amount of
all outstanding Letters of Credit minus the principal amount of
any outstanding Swing Loans. Each Revolving Credit Loan under
this Section 3.1 shall be made from the several Banks ratably in
proportion to their respective Pro Rata Shares, and may be made
as either (x) a Base Rate Loan, (y) a LIBOR Loan, or (z) any
combination thereof, as determined by Borrower with notice
thereof to Agent pursuant to Section 3.3. Each Revolving Credit
Loan under this Section 3.1 which is a Base Rate Loan shall be
for an aggregate principal amount of at least $500,000.00 or any
larger multiple of $100,000.00. Each Revolving Credit Loan under
this Section 3.1 which is a LIBOR Loan shall be for an aggregate
principal amount of at least $1,000,000.00 or any larger multiple
of $100,000.00. Within the foregoing limits, Borrower may borrow
under this Section 3.1, prepay under Section 5.4(a) or 5.4(b) and
reborrow at any time during the Revolving Credit Period under
this Section 3.1. The failure of any Bank to make any Revolving
Credit Loan required under this Agreement shall not release any
other Bank from its obligation to make Revolving Credit Loans as
provided herein.
3.2 The Swing Line. Subject to all of the terms and
conditions hereof and so long as no Default or Event of Default
under this Agreement has occurred and is continuing, Whitney
agrees to make loans to Borrower (individually, a "Swing Loan"
and collectively, the "Swing Loans") which shall not in the
aggregate at any time outstanding exceed the lesser of (i) the
Swing Line Commitment, or (ii) the sum of the total Revolving
Credit Commitments of all of the Banks minus the aggregate
principal amount of all outstanding Revolving Credit Loans minus
the aggregate principal amount of all outstanding Letter of
Credit Loans minus the aggregate undrawn face amount of all
outstanding Letters of Credit. The Swing Loans shall be
available to Borrower and may be availed of by Borrower from time
to time, and borrowings thereunder may be repaid and used again
during the period ending on the last day of the Revolving Credit
Period. All Swing Loans shall be made hereunder only as Base
Rate Loans. The Swing Loans shall be evidenced by the Swing Line
Note of Borrower dated as of the effective date hereof (the
"Swing Line Note") payable to the order of Whitney in the amount
of the Swing Line Commitment and being in the form attached
hereto as Exhibit B.
3.3 Method of Borrowing.
(a) With respect to each Revolving Credit Loan, Borrower
shall give notice (a "Notice of Borrowing") to the Agent by 11:00
a.m. (New Orleans time) on the day of each Base Rate Loan, and by
11:00 a.m. (New Orleans Time) at least two (2) Business Days
before each LIBOR Loan, specifying:
(i) the date of such Revolving Credit Loan, which shall
be a Business Day,
(ii) the aggregate principal amount of such Revolving
Credit Loan,
(iii) whether such Loan is to be a Base Rate Loan or a
LIBOR Loan, or a combination thereof,
(iv) in the case of a LIBOR Loan, the duration of the
initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period,
(v) that on the date of, and after giving effect to, such
Revolving Credit Loan, no Default or Event of Default under this
Agreement has occurred and is continuing, and
(vi) that on the date of, and after giving effect to,
such Revolving Credit Loan, all of the representations and
warranties of Borrower contained in Section 7 of this Agreement
and in the other Transaction Documents are true and correct in
all material respects as if made on and as of the date of such
Revolving Credit Loan.
A Notice of Borrowing shall not be required in connection with a
Base Rate Loan pursuant to Section 5.7 or 5.8.
(b) Upon receipt of a Notice of Borrowing given to it,
the Agent shall notify each Bank by 1:00 p.m. (New Orleans time)
on the date of receipt of such Notice of Borrowing by the Agent
(which must be a Business Day) of the contents thereof and of
such Bank's ratable share of such Revolving Credit Loan. A
Notice of Borrowing shall not be revocable by Borrower.
(c) Not later than 3:00 p.m. (New Orleans time) on the
date of each Revolving Credit Loan, each Bank shall make
available its Pro Rata Share of such Revolving Credit Loan, in
federal or other funds immediately available in New Orleans,
Louisiana, to the Agent at its address specified in or pursuant
to Section 11.7. Agent shall not be required to make any amount
available to Borrower hereunder except to the extent it shall
have received such amounts from the Banks as set forth herein,
provided, however, that unless the Agent shall have been notified
by a Bank prior to the date a Revolving Credit Loan is to be made
hereunder that such Bank does not intend to make its Pro Rata
Share of such Revolving Credit Loan available to the Agent, the
Agent may assume that such Bank has made such Pro Rata Share
available to the Agent on such date, and the Agent may in
reliance upon such assumption make available to the Borrower a
corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Bank and the Agent has
made such amount available to the Borrower, the Agent shall be
entitled to receive such amount from such Bank forthwith upon its
demand, together with interest thereon in respect of each day
during the period commencing on the date such amount was made
available to the Borrower and ending on but excluding the date
the Agent recovers such amount from the Bank at a rate per annum
equal to the Fed Funds Rate. Unless the Agent determines that
any applicable condition specified in Section 6 has not been
satisfied, the Agent will make the funds so received from the
Banks available to Borrower thereafter as of 3:30 p.m. New
Orleans time at the Agent's aforesaid address by crediting such
funds to a demand deposit account (or such other account mutually
agreed upon in writing between Agent and Borrower) of Borrower
with the Agent.
(d) With respect to each Swing Loan, Borrower shall give
Whitney prior notice (which may be written or oral but which must
be given prior to 2:00 p.m. New Orleans time on the date of the
Swing Loan) of the amount and date of each Swing Loan and,
subject to all of the terms and conditions hereof, the proceeds
of such Swing Loan shall be made available to Borrower on the
date of request at the offices of the Agent in New Orleans,
Louisiana. Anything
contained in the foregoing to the contrary notwithstanding, (i)
the obligation of Whitney to make Swing Loans shall be subject to
all of the terms and conditions of this Agreement, and (ii)
Whitney shall not be obligated to make more than one Swing Loan
to Borrower during any day.
3.4 Revolving Credit Notes.
(a) The Revolving Credit Loans of each Bank to Borrower
during the Revolving Credit Period shall be evidenced by a
Revolving Credit Note of Borrower dated the effective date hereof
and payable to the order of such Bank in a principal amount equal
to its Revolving Credit Commitment in substantially the form of
Exhibit A attached hereto (with appropriate insertions) (as the
same may from time to time be amended, modified extended or
renewed, the "Revolving Credit Notes").
(b) Upon receipt of each Bank's Revolving Credit Note
pursuant to Section 3.4(a), the Agent shall mail such Revolving
Credit Note by overnight express delivery to such Bank. Each
Bank shall record, and prior to any transfer of its Revolving
Credit Note may endorse on the schedules forming a part thereof,
appropriate notations to evidence the date and amount of each
Revolving Credit Loan made by it during the Revolving Credit
Period and the date and amount of each payment of principal made
by Borrower with respect thereto. Each Bank is hereby
irrevocably authorized by Borrower so to endorse its Revolving
Credit Note and to attach to and make a part of any such
Revolving Credit Note a continuation of any such schedule as and
when required; provided, however that the obligation of Borrower
to repay each Revolving Credit Loan actually made hereunder shall
be absolute and unconditional, notwithstanding any failure of any
Bank to endorse or any mistake by any Bank in connection with
endorsement on the schedules attached to its respective Revolving
Credit Note. The internal records of each Bank shall constitute
for all purposes prima facie evidence of (i) the amount of
principal and interest owing on the Revolving Credit Loans from
time to time, (ii) the amount of each Revolving Credit Loan made
to the Borrower and (iii) the amount of each principal and/or
interest payment received by the Banks on the Revolving Credit
Loans.
3.5 Termination or Reduction of Commitments. Borrower may,
upon three (3) Business Days' prior written notice to the Agent,
terminate entirely at any time, or proportionately reduce from
time to time on a pro rata basis among the Banks based on their
respective Revolving Credit Commitments by an aggregate amount of
$1,000,000.00 or any larger multiple of $500,000.00 the unused
portions of the Revolving Credit Commitments; provided, however,
that (i) at no time shall any Revolving Credit Commitment be
reduced to a figure less than the Total Revolver Outstandings,
(ii) at no time shall the Revolving Credit Commitments be reduced
to a figure greater than zero but less than $5,000,000.00 and
(iii) any such termination or reduction shall be permanent and
Borrower shall have no right to thereafter reinstate or increase,
as the case may be, the Revolving Credit Commitment of any Bank.
3.6 Maturity. All Revolving Credit Loans and all Swing
Loans not paid prior to the last day of the Revolving Credit
Period, together with all accrued and unpaid interest thereon and
all fees and other amounts owing by Borrower to the Banks with
respect thereto, shall be due and payable by Borrower on the last
day of the Revolving Credit Period. Each year of the Revolving
Credit Period, during the period commencing on October 1st and
ending on December 1st, Borrower may request that the Revolving
Credit Period be extended for up to one year from the end of the
then applicable Revolving Credit Period. Upon the unanimous
consent of the Banks, which consent may be withheld in the
discretion of any of the Banks, the Revolving Credit Period (and
the Term of this Agreement) shall be so extended, provided that
Borrower and the Subsidiaries shall execute such documentation as
Banks shall require to evidence such extension. The Banks agree
to provide Borrower with a response to any such request for an
extension of the Revolving Credit Period within 60 days following
receipt thereof; provided that, the failure of the Banks, or any
one or more of them, to provide a response within such 60 day
period shall not be construed to constitute consent to such an
extension on the part of any of the Banks.
3.7 Special Swing Loan Provisions.
(a) All Swing Loans shall be payable with accrued
interest thereon solely to Whitney for its own account. Upon the
earlier to occur of (i) fourteen days after the making of any
Swing Loan or (ii) receipt of written notice or demand from
Whitney, Borrower shall repay all of such Swing Loans in cash by
1:00 p.m., New Orleans time the following Business Day, or make a
Revolving Credit Loan in an amount at least equal to the
aggregate outstanding principal amount of all Swing Loans,
together with all accrued interest thereon, and shall apply the
proceeds of such Revolving Credit Loans to repay in its entirety
the aggregate outstanding principal amount of all Swing Loans,
together with accrued interest thereon to the date of such
repayment.
(b) In the event that any portion of any Swing Loan is
not repaid as set forth above, Whitney shall promptly notify
Agent and Agent shall promptly, and in no event later than 5:00
p.m., New Orleans time, two Business Days thereafter, notify each
Bank in writing of the unreimbursed amount of such Swing Loan and
of such Bank's Pro-Rata Share of such unreimbursed amount. Each
of the Banks shall make a Revolving Credit Loan in an amount
equal to such Bank's Pro-Rata Share of the unreimbursed amount of
such Swing Loan, together with accrued unpaid interest thereon
(to the extent that there is availability under the Revolving
Credit Commitments), and pay the proceeds thereof, in immediately
available funds, directly to Whitney, not later than 1:00 p.m.,
New Orleans time, on the next Business Day after the date such
Bank is notified by the Agent. Revolving Credit Loans made by
the Banks to repay unreimbursed Swing Loans pursuant to this
subsection shall constitute Revolving Credit Loans hereunder,
initially shall be Base Rate Loans and shall be subject to all of
the provisions of this Agreement concerning Revolving Credit
Loans, except that such Revolving Credit Loans shall be made upon
demand by the Agent as set forth above rather than upon notice by
Borrower and shall be made, notwithstanding anything in this
Agreement to the contrary, without regard to satisfaction of
conditions precedent to the making of Revolving Credit Loans set
forth in Section 3 hereof or any other Section of this Agreement.
(c) Each Bank's obligation to make Revolving Credit
Loans in the amount of its Pro-Rata Share of any unreimbursed
Swing Loan pursuant hereto is several, and not joint or joint and
several. The failure of any Bank to perform its obligation to
make a Revolving Credit Loan in the amount of such Bank's Pro-
Rata Share of any unreimbursed Swing Loan will not relieve any
other Bank of its obligation hereunder to make a Revolving Credit
Loan in the amount of such other Bank's Pro-Rata Share of such
unreimbursed Swing Loan. Any Bank may but shall have no
obligation to any Person to assume all or any portion of any non-
performing Bank's obligation to make a Revolving Credit Loan in
the amount of such Bank's Pro-Rata Share of such unreimbursed
Swing Loan. The Borrower agrees to accept the Revolving Credit
Loans hereinabove provided, whether or not such Loans could have
been made pursuant to the terms of Section 3 hereof or any other
Section of this Agreement.
(d) In the event, for whatever reason, the Agent
determines that the Banks are not able to, or that it could be
disadvantageous for the Banks to, advance their respective Pro-
Rata Share of Revolving Credit Loans for the purpose of refunding
Swing Loans as required hereunder, then each of the Banks
(subject to the provisions of this Section 3.7) absolutely and
unconditionally agrees to purchase and take from Whitney on
demand an undivided participation interest in Swing Loans
outstanding in an amount equal to their respective Pro-Rata Share
of such Swing Loans.
SECTION 4. LETTERS OF CREDIT.
4.1 Letter of Credit Commitment.
(a) Subject to the terms and conditions of this
Agreement, during the Letter of Credit Period of this Agreement,
and so long as no Default or Event of Default under this
Agreement has occurred and is continuing (provided, however, that
Whitney shall have no liability to any of the other Banks for
issuing a Letter of Credit after the occurrence of any Default or
Event of Default under this Agreement unless Whitney has
previously received notice in writing by Borrower, the Agent or
any of the other Banks of the occurrence of such Default or Event
of Default), Whitney hereby agrees to issue irrevocable standby
letters of credit for the account of Borrower or for the account
of Borrower and any Subsidiary (individually, a "Letter of
Credit" and collectively, the "Letters of Credit") (the "Letter
of Credit Commitment") in an amount and for the term specifically
requested by Borrower by notice in writing to Whitney in the form
of Exhibit E attached hereto and incorporated herein by reference
(a "Letter of Credit Request") at least three (3) Business Days
prior to the requested issuance thereof; provided, however, that:
(i) Borrower, and if the Letter of Credit is to be issued
for the account of Borrower and a Subsidiary, such Subsidiary,
shall have executed and delivered to Whitney a Letter of Credit
Application with respect to such Letter of Credit, with Borrower
and any Subsidiary executing same to be jointly, severally and
solidarily liable thereunder;
(ii) the term of any such Letter of Credit shall not
extend beyond the last day of the Letter of Credit Period;
(iii) any Letter of Credit may only be utilized to
guaranty or support the payment of obligations of Borrower or any
Subsidiary to third parties incurred in the ordinary course of
business;
(iv) the Total Revolver Outstandings shall not at any one
time exceed the sum of the total Revolving Credit Commitments of
all of the Banks;
(v) the sum of (A) the aggregate undrawn face amount of
all outstanding Letter(s) of Credit plus (B) the aggregate
principal amount of all outstanding Letter of Credit Loans
arising out of Letter(s) of Credit shall not at any one time
exceed the sum of Two Million Dollars ($2,000,000.00); and
(vi) the text of any such Letter of Credit is provided to
Whitney no less than three (3) Business Days prior to the
requested issuance date, the terms and conditions of which must
be acceptable to Whitney.
Banks and Borrower acknowledge and agree that the letter(s)
of credit described on Schedule 4.1(a) shall be deemed
outstanding Letters of Credit under this Agreement and shall be
governed by the terms and provisions of this Agreement.
(b) Whitney will make available the original of each Letter
of Credit to the beneficiary thereof (and will promptly provide
each of the Banks and the Agent with a copy of such Letter of
Credit).
(c) For each Letter of Credit, Borrower (and any Subsidiary
that executed the Letter of Credit Application) hereby further
agrees to pay to Agent for the account of the Banks an annual
nonrefundable commitment fee payable quarterly in an amount equal
to the rate per annum equal to the then current Applicable Margin
for LIBOR Loans (calculated on an actual day, 360 day year basis)
times the face amount (taking into account any increases or
decreases therein during the period in question) of each such
Letter of Credit issued hereunder ("Letter of Credit Commitment
Fee"), which Letter of Credit Commitment Fee shall be determined
and shall be due and payable in arrears with respect to each
Letter of Credit on the last Business Day of each calendar
quarter during the term of each respective Letter of Credit and
on the termination thereof (whether at its stated maturity or
earlier). Borrower further agrees to pay (or cause any
Subsidiary for which the Letter of Credit was issued to pay) to
Whitney all reasonable administrative fees of Whitney in
connection with the issuance, maintenance, modification (if any)
and administration of each Letter of Credit and standard
negotiation charges upon demand from time to time. Each of the
Banks shall be entitled to its Pro Rata Share of any Letter of
Credit Commitment Fees, but the other Banks shall have no right
to share in any administrative fees or negotiation charges paid
by Borrower (or any Subsidiary) to Whitney in connection with any
of the Letters of Credit. In addition to the Letter of Credit
Commitment Fee, for each Letter of Credit, Borrower hereby
further agrees to pay (or arrange for any Subsidiary that
executed the Letter of Credit Application to pay) to the Whitney,
solely for the account of the Whitney, an annual nonrefundable
commitment fee in an amount equal to 1/8 of 1% of the undrawn
face amount of each such Letter of Credit issued hereunder, which
such fee shall be determined and shall be due and payable upon
issuance of such Letter of Credit and annually thereafter.
4.2 Participation by Other Banks.
(a) Upon the issuance of a Letter of Credit, each Bank
shall share the obligation represented by each such Letter of
Credit so issued, in an amount equal to such Bank's Pro Rata
Share. The participation of each Bank in each Letter of Credit
shall be automatic. Each other Bank shall make available to the
Whitney, regardless of whether any Default or Event of Default
shall have occurred and is continuing, an amount equal to its
respective Pro Rata Share of each drawing on each Letter of
Credit in same day or immediately available funds not later than
11:00 a.m. New Orleans time on each Disbursement Date (as
hereinafter defined) for each such drawing. In the event that
any Bank fails to make available to Whitney the amount of such
Bank's Pro Rata Share of any drawing on a Letter of Credit as
provided herein, Whitney shall be entitled to recover such amount
on demand from such Bank together with interest at the daily
average Federal Funds Rate for the first two Business Days after
the Disbursement Date and thereafter at the Base Rate.
(b) Whitney shall distribute to each Bank that has paid
all amounts payable by it under this Section 4.2 with respect to
any Letter of Credit issued by Whitney such Bank's Pro Rata Share
of all payments received by Whitney from the Borrower in
reimbursement of drawings honored by Whitney under such Letter of
Credit when such payments are received (to the extent that such
Bank has not already received such amounts).
4.3 Disbursements. Whitney shall notify the Borrower
promptly of the presentment for payment of any Letter of Credit
(on the date of presentment, if possible, and otherwise on the
next Business Day, it being agreed that such notice may be made
by phone), together with notice of the date (the "Disbursement
Date") such payment shall be made, and Whitney will promptly
notify the other Banks of such matters. Subject to the terms and
provisions of such Letter of Credit, Whitney shall make such
payment to the beneficiary (or its designee) of such Letter of
Credit. On the Disbursement Date, Borrower shall,
contemporaneous with a payment on such Letter of Credit,
reimburse (or cause any Subsidiary for which the Letter of Credit
was issued to reimburse) Whitney and the other Banks (to the
extent each Bank has paid its Pro Rata Share of such drawing) for
all amounts which will be or have been disbursed under such
Letter of Credit. In the event a payment under a Letter of
Credit is made without contemporaneous receipt of payment from
Borrower in accordance with this Section 4.3, such payment shall
constitute a loan (individually a "Letter of Credit Loan" and
collectively, the "Letter of Credit Loans") by Whitney and/or the
other Banks (to the extent each Bank has paid its Pro Rata Share
of such drawing) to Borrower. All Letter of Credit Loans shall
accrue interest at the Base Rate and shall be payable on demand.
Whitney shall distribute to each Bank that has paid all amounts
payable by it under Section 4.2 with respect to a Letter of
Credit such Bank's Pro Rata share of all interest and other
amounts received by Whitney from Borrower (or any Subsidiary)
under the Letter of Credit Loan relating to such Letter of Credit
(to the extent that such Bank has not already received such
amounts).
4.4 Reimbursement. Borrower's obligation under Section 4.3
to reimburse Whitney and the other Banks with respect to each
drawing under each Letter of Credit (including interest thereon)
(to the extent each Bank has paid its Pro Rata Share of such
drawing), and each Bank's obligation to fund each drawing shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim, or defense to payment
which Borrower or any Bank may have or have had against any Bank,
the Borrower or any beneficiary of a Letter of Credit, including,
without limitation, any defense based upon the occurrence of any
Default or Event of Default, any draft, demand or certificate or
other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient, or any failure to
apply or misapplication by the beneficiary of the proceeds of any
disbursement, or the legality, validity, form, regularity, or
enforceability of such Letter of Credit.
4.5 Replacement or Collateralization of Letters of Credit.
Notwithstanding any provision contained in this Agreement or any
of the Letter of Credit Applications to the contrary, upon the
occurrence of any Event of Default under this Agreement, at
Agent's option, Borrower shall, upon Agent's demand, deliver to
Agent cash or other collateral acceptable to Agent having a
value, as determined by Agent, at least equal to the aggregate
undrawn face amount of all outstanding Letters of Credit issued
by Whitney. Any such collateral and/or any amounts received by
Agent pursuant to this Section 4.5 shall be held by Agent in a
separate account at Agent appropriately designated as a cash
collateral account in relation to this Agreement and the Letter
of Credit and retained by Agent as collateral security for the
payment of the Borrower's Obligations. Cash amounts delivered to
Agent pursuant to the foregoing requirements of this Section 4.5
shall be invested, at the request and for the account of
Borrower, in investments of a type and nature and with a term
acceptable to Agent. Such amounts, including in the case of cash
amounts invested in the manner set forth above, any investment
realized thereon, shall not be used by Agent to pay any amounts
drawn or paid under or pursuant to any Letter of Credit, but may
be applied to reimburse Whitney for drawings or payments under or
pursuant to the Letters of Credit which Whitney has paid, or if
no such reimbursement is required shall be used by Agent for
application to such other of Borrower's Obligations as Agent
shall determine. Any amounts remaining in any cash collateral
account established pursuant to this Section 4.5 after the
payment in full of all of the Borrower's Obligations and the
expiration or cancellation of all of the Letters of Credit shall
be returned to Borrower (after deduction of Whitney's expenses,
if any).
4.6 Nature of Reimbursement Obligations. Borrower shall
assume all risks of the acts, omissions, or misuse of any Letter
of Credit by the beneficiary thereof. Except to the extent of
its own gross negligence or wilful misconduct, Whitney shall not
be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness,
or legal effect of any Letter of Credit or any document submitted
by any party in connection with the application for and issuance
of a Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate,
fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness,
or legal effect 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;
(c) failure of the beneficiary to comply fully with
conditions required (except the presentment of any required
documents, as set forth in the applicable Letter of Credit, to
the Whitney) in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions, or delays in
transmission or delivery of any information or messages, by mail,
cable, telegraph, telex, or otherwise;
(e) any loss or delay in the transmission or otherwise of
any document or draft required in order to make a disbursement
under a Letter of Credit or of the proceeds thereof;
(f) errors in interpretation of technical terms;
(g) any misapplication by a beneficiary of the proceeds of
any disbursement under any Letter of Credit; or
(h) any consequences arising from causes beyond the control
of the Whitney including, without limitation, acts of any
Governmental Authority.
None of the foregoing shall affect, impair, or prevent the
vesting of any of the rights or powers granted to the Whitney
hereunder.
4.7 Indemnity. In addition to amounts payable as elsewhere
provided in this Section 4, Borrower hereby agrees to protect,
defend, hold harmless and indemnify Whitney and any of Whitney's
correspondents or affiliates and their respective officers,
directors, and agents, from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) which Whitney may
incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of the Letters of Credit, other than as a result
of (y) the gross negligence or wilful misconduct of Whitney or
(z) Whitney's failure to pay under any Letter of Credit after the
presentation to it of a request complying with the terms and
conditions of the Letter of Credit, or (ii) the failure of
Whitney to honor a drawing under any Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Governmental Authority.
SECTION 5. GENERAL PROVISIONS FOR ALL LOANS.
5.1 Duration of Interest Periods and Selection of Interest
Rates.
(a) The commencement date and duration of the initial
Interest Period for each LIBOR Loan shall be as specified in the
applicable Notice of Borrowing. Borrower shall elect the
duration of each subsequent Interest Period applicable to such
LIBOR Loan, and the interest rate to be applicable during such
subsequent Interest Period (and, Borrower shall have the option
(x) in the case of any Base Rate Loan, to elect that such Loan
become a LIBOR Loan and the Interest Period to be applicable
thereto or (y) in the case of any LIBOR Loan, to elect that such
Loan become a Base Rate Loan), by giving notice of such election
to the Agent by 11:00 a.m. (New Orleans time) on the day of, in
the case of the election of the Base Rate, by 11:00 a.m. (New
Orleans time) at least two (2) Business Days before, in the case
of the election of the LIBOR Rate, the end of the immediately
preceding Interest Period applicable thereto, if any; provided,
however, that notwithstanding the foregoing, in addition to and
without limiting the rights and remedies of the Agent and the
Banks under Section 9 hereof, so long as any Default or Event of
Default under this Agreement has occurred and is continuing,
Borrower shall not be permitted to renew any LIBOR Loan as a
LIBOR Loan or to convert any Base Rate Loan into a LIBOR Loan.
By 1:00 p.m. (New Orleans time) on the date of receipt of each
such notice of conversion or continuation of a Loan from
Borrower, Agent shall notify each Bank of the contents thereof
and of such Bank's ratable share of such Loan. A notice by
Borrower under this Section 5.1(a) shall not be revocable by
Borrower. All LIBOR Loans, whether by conversion or by an
advance, shall be in a principal amount of at least $1,000,000.00
or multiples of $100,000.00 in excess thereof. All Loans which
bear interest at a particular LIBOR Rate for a particular
Interest Period shall constitute a single LIBOR Loan. Borrower
shall not have more than ten (10) LIBOR Loans outstanding at any
one time.
(b) If the Agent does not receive a notice of election
for the continuation of a LIBOR Loan for a subsequent Interest
Period pursuant to subsection (a) above within the applicable
time limits specified therein, Borrower shall be deemed to have
elected to convert such LIBOR Loan on the last day of the current
Interest Period with respect thereto to a Base Rate Loan in the
principal amount of such expiring LIBOR Loan on such date.
(c) Notwithstanding the foregoing, the duration of each
Interest Period shall be subject to the provisions of the
definition of Interest Period.
(d) Borrower hereby authorizes the Agent to rely on
telephonic, telegraphic, telecopy, telex or written instructions
believed by the Agent in good faith to have been sent or
delivered by any person identifying himself or herself as Xxxxxxx
X. Xxxx or Xxxxxx X. Xxxxxx (or any other person from time to
time authorized to act on behalf of Borrower pursuant to a
resolution adopted by the Board of Directors of Borrower and
certified by the Secretary of Borrower and delivered to the
Agent) with respect to any request to make a Loan or a repayment
hereunder, or to convert any Base Rate Loan or LIBOR Loan to any
other type of Loan available hereunder, and on any signature
which the Agent in good faith believes to be genuine. Borrower
shall be bound thereby in the same manner as if such person was
actually authorized or such signature was genuine. Borrower also
hereby agrees to indemnify the Agent and each of the Banks and to
hold the Agent and each of the Banks harmless from and against
any and all claims, demands, damages, liabilities, losses, costs
and expenses (including, without limitation, reasonable
attorneys' fees and expenses) relating to or arising out of or in
connection with the acceptance of instructions for making or
converting Loans or making repayments hereunder.
5.2 Interest Rates; Interest Payments.
(a) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal
to the Base Rate. Such interest shall be payable on all such
Loans quarterly in arrears on the last day of each quarter (or
the immediate subsequent Business Day if any such last day is not
a Business Day), commencing on the first day after such Base Rate
Loan is made, and at maturity. Any overdue principal of and, to
the extent permitted by law, overdue interest on, any Base Rate
Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of two percent (2%)
plus the rate otherwise in effect for such day.
(b) Each LIBOR Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period
applicable thereto at a rate per annum equal to the applicable
LIBOR Rate; provided that if any LIBOR Loan or any portion
thereof shall, as a result of clause (iv) of the definition of
Interest Period, have an Interest Period of less than 30 days,
such portion shall bear interest during such Interest Period at
the rate applicable to Base Rate Loans during such period.
Interest shall be payable for each Interest Period on the last
day thereof, unless the duration of the applicable Interest
Period exceeds three (3) months, in which case such interest
shall be payable at the end of the first three (3) months of such
Interest Period and on the last day of such Interest Period. Any
overdue principal of and, to the extent permitted by law, overdue
interest on, any LIBOR Loan shall bear interest, payable on
demand, for each day until paid, at a rate per annum equal to the
sum of two percent (2%) plus the higher of (i) the LIBOR Rate for
the immediately preceding Interest Period applicable to such
LIBOR Loan or (ii) the rate applicable to Base Rate Loans for
such day; provided that, the rate of interest shall not exceed
the maximum rate of interest permitted under La. R.S. 9:3509.
(c) The Agent shall (in accordance with this Agreement)
determine each interest rate applicable to the Loans hereunder.
The Agent shall give prompt notice to Borrower and the Banks by
telecopy, telex or cable of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence
of manifest error. Any change in the Base Rate shall become
effective as of the opening of business on the day on which such
change in the Base Rate shall occur.
5.3 Fees.
(a) Borrower shall pay to Agent for the account of the
Banks, in arrears, on the last day of March, June, September and
December in each year (or, if such day is not a Business Day, on
the next succeeding Business Day) and on the last day of the
Revolving Credit Period, a commitment fee (the "Commitment Fee")
equal to: (i) one fourth (1/4) of the rate per annum set forth in
the column labeled "Commitment Fee" in the definition of
"Applicable Margin" that corresponds to Borrower=s Ratio of
Consolidated Total Debt as of the end of the immediately
preceding fiscal quarter to Consolidated EBITDA for the
immediately preceding four (4) fiscal quarters multiplied by (ii)
the unused Revolving Credit Commitments of all of the Banks
during the preceding fiscal quarter, or portion thereof, which
unused Revolving Credit Commitments shall be arrived at by
dividing the sum of the unused Revolving Credit Commitments of
the Banks for each day of that quarter as of the close of each
day, by 90. Upon, receipt, Agent shall promptly pay each Bank its
Pro Rata Share of any such Commitment Fee paid by Borrower. The
unused Revolving Credit Commitments shall be defined as (x) the
total of the Revolving Credit Commitments of all of the Banks
minus (y) the sum of (1) all outstanding Revolving Credit Loans,
(2) all outstanding Letter of Credit Loans, and (3) the aggregate
undrawn face amount of all outstanding Letters of Credit.
(b) Borrower shall pay to Agent an agreed upon fee.
Borrower shall pay an origination fee to the Banks equal to 1/4
of 1% of the total Revolving Credit Commitments.
5.4 Early Payments.
(a) Borrower may, upon notice to the Agent specifying
that it is paying its Revolving Credit Loans which are Base Rate
Loans, pay without penalty or premium such Base Rate Loans in
whole at any time, or from time to time in part in amounts
aggregating $1,000,000.00, or any larger multiple of $100,000.00;
provided, however, that in no event may Borrower make a partial
payment of Base Rate Loans which results in the total outstanding
Revolving Credit Loans which are Base Rate Loans being greater
than zero but less than $2,000,000.00. Each such optional
payment shall be applied to pay the Base Rate Loans of the
several Banks in proportion to their respective Revolving Credit
Commitments.
(b) Borrower may, upon at least one (1) Business Day's
notice to the Agent specifying that it is paying its Revolving
Credit Loans which are LIBOR Loans, pay without penalty or
premium on the last day of any Interest Period its LIBOR Loans to
which such Interest Period applies, in whole, or in part in
amounts aggregating $1,000,000.00 or any larger multiple of
$100,000.00, by paying the principal amount to be paid together
with all accrued and unpaid interest thereon to and including the
date of payment; provided, however, that (i) in no event may
Borrower pay any Loan with respect to which Borrower has given a
notice of conversion to or continuation of a LIBOR Loan pursuant
to Section 5.1(a) and (ii) in no event may Borrower make a
partial payment of LIBOR Loans which results in the total
outstanding Revolving Credit Loans which are LIBOR Loans with
respect to which a given Interest Period applies being greater
than zero but less than $2,000,000.00. Each such optional
payment shall, subject to Section 5.6, be applied to pay such
LIBOR Loans of the several Banks in proportion to their
respective Revolving Credit Commitments.
(c) Upon receipt of a notice of payment pursuant to any
of Sections 5.4(a) through (b) above, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's
ratable share of such payment and such notice shall not
thereafter be revocable by Borrower.
(d) Borrower may, upon notice to the Whitney specifying
that it is paying its Swing Loan, pay without penalty or premium
such Swing Loan in whole at any time, or in part from time to
time.
5.5 General Provisions as to Payments. Borrower shall make
each payment of principal of, and interest on, the Loans and of
fees and all other amounts payable hereunder, not later than
12:00 noon (New Orleans time) on the date when due (2:00 p.m. New
Orleans Time in the case of payments on the Swing Loans), in
federal or other funds immediately available in New Orleans,
Louisiana, to the Agent at its address referred to in Section
11.7. The Agent will promptly distribute to each Bank in
immediately available funds its ratable share of each such
payment received by the Agent for the account of the Banks,
provided, however, that payments of principal, interest and fees
with respect to the Swing Line Note and the Swing Loans shall be
retained by Whitney for its own account. Whenever any payment of
principal of, or interest on, the Loans or of fees shall be due
on a day which is not a Business Day, the date for payment
thereof shall be extended to the next succeeding Business Day,
except that in the case of LIBOR Loans such payment dates shall
be subject to the definition of Interest Period. If the date for
any payment of principal is extended by operation of law or
otherwise, interest thereon, at the then applicable rate, shall
be payable for such extended time.
5.6 Funding Losses. Notwithstanding any provision
contained herein to the contrary, if Borrower makes any payment
of principal with respect to any LIBOR Loan (pursuant to Sections
3.1, 5.4, 9 or otherwise) on any day other than the last day of
the Interest Period applicable thereto, or if Borrower fails to
borrow or pay any LIBOR Loan after notice has been given to the
Agent in accordance with Section 3.3, 5.1 or 5.4(b), Borrower
shall reimburse each Bank on demand for any resulting losses and
expenses incurred by it, including, without limitation, any
losses incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period
after any such payment, provided that such Bank shall have
delivered to Borrower a certificate as to the amount of such
losses and expenses.
5.7 Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period, the Agent
determines that either adequate and reasonable means do not exist
for ascertaining the LIBOR Rate for any Interest Period, or it
becomes impractical for Agent or any Bank to obtain funds to make
or maintain any borrowing bearing interest at the LIBOR Rate, or
Agent or any Bank shall have determined that the LIBOR Rate will
not adequately and fairly reflect the cost to Agent or any Bank
of making, maintaining, or funding a proposed borrowing that
Borrower has requested to bear interest at the LIBOR Rate, then
the Agent shall forthwith give notice thereof to Borrower and the
Banks, whereupon until the Agent notifies Borrower that the
circumstances giving rise to such suspension no longer exist, (a)
the obligations of the Banks to make LIBOR Loans shall be
suspended, and (b) Borrower shall repay in full the then
outstanding principal amount of each of its LIBOR Loans together
with all accrued and unpaid interest thereon, on the last day of
the then current Interest Period applicable to such Loan, or
convert the then outstanding principal amount of each of its
LIBOR Loans to a Base Rate Loan on the last day of the then
current Interest Period applicable to each such LIBOR Loan.
5.8 Illegality. If, after the effective date of this
Agreement, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental or
regulatory authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Bank with any request or directive (whether or not having
the force of law) of any such governmental or regulatory
authority, central bank or comparable agency shall make it
unlawful or impossible for any Bank to make, maintain or fund its
LIBOR Loans to Borrower and such Bank shall so notify the Agent,
the Agent shall forthwith give written notice thereof to the
other Banks and Borrower. If Agent provides Borrower with such
written notice, Borrower shall repay in full the then outstanding
principal amount of each of its LIBOR Loans from such Bank,
together with all accrued and unpaid interest thereon, on either
(a) the last day of the then current Interest Period applicable
to such LIBOR Loan if such Bank may lawfully continue to maintain
and fund such LIBOR Loan to such day or (b) within fifteen (15)
days of the receipt of such notice if such Bank may not lawfully
continue to fund and maintain such LIBOR Loan to such day,
provided that Borrower shall not be obligated to reimburse any
such Bank for any losses or expenses as provided in Section 5.6.
Concurrently with repaying each LIBOR Loan of such Bank, Borrower
may borrow a Base Rate Loan in an equal principal amount from
such Bank, and, if Borrower so elects, such Bank shall make such
a Base Rate Loan to Borrower.
5.9 Increased Cost.
(a) If after the effective date hereof, the adoption of
any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Bank with any request or directive (whether or not having
the force of law) of any such Governmental Authority, central
bank or comparable agency (a "Regulatory Change"):
(A) shall subject any Bank to any tax, duty or other
charge with respect to its LIBOR Loans, its Revolving Credit
Notes or its obligation to make LIBOR Loans hereunder, or
shall change the basis of taxation of payments to any Bank
of the principal of or interest on its LIBOR Loans or any
other amounts due under this Agreement in respect of its
LIBOR Loans or its obligation to make LIBOR Loans (except
for taxes on or changes in the rate of tax on the overall
net income of such Bank); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System), special
deposit, capital or similar requirement against assets of,
deposits with or for the account of, or credit extended or
committed to be extended by, any Bank or shall, with respect
to any Bank or the Interbank Eurodollar market, impose,
modify or deem applicable any other condition affecting its
LIBOR Loans, its Revolving Credit Notes or its obligation to
make LIBOR Loans;
and the result of any of the foregoing is to increase the cost to
(or in the case of Regulation D, to impose a cost on or increase
the cost to) such Bank of making or maintaining any LIBOR Loan,
or to reduce the amount of any sum received or receivable by such
Bank under this Agreement or under its Notes with respect
thereto, by an amount deemed by such Bank, in its good faith
judgment, to be material, and if such Bank is not otherwise fully
compensated for such increase in cost or reduction in amount
received or receivable by virtue of the inclusion of the
reference to LIBOR Reserve Percentage in the calculation of the
interest rate applicable to LIBOR Loans, then, within fifteen
(15) days after notice by such Bank to Borrower together with a
copy of the official notice of the applicable change in law (if
applicable) and a work sheet showing how the change in cost or
reduction or increase in amount received or receivable was
calculated (with a copy to the Agent and all of the other Banks),
Borrower shall pay for the account of such Bank as additional
interest, such additional amount or amounts as will compensate
such Bank for such increased cost or reduction. Each Bank will
promptly notify Borrower, the Agent and all of the other Banks of
any event of which it has knowledge, occurring after the
effective date hereof, which will entitle such Bank to
compensation pursuant to this Section. In determining such
amount or amounts, such Bank may use any reasonable averaging and
attribution methods.
(b) If any Bank demands compensation under this Section,
Borrower may at any time, upon at least three (3) Business Days'
prior notice to such Bank and the Agent, repay in full its then
outstanding LIBOR Loans, as the case may be, of such Bank,
together with all accrued and unpaid interest thereon to the date
of prepayment and any funding losses and other amounts due under
Section 5.6. Concurrently with repaying such LIBOR Loans of such
Bank, Borrower may borrow from such Bank a Base Rate Loan in an
amount equal to the aggregate principal amount of such LIBOR
Loans, and, if Borrower so elects, such Bank shall make such a
Base Rate Loan to Borrower.
5.10 Base Rate Loans Substituted for Affected LIBOR Loans.
If notice has been given by a Bank pursuant to Section 5.7 or 5.8
or by Borrower pursuant to Section 5.9(b) requiring LIBOR Loans
of any Bank to be repaid, then, unless and until such Bank
notifies Borrower that the circumstances giving rise to such
repayment no longer apply, all Loans which would otherwise be
made by such Bank to Borrower as LIBOR Loans shall be made
instead as Base Rate Loans. Such Bank shall notify Borrower if
and when the circumstances giving rise to such repayment no
longer apply.
5.11 Capital Adequacy. If, after the effective date of this
Agreement, any Bank shall have determined that the adoption of
any applicable law, rule, regulation or treaty regarding capital
adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such
Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority,
central bank or comparable agency, has or will have the effect of
reducing the rate of return on such Bank's capital in respect of
any Letter of Credit or its obligations hereunder to a level
below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy), then from time
to time Borrower shall pay to such Bank within fifteen (15) days
of a written demand such additional amount or amounts as will
compensate such Bank for such reduction. In determining such
amount or amounts, such Bank may use any reasonable averaging and
attribution methods. Each Bank will promptly notify the
Borrower of any event occurring after the effective date hereof
of which it has knowledge which will entitle such Bank to
compensation pursuant to this section 5.11.
5.12 Survival of Provisions. All provisions relating to
reimbursement to any Bank of amounts sufficient to protect the
yield to such Bank with respect to the Loans, including, without
limitation, Sections 5.7, 5.8 and 5.9 hereof, shall survive the
payment of the Notes and the termination of this Agreement.
5.13 Discretion of Bank as to Manner of Funding.
Notwithstanding any provision contained in this Agreement to the
contrary, each of the Banks shall be entitled to fund and
maintain its funding of all or any part of its LIBOR Loans in any
manner it elects, it being understood, however, that for purposes
of this Agreement all determinations hereunder (including,
without limitation, the determination of each Bank's funding
losses and expenses under Section 5.6) shall be made as if such
Bank had actually funded and maintained each LIBOR Loan through
the purchase of deposits having a maturity corresponding to the
maturity of the applicable Interest Period relating to the
applicable LIBOR Loan and bearing an interest rate equal to the
applicable LIBOR Rate.
5.14 Computation of Interest. Interest on Base Rate Loans
hereunder shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the
first day but excluding the last day). Interest on LIBOR Loans
shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed, calculated as to each Interest
Period from and including the first day thereof but excluding the
last day thereof.
5.15 Collateral.
(a) In order to secure the payment when due of Borrower's
Obligations, Borrower and each Subsidiary shall execute a
Security Agreement in favor of Agent for the benefit of the Banks
granting a first priority security interest in, among other
things, all of the accounts, inventory, equipment, and general
intangibles of Borrower and each Subsidiary subject only to
Permitted Liens. Within fifteen (15) days of the creation or
acquisition of any Subsidiary, in each case, in accordance with
the terms of this Agreement, any such new Subsidiary shall
execute a Security Agreement in the form of Exhibit H(2) annexed
hereto in favor of Agent for the benefit of each of the Banks
granting a first priority security interest in, among other
things, all of the accounts, inventory, equipment, and general
intangibles of such Subsidiary subject only to Permitted Liens as
security for Borrower=s Obligations. Borrower covenants and
agrees that Borrower and each Subsidiary will execute any and all
financing statements, continuation statements and such other
documents as may from time to time be requested by Agent or the
Banks in order to create, perfect and maintain the security
interest created by the Security Agreements. Upon demand,
Borrower shall pay to Agent or to any other party designated by
Agent all filing fees incurred by Agent in the perfection of the
security interest contemplated hereby.
(b) In order to further secure the payment when due of
Borrower's Obligations, Borrower has granted to Agent for the
benefit of the Banks a first priority pledge of and security
interest in all of the issued and outstanding common stock of
each Subsidiary. Said pledge and security interest is more fully
described in and evidenced by that Stock Pledge Agreement dated
as of February 17, 1998 executed by Borrower in favor of Agent
for the benefit of the Banks (as the same may from time to time
be further amended, modified, extended or renewed, the "Stock
Pledge Agreement"). Within fifteen (15) days of the creation or
acquisition of any Subsidiary, in each case, in accordance with
the terms of this Agreement, Borrower shall execute an amendment
to the Stock Pledge Agreement, in such form as Agent may
reasonably require, whereby Borrower shall grant Agent for the
benefit of the Banks a first priority pledge of and security
interest in all of the issued and outstanding common stock of
such Subsidiary. Borrower covenants and agrees that it will
execute any and all collateral schedules, stock powers, Reg. U-1
affidavits and such other documents as may from time to time be
requested by Agent or the Banks in order to create, perfect and
maintain the pledge and security interest created by the Stock
Pledge Agreement. Upon demand, Borrower shall pay to Agent or to
any other party designated by Agent all filing fees or transfer
fees incurred by Agent in the perfection and administration of
the pledge and security interest contemplated hereby.
SECTION 6. PRECONDITIONS TO LOANS AND LETTERS OF CREDIT.
6.1 Initial Revolving Credit Loan, Initial Swing Loan or
Letter of Credit. Notwithstanding any provision contained herein
to the contrary, none of the Banks shall have any obligation to
make the initial Revolving Credit Loan hereunder, Whitney shall
have no obligation to make the initial Swing Loan hereunder, and
Whitney shall have no obligation to issue a Letter of Credit
hereunder unless the Agent shall have received on the effective
date hereof:
(a) This Agreement, the Stock Pledge Agreement, the
Security Agreement and the Notes, each executed by a duly
authorized officer of Borrower;
(b) The Continuing Guarantee and the Security Agreement
by each Subsidiary, each executed by a duly authorized officer of
such Subsidiary;
(c) A copy of resolutions of the Board of Directors of
Borrower, duly adopted, which authorize the execution, delivery
and performance of this Agreement, the Notes, the Security
Agreement, the Stock Pledge Agreement, the Letter of Credit
Application(s) and the other Transaction Documents delivered at
or prior to the closing, certified by the Secretary or an
Assistant Secretary of Borrower;
(d) A copy of resolutions of the Board of Directors of
each Subsidiary, duly adopted, which authorize the execution,
delivery and performance of the Continuing Guarantee, the
Security Agreement and the Letter of Credit Application(s)
executed by such Subsidiary, certified by the Secretary or an
Assistant Secretary of such Subsidiary;
(e) An incumbency certificate, executed by the
Secretary or an Assistant Secretary of Borrower, which shall
identify by name and title and bear the signatures of all of the
officers of Borrower executing any of the Transaction Documents
delivered at or prior to the closing;
(f) An incumbency certificate, executed by the
Secretary or an Assistant Secretary of each Subsidiary, which
shall identify by name and title and bear the signatures of the
officer of such Subsidiary executing the Continuing Guarantee and
the Security Agreement of such Subsidiary delivered at or prior
to the closing;
(g) Opinions of counsel for Borrower and the
Subsidiaries satisfactory to Agent relating to the Transaction
Documents and such other matters as the Banks may reasonably
require and satisfactory in form and substance to the Agent;
(h) Payment of Agent's costs and expenses as provided
for in Section 11.3 and payment to Agent of the fees required
under Sections 5.3(a) and (b) herein; and
(i) All documents executed or submitted pursuant hereto
by or on behalf of Borrower of any of its Subsidiaries shall be
satisfactory in form and substance to the Agent and its counsel;
and the Agent and its counsel shall have received all
information, approvals, opinions, documents or other instruments
as the Agent or its counsel may reasonably request.
Any one or more of the conditions set forth above which
have not been satisfied by Borrower on or prior to the effective
date hereof shall not be deemed permanently waived unless Agent
and the Banks shall waive the same in a writing which expressly
states that the waiver is permanent, and, in all cases in which
the waiver is not stated to be permanent, Agent and the Banks may
at any time subsequent thereto insist upon compliance and
satisfaction of any such condition as a condition to any new Loan
advance and/or to the requested conversion of any interest rate
on any outstanding Loan hereunder, and Banks shall have no
obligation to make any such advance or to convert any such
interest rate until all such conditions have been satisfied.
6.2All Loans. Notwithstanding any provision contained
herein to the contrary, none of the Banks shall have any
obligation to make any further Revolving Credit Loan hereunder or
to convert any Loan to a LIBOR Loan or to extend any LIBOR Loan
for a new Interest Period, and Whitney shall have no obligation
to make any further Swing Loan hereunder, unless:
(a) With respect to any new Revolving Credit Loan
advance, the Agent shall have received a Borrowing Notice for
such Revolving Credit Loan as required by Section 3.3;
(b) With respect to any conversion of a Loan to or
continuation of any Loan as a LIBOR Loan, the Agent shall have
received the notice for such conversion or continuation as
required by Section 5.1;
(c) On the date of and immediately after giving effect
to such Revolving Credit Loan, such Swing Loan or such interest
rate conversion or extension, no Default or Event of Default
under this Agreement shall have occurred and be continuing;
(d) No change in the Properties, assets, liabilities,
business, operations, prospects, income or condition (financial
or otherwise) of Borrower and its Subsidiaries taken as a whole
and having a Material Adverse Effect shall have occurred since
the effective date of this Agreement and be continuing; and
(e) Except for subsequent changes consented to by the
Required Banks after the effective date hereof, or as allowed
pursuant to this Agreement, all of the representations and
warranties of Borrower contained in Section 7 of this Agreement
and in the other Transaction Documents shall be true and correct
in all material respects on and as of the date of such Revolving
Credit Loan, such Swing Loan or such interest rate conversion or
continuation as if made on and as of the date of such Revolving
Credit Loan, such Swing Loan or such interest rate conversion or
continuation.
Each request for a Revolving Credit Loan by Borrower
hereunder, each request for a Swing Loan by Borrower hereunder
and each request by Borrower to convert any Loan to or continue
any Loan as a LIBOR Loan shall be deemed to be a representation
and warranty by Borrower on the date of such Revolving Credit
Loan, such Swing Loan or such conversion or continuation, as the
case may be, as to the facts specified in clauses (c), (d) and
(e) of this Section 6.2.
6.3Letters of Credit. Notwithstanding any provision
contained herein to the contrary, Whitney shall have no
obligation to issue any Letter of Credit after the effective date
hereof unless:
(a) Whitney shall have received a Letter of Credit
Request for such Letter of Credit as required by Section 4.1(a);
(b) Whitney shall have received a Letter of Credit
Application for such Letter of Credit as required by Section
4.1(a), duly executed by an authorized officer of Borrower and of
a Subsidiary (if such Letter of Credit is for the account of such
Subsidiary) as account party;
(c) Borrower shall have complied with all of the
procedures and requirements set forth in Section 4.1;
(d) On the date of and immediately after the issuance
of such Letter of Credit, no Default or Event of Default under
this Agreement shall have occurred and be continuing;
(e) No change in the Properties, assets, liabilities,
business, operations, prospects, income or condition (financial
or otherwise) of Borrower and its Subsidiaries taken as a whole
and having a Material Adverse Effect shall have occurred since
the effective date of this Agreement and be continuing;
(f) Except for subsequent changes consented to by the
Required Banks after the effective date hereof, all of the
representations and warranties of Borrower contained in Section 7
of this Agreement and in the other Transaction Documents shall be
true and correct in all material respects on and as of the date
of the issuance of such Letter of Credit as if made on and as of
the date of the issuance of such Letter of Credit; and
(g) Whitney shall have received such other documents,
certificates and agreements as it may reasonably request.
Each request for the issuance of a Letter of Credit by
Borrower hereunder shall be deemed to be a representation and
warranty by Borrower on the date of the issuance of such Letter
of Credit as to the facts specified in clauses (d), (e) and (f)
of this Section 6.3.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to each of the Banks
that:
7.1 Corporate Existence and Power. Borrower and each
Subsidiary: (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization;
(b) has all requisite powers and all governmental and regulatory
licenses, authorizations, consents and approvals required to
carry on its business as now conducted; and (c) is qualified to
transact business as a foreign entity in, and is in good standing
under the laws of, all states in which it is required by
applicable law to maintain such qualification and good standing
except for those states in which the failure to qualify or
maintain good standing could not reasonably be expected to have a
Material Adverse Effect.
7.2 Corporate Authorization. The execution, delivery and
performance by Borrower of this Agreement, the Notes, the
Security Agreement, the Letter of Credit Application(s) and the
other Transaction Documents are within the corporate powers of
Borrower and have been duly authorized by all necessary corporate
action. The execution, delivery and performance by each
Subsidiary of any Continuing Guarantee, Letter of Credit
Application(s), the Security Agreement and other Transaction
Documents executed by such Subsidiary are within the corporate
powers of such Subsidiary and have been duly authorized by all
necessary corporate action.
7.3 Binding Effect. This Agreement, the Security
Agreement, the Notes and the other Transaction Documents executed
contemporaneously with the execution of this Agreement have been
duly executed and delivered by Borrower and constitute the legal,
valid and binding obligations of Borrower enforceable in
accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and the Letter
of Credit Application(s) and any future Transaction Documents not
executed contemporaneously with the execution of this Agreement,
when executed and delivered in accordance with this Agreement,
will constitute the legal, valid and binding obligations of
Borrower enforceable in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
7.4 Financial Statements. Borrower has furnished each of
the Banks with the following financial statements: (1) the
consolidated balance sheets and statements of income, retained
earnings and cash flows of Borrower and its Subsidiaries as of
December 31, 1996, all certified by Borrower's independent
certified public accountants, which financial statements have
been prepared in accordance with GAAP consistently applied; and
(2) unaudited consolidated balance sheets and statements of
income, retained earnings and cash flows of Borrower and its
Subsidiaries as of September 30, 1997, certified by the Chief
Financial Officer of Borrower as being true and correct to the
best of his knowledge and as being prepared in accordance with
GAAP consistently applied. Borrower further represents and
warrants to each of the Banks that: (1) said balance sheets and
their accompanying notes fairly present the condition,
respectively, of Borrower and its Subsidiaries as of the dates
thereof; (2) there has been no material adverse change in the
condition or operation, financial or otherwise, of Borrower or
any of its Subsidiaries since September 30, 1997; and (3) neither
Borrower nor any Subsidiaries had, as of the respective dates of
such financial statements, any material direct or contingent
liabilities which are not disclosed on said financial statements
or the notes thereto (to the extent such disclosure is required
by GAAP).
7.5 Litigation. There is no action, proceeding or claim
pending or, to the knowledge of Borrower, threatened against
Borrower or any Subsidiary before any court, arbitrator or any
governmental, regulatory or administrative body, agency or
official (including, but not limited to, any ERISA plan
administrator) which, if adversely determined against Borrower or
any Subsidiary, could reasonably be expected to have a Material
Adverse Effect or which would need to be disclosed, in accordance
with GAAP, in Borrower's or any Subsidiary=s financial
statements. Neither Borrower nor any Subsidiary is in default
with respect to any order, writ, injunction, decision or decree
of any court, arbitrator or any governmental, regulatory or
administrative body, agency or official, a default under which
could reasonably be expected to have a Material Adverse Effect.
As of the effective date hereof, there are no outstanding
judgments against Borrower or any Subsidiary.
7.6 ERISA. Borrower and each Subsidiary are in compliance
in all material respects with the applicable provisions of ERISA
and the Code (pertaining to any Pension Plan), and have not
engaged in, or permitted to exist or occur, any condition, event
or transaction which could result in the incurrence by Borrower
or any Subsidiary or ERISA Affiliate of any liability, fine or
penalty which would have a Material Adverse Effect.
7.7 Tax Payment. There is no proposed, asserted or
assessed tax deficiency against Borrower or any of its
Subsidiaries which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
7.8 Subsidiaries. There are no Subsidiaries other than as
identified on Schedule 7.8 attached hereto, as the same may from
time to time be amended, modified or supplemented as provided
herein. The capital stock of each Subsidiary is duly authorized,
validly issued and fully paid and nonassessable and is owned
solely by Borrower and/or any one or more Subsidiaries. Except
as disclosed on Schedule 7.8 attached hereto, neither Borrower
nor any of its Subsidiaries, individually or collectively, owns
or holds, directly or indirectly, any capital stock or equity
security of, or any equity interest in, any corporation or
business. Borrower may at any time amend, modify or supplement
Schedule 7.8 by notifying the Agent in writing of any changes
thereto, including any formation, acquisition, merger or
liquidation of Subsidiaries or any change in the capitalization
of any Subsidiary, in each case, in accordance with the terms of
this Agreement and provided that any such new Subsidiary shall,
within fifteen (15) days of the creation or acquisition of such
Subsidiary, execute and deliver to Agent for the benefit of all
the Banks a Continuing Guarantee in form of Exhibit C attached
hereto and a Security Agreement in the form of Exhibit H(2)
attached hereto.
7.9 Compliance With Other Instruments; None Burdensome.
Neither Borrower nor any Subsidiary is a party to any contract or
agreement or subject to any charter or other corporate or other
restriction which could reasonably be expected to have a Material
Adverse Effect and which is not disclosed on Borrower's or any
Subsidiary=s financial statements heretofore submitted to the
Banks; neither the execution and delivery by Borrower and the
Subsidiaries of the Transaction Documents nor the consummation of
the transactions therein contemplated has violated or will
violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on Borrower or any
Subsidiary, or any of the provisions of Borrower's or any
Subsidiary's Certificate of Incorporation or Bylaws or any of the
provisions of any indenture, agreement, document, instrument or
undertaking to which Borrower or any Subsidiary is a party or
subject, or by which it or its Property is bound, or conflict
with or constitute a default thereunder or result in the creation
or imposition of any Lien pursuant to the terms of any such
indenture, agreement, document, instrument or undertaking (other
than in favor of the Agent and/or the Banks pursuant to the
Transaction Documents). No order, consent, approval, license,
authorization or validation of, or filing, recording or
registration with, or exemption by, any Governmental Authority,
or any other Person is required to authorize, or is required in
connection with, the execution, delivery or performance of, or
the legality, validity, binding effect or enforceability of, any
of the Transaction Documents that has not already been obtained.
7.10 Other Debt, Guarantees. Except as disclosed on
Schedule 7.10 attached hereto as of the effective date of this
Agreement, and except for Debt incurred or made on or after the
effective date hereof as permitted under Section 8.2(a) and the
other provisions of this Agreement, neither Borrower nor any
Subsidiary of Borrower is a borrower, guarantor or obligor with
respect to any Debt or Guarantees.
7.11 Labor Matters. Neither Borrower nor any Subsidiary is
a party to any labor dispute which could reasonably be expected
to have a Material Adverse Effect. There are no strikes or
walkouts relating to any labor contract to which Borrower or any
Subsidiary is subject which could reasonably be expected to have
a Material Adverse Effect. Hours worked and payments made to the
employees of Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable
law dealing with such matters which could reasonably be expected
to have a Material Adverse Effect. Except as described on
Schedule 7.11 attached hereto, all payments due from Borrower or
any Subsidiary, or for which any claim may be made against any of
them, in respect of wages, employee health and welfare insurance
and/or other benefits have been paid or accrued as a liability on
their respective books in accordance with GAAP.
7.12 Title to Property. Borrower and each Subsidiary is the
sole and absolute owner of, or has the legal right to use and
occupy, all Property it claims to own or which is necessary for
Borrower or such Subsidiary to conduct its business, free and
clear of all Liens other than the Permitted Liens. Borrower and
its Subsidiaries enjoy peaceful and undisturbed possession in all
material respects under all leases under which they are operating
as lessees.
7.13 Regulation U. Borrower is not engaged principally, or
as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U of The Board of Governors of
the Federal Reserve System, as amended) and no part of the
proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately
(i) to purchase or carry margin stock or to extend credit to
others for the purpose of purchasing or carrying margin stock, or
to refund or repay indebtedness originally incurred for such
purpose or (ii) for any purpose which entails a violation of, or
which is inconsistent with, the provisions of any of the
Regulations of The Board of Governors of the Federal Reserve
System, including, without limitation, Regulations G, U, T or X
thereof, as amended. If requested by any of the Banks, Borrower
shall furnish to the Agent a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in
Regulation U.
7.14 Investment Company Act of 1940: Public Utility Holding
Company Act of 1935. Borrower is not an "investment company" as
that term is defined in, and is not otherwise subject to
regulation under, the Investment Company Act of 1940, as amended.
Borrower is not a "holding company" as that term is defined in,
and is not otherwise subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended.
7.15 Patents, Licenses, Trademarks, Etc. Borrower and each
of its Subsidiaries have all permits, certificates, licenses
(including patent and copyright licenses), approvals and other
authorizations required in connection with the operation of their
businesses, except those which the failure to have could not
reasonably be expected to have a Material Adverse Effect. There
is no pending or, to Borrower's actual knowledge, threatened
litigation, or arbitration in which it is alleged that Borrower
or any Subsidiary has violated or breached any patents, licenses,
trademarks, trademark rights, trade names, trade name rights and
copyrights which could reasonably be expected to have a Material
Adverse Effect.
7.16 Environmental and Safety and Health Matters. Except as
disclosed on Schedule 7.16 attached hereto: (i) the operations of
Borrower and each Subsidiary comply in all material respects with
(A) all applicable lawfully promulgated, enacted, entered or
finalized Environmental Laws and (B) all applicable lawfully
promulgated, enacted, entered or finalized Occupational Safety
and Health Laws, which the failure to comply with could
reasonably be expected to have a Material Adverse Effect; (ii)
none of the operations of Borrower or any Subsidiary are subject
to any Environmental Claim or any judicial, governmental,
regulatory or administrative proceeding alleging the violation of
any Occupational Safety and Health Law, which, if adversely
determined, could reasonably be expected to have a Material
Adverse Effect; (iii) to Borrower's actual knowledge, none of the
operations of Borrower or any Subsidiary is the subject of any
material federal or state investigation evaluating whether any
remedial action is needed to respond to any unsafe or unhealthful
condition at any premises of Borrower or such Subsidiary; (iv)
neither Borrower nor any Subsidiary has filed any notice under
any Environmental Law or Occupational Safety and Health Law
(pertaining to a matter which has not been resolved) reporting
(A) any past or present spillage, disposal or Release into the
environment of, or treatment, storage or disposal of, any
Hazardous Substance or any other hazardous, toxic or dangerous
waste, substance or constituent or other substance which could
reasonably be expected to have a Material Adverse Effect, or (B)
any unsafe or unhealthful condition at any premises of Borrower
or such Subsidiary which could reasonably be expected to have a
Material Adverse Effect; and (v) neither Borrower nor any
Subsidiary has to its actual knowledge any contingent liability
which could reasonably be expected to have a Material Adverse
Effect in connection with (A) any spillage, disposal or Release
into the environment of, or otherwise with respect to, any
Hazardous Substances or any other hazardous, toxic or dangerous
waste, substance or constituent or other substance or (B) any
unsafe or unhealthful environmental condition at any premises of
Borrower or such Subsidiary.
7.17 Investments. Neither Borrower nor any Subsidiary has
any Restricted Investments.
7.18 No Default. No Default or Event of Default under this
Agreement has occurred and is continuing and no event has
occurred which with the giving of notice or the passage of time
would constitute a Default or an Event of Default. There is no
existing default or event of default (and no event has occurred
which with the giving of notice or the passage of time would
constitute a default or an event of default) under or with
respect to any indenture, contract, agreement, lease or other
instrument to which Borrower or any Subsidiary is a party or by
which Borrower, any Subsidiary or any Property of Borrower or any
Subsidiary is bound or affected, a default under which could
reasonably be expected to have a Material Adverse Effect.
Neither Borrower nor any Subsidiary of Borrower is in violation
of any applicable statute, law, rule, regulation or ordinance of
the United States of America, of any state, city, town,
municipality, county or of any other jurisdiction, or of any
agency thereof, a violation of which could reasonably be expected
to have a Material Adverse Effect.
7.19 No Burdensome Restrictions. No agreement or obligation
of Borrower or any of its Subsidiaries in effect on the effective
date hereof and no statute, law, rule, regulation or ordinance of
the United States of America, of any state, city, town,
municipality, county or of any other jurisdiction, or of any
agency thereof, on the effective date hereof materially adversely
affects Borrower or any Subsidiary, or insofar as Borrower may
reasonably foresee may have an Material Adverse Effect.
7.20 Disclosure. Neither this Agreement nor any of the
Exhibits or Schedules hereto nor any certificate or other data
furnished to the Agent or any of the Banks in writing by or on
behalf of Borrower or any Subsidiary in connection with the
transactions contemplated by this Agreement contains any untrue
or incorrect statement of a material fact or omits to state a
material fact necessary to make the statements contained herein
or therein not misleading.
SECTION 8. COVENANTS.
8.1 Affirmative Covenants of Borrower. Borrower covenants
and agrees that, so long as (i) any of the Banks has any
obligation to make any Loan hereunder or to issue any Letter of
Credit hereunder, (ii) any Letter of Credit remains outstanding
or (iii) any of Borrower's Obligations (excluding any continuing
indemnity obligations beyond the Term of this Agreement or any
earlier termination hereof) remain unpaid:
(a) Information. Borrower will deliver to Agent:
(i) as soon as available and in any event within ninety
(90) days after the end of each fiscal year of Borrower,
consolidated balance sheets of Borrower and its Subsidiaries
as of the end of such fiscal year and the related
consolidated statements of income, stockholders equity and
cash flows for such fiscal year, setting forth in each case,
in comparative form, the figures for the previous fiscal
year, all such financial statements to be prepared in
accordance with GAAP and reported on by and accompanied by
the unqualified opinion of independent certified public
accountants of nationally recognized standing selected by
Borrower, together with (1) a certificate from such
accountants to the effect that, in making the examination
necessary for the signing of such annual audit report, such
accountants have not become aware of any Default or Event of
Default that has occurred and is continuing, or, if such
accountants have become aware of any such event, describing
it and the steps, if any, being taken to cure it (such
accountants, however, shall not be liable to anyone by
reason of their failure to obtain knowledge of any Default
or Event of Default which would not be disclosed in the
course of an audit conducted in accordance with generally
accepted auditing standards) and (2) computations
evidencing Borrower's compliance with the financial
covenants contained in Sections 8.1(m)(i) through (iv) of
this Agreement as calculated on a consolidated basis for
Borrower and its Subsidiaries;
(ii) as soon as available and in any event within
forty-five (45) days after the end of each of the first
three (3) fiscal quarters of each fiscal year of Borrower,
consolidated balance sheets of Borrower and its Subsidiaries
as of the end of such fiscal quarter and the related
consolidated statements of income, retained earnings and
cash flows for such fiscal quarter and for the portion of
Borrower's fiscal year ended at the end of such fiscal
quarter, setting forth in each case in comparative form, the
figures for the corresponding fiscal quarter and the
corresponding portion of Borrower's previous fiscal year,
all in reasonable detail;
(iii) promptly upon transmission thereof, copies of all
such financial statements, proxy statements, notices and
reports as Borrower or any Subsidiary shall send to its
stockholders and copies of all registration statements
(without exhibits) and all reports which Borrower or any
Subsidiary files with the Securities and Exchange Commission
(or any governmental body or agency succeeding to the
functions of the Securities and Exchange Commission);
(iv) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii)
above, a certificate of executed by the Chief Financial
Officer on behalf of Borrower in the form attached hereto as
Exhibit F and incorporated herein by reference, accompanied
by supporting financial work sheets where appropriate, (A)
evidencing Borrower's compliance with the financial
covenants contained in Sections 8.l(m)(i) through (iv) of
this Agreement as calculated on a consolidated basis for
Borrower and its Subsidiaries, and (B) stating whether there
exists on the date of such certificate any Default or Event
of Default and, if any Default or Event of Default then
exists, setting forth the details thereof and the action
which Borrower is taking or proposes to take with respect
thereto;
(v) promptly upon receipt thereof, any reports submitted
to Borrower or any Subsidiary (other than reports previously
delivered pursuant to Sections 8.l(a)(i) and (ii) above) by
independent accountants in connection with any annual,
interim or special audit made by them of the books of
Borrower or any Subsidiary;
(vi) as soon as possible and in any event within 45 days
after the end of each fiscal quarter (including fiscal year
end) and simultaneously with delivering the audited
financial statements described in Section 8.1(a)(i), a
certificate of the principal financial officer of Borrower,
accompanied by supporting computations, setting forth the
ratio of Consolidated Total Debt as of the end of the
immediately preceding fiscal quarter to Consolidated EBITDA
for the immediately preceding four (4) fiscal quarters;
(vii) Notice of any Acquisition; and
(viii) with reasonable promptness, such further
information regarding the business, affairs and financial
condition of Borrower or any Subsidiary as Agent may from
time to time reasonably request.
Each of the Banks is hereby authorized to deliver a copy
of any financial statement or other information made available by
Borrower or any Subsidiary to any regulatory authority having
jurisdiction over such Bank, pursuant to any request therefor.
(b) Payment of Indebtedness. Borrower will, and it
will cause each of its Subsidiaries to pay and discharge any and
all Indebtedness payable or Guaranteed by Borrower or such
Subsidiary, as the case may be, and any interest or premium
thereon, when due in accordance with the agreement, document or
instrument relating to such Indebtedness or Guarantee, provided,
however, that neither Borrower nor any Subsidiary shall be
required to pay any such Indebtedness or Guarantee (excluding
Borrower' s Obligations) which is being contested in good faith
and by appropriate proceedings being diligently conducted and for
which provision in accordance with GAAP has been made, except
that Borrower or such Subsidiary, as the case may be, shall pay
or cause to be paid any such Indebtedness or Guarantee forthwith
upon the commencement of proceedings to foreclose any Lien which
is attached as security therefor, unless such foreclosure is
stayed by the filing of an appropriate bond.
(c) Maintenance of Books and Records, Consultations and
Inspections. Borrower will, and it will cause each of its
Subsidiaries to, maintain books and records in accordance with
GAAP and in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and
activities. Borrower will, and it will cause each of its
Subsidiaries to, permit the Agent and each of the Banks (and any
Person appointed by the Agent or any of the Banks to whom the
Borrower does not reasonably object) to discuss the affairs,
finances and accounts of Borrower and each Subsidiary with the
officers of Borrower and each Subsidiary and their independent
public accountants, all at such reasonable times and as often as
the Agent or any of the Banks may from time to time reasonably
request. Subject to any confidentiality and/or security
clearance restrictions applicable to Borrower's or any
Subsidiary's records, Borrower will also permit, and will cause
each Subsidiary to permit, inspection of its Properties, books
and records by the Agent during normal business hours and at
other reasonable times. Agent may be accompanied by
representatives of any of the Banks during any such inspections.
Borrower will reimburse the Agent upon demand for all costs and
expenses incurred by the Agent in connection with any such
inspection conducted by the Agent while any Default or Event of
Default under this Agreement has occurred and is continuing. A
representative of Borrower may be present during any such
inspection, provided that a particular representative's
availability or unavailability shall not inhibit or delay such
inspection. Borrower shall permit the Agent to communicate
directly with Borrower's independent public accountants
and to discuss the affairs, finances and accounts of the Borrower
and the Subsidiaries at such reasonable times and intervals and
to such reasonable extent as the Agent may request. A
representative of Borrower may be present and/or participate in
any such communication with Borrower's accountants, provided that
a particular representative's availability or unavailability
shall not inhibit or delay such communication.
(d) Payment of Taxes. Borrower will, and it will
cause each of its Subsidiaries to, duly file all federal, state
and local income tax returns and all other tax returns and
reports of Borrower or such Subsidiary, as the case may be, which
are required to be filed and duly pay and discharge promptly all
taxes, assessments and other governmental charges imposed upon it
or any of its Property; provided, however, that neither Borrower
nor any Subsidiary shall be required to pay any such tax,
assessment or other governmental charge the payment of which is
being contested in good faith and by appropriate proceedings
being diligently conducted and for which adequate provision as
determined in accordance with GAAP has been made, except that
Borrower or such Subsidiary, as the case may be, shall pay or
cause to be paid all such taxes, assessments and governmental
charges forthwith upon the commencement of proceedings to
foreclose any Lien which is attached as security therefor, unless
such foreclosure is stayed by the filing of an appropriate bond.
(e) Payment of Claims. Borrower will, and it will
cause each of its Subsidiaries to, promptly pay and discharge (i)
all trade accounts payable in accordance with usual and customary
business practices and (ii) all claims for work, labor or
materials which if unpaid might become a Lien upon any of its
Property or assets; provided, however, that neither Borrower nor
any Subsidiary shall be required to pay any such account payable
or claim the payment of which is being contested in good faith
and by appropriate proceedings being diligently conducted and for
which adequate provision as determined in accordance with GAAP
has been made, except that Borrower or such Subsidiary, as the
case may be, shall pay or cause to be paid all such accounts
payable and claims forthwith upon the commencement of proceedings
to foreclose any Lien which is attached as security therefor,
unless such foreclosure is stayed by the filing of an appropriate
bond.
(f) Corporate Existence. Borrower will, and it will
cause each of its Subsidiaries to, do all things necessary to (i)
preserve and keep in full force and effect at all times its
corporate or other existence and all permits, licenses,
franchises and other rights material to its business, and (ii) be
duly qualified to do business in all jurisdictions where the
nature of its business or its ownership of Property requires such
qualification except for those states in which the failure to
qualify could not reasonably be expected to have a Material
Adverse Effect.
(g) Maintenance of Property. Borrower will, and it
will cause each of its Subsidiaries to, at all times, preserve
and maintain all of the Property useful and necessary in the
conduct of its business in adequate working order (taking into
consideration the condition of any such Property in existence on
the effective date hereof), ordinary wear and tear excepted.
(h) Compliance with Laws, Regulations, Etc. Borrower
will, and it will cause each of its Subsidiaries to, comply with
any and all laws, ordinances and governmental and regulatory
rules and regulations to which Borrower or such Subsidiary, as
the case may be, is subject except where noncompliance would not
have a Material Adverse Effect, and maintain any and all
licenses, permits, franchises and other governmental and
regulatory authorizations necessary to the ownership of its
Properties or to the conduct of its business, which violation or
failure to obtain could reasonably be expected to have a Material
Adverse Effect.
(i) Environmental Matters. Borrower will, and it will
cause each of its Subsidiaries to, at all times comply in all
material respects with all requirements and agreements contained
in Section 11.4 hereof. Borrower will, and will cause each of
its Subsidiaries to, at all times comply in all material respects
with all Environmental Laws which the failure to comply with
could reasonably be expected to have a Material Adverse Effect.
Borrower shall give the Agent and each of the Banks prompt
written notice of (i) any Environmental Claim or any other action
or investigation with respect to the existence or potential
existence of any Hazardous Substances instituted or threatened
with respect to Borrower or any Subsidiary or any of the
Properties or facilities owned, leased or operated by Borrower or
any Subsidiary that could reasonably be expected to result in
liability in excess of $250,000.00 and (ii) any condition or
occurrence on any of the Properties or facilities owned, leased
or operated by Borrower or any Subsidiary which constitutes a
material violation by Borrower or any Subsidiary of any lawfully
promulgated, enacted, entered or finalized Environmental Laws or
which gives rise to a reporting obligation or requires pursuant
to an order of a Governmental Authority (the "Order") removal or
remediation by Borrower or any Subsidiary under any lawfully
promulgated, enacted, entered or finalized Environmental Laws.
Such notice shall in either case be accompanied by Borrower's
plan with respect to removal or remediation and Borrower agrees
to take all action which is required by the Order or any lawfully
promulgated, enacted, entered or finalized Environmental Law in
connection with such action, investigation, condition or
occurrence in accordance with such plan with due diligence and to
fulfill the requirements of any Order or lawfully promulgated,
enacted, entered or finalized Environmental Law as promptly as
possible and in all events within the time required by any Order.
Borrower shall promptly provide the Agent and each of the Banks
with copies of all material documentation relating thereto, and
such other material information with respect to environmental
matters as the Agent or any of the Banks may reasonably request
from time to time.
(j) ERISA Compliance. If Borrower, any Subsidiary or
any ERISA Affiliate shall have any Pension Plan, Borrower, such
Subsidiary or such ERISA Affiliate, as the case may be, shall
comply in all respects with all requirements of ERISA and the
Code relating to such Pension Plan, with which the failure to
comply could have a Material Adverse Effect. Without limiting
the generality of the foregoing, unless Borrower shall have
received the prior written consent of the Required Banks to the
contrary (which consent shall not be unreasonably withheld),
Borrower will not, and it will not cause or permit any Subsidiary
or any ERISA Affiliate to:
(i) permit any Pension Plan maintained by Borrower,
any Subsidiary or any ERISA Affiliate to engage in any
nonexempt "prohibited transaction," as such term is defined
in Section 4975 of the Code which could have a Material
Adverse Effect;
(ii) permit any Pension Plan maintained by Borrower,
any Subsidiary or any ERISA Affiliate to incur any
"accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, 29 U.S.C. ' 1082, whether or not
waived, which could have a Material Adverse Effect;
(iii) allow the termination of any Pension Plan in a
manner which could result in the imposition of a Lien on any
Property of Borrower, any Subsidiary or any ERISA Affiliate
pursuant to Section 4068 of ERISA, 29 U.S.C. ' 1368; or
(iv) take any action which would constitute a complete
or partial withdrawal from a Multi-Employer Plan within the
meaning of Sections 4203 or 4205 of Title IV of ERISA, which
could have a Material Adverse Effect.
(k) Notices. Borrower will notify the Agent in
writing of any of the following within three (3) Business Days
after learning of the occurrence thereof, describing the same
and, if applicable, the steps being taken by the Person(s)
affected with respect thereto:
(i) the occurrence of any Default or Event of Default
under this Agreement;
(ii) the institution of any litigation, arbitration
proceeding or governmental or regulatory proceeding
affecting Borrower, any other Obligor or any Subsidiary in
which the prayer or claim for relief seeks recovery of an
amount in excess of $500,000.00 (or, if no dollar amount is
specified in the prayer or claim for relief, in which there
is a reasonable likelihood of recovery of an amount in
excess of $500,000.00) or any form of equitable relief and
which is not considered to be covered by insurance or any
insurance company has reserved its rights or declined
coverage for such claim;
(iii) the occurrence of a Reportable Event with respect
to any Pension Plan; the filing of a notice of intent to
terminate a Pension Plan by Borrower, any ERISA Affiliate or
any Subsidiary; the institution of proceedings to terminate
a Pension Plan by the PBGC or any other Person; the
withdrawal in a "complete withdrawal" or a "partial
withdrawal" as defined in Sections 4203 and 4205,
respectively, of ERISA by Borrower, any ERISA Affiliate or
any Subsidiary from any Multi-Employer Plan; or the
incurrence of any material increase in the contingent
liability of Borrower or any Subsidiary with respect to any
"employee welfare benefit plan" as defined in Section 3(1)
of ERISA which covers retired employees and their
beneficiaries;
(iv) the occurrence of any event that is reasonably
likely to have a Material Adverse Effect: and
(v) any notices required to be provided pursuant to
other provisions of this Agreement that do not otherwise
provide a time frame in which such notice is to be provided
and notice of the occurrence of such other events as the
Agent may from time to time reasonably specify.
(l) Insurance. Borrower will, and it will cause each of
its Subsidiaries to, insure all of its Property of the character
usually insured by corporations engaged in the same or similar
businesses with properties in similar geographic areas, against
loss or damage of the kind customarily insured against by such
corporations, and carry adequate liability insurance and other
insurance of a kind and in amount(s) generally carried by such
corporations. All insurance required by this Section 8.1(1)
shall be with insurers rated A-VII or better by A.M. Best Company
(or accorded a similar rating by another nationally or
internationally recognized insurance rating agency of similar
standing if A.M. Best Company is not then in the business of
rating insurers or rating foreign insurers) or such other
insurers as may from time to time be reasonably acceptable to the
Required Banks. All such insurance may be subject to reasonable
deductible amounts. Borrower shall, upon the request of Agent,
deliver to the Agent a certificate of insurance upon the renewal
of such policies specifying the details of all insurance then in
effect.
(m) Financial Covenants.
(i) Minimum Consolidated Current Ratio. Borrower will
have a Consolidated Current Ratio as of the end of each
fiscal quarter of at least 2.0 to 1.
(ii) Minimum Consolidated Debt Service Coverage.
Borrower will have a Consolidated Debt Service Coverage
Ratio as of the end of each fiscal quarter commencing after
March 31, 1998 of at least 1.50 to 1.
(iii) Maximum Consolidated Funded Debt to Consolidated
EBITDA. As of the end of each fiscal quarter, Borrower will
have a ratio of Consolidated Funded Debt as of such date to
Consolidated EBITDA for the immediately preceding four (4)
fiscal quarters (including the fiscal quarter ending on such
date) of less than or equal to 2.5 to 1.
(iv) Minimum Consolidated Tangible Net Worth. Borrower
will not permit Consolidated Tangible Net Worth at the end
of any fiscal quarter to be less than $29,000,000.00 plus
50% of Consolidated Net Income (without giving any effect to
any losses), excluding any Consolidated Net Income due to
non-cash accounting adjustments, for each fiscal quarter
ending after December 31, 1997 plus 50% of the net cash
proceeds received by Borrower from any sale after the date
hereof of stock of Borrower or any Subsidiary through any
public offering within the meaning of the Securities Act of
1933.
(n) Further Assurances. Borrower and each Subsidiary
will execute and deliver to the Agent, at any time and from time
to time, any and all further agreements, documents and
instruments, and take any and all further actions which may be
required under applicable law, or which the Agent may from time
to time reasonably request, in order to effectuate the
transactions contemplated by this Agreement and the other
Transaction Documents.
(o) Accountant. Borrower shall give each of the Banks
prompt notice of any change of Borrower's independent certified
public accountants and a copy of the Form 8-K relating thereto
filed with the Securities and Exchange Commission. Borrower
shall at all times utilize independent certified public
accountants of nationally recognized standing reasonably
acceptable to the Required Banks.
(p) Subsidiaries. Borrower shall not create any
Subsidiaries without the prior written consent of Agent; provided
that, the provisions of this Section 8.1(p) shall not
require the Agent's consent for the formation of wholly-owned
direct Subsidiaries of Borrower or any Subsidiary. Borrower
covenants and agrees that in the event Borrower or any Subsidiary
shall create or acquire any new Subsidiary or Subsidiaries at any
time after the effective date hereof, that Borrower shall
promptly cause each such Subsidiary to execute a Continuing
Guarantee and a Security Agreement.
(q) Agreements. Neither Borrower nor any Subsidiary
will default under any indenture, contract, agreement, lease or
other instrument to which Borrower or any Subsidiary is a party
or by which Borrower, any Subsidiary or any Property of Borrower
or any Subsidiary is bound or affected, a default under which
could reasonably be expected to have a Material Adverse Effect.
8.2Negative Covenants of Borrower. Borrower covenants
and agrees that, so long as (i) any of the Banks has any
obligation to make any Loan hereunder or to issue any Letter of
Credit hereunder, (ii) any Letter of Credit remains outstanding
or (iii) any of Borrower's Obligations remain unpaid, unless the
prior written consent of the Required Banks is obtained:
(a) Limitation on Indebtedness. Borrower will not, and
it will not cause or permit any of its Subsidiaries to, incur or
be obligated on any Indebtedness, either directly or indirectly,
by way of Guarantee, suretyship or otherwise, other than:
(i) the Borrower's Obligations to the Agent and the
Banks;
(ii) the Swing Loans from Whitney;
(iii) Indebtedness existing as of the effective date
hereof and listed on Schedule 7.10 attached hereto and
Indebtedness relating to the employee benefit plans;
(iv) Indebtedness described in clause (a) or (b) of the
defined term Restricted Investment of this Agreement;
(v) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials
and supplies to the extent that payment therefor shall not at the
time be required to be made in accordance with the provisions of
Section 8.1(d) or Section 8.1(e);
(vi) Indebtedness in respect of judgments or awards
that have been in force for less than the applicable period for
taking an appeal and for which adequate provision as determined
in accordance with GAAP has been made so long as execution is not
levied thereunder and in respect of which Borrower or any
Subsidiary shall at the time in good faith be prosecuting an
appeal or proceedings for review and a suspensive appeal bond in
the full amount of such judgment or award shall have been
obtained by Borrower or such Subsidiary with respect thereto;
(vii) current liabilities of Borrower or any Subsidiary
of Borrower incurred in the ordinary course of business not
incurred through (A) the borrowing of money, or (B) the obtaining
of credit except for credit on an open account basis customarily
extended and in fact extended in connection with normal purchases
of goods and services;
(viii) endorsements for collection, deposits or
negotiation and warranties of products or services, in each case
incurred in the ordinary course of business;
(ix) Indebtedness in respect of performance, surety or
appeal bonds obtained in the ordinary course of Borrower's or any
Subsidiary=s business and in connection with transactions in the
ordinary course of Borrower's or any Subsidiary=s business;
(x) Indebtedness under commodity price swaps, commodity
price caps and commodity price collar and floor agreements, and
similar agreements or arrangements designed to protect against or
manage fluctuations in commodity prices with respect to any steel
commodities bought and consumed in the ordinary course of
business of Borrower and its Subsidiaries in amounts and on terms
consistent with industry standard practices for hedging such
future commodities requirements of Borrower and its Subsidiaries;
(xi) Indebtedness for any permitted declared and unpaid
Distributions on Borrower's stock; and
(xii) Indebtedness not otherwise permitted by this
Section 8.2(a) in an amount not to exceed $1,000,000.00 in the
aggregate at any one time outstanding for Borrower and all
Subsidiaries relating to Liens permitted under subparagraph (f)
of the definition of Permitted Liens.
(b) Consolidation, Merger, Sale of Assets, Dissolution,
Etc. Borrower will not, and will not cause or permit any of its
Subsidiaries to, (i) directly or indirectly, merge into or with
or consolidate with any other Person or permit any other Person
to merge into or with or consolidate with it provided that
Borrower may cause two or more wholly owned Subsidiaries to merge
or consolidate into Borrower, one another, or any other wholly
owned Subsidiary, or (ii) sell, assign, lease, transfer, abandon
or otherwise dispose of any of its Property (including, without
limitation, any shares of capital stock of a Subsidiary owned by
Borrower or another Subsidiary), except for (A) sales of
inventory in the ordinary course of business, (B) sales in the
ordinary course of business of those items excluded from the
definition of Restricted Investments, (C) sales of fixed assets
of Borrower or any Subsidiary having a book value in an aggregate
amount not to exceed ten percent (10%) of the book value of the
total assets of Borrower or such Subsidiary, as applicable, as of
the end of the fiscal quarter immediately preceding any such
sale, so long as such asset sales shall be sold to third party
buyers in arms-length transactions on reasonable terms and so
long as the net proceeds thereof are used solely to purchase
other fixed assets which are either replacements for those assets
sold or are otherwise consistent with the Company Business within
a reasonable time or to pay any principal due on the Loans, or
(D) other sales of fixed assets having a book value not to exceed
$3,500,000.00 in the aggregate in any fiscal year.
(c) Sale and Leaseback Transactions. Borrower will not,
and it will not cause or permit any of its Subsidiaries to, enter
into any arrangement, directly or indirectly, whereby Borrower or
any Subsidiary of Borrower shall in one or more related
transactions sell, transfer or otherwise dispose of any Property
owned by Borrower or any Subsidiary of Borrower and then rent or
lease, as lessee, such Property or any part thereof for a period
or periods which in the aggregate would exceed twelve (12) months
from the date of commencement of the lease term.
(d) Sale or Discount of Accounts. Borrower will not, and
it will not cause or permit any of its Subsidiaries to, sell or
discount any of its receivables (whether represented by a note,
account, general intangible or chattel paper) other than in the
ordinary course of its business.
(e) Transactions with Affiliates. Borrower will not, and
it will not cause or permit any of its Subsidiaries to, enter
into or be a party to any transaction or arrangement with any
Affiliate (including, without limitation, the purchase from, sale
to or exchange of Property with, or the rendering of any service
by or for, any Affiliate), except in the ordinary course of
business and pursuant to the reasonable requirements of
Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to Borrower or such Subsidiary
than would be obtained in a comparable arm's length transaction
with a Person not an Affiliate.
(f) Changes in Nature of Business. Borrower will not,
and it will not cause or permit any of its Subsidiaries to,
engage in any business if, as a result, the general nature of the
business which would then be engaged in by Borrower and its
Subsidiaries, considered as a whole, would be substantially
changed from the Company Business.
(g) Fiscal Year. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, change its fiscal
year; provided that, the fiscal year of any Subsidiary may be
changed to coincide with the fiscal year of Borrower.
(h) Distributions. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, declare or incur any
liability to make any Distribution, except Distributions by any
Subsidiary to Borrower.
(i) Pension Plans. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, (a) permit any
condition to exist in connection with any Pension Plan which
might constitute grounds for the PBGC to institute proceedings to
have such Pension Plan terminated or a trustee appointed to
administer such Pension Plan or (b) engage in, or permit to exist
or occur, any other condition, event or transaction with respect
to any Pension Plan which could result in the incurrence by
Borrower, any Subsidiary or any ERISA Affiliate of any liability,
fine or penalty which could reasonably be expected to have a
Material Adverse Effect.
(j) Restricted Investments. Borrower will not, and it
will not cause or permit any of its Subsidiaries to, directly or
indirectly, make any Restricted Investments.
(k) Ownership of Subsidiaries. Borrower will not cause
or permit any of its Subsidiaries to (i) authorize or issue any
new types, varieties or classes of capital stock or any bonds or
debentures, subordinated or otherwise, or any stock warrants or
options, (ii) authorize or issue any additional shares of any
existing class of capital stock, (iii) declare any stock
dividends or stock splits or (iv) take any other action which
could, directly or indirectly, decrease Borrower's ownership
interest in any of its Subsidiaries.
(l) Capital Expenditures. Borrower and its Subsidiaries
will not incur Capital Expenditures in excess of (i)
$20,000,000.00 in the aggregate for Borrower and its Subsidiaries
taken as a whole for the fiscal year ending December 31, 1997,
(ii) $20,000,000.00 in the aggregate for Borrower and its
Subsidiaries taken as a whole for the fiscal year ending December
31, 1998 or (iii) $15,000,000.00 in the aggregate for Borrower
and its Subsidiaries taken as a whole for the fiscal year ending
December 31, 1999.
(m) Change in Control. Borrower shall not allow any
Change in Control to occur.
(n)Change in Management. Borrower will not terminate or
make any substantial change in the duties of Xxxxxxx X. Xxxx
without the approval of the Required Banks.
(o) Operating Lease Obligations . Borrower and its
Subsidiaries shall not at any one time have Operating Lease
Obligations in excess of $1,500,000.00 in the aggregate for
Borrower and its Subsidiaries taken as a whole.
8.3 Use of Proceeds. Borrower covenants and agrees that
(i) the proceeds of the Revolving Credit Loans and Swing Loans
will be used solely for working capital purposes, Permitted
Acquisitions, any specific purposes permitted under this
Agreement, and other general corporate purposes of Borrower; (ii)
no part of the proceeds of any Loan will be used in violation of
any applicable law or regulation; and (iii) no part of the
proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately
(A) to purchase or carry margin stock or to extend credit to
others for the purpose of purchasing or carrying margin stock, or
to refund or repay indebtedness originally incurred for such
purpose or (B) for any purpose which entails a violation of, or
which is inconsistent with, the provisions of any of the
Regulations of The Board of Governors of the Federal Reserve
System, including, without limitation, Regulations G, U, T or X
thereof, as amended.
SECTION 9. EVENTS OF DEFAULT.
If any of the following (each of the following herein
sometimes called an "Event of Default") shall occur and be
continuing:
9.1 Borrower shall fail to pay any of Borrower's
Obligations other than principal or interest within five (5)
Business Days after the date the same shall first become due and
payable, whether by reason of demand, maturity, acceleration or
otherwise;
9.2 (a) Borrower shall fail to pay any of Borrower's
Obligations for the repayment of interest three (3) Business Days
after the date the same shall become due and payable, whether by
reason of demand, maturity, acceleration or otherwise;
(b)Borrower shall fail to pay any of Borrower's
Obligations for the repayment of principal as and when the same
shall become due and payable, whether by reason of demand,
maturity, acceleration or otherwise;
9.3 Any representation or warranty of Borrower or any
Subsidiary made in this Agreement, in any other Transaction
Document to which Borrower or any Subsidiary is a party or in any
certificate, agreement, instrument or statement furnished or made
or delivered pursuant hereto or thereto or in connection herewith
or therewith, shall prove to have been untrue or incorrect in any
material respect when made or effected;
9.4 Borrower shall fail to perform or observe any term,
covenant or provision contained in Section 8.1(l), Section
8.1(m), Section 8.2 or Section 8.3 and any such failure shall
remain unremedied for ten (10) Business Days after the earlier of
(i) notice of such default is given to Borrower by the Agent or
(ii) a Responsible Officer of Borrower obtaining knowledge of
such default;
9.5 Borrower shall fail to perform or observe any term,
covenant or provision contained in Section 8.1(a) and any such
failure shall remain unremedied for ten (10) Business Days after
the earlier of (i) notice of such default is given to Borrower by
the Agent or (ii) a Responsible Officer of Borrower obtaining
knowledge of such default;
9.6 Borrower shall fail to perform or observe any other
term, covenant or provision contained in this Agreement (other
than those specified in Sections 9.1, 9.2, 9.3, 9.4 or 9.5 above
or elsewhere in this Section 9) and any such failure shall remain
unremedied for thirty (30) days after the earlier of (i) written
notice of default is given to Borrower by the Agent or any of the
Banks or (ii) a Responsible Officer of Borrower obtaining
knowledge of such default;
9.7 This Agreement or any of the other Transaction
Documents shall at any time for any reason cease to be in full
force and effect or shall be declared to be null and void by a
court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by Borrower
or any Subsidiary, or if the transactions completed hereunder or
thereunder shall be contested by Borrower or any Subsidiary or if
Borrower or any Subsidiary shall deny that it has any or further
liability or obligation hereunder or thereunder.
9.8 Borrower, any Subsidiary or any other Obligor shall (i)
voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code or any other
federal, state or foreign bankruptcy, insolvency, receivership,
liquidation or similar law, (ii) consent to the institution of,
or fail to contravene in a timely and appropriate manner, any
such proceeding or the filing of any such petition, (iii) apply
for or consent to the appointment of a receiver, trustee,
custodian, sequestrator or similar official of itself, himself or
herself or of a substantial part of its Property or assets, (iv)
file an answer admitting the material allegations of a petition
filed against itself in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any corporate or other action
for the purpose of effecting any of the foregoing;
9.9 An involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Borrower, any
Subsidiary or any other Obligor, or of a substantial part of the
Property or assets of Borrower, any Subsidiary or any other
Obligor, under Title 11 of the United States Code or any other
federal, state or foreign bankruptcy, insolvency, receivership,
liquidation or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official of Borrower,
any Subsidiary or any other Obligor or of a substantial part of
the Property or assets of Borrower, any Subsidiary or any other
Obligor or (iii) the winding-up or liquidation of Borrower, any
Subsidiary or any other Obligor; and such proceeding or petition
shall continue undismissed for sixty (60) consecutive days or an
order or decree approving or ordering any of the foregoing shall
be entered;
9.10 Any of the Letter of Credit Applications shall be
declared to be null and void by a court of competent
jurisdiction, or if the validity or enforceability of any of the
Letter of Credit Applications shall be contested or denied by
Borrower or any Subsidiary, or if Borrower or any Subsidiary
shall deny that it has any further liability or obligation under
any of the Letter of Credit Applications or if Borrower or any
Subsidiary shall fail to comply with or observe any of the terms,
provisions or conditions contained in any of the Letter of Credit
Applications;
9.11 Borrower, any Subsidiary or any other Obligor shall be
declared by any of the Banks to be in default on, or pursuant to
the terms of, (1) any other present or future obligation to such
Bank(s), including, without limitation, any other loan, line of
credit, revolving credit, guaranty or letter of credit
reimbursement obligation, or (2) any other present or future
agreement purporting to convey to such Bank(s) a Lien upon any
Property or assets of Borrower, such Subsidiary, or such other
Obligor, as the case may be;
9.12 The occurrence of any default or event of default under
or within the meaning of any agreement, document or instrument
evidencing, securing, guaranteeing the payment of or otherwise
relating to any Indebtedness of Borrower or any Subsidiary for
borrowed money (other than the Borrower's Obligations) having an
aggregate outstanding principal balance in excess of One Million
Dollars ($1,000,000.00);
9.13 One or more judgments, decrees, arbitration awards or
rulings shall be entered against the Borrower or any Subsidiary
involving in the aggregate a liability (not paid or fully covered
by insurance) of $1,000,000.00 or more and all such judgments,
decrees, awards, and rulings shall not have been vacated, paid,
discharged, stayed or suspensively appealed within thirty days
from the entry thereof; or
9.14 Any of the following events shall occur with respect to
any Pension Plan (a) the institution by Borrower, any ERISA
Affiliate or any Subsidiary of steps to terminate any Pension
Plan if, as a result of such termination, Borrower, such ERISA
Affiliate or such Subsidiary, as the case may be, could be
required to make a contribution to such Pension Plan, or could
incur a liability or obligation to such Pension Plan or any of
its participants or beneficiaries, in the aggregate in excess of
One Million Dollars ($1,000,000.00), (b) the institution by the
PBGC of steps to terminate any Pension Plan, or (c) a
contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302 (f) of ERISA;
THEN, and in each such event (other than an event described
in Sections 9.1, 9.2, 9.8 or 9.9), the Agent shall, if requested
in writing by the Required Banks, and may, in its sole and
absolute discretion, upon the oral request of the Required Banks,
declare that the obligation of the Banks to make Loans under this
Agreement and to issue Letters of Credit under this Agreement
have terminated, whereupon such obligations of the Banks shall be
immediately and forthwith terminated, and the Agent shall, if
requested in writing by the Required Banks, and may, in its sole
and absolute discretion, upon the oral request of the Required
Banks, declare the entire outstanding principal balance of and
all accrued and unpaid interest on the Notes and all of the other
Loans under this Agreement and all of the other Borrower's
Obligations to be forthwith due and payable, whereupon all of the
unpaid principal balance of and all accrued and unpaid interest
on the Notes and all of the other Loans under this Agreement and
all such other Borrower's Obligations shall become and be
immediately due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly
waived by Borrower, and the Agent and each of the Banks may
exercise any and all other rights and remedies which they may
have under any of the other Transaction Documents or under
applicable law; provided, however, that upon the occurrence of
any event described in Sections 9.1, 9.2, 9.8 or 9.9, the
obligation of the Banks to make Loans under this Agreement and to
issue Letters of Credit under this Agreement shall automatically
terminate and the entire outstanding principal balance of and all
accrued and unpaid interest on the Notes and all of the other
Loans under this Agreement and all of the other Borrower's
Obligations shall automatically become immediately due and
payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by
Borrower, and the Agent and each of the Banks may exercise any
and all other rights and remedies which they may have under any
of the other Transaction Documents or under applicable law.
SECTION 10. AGENT.
10.1 Appointment. Whitney is hereby appointed by the Banks
as Agent under this Agreement, the Notes and the other
Transaction Documents. The Agent agrees to act as such upon the
express conditions contained in this Agreement.
10.2 Powers. The Agent shall have and may exercise such
powers hereunder as are specifically delegated to the Agent by
the terms of this Agreement and the other Transaction Documents,
together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Banks, nor any
obligation to the Banks to take any action under this Agreement
or any of the other Transaction Documents, except any action
specifically provided by this Agreement or any of the other
Transaction Documents to be taken by the Agent. Without
limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Default or Event
of Default, except as expressly provided in Section 9.
10.3 General Immunity. Neither the Agent nor any of its
directors, officers, employees, agents or advisors shall be
liable to any of the Banks for any action taken or not taken by
it (i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or willful
misconduct.
10.4 No Responsibility for Loans, Recitals, Etc. Neither
the Agent nor any of its directors, officers, employees, agents
or advisors shall (i) be responsible for or have any duty to
ascertain, inquire into or verify any recitals, reports,
statements, representations, warranties or representations
contained in this Agreement or any of the other Transaction
Documents or furnished pursuant hereto or thereto; (ii) be
responsible for any Loans or Letters of Credit hereunder (except
in Agent's capacity as a Bank hereunder with respect to its Pro
Rata Share thereof pursuant to the terms of this Agreement),
(iii) be bound to ascertain or inquire as to the performance or
observance of any of the terms of this Agreement or any of the
other Transaction Documents; (iv) be responsible for the
satisfaction of any condition specified in Section 6, except
receipt of items required to be delivered to the Agent; or (v) be
responsible for the validity, effectiveness, genuineness or
enforceability of this Agreement or any of the other Transaction
Documents; or (vi) be responsible for the creation, attachment or
perfection of any security interests or liens purported to be
granted to the Agent or any of the Banks pursuant to this
Agreement or any of the other Transaction Documents. The Agent
shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement or other writing (which
may be a bank wire, telex, telecopy or similar writing) believed
by it to be genuine or to be signed by the proper party or
parties.
10.5 Right to Indemnity. Notwithstanding any other
provision contained in this Agreement to the contrary, to the
extent Borrower fails to reimburse the Agent pursuant to Section
11.3, Section 11.4 or Section 11.5, or if any Default or Event of
Default shall occur under this Agreement, the Banks shall ratably
in accordance with their respective Pro Rata Shares of the
aggregate amount of Loans and Letters of Credit then outstanding,
or if no Loans or Letters of Credit are then outstanding, their
respective Pro Rata Shares of the total Commitments of all of the
Banks, indemnify the Agent and hold it harmless from and against
any and all liabilities, losses (except losses occasioned solely
by failure of Borrower to make any payments or to perform any
obligations required by this Agreement (other than those
described in Sections 11.3, 11.4 and 11.5), the Notes, the Letter
of Credit Applications or any of the other Transaction
Documents), costs and/or expenses, including, without limitation,
any liabilities, losses, costs and/or expenses arising from the
failure of any Bank to perform its obligations hereunder or in
respect of this Agreement and also including, without limitation,
reasonable attorneys' fees and expenses, which the Agent may
incur, directly or indirectly, in connection with this Agreement,
the Notes or any of the other Transaction Documents, or any
action or transaction related hereto or thereto; provided only
that the Agent shall not be entitled to such indemnification for
any losses, liabilities, costs and/or expenses directly and
solely resulting from its own gross negligence or willful
misconduct. This indemnity shall be a continuing indemnity,
contemplates all liabilities, losses, costs and expenses related
to the execution, delivery and performance of this Agreement, the
Notes and the other Transaction Documents, and shall survive the
satisfaction and payment of the Loans, the expiration or other
termination of the Letters of Credit and the termination of this
Agreement.
10.6 Action Upon Instructions of Required Banks. The Agent
agrees, upon the written request of the Required Banks, to take
any action of the type specified in this Agreement or any of the
other Transaction documents as being within the Agent's rights,
duties, powers or discretion. Notwithstanding the foregoing, the
Agent shall be fully justified in failing or refusing to take any
action hereunder, unless it shall first be indemnified to its
satisfaction by the Banks pro rata against any and all
liabilities, losses, costs and expenses (including, without
limitation, attorneys' fees and expenses) which may be incurred
by it by reason of taking or continuing to take any such action,
other than any liability which may arise out of Agent's gross
negligence or willful misconduct. The Agent shall in all cases
be fully protected in acting, or in refraining from acting,
hereunder in accordance with written instructions signed by the
Required Banks, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the
Banks and on all holders of the Notes. In the absence of a
request by the Required Banks, the Agent shall have authority, in
its sole discretion, to take or not to take any action, unless
this Agreement or any of the other Transaction Documents
specifically requires the consent of the Required Banks or of all
of the Banks.
10.7 Reliance on Documents; Employment of Agents and
Counsel. The Agent shall be entitled to rely upon any note,
notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or
persons. The Agent may execute any of its duties as Agent
hereunder by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Banks for the default or
misconduct of any such agents or attorneys-in-fact selected by it
in good faith and with reasonable care, except as to money or
securities received by it or its authorized agents. The Agent
shall be entitled to advice and opinion of legal counsel
concerning all legal matters and all matters pertaining to the
duties of the Agent.
10.8 May Treat Payee as Owner. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with the Agent pursuant to
Section 11.14. Any request, authority or consent of any person,
firm or corporation who at the time of making such request or
giving such authority or consent is the holder of any such Note
shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note issued in
exchange therefor.
10.9 Agent's Reimbursement. Each Bank agrees to reimburse
the Agent pro rata in accordance with its Pro Rata Share for any
out-of-pocket expenses not reimbursed by Borrower (a) for which
the Agent is entitled to reimbursement by the Borrower under this
Agreement or any of the other Transaction Documents and (b) for
any other out-of-pocket expenses incurred by the Agent on behalf
of the Banks, in connection with the preparation, execution,
delivery, amendment, modification, extension, renewal,
administration and/or enforcement of this Agreement and/or any of
the other Transaction Documents.
10.10 Rights as a Bank. With respect to its commitment, the
Loans made by it and the Notes issued to it, the Agent shall have
the same rights and powers hereunder as any Bank and may exercise
the same as though it were not the Agent, and the terms "Bank"
and "Banks"
shall, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from,
lend money to and generally engage in any kind of banking or
trust business with the Borrower as if it were not the Agent.
10.11 Independent Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or
any other Bank and based on the financial statements referred to
in Section 7.4 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement and the other Transaction Documents.
Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank 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 this Agreement and the other Transaction
Documents.
10.12 Resignation of Agent. Subject to the appointment of a
successor Agent, the Agent may resign as Agent for the Banks
under this Agreement and the other Transaction Documents at any
time by thirty (30) days notice in writing to the Banks. Such
resignation shall take effect upon appointment of such successor
Agent. The Required Banks shall have the right to appoint a
successor Agent (and if no Default or Event of Default then
exists hereunder, such appointment shall be with the consent of
the Borrower, which consent shall not be unreasonably withheld),
and the successor Agent shall be entitled to all of the rights
of, and vested with the same powers as, the original Agent under
this Agreement and the other Transaction Documents. Resignation
by the Agent shall not affect or impair the rights of the Agent
under Sections 10.5 and 10.9 hereof with respect to all matters
preceding such resignation. Any successor Agent must be a Bank
or a national banking association or a bank chartered in any
State of the United States and having at least $200,000,000.00 in
capital and surplus.
10.13 Duration of Agency. The agency established by Section
10.1 hereof shall continue, and Sections 10.1 through and
including this Section 10.13 shall remain in full force and
effect, until all of the Borrowers' Obligations shall have been
paid in full and the Banks' commitments to make Loans, issue
Letters of Credit and/or extend credit to or for the benefit of
the Borrower shall have terminated or expired.
SECTION 11. GENERAL.
11.1 No Waiver. No failure or delay by the Agent or any of
the Banks in exercising any right, remedy, power or privilege
hereunder or under any other Transaction Document shall operate
as a waiver thereof; nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
remedies provided herein and in the other Transaction Documents
are cumulative and not exclusive of any remedies provided by law.
Nothing herein contained shall in any way affect the right of any
of the Banks to exercise any statutory or common law right of
banker's lien or setoff.
11.2 Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default, each of the Banks is hereby
authorized at any time and from time to time, without notice to
Borrower (any such notice being expressly waived by Borrower) and
to the fullest extent permitted by law, to setoff and apply any
and all deposits (general or special, time or demand, provisional
or final) at any time held by such Bank(s) and any and all other
indebtedness at any time owing by such Bank(s) to or for the
credit or account of Borrower against any and all of Borrower's
Obligations irrespective of whether or not such Bank(s) shall
have made any demand hereunder or under any of the other
Transaction Documents and although such obligations may be
contingent or unmatured. Each of the Banks agrees to promptly
notify Borrower after any such setoff and application made by
such Bank(s), provided, however, that the failure to give such
notice shall not affect the validity of such setoff and
application. The rights of the Banks under this Section 11.2 are
in addition to any other rights and remedies (including, without
limitation, other rights of setoff) which the Banks may have.
Nothing contained in this Agreement or any other Transaction
Document shall impair the right of any of the Banks to exercise
any right of setoff or counterclaim it may have against Borrower
and to apply the amount subject to such exercise to the payment
of indebtedness of Borrower unrelated to this Agreement or the
other Transaction Documents.
11.3 Cost and Expenses. Borrower agrees, whether or not any
Loan is made hereunder or any Letter of Credit is issued
hereunder, to pay the Agent upon demand (i) all out-of-pocket
costs and expenses and all reasonable attorneys' fees of the
Agent in connection with the preparation, documentation,
negotiation, execution, amendment, modification, extension and/or
renewal of this Agreement, the Notes, the Letter of Credit
Application(s) and the other Transaction Documents, (ii) all
out-of-pocket costs and expenses and all reasonable attorneys'
fees of the Agent in connection with the preparation of any
waiver or consent hereunder or under any other Transaction
Documents, (iii) if an Event of Default occurs, all out-of-pocket
costs and expenses and all reasonable attorneys' fees incurred by
the Agent and each of the Banks in connection with such Event of
Default and collection and other enforcement proceedings
resulting therefrom, (iv) all out-of-pocket costs and expenses
and all reasonable attorneys' fees incurred by the Agent and each
of the Banks in connection with the enforcement of any rights
and/or remedies of the Agent or any of the Banks to collect any
of the Borrower=s Obligations, and (v) all other reasonable
attorneys' fees and out-of-pocket costs and expenses incurred by
the Agent relating to or arising out of or in connection with
this Agreement or any of the other Transaction Documents.
Borrower further agrees to pay or reimburse the Agent and each of
the Banks for any stamp or other taxes which may be payable with
respect to the execution, delivery, recording and/or filing of
this Agreement, the Notes, the Letter of Credit Application(s) or
any of the other Transaction Documents. All of the obligations
of Borrower under this Section 11.3 shall survive the
satisfaction and payment of Borrower's Obligations and the
termination of this Agreement.
11.4 Environmental Indemnity. Borrower hereby agrees to
indemnify the Agent and each of the Banks and hold the Agent and
each of the Banks and any holder(s) of the Notes, and the
officers, directors, employees, agents and affiliates of the
Agent, each of the Banks and such holder(s) (collectively, the
"Indemnitees") harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses and claims of any
and every kind whatsoever (including, without limitation,
reasonable court costs and attorneys' fees and expenses) which at
any time or from time to time may be paid, incurred or suffered
by the Indemnitees, with respect to or as a direct or indirect
result of the violation by Borrower or any Subsidiary of any
Environmental Laws; or with respect to, or as a direct or
indirect result of the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission or Release from,
properties owned or operated by Borrower and/or any Subsidiary of
any Hazardous Substances or any other hazardous or toxic waste,
substance or constituent or other substance (including, without
limitation, any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under the Environmental
Laws); and the provisions of and undertakings and indemnification
set out in this Section 11.4 shall survive the satisfaction and
payment of Borrower's Obligations and the termination of this
Agreement; provided that Borrower shall have no obligation to an
Indemnitee hereunder with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of that
Indemnitee.
11.5 General Indemnity. In addition to the payment of
expenses pursuant to Section 11.3, whether or not the
transactions contemplated hereby shall be consummated, Borrower
hereby agrees to indemnify, pay and hold Indemnitees harmless
from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees
and disbursements of counsel for such Indemnitees in connection
with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitees shall be
designated a party thereto), that may be imposed on, incurred by
or asserted against the Indemnitees, in any manner relating to or
arising out of this Agreement, any of the other Transaction
Documents or any other agreement, document or instrument executed
and delivered by Borrower or any other Obligor in connection
herewith or therewith, the statements contained in any commitment
letters delivered by the Agent or any of the Banks, the agreement
of any of the Banks to make the Loans hereunder, the agreement of
Banks to issue the Letters of Credit hereunder or the use or
intended use of the proceeds of any Loan hereunder (collectively,
the "Indemnified Liabilities"); provided that Borrower shall have
no obligation to an Indemnitee hereunder with respect to
indemnified liabilities arising from the gross negligence or
willful misconduct of that Indemnitee. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative
of any law or public policy, Borrower shall contribute the
maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnitees or any of them. The
provisions of the undertakings and indemnification set out in
this Section 11.5 shall survive satisfaction and payment of
Borrower's Obligations and the termination of this Agreement. No
provision contained in this Section 11.5 shall affect any rights
the Borrower may have against any Bank which defaults under this
Agreement or is intended to indemnify any such Agent or Bank
which defaults under this Agreement (but only such Agent or Bank
that defaults under this Agreement) for any such Indemnified
Liabilities arising from such defaulting Bank's action.
11.6 Authority to Act. The Agent shall be entitled to act
on any notices and instructions (telephonic or written) believed
by the Agent in good faith to have been sent or delivered by any
person identifying himself or herself as Xxxxxxx X. Xxxx or
Xxxxxx X. Xxxxxx (or any other person from time to time
authorized to act on behalf of Borrower pursuant to a resolution
adopted by the Board of Directors of Borrower and certified by
the Secretary of Borrower and delivered to the Agent), regardless
of whether such notice or instruction was in fact delivered by
such person, and Borrower hereby agrees to indemnify the Agent
and hold the Agent harmless from and against any and all losses
and expenses, if any, ensuing from any such action.
11.7 Notices. Any notice, request, demand, consent,
confirmation or other communication hereunder shall be in writing
and delivered in person or sent by telecopy or registered or
certified mail, return receipt requested and postage prepaid, to
the applicable party at its address or telecopy number set forth
on the signature pages hereof, or at such other address or
telecopy number as any party hereto may designate as its address
for communications hereunder by notice so given. Such notices
shall be deemed effective on the day on which delivered or sent
if delivered in person or sent by telecopy, or on the third (3rd)
Business Day after the day on which mailed, if sent by registered
or certified mail; provided, however, that notices to the Agent
under Section 3 shall not be effective until actually received by
the Agent.
11.8 CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL.
BORROWER IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
ANY LOUISIANA STATE COURT OR ANY UNITED STATES OF AMERICA COURT
SITTING IN THE EASTERN DISTRICT OF LOUISIANA, AS THE AGENT MAY
ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS.
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT TO
SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY OF SUCH COURTS. BORROWER IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH BORROWER MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT, AND BORROWER FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER
BY REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS SET FORTH IN
SECTION 11.7. BORROWER, THE AGENT AND THE BANKS IRREVOCABLY
WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN
WHICH BORROWER AND THE AGENT AND/OR ANY OF THE BANKS ARE PARTIES
RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS.
11.9 Sharing of Payments. The Banks agree among themselves
that except as otherwise expressly set forth herein, in the event
that any of the Banks shall directly or indirectly obtain any
payment (whether voluntary, involuntary, through the exercise of
any right of setoff, banker's lien or counterclaim, through the
realization, collection, sale or liquidation of any collateral or
otherwise) on account of or in respect of any of the Loans or
other Borrower's Obligations in excess of its Pro Rata Share of
all such payments, such Bank(s) shall immediately purchase from
the other Bank(s) participations in the Loans or other Borrower's
Obligations owed to such other Bank(s) in such amounts, and make
such other adjustments from time to time, as shall be equitable
to the end that the Banks share such payment ratably in
accordance with their respective Pro Rata Shares of the
outstanding Loans and other Borrower's Obligations. The Banks
further agree among themselves that if any such excess payment to
a Bank shall be rescinded or must otherwise be restored, the
other Bank(s) which shall have shared the benefit of such payment
shall, by repurchase of participation theretofore sold, or
otherwise, return its share of that benefit to the Bank whose
payment shall have been rescinded or otherwise restored.
Borrower agrees, to the fullest extent it may effectively do so
under applicable law, that any holder of a participation in any
of the Borrower's Obligations, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff,
banker's lien or counterclaim and other rights with respect to
such participation as fully as if such holder of a participation
were a direct creditor of Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or
other similar law any of the Banks receives a secured claim in
lieu of a setoff to which this Section 11.9 would apply, such
Bank(s) shall, to the extent practicable, exercise their rights
in respect of such secured claim in a manner consistent with the
rights of the Bank(s) entitled under this Section 11.9 to share
in the benefits of any recovery of such secured claim.
11.10 Governing Law. This Agreement, the Notes, the Letter
of Credit Application(s) and all of the other Transaction
Documents shall be governed by and construed in accordance with
the internal laws of the State of Louisiana.
11.11 Amendments and Waivers. Any provision of this
Agreement, the Notes, the Letter of Credit Application(s) or any
of the other Transaction Documents may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed
by Borrower and the Required Banks (and, if the rights or duties
of the Agent in its capacity as Agent are affected thereby, by
the Agent); provided that no such amendment or waiver shall,
unless signed by all of the Banks, (i) increase the Commitment of
any Bank, (ii) reduce the principal amount of or rate of interest
on any Loan or any fees hereunder, (iii) postpone the date fixed
for any payment of principal of or interest on any Loan or any
fees hereunder, (iv) change the Pro Rata Share of the Commitments
or of the aggregate principal amount of Loans or Letters of
Credit of any Bank, (v) release any collateral, or (vi) change
the number of Banks which shall be required for the Banks or any
of them to take any action or obligations under this Section or
under any other provision of this Agreement.
11.12 References: Headings for Convenience. Unless
otherwise specified herein, all references herein to Section
numbers refer to Section numbers of this Agreement, all
references herein to Exhibits A, B, C, D, E, F, G, H(1) and H(2)
refer to annexed Exhibits A, B, C, D, E, F, G, H(1) and H(2)
which are hereby incorporated herein by reference and all
references herein to Schedules 2, 4.1(a), 7.8, 7.10, 7.11 and
7.16 refer to annexed Schedules 2, 4.1(a), 7.8, 7.10, 7.11 and
7.16 which are hereby incorporated herein by reference. The
Section headings are furnished for the convenience of the parties
and are not to be considered in the construction or
interpretation of this Agreement.
11.13 Successors and Assigns, Participations.
(a) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns, except that Borrower may not
assign or otherwise transfer any of its rights or delegate any of
its obligations under this Agreement. Any Bank may sell
participations in its Notes and its rights under this Agreement
in whole or in part to any commercial bank organized under the
laws of the United States or any state thereof that is a member
of both the Federal Deposit Insurance Corporation and the Federal
Reserve System without the consent of Borrower or the Agent so
long as each agreement pursuant to which any such participation
is granted provides that no such participant shall have any
rights under this Agreement or any other Transaction Document
(the participants' rights against the Bank granting its
participation to be those set forth in the Participation
Agreement between the participant and such Bank), and such
selling Bank shall retain the sole right to approve or disapprove
any amendment, modification or waiver of any provision of this
Agreement or any of the other Transaction Documents other than
any amendment, modification or waiver (i) reducing the principal
amount of or rate of interest on any Loan or any fees hereunder,
(ii) postponing the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, or (iii) releasing
any substantial portion of any collateral. Each such participant
shall be entitled to the benefits of the yield protection
provisions hereof to the extent such Bank would have been so
entitled had no such participation been sold.
(b) Any Bank which, in accordance with Section 11.13(a),
grants a participation in any of its rights under this Agreement
or its Notes shall give prompt notice thereof to the Agent and
Borrower.
(c) Unless otherwise agreed to by Borrower in writing, no
Bank shall, as between Borrower and that Bank, be relieved of any
of its obligations under this Agreement as a result of such
Bank's granting of a participation in all or any part of such
Bank's Notes or all or any part of such Bank's rights under this
Agreement.
11.14 Assignment Agreements. Each Bank may, from time to
time, with the consent of the Borrower and Agent (which will not
in any instance be unreasonably withheld), sell or assign a pro
rata part of all of the indebtedness evidenced by the Notes then
owed by it together with an equivalent proportion of its
obligation to make Loans hereunder and the credit risk incidental
to the Letters of Credit pursuant to an Assignment Agreement
substantially in the form of Exhibit G attached hereto, executed
by the assignor, the assignee and the Borrower, which agreements
shall specify in each instance the portion of the indebtedness
evidenced by the Notes which is to be assigned to each such
assignee and the portion of the Commitments of the assignor and
the credit risk incidental to the Letters of Credit (which
portions shall be equivalent) to be assumed by it (the
"Assignment Agreements"), provided that (i) the Borrower may in
its sole discretion withhold its consent to any assignment by a
Bank of less than all of its Commitments if as a result thereof
the assignor will have Commitments hereunder of less than one
half of its assigned Commitments or the assignee will have
Commitments hereunder of less than $5,000,000.00, further
provided that nothing herein contained shall restrict, or be
deemed to require any consent as a condition to, or require
payment of any fee in connection with, any sale, discount or
pledge by any Bank of any Note or other obligation hereunder to a
Federal reserve bank and (ii) the consent of the Borrower shall
not be required for assignments or sales to a Bank or any
affiliate of a Bank. Upon the execution of each Assignment
Agreement by the assignor, the assignee and the Borrower and
consent thereto by the Agent (i) such assignee shall thereupon
become a "Bank" for all purposes of this Agreement with a
Commitment in the amount set forth in such Assignment Agreement
and with all the rights, powers and obligations afforded a Bank
hereunder, (ii) the assignor shall have no further liability for
funding the portion of its Commitments assumed by such other Bank
and (iii) the address for notices to such Bank shall be as
specified in the Assignment Agreement, and the Borrower shall
execute and deliver Notes to the assignee Bank in the amount of
its Commitments and new Notes to the assignor Bank in the amount
of its Commitments after giving effect to the reduction
occasioned by such assignment, all such Notes to constitute
"Notes" for all purposes of this Agreement, and there shall be
paid to the Agent, as a condition to such assignment, an
administration fee of $2,500 plus any out-of-pocket costs and
expenses incurred by it in effecting such assignment, such fee to
be paid by the assignor or the assignee as they may mutually
agree, but under no circumstances shall any portion of such fee
be payable by or charged to the Borrower.
11.15 Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that
Borrower may not assign or delegate any of its rights or
obligations under this Agreement.
11.16 NO ORAL AGREEMENTS, ENTIRE AGREEMENT. ORAL AGREEMENTS
OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER, THE
AGENT AND THE BANKS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENT REACHED BY BORROWER, THE AGENT AND THE BANKS COVERING
SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS, WHICH AGREEMENT AND OTHER TRANSACTION
DOCUMENTS ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
AMONG BORROWER, THE AGENT AND THE BANKS, EXCEPT AS BORROWER, THE
AGENT AND THE BANKS MAY LATER AGREE IN WRITING TO MODIFY THEM.
THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE PARTIES HERETO AND SUPERSEDES ALL PRIOR AGREEMENTS
AND UNDERSTANDINGS (ORAL OR WRITTEN) RELATING TO THE SUBJECT
MATTER HEREOF. Without limiting the generality of the foregoing,
this Agreement supersedes and replaces that certain Amended and
Restated Revolving Credit Agreement, effective November 5, 1997,
among Borrower and Whitney, as amended.
11.17 Severability. In the event any one or more of the
provisions contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
11.18 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
11.19 Resurrection of Borrower's Obligations. To the extent
that any of the Banks receives any payment on account of any of
Borrower's Obligations, and any such payment(s) or any part
thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, subordinated and/or required to be
repaid to a trustee, receiver or any other Person under any
bankruptcy act, state or federal law, common law or equitable
cause, then, to the extent of such payment(s) received,
Borrower's Obligations or part thereof intended to be satisfied
and any and all Liens upon or pertaining to any Property or
assets of Borrower and theretofore created and/or existing in
favor of such Bank(s) as security for the payment of such
Borrower's Obligations shall be revived and continue in full
force and effect, as if such payment(s) had not been received by
such Bank(s) and applied on account of Borrower's Obligations.
11.20 Independence of Covenants. All of the covenants
contained in this Agreement and the other Transaction Documents
shall be given independent effect so that if a particular action,
event or condition is prohibited by any one of such covenants,
the fact that it would be permitted by an exception to, or
otherwise be in compliance within the provisions of, another
covenant shall not avoid the occurrence of a Default or Event of
Default if such action is taken, such event occurs or such
condition exists.
11.21 Confidentiality. The Agent and each of the Banks
shall keep confidential any information delivered, made available
or otherwise conveyed by the Borrower or any of its Subsidiaries
in connection with this Agreement and the transactions
contemplated hereby; provided that, the provisions of this
Section 11.21 shall not be construed to prohibit Agent or any
Bank from disclosing any information to (i) Agent or any Bank (or
any attorneys, agents or consultants of Agent or any Bank), (ii)
any participant or assignee or prospective participant or
assignee of any Bank (so long as such participant or assignee or
prospective participant or assignee agrees to be bound by the
provisions of this Section 11.21), (iii) any affiliate of Agent
or any Bank or (iv) any Person as required by law, regulation or
court order.
11.22. Conflicting Provisions. In the event any of the
terms and provisions of this Agreement conflict with any terms
and provisions contained in any other Transaction Document, the
terms and provisions of this Agreement shall govern.
TO END OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, Borrower, the Agent and the Banks have
executed this Amended and Restated Revolving Credit Agreement
effective as of the 17th day of February, 1998.
SUPERIOR ENERGY SERVICES, INC.
BY: /s/ Xxxxxxx X. Xxxx
ITS: President
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: WHITNEY NATIONAL BANK
$25,000,000.00
BY: /s/ Xxxxxx X. Xxxxxxxx
ITS: Vice President
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: NATIONAL BANK OF CANADA
$10,000,000.00
BY: /s/ Xxxx X. Xxxxxxxxx
ITS: Vice President and Manager
000 Xx. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: THE FROST NATIONAL BANK
$10,000,000.00
BY: /s/ Xxxxxx Xxxxxxxx
ITS: Assistant Vice President
000 Xxxx Xxxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
