Exhibit 10.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
JUNE 12, 2008
By and Among
LHC GROUP, INC.,
a Delaware corporation
as Borrower
and
CAPITAL ONE, NATIONAL ASSOCIATION
as Agent
and
CAPITAL ONE, NATIONAL ASSOCIATION
FIRST TENNESSEE BANK, N. A.
and
BRANCH BANKING AND TRUST COMPANY
as Lenders
and
CAPITAL ONE CORPORATION
As Sole Book Runner and
Sole Lead Arranger
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING
TERMS...............................................1
Section 1.1. Defined
Terms................................................1
Section 1.2.
Accounting Terms............................................15
ARTICLE II
LINE OF CREDIT LOAN
COMMITMENT................................................15
Section 2.1. The Line of
Credit..........................................15
Section 2.2. Revolving
Loans.............................................15
Section 2.2.1. Revolving
Loans...........................................15
Section 2.2.2. Letters of
Credit.........................................15
Section 2.2.3.
Procedures for Obtaining Letters of Credit...............16
Section 2.2.4. Manner
and Notice of Borrowing Under the Line of Credit..17
Section 2.2.5. Use of
Proceeds..........................................17
Section 2.2.6. Several
Obligations......................................17
Section 2.3. Swing
Line..................................................18
ARTICLE III
NOTES EVIDENCING THE
LOANS....................................................19
Section 3.1.
Notes.......................................................19
Section 3.1.1. Form of
Notes............................................19
Section 3.1.2.
Issuance of Additional Notes.............................19
Section 3.1.3. Payment
of the Notes.....................................19
Section 3.1.4. Payment
to the Lenders...................................19
Section 3.1.5. Sharing
of Payments, Etc.................................20
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Section 3.1.6.
Non-Receipt of Funds by the Agent........................20
ARTICLE IV
INTEREST
RATES................................................................20
Section 4.1.
Options.....................................................20
Section 4.1.1. Base
Rate Loans..........................................20
Section 4.1.2.
Eurodollar Loans.........................................21
Section 4.2. Interest Rate
Determination.................................21
Section 4.3. Conversion
Option...........................................21
ARTICLE V
CHANGE OF
CIRCUMSTANCES.......................................................21
Section 5.1. Unavailability of Funds or Inadequacy of
Pricing............21
Section 5.2. Change in
Laws..............................................22
Section 5.3. Increased Cost or Reduced
Return............................22
Section 5.4. Breakage
Costs..............................................24
Section 5.5. Discretion of Lender as to Manner of
Funding................24
Section 5.6. Foreign
Lenders.............................................24
ARTICLE VI
FEES..........................................................................25
Section 6.1. Facility
Fee................................................25
Section 6.2. Unused
Fees.................................................25
Section 6.3. Letter of Credit
Fee........................................25
ARTICLE VII
CERTAIN GENERAL
PROVISIONS....................................................26
Section 7.1.
Payments....................................................26
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Section 7.2. No Offset,
etc..............................................26
Section 7.3. Rate Management
Transactions................................26
Section 7.4. Calculation of
Fees.........................................26
ARTICLE VIII
PREPAYMENTS...................................................................26
Section 8.1. Voluntary
Prepayments.......................................26
Section 8.2. Mandatory Prepayment Resulting from
Overadvances............26
ARTICLE IX
SECURITY FOR THE
INDEBTEDNESS.................................................27
Section 9.1.
Security....................................................27
ARTICLE X
CONDITIONS
PRECEDENT..........................................................27
Section 10.1. Condition Precedent to Effectiveness of this
Agreement.....27
Section 10.2. Conditions Precedent to all Revolving
Loans................28
ARTICLE XI
REPRESENTATIONS AND
WARRANTIES................................................29
Section 11.1. Corporate Authority of the
Borrower........................29
Section 11.2. Financial
Statements.......................................29
Section 11.3.
Litigation.................................................29
Section 11.4.
Approvals..................................................30
Section 11.5. Required
Insurance.........................................30
Section 11.6.
Licenses...................................................30
Section 11.7. Adverse
Agreements.........................................30
Section 11.8. Default or Event of
Default................................30
Section 11.9. Employee Benefit
Plans.....................................30
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Section 11.10. Investment Company
Act....................................30
Section 11.11. Intentionally
Omitted.....................................31
Section 11.12. Regulations X, T and
U....................................31
Section 11.13. Location of Offices and
Records...........................31
Section 11.14.
Information...............................................31
Section 11.15. Environmental
Matters.....................................31
Section 11.16. Solvency of the
Borrower..................................32
Section 11.17. Governmental
Requirements.................................32
Section 11.18. Authority of the
Guarantor................................33
Section 11.19.
Survival of Representations and Warranties...............33
ARTICLE XII
AFFIRMATIVE
COVENANTS.........................................................33
Section 12.1. Financial Statements; Other Reporting
Requirements.........33
Section 12.2. Notice of Default; Litigation; ERISA
Matters...............35
Section 12.3. Maintenance of Existence, Properties and
Liens.............35
Section 12.4.
Taxes......................................................35
Section 12.5. Compliance with Environmental
Laws.........................35
Section 12.6. Further
Assurances.........................................37
Section 12.7. Financial
Covenants........................................37
Section 12.8.
Operations.................................................37
Section 12.9. Change of
Location.........................................38
Section 12.10. Employee Benefit
Plans....................................38
Section 12.11. Deposit and Operating
Accounts............................38
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Section 12.12. Field Audits; Other
Information...........................38
Section 12.13.
Insurance.................................................38
Section 12.14.
Subsidiaries..............................................38
Section 12.15.
Collateral Documents.....................................39
Section 12.16.
Post-Closing Requirements................................39
Section 12.17.
Excluded Subsidiaries....................................39
ARTICLE XIII
NEGATIVE
COVENANTS............................................................40
Section 13.1. Limitations on Fundamental
Changes.........................40
Section 13.2. Disposition of
Assets......................................40
Section 13.3. Intentionally
Omitted......................................40
Section 13.4. Encumbrances; Negative
Pledge..............................40
Section 13.5.
Debts......................................................42
Section 13.6. Investments, Loan and Revolving
Loans......................43
Section 13.7. Intentionally
Omitted......................................44
Section 13.8. Transactions with
Affiliates...............................44
ARTICLE XIV
EVENTS OF
DEFAULT.............................................................44
Section 14.1. Events of
Default..........................................44
Section 14.2.
Waivers....................................................46
ARTICLE XV
THE AGENT AND THE
LENDERS.....................................................47
Section 15.1. Appointment and
Authorization..............................47
Section 15.2. Intentionally
Omitted......................................48
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Section 15.3. Consultation with
Counsel..................................48
Section 15.4.
Documents..................................................48
Section 15.5. Resignation or Removal of
Agent............................48
Section 15.6. Responsibility of
Agent....................................48
Section 15.7. Independent
Investigation..................................49
Section 15.8.
Indemnification............................................50
Section 15.9. Benefit of Article
XV......................................50
Section 15.10. Pro Rata
Treatment........................................50
Section 15.11. Intentionally
Omitted.....................................50
Section 15.12. Other
Financings..........................................50
Section 15.13. Interests of the
Lenders..................................51
Section 15.14.
Investments...............................................51
ARTICLE XVI
MISCELLANEOUS.................................................................51
Section 16.1. No Waiver; Modification in
Writing.........................51
Section 16.2. Addresses for
Notices......................................52
Section 16.3. Fees and
Expenses..........................................53
Section 16.4. Right of
Set-off...........................................53
Section 16.5. Waiver of
Marshaling.......................................53
Section 16.6. Governing
Law..............................................53
Section 16.7. Consent to Loan
Participation..............................53
Section 16.8. Intentionally
Omitted......................................54
Section 16.9. Permitted
Assignment.......................................54
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Section 16.10.
Indemnity.................................................54
Section 16.11. Maximum Interest
Rate.....................................55
Section 16.12. Waiver of Jury Trial; Submission to
Jurisdiction..........56
Section 16.13.
Severability..............................................57
Section 16.14.
Headings..................................................57
Section 16.15.
Confidentiality...........................................57
SCHEDULES
Schedule 1.1(a)
Excluded Subsidiaries
Schedule 1.1(b)
Guarantors
Schedule 6
Designated Fee Account
Schedule 11.3
Litigation
Schedule 13.4
Encumbrances
Schedule 13.5
Existing Indebtedness
Schedule 13.6
Existing Investments
Schedule 13.8
Transactions with Affiliates
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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS
AMENDED AND RESTATED CREDIT AGREEMENT (the "Agreement") dated as
of
June 6, 2008, is by and among LHC GROUP, INC., a Delaware
corporation (the
"Borrower"), the LENDERS, and CAPITAL ONE, NATIONAL ASSOCIATION, a
national
banking association, individually as a Lender and as Administrative
Agent, and
CAPITAL ONE CORPORATION, as sole bookrunner and sole lead
arranger.
RECITALS:
A.
The
Borrower, Capital One, National Association, and First
Tennessee
Bank, National Association, as Lenders, and Capital One, National
Association,
as Agent, are the parties to that certain Credit Agreement dated as
of February
20, 2008, as amended by First Amendment, thereto dated as of March
6, 2008, and
by Second Amendment thereto dated as of March 31, 2008 (as so
amended, the
"Original Agreement").
B.
The
Original Agreement provides for a Line of Credit Loan
Commitment
in the total maximum aggregate principal amount of
$37,500,000.00.
C.
Pursuant
to Section 2.4 of the Original Agreement, the Borrower
elected to increase the Line of Credit Loan Commitment and a new
and additional
Lender is joining in this Agreement to provide for a Line of Credit
Loan
Commitment in the maximum total aggregate principal amount of
$75,000,000.00.
D.
To
evidence the increased Line of Credit Loan Commitment and
certain
other changes to the Original Agreement, the parties desire to
amend and restate
the Original Agreement.
Now
therefore, in consideration of the premises, the parties do
hereby
amend and restate the Original Agreement as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
Section 1.1. Defined Terms. As used in this Agreement, and unless
the
context requires a different meaning, the following terms have the
meanings
indicated:
"Acquisition" shall mean any transaction or series of related
transactions,
consummated on or after the date hereof, by which the Borrower or
any
Subsidiary directly, (i) acquires a majority voting interest in any
active
business, or all or substantially all of the assets, of any Person,
whether
through purchase of assets, merger or otherwise, or (ii)
acquires
securities or other ownership interests of any Person having at
least a
majority of combined
voting power of the then outstanding securities or
other ownership interests of such Person.
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"Agent" shall mean Capital One, National Association in its
capacity as
contractual, administrative, and collateral representative of the
Lenders
pursuant to Article XV, and not in its individual capacity as a
Lender, and
any
successor Agent appointed pursuant to Article XV.
"Agreement" shall mean this Amended and Restated Credit Agreement,
as the
same
may from time to time be amended, modified, supplemented,
and/or
restated and in effect from time to time.
"Base Rate" shall mean the base rate of interest established from
time to
time
by The Wall Street Journal, as the "prime" lending rate on
corporate
loans posted by at least seventy-five percent (75%) of the nation's
thirty
largest banks, and which is not necessarily the lowest rate charged
by any
of
the Lenders, such rate to be adjusted automatically on and as of
the
effective date of any change in such Base Rate.
"Base Rate Interest Period" shall mean, with respect to any Base
Rate Loan,
the
period ending on the last day of each month, provided, however,
that
(i)
if any Base Rate Interest Period would end on a day which is not
a
Business Day, such Interest Period shall be extended to the next
succeeding
Business Day, and (ii) if any Base Rate Interest Period would
otherwise end
after the Termination Date, such Interest Period shall end on
the
Termination Date.
"Base Rate Loans" shall mean any Loan during any period which
bears
interest based upon the Base Rate.
"Base Rate Margin" shall mean, with respect to each Base Rate
Loan:
(i) minus
0.25% if the Leverage Ratio is less than 1.00 to 1.0; or
(ii) plus 0.00%
if the Leverage Ratio is greater than or equal to
1.00 to 1.0.
The Base Rate Margin shall be determined by the Agent from time
to
time, based on the Leverage Ratio as set forth in the
Compliance
Certificate most recently delivered by the Borrower pursuant to
Section
12.1(c). Any adjustment to the Base Rate Margin shall be effective
(a) in
the
case of a Compliance Certificate delivered in connection with
quarterly
financial statements of the Borrower delivered pursuant to Section
12.1(b),
as
of the date 60 days following the end of the last day of the
applicable
fiscal quarter covered by such Compliance Certificate, and (b) in
the case
of a
Compliance Certificate delivered in connection with annual
financial
statements of the Borrower delivered pursuant to Section 12.1(a),
as of the
date
90 days following the end of the last day of the applicable
fiscal
year
covered by such Compliance Certificate. If the Borrower fails
to
deliver a Compliance Certificate pursuant to Section 12.1(c), the
Base Rate
Margin shall equal the percentage corresponding to item (ii) of
this
definition until the date of the delivery of the required
Compliance
Certificate. As of the date hereof, and thereafter until changed
as
provided above, the Base Rate Margin is determined based on item
(ii) of
this
definition.
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"Borrower" shall mean LHC Group, Inc., a Delaware corporation,
together
with
its successors and assigns.
"Borrowing Date" means the date elected by Borrower pursuant to
Section
2.2.4. hereof for a Revolving Loan.
"Business Day" means a day other than a Saturday, Sunday or legal
holiday
for
commercial banks under the laws of the State of Louisiana or a day
on
which national banks are authorized to be closed in Lafayette
and/or New
Orleans, Louisiana.
"Capital Lease Obligations" means any Debt represented by
obligations under
a
lease that is required to be capitalized for financial reporting
purposes
in
accordance with GAAP.
"Capital One" means Capital One, National Association in its
individual
capacity as a Lender, and its successors and assigns.
"Collateral" shall mean any interest in any kind of property or
assets
pledged, mortgaged or otherwise subject to an Encumbrance in favor
of the
Agent for the benefit of the Lenders pursuant to the Collateral
Documents.
"Collateral Documents" shall collectively refer to any and all
documents
now
or hereafter in which an Encumbrance is created on any property of
the
Borrower or of any other
Person to secure payment of the Indebtedness (or
any
part thereof) of the Borrower to the Lenders under this Agreement
and
the
Notes, including the Pledge Agreement and any joinder thereto
executed
by
the Borrower and any Guarantor.
"Commitments" shall mean collectively the Line of Credit Loan
Commitments
of
each Lender as specified on the signature page(s) of this Agreement
or
specified in connection with an assignment made pursuant to Section
16.9
hereof.
"Commitment Percentage" shall mean for each Lender the percentage
of the
Commitment of such Lender divided by the aggregate amount of
all
Commitments of all Lenders.
"Compliance Certificate" shall have the meaning assigned to such
term in
Section 12.1(c) of this Agreement.
"Consolidated Current Assets" shall mean the total of the
Borrower's
consolidated current assets determined in accordance with GAAP.
"Consolidated Current Liabilities" shall mean the total of the
Borrower's
consolidated current liabilities plus the existing outstanding
balance
under the Line of Credit, determined in accordance with GAAP.
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"Debt" shall mean without duplication: (i) indebtedness for
borrowed money;
(ii)
the face amounts of all outstanding standby and commercial letters
of
credit and bankers acceptances, matured or unmatured, issued on
behalf of
Borrower; (iii) guaranties of the Debt of any other Person, whether
direct
or
indirect, whether by agreement to purchase the indebtedness of any
other
Person or by agreement for the furnishing of funds to any other
Person
through the purchase or lease of goods, supplies or services (or by
way of
stock purchase, capital contribution, advance or loan) in each case
for the
purpose of paying or discharging the Debt of any other Person; and
(iv) the
present value of all obligations for the payment of rent or hire
of
property of any kind (real or personal) under leases or lease
agreements
required to be capitalized under GAAP.
"Default" shall mean an event which with the giving of notice or
the lapse
of
time (or both) would constitute an Event of Default hereunder.
"Defaulting Lender" is used herein as defined in Section 3.1.4
hereof.
"Disposition" means any sale, transfer, lease, contribution,
conveyance or
other disposition (including by way of merger) of, or the granting
of
options, warrants or other rights to, any asset to any other Person
(other
than
to the Borrower or a Subsidiary) in one or a series of
transactions.
The
term "Dispose" has a correlative meaning.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean the Borrower's consolidated earnings before
interest,
taxes, depreciation, and amortization, all as determined in
accordance with
GAAP; provided, however, if Borrower acquires a one hundred percent
(100%)
interest in an entity at an acquisition price exceeding
$15,000,000.00,
then
the acquired entity's historical trailing 12-months earnings
before
interest, taxes, depreciation, and amortization, all as determined
in
accordance with GAAP will be included in Borrower's EBITDA for
purposes of
calculating the covenants set forth in Section 12.7(a) and Section
12.7(c)
hereof.
"Encumbrances" shall mean individually, collectively and
interchangeably
any
and all presently existing and/or future mortgages, liens,
privileges,
servitudes, rights-of-way and other contractual and/or statutory
security
interests and rights of every nature and kind that, now and/or in
the
future may affect the property of Borrower or any part or parts
thereof.
"Environmental Laws" shall mean any federal, state, local or
tribal
statute, law, rule, regulation, ordinance, code, permit, consent,
approval,
license, written policy or rule of common law now or hereafter in
effect
and
in each case as amended, and any judicial or administrative
interpretation thereof, including any judicial or administrative
order,
injunction, consent decree or judgment, or other authorization
or
requirement whenever promulgated, issued or modified, including
the
requirement to register underground storage tanks, well plugging
and
abandonment requirements, and oil and gas waste disposal
requirements
relating to: (i) emissions, discharges, spills, migration,
movement,
releases or threatened releases of pollutants, contaminants,
Hazardous
Materials, or hazardous or toxic materials or wastes into or onto
soil,
land, ambient air, surface water, ground water, watercourses,
publicly
owned treatment works, drains, sewer systems, wetlands or septic
systems;
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(ii) the use,
treatment, storage, disposal, handling,
manufacturing, transportation, or shipment of Hazardous Materials
or
hazardous and/or toxic wastes, material, products or by-products
containing
Hazardous Materials (or of equipment or apparatus containing
Hazardous
Materials); or
(iii) otherwise
relating to pollution or the protection of human
health or the environment, including, without limitation, the
Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C.
ss.ss. 9601 et seq., as amended, the Resource Conservation and
Recovery
Act,
42 U.S.C. ss.ss. 6901 et seq., as amended, the Hazardous
Materials
Transportation Act, 49 U.S.C. ss.ss. 1801 et seq., as amended, the
Clean
Water Act, 33 U.S.C. ss.ss. 1251 et seq., as amended, the Toxic
Substances
Control Act, 15 U.S.C. ss.ss. 2601 et seq., as amended, the Clean
Air Act,
42
U.S.C. ss.ss. 7401 et seq., as amended, the federal Water
Pollution
Control Act, 33 U.S.C. ss. 1251 et seq., as amended, the Safe
Drinking
Water Act, 42 U.S.C. ss.ss. 300f et seq., as amended, the Atomic
Energy
Act,
42 U.S.C. ss.ss. 2011 et seq., as amended, the Natural Gas
Pipeline
Safety Act of 1968, 49 U.S.C. ss. 1671 et seq., as amended, the
Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.C.S. ss.ss. 136 et
seq., as
amended, and the Occupational Safety and Health Act, 29 U.S.C.
ss.ss. 651
et
seq., as amended, and all comparable statutes of the State of
Louisiana,
and
all comparable local Governmental Requirements in such state.
"Environmental Liabilities" means with respect to any Person, any
and all
liabilities, responsibilities, losses, sums paid in settlement of
claims,
obligations, charges, actions (formal or informal), claims
(including,
without limitation, claims for personal injury or for property
damage),
liens, administrative proceedings, damages (including, without
limitation,
loss
or damage resulting from the occurrence of an Event of
Default),
punitive damages, consequential damages, treble damages, penalties,
fines,
monetary sanctions,
interest, court costs, response and remediation costs,
stabilization costs, encapsulation costs, treatment, storage, or
disposal
costs, groundwater monitoring or environmental sampling costs,
other causes
of
action and any other costs and expenses (including, without
limitation,
reasonable attorneys', experts', and consultants' fees, costs
of
investigation and feasibility studies and disbursements in
connection with
any
investigative, administrative or judicial proceeding), whether
direct
or
indirect, known or unknown, absolute or contingent, past, present
or
future arising under, pursuant to or in connection with any
Environmental
Law,
or any other binding obligation of such Person requiring abatement
of
pollution or protection of human health and the environment.
"Environmental Lien" means a Lien in favor of any Governmental
Authority
for
(i) any liability under Environmental Laws or (ii) damages
arising
from, or costs incurred by such Governmental Authority in response
to, a
Release or threatened Release of a Hazardous Materials into the
environment.
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"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
amended from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of
a
controlled group of corporations and all trades or businesses
(whether or
not
incorporated) under common control which, together with the
Borrower or
any
Subsidiary, are treated as a single employer under Section 414 of
the
Internal Revenue Code.
"Excluded Subsidiary" shall mean any entity listed on Schedule
1.1(a) and
any
other Subsidiary in which the owner of the minority ownership
interest
in
such Subsidiary has not consented to the execution, delivery
and
performance of the Guaranty by such Subsidiary; provided that the
Borrower
shall have put forth reasonable efforts to obtain such consent.
All
Subsidiaries of an Excluded Subsidiary shall be deemed to be
Excluded
Subsidiaries.
"Eurodollar Business Day" shall mean any date other than Saturday,
Sunday
or a
day on which banking institutions are generally authorized or
obligated by law or executive order to close in the City of
London,
England.
"Eurodollar Interest Period" shall mean, with respect to any
Eurodollar
Loan
(i) initially, the period commencing on the date such Eurodollar
Loan
is
made and ending one (1) month (or such other period agreed upon by
the
Borrower and the Lenders) thereafter, and (ii) thereafter, each
period
commencing on the day following the last day of the next preceding
Interest
Period applicable to such Eurodollar Loan and ending one (1) month
(or such
other period agreed upon by the Borrower and the Lenders)
thereafter;
provided, however, that (a) if any Eurodollar Interest Period
would
otherwise expire on a day which is not a Business Day, such
Interest Period
shall expire on the next succeeding Business Day unless the result
of such
extension would be to extend such Interest Period into the next
calendar
month, in which case such Interest Period shall end on the
immediately
preceding Business Day, (b) if any Eurodollar Interest Period
begins on the
last
Business Day of a calendar month (or on a day for which there is
no
numerically corresponding day in the calendar month at the end of
such
Interest Period) such Interest Period shall end on the last
Business Day of
a
calendar month, and (c) any Eurodollar Interest Period which
would
otherwise expire after the Termination Date shall end on the
Termination
Date.
"Eurodollar Loan" shall mean any Loan during any period which
bears
interest at the Eurodollar Rate.
"Eurodollar Margin" shall mean with respect to each Eurodollar Loan
under
the
Line of Credit:
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(i) 1.75% per
annum if the Leverage Ratio is less than 1.00 to 1.0;
(ii) 2.00% per annum
if the Leverage Ratio is greater than or equal
to
1.00 to 1.0 but less than 1.50 to 1.0;
(iii) 2.25% per annum if the Leverage Ratio is greater than or
equal
to
1.50 to 1.0 but less than 2.00 to 1.0; or
(iv) 2.50% per annum
if the Leverage Ratio is greater than or equal
to
2.00 to 1.0.
The
Eurodollar Margin shall be determined by the Agent from time to
time,
based on the Leverage Ratio as set forth in the Compliance
Certificate most
recently delivered by the Borrower pursuant to Section 12.1(c).
Any
adjustment to the Eurodollar Margin shall be effective (a) in the
case of a
Compliance Certificate delivered in connection with quarterly
financial
statements of the Borrower delivered pursuant to Section 12.1(b),
as of the
date
60 days following the end of the last day of the applicable
fiscal
quarter covered by such Compliance Certificate, and (b) in the case
of a
Compliance Certificate delivered in connection with annual
financial
statements of the Borrower delivered pursuant to Section 12.1(a),
as of the
date
90 days following the end of the last day of the applicable
fiscal
year
covered by such Compliance Certificate. If the Borrower fails
to
deliver a Compliance Certificate pursuant to Section 12.1(c),
the
Eurodollar Margin shall equal the percentage corresponding to item
(iv) of
this
definition until the date of the delivery of the required
Compliance
Certificate. As of the date hereof, and thereafter until changed
as
provided above, the Eurodollar Margin is determined based on item
(i) of
this
definition.
"Eurodollar Rate" shall mean with respect to any Eurodollar
Interest
Period, the offered rate for U.S. Dollar deposits of not less
than
$1,000,000 as of 11:00 A.M. City of London, England time two (2)
Eurodollar
Business Days prior to the first date of each Eurodollar Interest
Period as
shown on the display designated as "British Bankers Assoc.
Interest
Settlement Rates" on the Telerate system ("Telerate"), Reuters
Screen LIBOR
01
Page, or such other page or pages as may replace such pages on
Telerate
for the purpose of
displaying such rate, rounded upwards, if necessary to
the
nearest 1/16% and adjusted for the maximum cost of reserves, if
any.
Provided, however, that if such rate is not available on Telerate
then such
offered rate shall be otherwise independently obtained by the Agent
from an
alternate, substantially similar independent source available to
the Agent
or
shall be calculated by the Agent by substantially similar
methodology as
that
theretofore used to determine such offered rate in Telerate.
"Event of Default" shall mean individually, collectively and
interchangeably any of the Events of Default set forth below in
Section
14.1. hereof.
"Federal Funds Rate" means, for any day, the rate per annum equal
to the
weighted average of the rates on overnight federal funds
transaction with
members of the Federal Reserve System arranged by federal fund
brokers on
such
day, as published by the Federal Reserve Bank of New York on
the
7
<PAGE>
Business Day, next succeeding such day; provided, however, that (i)
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 (ii) if no such
rate is
so
published on the next succeeding Business Day, the Federal Funds
Rate
for
such day shall be the average of quotations for such Business Day
on
such
transactions received by the Agent from three (3) federal funds
brokers of recognized standing selected by it. If, for any reason,
the
Agent shall have determined (which determination shall be
conclusive,
absent manifest error) that it is unable to ascertain the Federal
Funds
Rate, including the inability or failure of the Agent to obtain
sufficient
quotations in accordance with the terms hereof, the Base Rate shall
be
determined without regard to clause (i) of the first sentence of
the
definition of Base Rate until the circumstances giving rise to
such
inability no longer exist.
"GAAP" shall mean, at any time, accounting principles generally
accepted in
the
United States as then in effect.
"Governmental Authority" shall mean any nation or government, any
state or
other political subdivision thereof, or entity exercising
executive,
legislative, judicial, regulatory or administrative functions of
or
pertaining to government.
"Governmental Requirement" shall mean any applicable state, federal
or
local law, statute, ordinance, code, rule, regulation, order or
decree.
"Guarantor" means individually and collectively, each entity set
forth on
Schedule 1.1(b), and each of their respective successors and
assigns, and
any
future Subsidiary of Borrower that is not an Excluded
Subsidiary.
"Guaranty" means that certain Amended and Restated Commercial
Guaranty of
even
date with this Agreement executed by each Guarantor in favor of
the
Agent for the ratable benefit of the Lenders, as amended,
supplemented
and/or restated from time to time and in effect, and any joinder to
such
Amended and Restated Commercial Guaranty executed after the date of
the
Agreement by a Subsidiary of the Borrower that is not an
Excluded
Subsidiary.
"Hazardous Materials" means (1) hazardous materials, hazardous
wastes, and
hazardous substances including, but not limited to, those
substances,
materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table, 49 C.F.R. ss. 172.101,
as
amended, or listed by the federal Environmental Protection Agency
as
hazardous substances under or pursuant to 40 C.F.R. Part 302, as
amended,
or
substances, materials, contaminants or wastes which are or
become
regulated under any Environmental Law, including without
limitation, those
substances, materials, contaminants or wastes as defined in the
following
statutes and their implementing regulations: the Hazardous
Materials
Transportation Act, 49 U.S.C. ss. 1801 et seq., as amended, the
Resource
Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq., as
amended, the
Comprehensive Environmental Response, Compensation and Liability
Act, 42
U.S.C. ss. 9601 et seq., as amended, the Toxic Substances Control
Act, 15
U.S.C. ss. 2601 et seq., as amended, the Clean Air Act, 42 U.S.C.
ss. 7401
8
<PAGE>
et
seq., as amended, the federal Water Pollution Control Act, 33
U.S.C. ss.
1251
et seq., as amended, the Occupational Safety and Health Act, 2
U.S.C.
ss.
651 et seq., as amended, the Safe Drinking Water Act, 42 U.S.C.
ss.300f
et
seq., as amended and the Natural Gas Pipeline Safety Act of 1968,
49
U.S.C. ss. 1671 et seq., as amended; (2) all substances,
materials,
contaminants or wastes listed in all comparable statutes of the
States of
Louisiana and Texas and in comparable local Requirements of Law in
such
states; (3) acid gas, sour water streams or sour water vapor
streams
containing hydrogen sulfide or other forms of sulphur, sodium
hydrosulfide
and
ammonia; (4) Hydrocarbons; (5) natural gas, synthetic gas, and
any
mixtures thereof; (6) asbestos and/or any material which contains
1% or
more, by weight, of any hydrated mineral silicate, including but
not
limited to chrysotile, amosite, crocidolite, tremolite,
anthophylite and/or
actinolite, whether friable or non-friable; (7) PCB's, or PCB
containing
materials or fluids; (8) radon; (9) naturally occurring
radioactive
material, radioactive substances or waste; (10) salt water and
other oil
and
gas wastes and (11) any other hazardous or noxious substance,
material,
pollutant, emission, or solid, liquid or gaseous waste.
"Indebtedness" shall mean, at any time, all obligations,
indebtedness, and
liabilities, whether now existing or arising in the future, of the
Borrower
to
the Lenders or any of them (or in the case of a Rate Management
Transaction, any affiliate thereof) pursuant to or arising under
the
Agreement, including all Reimbursement Obligations, obligations of
the
Borrower under Rate
Management Transactions (including all renewals,
extensions, modifications, and substitution thereof and therefor)
and all
cancellations, buy backs, reversals, terminations, or assignments
of Rate
Management Transactions, and the indebtedness of the Borrower
evidenced by
the
Notes, including principal, interest, costs, expenses and
reasonable
attorneys' fees and all other fees and charges, together with all
fees and
other indebtedness and costs and expenses for which the Borrower
is
responsible under this Agreement or under any of the Related
Documents.
"Interest Payment Date" shall mean (i) for a Base Rate Loan, the
last
Business Day of each month such Loan is outstanding, (ii) for a
Eurodollar
Loan, the last Eurodollar Business Day of each Eurodollar Interest
Period
for
such Loan.
"Interest Period" shall mean any Base Rate Interest Period or
Eurodollar
Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as
amended.
"Investment" means, with respect to any Person, (a) the purchase or
other
acquisition of any stock or other equity interest in another
Person, (b) a
loan, advance or extension of credit to, capital contribution to,
or
purchase or other acquisition of any Debt of, another Person, or
(c) the
purchase or other acquisition (in one transaction or a series
of
transactions) of assets of another Person that constitute the
business or a
division or operating unit of another Person.
9
<PAGE>
"Lenders" shall mean the lending institutions listed on the
signature
page(s) of this Agreement, and their respective successors and
assigns, and
any
other lending institutions that become a signatory party to the
Agreement in the future.
"Letters of Credit" shall mean the letters of credit issued by the
Agent
pursuant to Section 2.2.2. hereof.
"Leverage Ratio" shall mean the ratio produced by the following
calculation: the sum of all senior funded Debt by the Lenders or
any of
them
to Borrower and/or any Guarantor divided by EBITDA, tested
quarterly
on a
rolling four quarters basis.
"Liabilities" shall mean, as to any Person, all indebtedness,
liabilities
and
obligations of such Person, whether matured or unmatured,
liquidated or
unliquidated, primary or secondary, direct or indirect, absolute,
fixed or
contingent, and whether or not required to be considered pursuant
to GAAP.
"Line of Credit" shall mean the revolving line of credit in the
total
maximum aggregate principal amount of the Commitments extended by
the
Lenders pursuant to the Line of Credit Loan Commitment.
"Line of Credit Loan Commitment" shall mean (i) for all
Lenders,
$75,000,000.00; and (ii) as to any Lender, its obligation to make
Revolving
Loans hereunder on its Pro Rata Part of the Line of Credit and
purchase its
Pro
Rata Part of participations in Letters of Credit issued hereunder
by
the
Agent in amounts not exceeding an amount equal to its
Commitment
Percentage times the Line of Credit Loan Commitment in existence at
the
time
of determination.
"Loans" shall mean, collectively, all Revolving Loans.
"Loan Documents" shall mean this Agreement, the Notes, any other
documents
and
instruments evidencing any portion of the Indebtedness, the
Guaranty,
the
Collateral Documents, and any other instruments and documents,
whether
now
or hereafter existing, executed in connection with the
Indebtedness.
"Material Adverse Effect" shall mean an event which causes a
material
adverse effect on the business, assets, operations or financial
condition
of
the Borrower and its Subsidiaries, taken as a whole.
"Maximum Rate" shall mean, at any particular time in question, the
maximum
non-usurious rate of interest which under applicable law may then
be
charged on the Indebtedness or any other obligations hereunder. If
such
Maximum Rate changes after the date hereof, the Maximum Rate shall
be
automatically increased or decreased, as the case may be, without
notice to
Borrower from time to time as the effective date of each change in
such
Maximum Rate.
10
<PAGE>
"Multiemployer Plan" means at any time a multiemployer plan within
the
meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA
Group is then making or accruing an obligation to make
contributions or has
within the preceding five plan years made contributions, including
for
these purposes any Person which ceased to be a member of the ERISA
Group
during such five year period.
"Notes" shall mean the Revolving Notes.
"Other Financing" is used herein as defined in Section 15.12.
hereof.
"Original Agreement" is used herein as defined in recital A of
this
Agreement.
"Payor" is used herein as defined in Section 3.1.6. hereof.
"Permitted Encumbrances" shall have the meaning ascribed to such
term in
Section 13.4. hereof.
"Permitted Investments" means (a) direct obligations of, or
obligations the
principal of and interest on which are unconditionally guaranteed
by, the
United States of America (or by any agency thereof to the extent
such
obligations are backed by the full faith and credit of the United
States of
America), in each case maturing within one year from the date
of
acquisition thereof; (b) Investments in commercial paper maturing
within
270
days from the date of acquisition thereof and having, at such date
of
acquisition, the highest credit rating obtainable from Standard
& Poor's
Ratings Service or from Moody's Investors Service, Inc.; (c)
Investments in
certificates of deposit, banker's acceptances and time deposits
maturing
within one year from the date of acquisition thereof issued or
guaranteed
by
or placed with, and money market deposit accounts issued or offered
by,
any
domestic office of any commercial bank organized under the laws of
the
United States of America or any State thereof that has a combined
capital
and
surplus and undivided profits of not less than $250,000,000.00;
(d)
fully collateralized repurchase agreements with a term of not more
than 30
days
for securities described in clause (a) above and entered into with
a
financial institution satisfying the criteria described in clause
(c)
above; and (e) shares of funds registered under the Investment
Company Act
of
1940, as amended, that have assets of at least $100,000,000 and
invest
only
in obligations described in clauses (a) through (d) above to
the
extent that such shares are rated by Moody's Investors Service,
Inc. or
Standard & Poor's Ratings Service in one of the two highest
rating
categories assigned by such agency for shares of such nature.
"Person" shall mean an individual or a corporation, partnership,
trust,
joint venture,
incorporated or unincorporated association, joint stock
company, government, or an agency or political subdivision thereof,
or
other entity of any kind.
"Pledge Agreement" shall mean that certain Security Agreement by
certain
Subsidiaries of the Borrower in favor of the Agent, affecting
ownership
interests in certain Excluded Subsidiaries, as the Security
Agreement may
be
amended, supplemented and/or restated from time to time and in
effect,
and
any joinder to such Security Agreement executed by a Subsidiary of
the
Borrower.
11
<PAGE>
"Pro
Rata" or "Pro Rata Part" shall mean for each Lender, (i) for
all
purposes where no Loan is outstanding, such Lender's Commitment
Percentage
for
matters relating to the Line of Credit Loan Commitment and (ii)
otherwise, the proportion which the portion of the outstanding
Loans owed
to
such Lender bears to the aggregate outstanding Loans owed to
Lenders at
the
time in question (calculated separately for each Lender for Loans
under
the
Line of Credit).
"Purchase Money Indebtedness" means Debt incurred to finance
the
acquisition, construction or improvement of any fixed or capital
assets,
including Debt assumed in connection with the acquisition of any
such
assets or secured by an Encumbrance on any such assets prior to
the
acquisition thereof, and any extension, renewal or replacement of
any such
Debt.
"Rate Management Transaction" means any transaction (including an
agreement
with
respect thereto) now existing or hereafter entered into between
the
Borrower and any Lender or affiliate thereof which is (i) an
interest rate
protection agreement, foreign currency exchange agreement or other
interest
or
interest rate hedging agreement entered into in the ordinary course
and
not
for speculative purposes or (ii) a commodity price hedging
agreement or
arrangement entered into in the ordinary course and not for
speculative
purposes.
"Reimbursement Obligations" shall mean at any time, the obligations
of
Borrower in respect of all Letters of Credit then outstanding to
reimburse
amounts paid by the Lenders (or any of them) in respect of any
drawing or
drawings under a Letter of Credit.
"Release" means any release, spill, emission, leak, injection,
deposit,
disposal, discharge, dispersal, leaching or migration of any
Hazardous
Materials into the environment or into or out of any real property
of
Borrower, including the movement of Hazardous Materials through or
in the
air,
soil, surface water, groundwater and/or land which could reasonably
be
expected to form the basis of an Environmental Liability against
Borrower.
"Remedial Action" means any action to (i) clean up, remove, treat
or in any
other way address Hazardous Materials in the environment, (ii)
prevent the
Release or threat of Release or minimize the further Release of
Hazardous
Materials so they do not mitigate or endanger or threaten to
endanger
public health or welfare or the environment or (iii) perform
pre-remedial
studies and investigations and post-remedial monitoring and
care.
"Request for Revolving Loan" shall mean the Borrower's request for
a
Revolving Loan.
"Required Lenders" shall mean (i) if there are two (2) or fewer
Lenders
under this Agreement, then "Required Lenders" shall mean all
Lenders (other
than
Defaulting Lenders who are not entitled to vote); or (ii) if there
are
three (3) or more Lenders under this Agreement, then "Required
Lenders"
12
<PAGE>
shall mean Lenders having more than sixty-six percent (66%) of
the
aggregate amount of the Commitments (not held by Defaulting Lenders
who are
not
entitled to vote), or if the Commitments have been terminated
or
reduced to zero, Lenders holding more than 66% of the principal
amount of
the
aggregate outstanding Loans and Reimbursement Obligations (not held
by
Defaulting Lenders who are not entitled to vote). Commitments,
Revolving
Loans and Reimbursement Obligation held by Defaulting Lenders shall
be
disregarded when determining the Required Lenders. For purposes of
this
definition, a Lender (other than the Agent with respect to the
Swing Line)
shall be deemed to hold a Swing Line interest or a Reimbursement
Obligation
to
the extent such Lender has acquired a participation therein under
the
terms of this Agreement and has not failed to perform its
obligations in
respect of such participation.
"Required Payment" is used herein as defined in Section 3.1.6
hereof.
"Revolving Loans" shall mean all advances under the Line of
Credit
(including advances under the Swing Line) made by the Lenders under
the
Notes to the Borrower in accordance with and subject to the terms
of their
respective Commitments.
"Revolving Notes" shall mean collectively (i) the promissory notes
of even
date
herewith in the maximum aggregate principal amount of the
Commitment
of
each Lender party hereto and substantially in the form of Exhibit
C
attached hereto, executed by Borrower, (ii) any promissory note or
notes
that
may be executed by Borrower in the future that are payable to
the
order of a Lender pursuant to the Agreement, and (iii) any and
all
modifications, renewals, and/or extension of any of the
foregoing
promissory notes.
"Required Payment" is used herein as defined in Section 3.1.6
hereof.
"Solvent" shall mean, when used with respect to any Person on a
particular
day,
that on such date (i) the fair value of the property of such Person
is
greater than the total amount of liabilities, including without
limitation,
contingent liabilities, of such person, (ii) the present fair
salable value
of
the assets of such person is not less than the amount that will
be
required to pay the probable liability of such Person on its debts
as they
become absolute and matured, (iii) such Person is able to realize
upon its
assets and pay its debts and other liabilities, contingent
obligations and
other commitments as they mature in the ordinary course of
business, (iv)
such
Person does not intend to, and does not believe that it will,
incur
debts and liabilities beyond such Person's ability to pay as such
debts and
liabilities mature, and (v) such Person is not engaged in business
or a
transaction, and is not about to engage in business or a
transaction, for
which such Person's property would constitute unreasonably small
capital
after giving due consideration to the prevailing practice in the
industry
in
which such person is engaged. In computing the amount of
contingent
liabilities at any time, it is intended that such liabilities will
be
computed at the amount which, in light of all of the facts and
circumstances existing at such time, represents the amount that can
be
reasonably expected to become an actual or matured liability.
13
<PAGE>
"Subsidiaries" shall mean at any date with respect to any Person
all the
corporations, limited liability companies, or other business
entities of
which such Person at such date, directly or indirectly, owns or
controls
more
than 50% of the outstanding ownership interest or capital stock
(excluding directors' qualifying shares), and "Subsidiary" means
any one of
the
Subsidiaries.
"Swing Line" shall mean all Swing Line Loans, up to a total
maximum
aggregate principal amount of $7,500,000.00, made to Borrower by
the Swing
Line
Lender.
"Swing Line Lender" shall mean Capital One.
"Swing Line Loans" shall have the meaning assigned to such term in
Section
2.3
below.
"Tangible Net Worth" shall mean the sum of the Borrower's common
stock,
preferred stock, capital surplus and retained earnings less
treasury stock
and
the sum of all intangible assets (including, without limitation,
good
will, franchises, licenses, patents, trademarks, trade names,
copyrights,
service marks and brand names).
"Termination Date" shall mean the earlier to occur of (i) June 6,
2010 or
(ii)
the date of termination of the Commitments pursuant to Article
XIV
hereof.
"Total Liabilities" shall mean the total consolidated liabilities
of
Borrower, as determined in accordance with GAAP.
"Total Outstandings" shall mean as of any date, without
duplication, the
sum
of (i) the total principal balance outstanding on the Notes, plus
(ii)
the
total face amount of all outstanding Letters of Credit plus (iii)
the
total of all Reimbursement Obligations.
"Tranche" shall mean a Eurodollar Loan for a particular Interest
Period
and/or a Base Rate Loan.
"UCC" shall mean the Uniform Commercial Code-Secured Transactions
(La. R.S.
10:9-101 et seq.) in the State of Louisiana, as amended from time
to time,
provided that if by reason of mandatory provisions of law, the
perfection
or
effect of perfection or non-perfection of the Lender's
Encumbrances
against the Collateral is governed by the Uniform Commercial Code
as in
effect in a jurisdiction other than the State of Louisiana, then
"UCC"
means the Uniform Commercial Code as the same may be amended from
time to
time
and in effect in such other jurisdiction.
"Unused Amount" shall have the meaning assigned to such a term in
Section
6.2
of the Agreement.
14
<PAGE>
Section 1.2. Accounting Terms. All accounting terms not
specifically
defined herein shall be construed in accordance with GAAP, and all
financial
data submitted pursuant to this Agreement shall be prepared in
accordance with
GAAP.
ARTICLE II
LINE OF CREDIT LOAN COMMITMENT
------------------------------
Section 2.1. The Line of Credit. Subject to the terms and
conditions of
this Agreement, each Lender agrees severally (a) to make its Pro
Rata Part of
Revolving Loans to the Borrower during the period from the date
hereof until the
Termination Date, by making Revolving Loans under the Line of
Credit to the
Borrower from time to time; provided, however, that at no time
shall the sum of
the aggregate principal amount of such Revolving Loans to the
Borrower at such
time outstanding exceed the Line of Credit Loan Commitment.
Notwithstanding the
foregoing, it is agreed and understood that each Lender's
obligation to fund
Revolving Loans is limited to such Lender's Line of Credit Loan
Commitment less
its Pro Rata Part of the Total Outstandings.
Section 2.2. Revolving Loans.
Section 2.2.1. Revolving Loans. Subject to the terms and conditions
of this
Agreement, each Lender severally agrees to make Revolving Loans to
the Borrower
from time to time under the Line of Credit. Within the limits set
forth herein,
the Borrower may borrow from the Lenders hereunder, repay any and
all such
Revolving Loans as hereinafter provided, and reborrow thereunder;
provided,
however, each Revolving Loan, subject to availability, shall be in
an amount not
less than $1,000,000.00. The Borrower's obligation to repay the
Revolving Loans
made by the Lenders shall be evidenced by the Notes. Revolving
Loans under the
Line of Credit shall bear interest, at Borrower's option, at the
Base Rate plus
or minus the Base Rate Margin or the Eurodollar Rate plus the
Eurodollar Margin.
The total number of Tranches under the Line of Credit which may be
outstanding
at any time hereunder shall never exceed seven (7) Tranches,
whether such
Tranches are Base Rate Loans, Eurodollar Loans, or a combination
thereof.
Notwithstanding any provision in this Agreement to the contrary,
the parties
acknowledge and agree that upon any breach of Section 2.2.1, the
Lenders'
obligation to make Revolving Loans is suspended until such breach
is cured to
the reasonable satisfaction of the Required Lenders.
Section 2.2.2. Letters of Credit. On the terms and conditions
hereinafter
set forth, the Agent shall from time to time during the period
beginning on the
date of this Agreement and ending on the Facility A Termination
Date, upon
request of Borrower, issue standby letters of credit for the
account of the
Borrower or a Subsidiary for general corporate purposes in such
amounts as the
Borrower may request but not to exceed in the aggregate face amount
at any time
outstanding the sum of $2,500,000.00 (subject to the additional
limitations on
the amounts thereof set forth in Section 2.2.3. below), each such
letter of
credit shall have an expiry date no later than the earlier of one
(1) year from
the date of issuance or the Termination Date, whichever occurs
first (the
"Letters of Credit"); provided, however, a Letter of Credit may
contain a
provision providing for the automatic extension of the expiration
date in the
absence of a notice of non-renewal from the Agent but, except as
provided below,
such provision shall not permit the extension of the expiration
date of such
Letter of Credit beyond the Termination Date; and provided,
further, that a
15
<PAGE>
Letter of Credit may have an expiration date after the Termination
Date if
Borrower provides not later than ninety (90) days prior to the
Termination Date
cash collateral acceptable to Agent for any such Letter of Credit.
On each day
during the period while any such Letter of Credit is issued and
outstanding in
accordance with the provisions of this Agreement, the sum of the
face amount of
each such outstanding Letter of Credit shall be treated as a
Revolving Loan
under the Line of Credit. The Line of Credit Loan Commitment of
each Lender
shall be deemed to be utilized for all purposes hereof in an amount
equal to
such Lender's Commitment Percentage of the undrawn face amount of
such Letter of
Credit. Each Lender agrees that, upon issuance of any Letter of
Credit
hereunder, it shall automatically acquire a participation in the
Agent's
liability under such Letter of Credit in an amount equal to such
Lender's
Commitment Percentage of such liability, and each Lender (other
than Agent)
thereby shall absolutely, unconditionally and irrevocably assume,
as primary
obligor and not as surety, and shall be unconditionally obligated
to Agent to
pay and discharge when due, its Commitment Percentage of Agent's
liability under
such Letter of Credit, provided such Letter of Credit was issued in
accordance
with the provisions of this Agreement. Borrower hereby
unconditionally agrees to
pay and reimburse the Agent for the amount of each payment under
any Letter of
Credit that is in substantial compliance with the provisions of
such Letter of
Credit, without presentment, demand, or protest and in accordance
with this
Section 2.2.2. Upon receipt from any beneficiary of any Letter of
Credit of any
demand for payment under such Letter of Credit, the Agent shall
promptly notify
the Borrower of the demand and the date upon which such payment is
to be made by
the Agent to such beneficiary in respect of such demand. Forthwith
upon receipt
of such notice from the Agent, Borrower shall advise the Agent
whether or not it
intends to borrow under the Line of Credit to finance its
obligations to
reimburse the Agent, and if so, submit a Request for Revolving Loan
as provided
in Section 2.2.4. hereof.
Section 2.2.3. Procedure for Obtaining Letters of Credit. The
amount and
date of issuance, renewal, extension or reissuance of a Letter of
Credit
pursuant to the Section 2.2.2. shall be designated by the
Borrower's written
request delivered to the Agent at least three (3) Business Days
prior to the
date of such issuance, renewal, extension or reissuance.
Concurrently with or
promptly following the delivery of the request for a Letter of
Credit, the
Borrower shall execute and deliver to the Agent an application and
agreement
with respect to the Letter of Credit, said application and
agreement to be in
the form customarily used by the Agent. The terms of this Agreement
shall
control in case of any conflict between the terms of this Agreement
and the
Agent's form of application and agreement with respect to Letters
of Credit. The
Agent shall not be obligated to issue, renew, extend or reissue
such Letters of
Credit if (i) the Agent does not approve the requested form of the
Letter of
Credit or any of the terms thereof, such approval not to be
unreasonably
withheld, (ii) the amount thereon when added to the amount of the
outstanding
Letters of Credit exceeds $2,500,000.00, or (iii) the amount
thereof when added
to the total outstanding Revolving Loans under the Line of Credit
would exceed
the Line of Credit Loan Commitment. Borrower agrees to pay the
Agent a fee for
the issuance of each Letter of Credit, which fee shall be due and
payable by the
Borrower to the Agent upon issuance of each Letter of Credit by the
Agent and on
each anniversary date of such issuance while such Letter of Credit
is
outstanding. The said fee shall be a per annum fee in the amount
equal to the
lesser of either (a) 1.5% per annum or (b) the applicable
Eurodollar Margin,
times the face amount of the Letter of Credit for such period
(calculated
separately for each Letter of Credit).
16
<PAGE>
Section 2.2.4. Manner and Notice of Borrowing Under the Line of
Credit.
Requests For Revolving Loans under the Line of Credit may be made
by the
Borrower, in writing (including facsimile transmission) to the
Agent and such
requests shall be fully authorized by the Borrower if made by any
one of the
persons designated by the Borrower in writing to the Agent. The
form of Request
for Revolving Loan is attached hereto as Exhibit "B", and includes
a designation
by Borrower of the Borrowing Date. The Agent shall have the right,
but not the
obligation, to verify any telephone requests by calling the person
who made the
request at the telephone number designated by the Borrower in
writing to the
Agent. Requests For Revolving Loans must be received by not later
than 11:00
a.m. (Central Time) (i) one (1) Business Day prior to the Borrowing
Date in the
case of Base Rate Loans, or (ii) three (3) Business Days prior to
any proposed
Borrowing Date in the case of Eurodollar Loans. Upon receipt of
such Request for
Revolving Loan, the Agent shall advise each Lender thereof;
provided, that if
the Lenders have received at least one (1) Business Day's notice of
such
Revolving Loan prior to funding of a Base Rate Loan, or at least
three (3)
Business Days' notice of each Revolving Loan prior to the funding
in the case of
a Eurodollar Loan, each Lender shall provide the Agent at its
office at 313
Carondelet Street, New Orleans, Louisiana 70130, not later than
1:00 p.m.,
Central Time, on the Borrowing Date, in immediately available
funds, its Pro
Rata share of the requested Revolving Loan, but the aggregate of
all such
outstanding fundings by each Lender shall never exceed such
Lender's available
Line of Credit Loan Commitment. Not later than 2:00 p.m., Central
Time, on the
Borrowing Date, the Agent shall make available to Borrower the
aggregate amount
of such requested Revolving Loan in the manner requested in the
Request for
Revolving Loan. The Agent and the Lenders shall not incur any
liability to
Borrower in acting upon any Request for Revolving Loan referred to
above which
the Agent and the Lenders believe in good faith to have been given
by a duly
authorized officer or other person authorized to borrow on behalf
of Borrower or
for otherwise acting in good faith under this Section 2.2.4. Each
Request for
Revolving Loan for a Revolving Loan must specify whether such Loan
is a
Eurodollar Loan or a Base Rate Loan. The aggregate outstanding
amount of
principal and interest due by the Borrower at any given time under
the Line of
Credit shall be and constitute the indebtedness of the Borrower to
the Lenders
under the Notes made by the Borrower. When each Revolving Loan is
made by the
Lenders to the Borrower hereunder, the Borrower shall be deemed to
have renewed
and reissued the Notes for the amount of the Revolving Loan plus
all amounts due
by the Borrower to the Lenders under the Line of Credit Loan
Commitment
immediately prior to such Revolving Loan.
Section 2.2.5. Use of Proceeds. The Borrower shall use the proceeds
of the
Revolving Loans to finance (i) the repayment in full of its
existing senior debt
to CF Blackburn, L.L.C., (ii) certain acquisitions and capital
expenditures,
(iii) working capital, and (iv) other general corporate
purposes.
Section 2.2.6. Several Obligations. The obligations of the Lenders
under
the Line of Credit Loan Commitment are several and not joint. The
failure of any
Lender to make a Revolving Loan required to be made by it shall not
relieve any
other Lender of its obligation to make its Revolving Loan, and no
Lender shall
be responsible for the failure of any other Lender to make the
Revolving Loan to
be made by such other Lender.
17
<PAGE>
Section 2.3. Swing Line. Subject to the terms and conditions set
forth
herein, the Swing Line Lender shall from time to time until the
Termination
Date, upon the request of the Borrower, and provided that all of
the applicable
conditions precedent specified in Section 10.2 have been satisfied,
make loans
("Swing Line Loans") to the Borrower in an aggregate principal
amount not to
exceed at any one time outstanding $7,500,000. Swing Line Loans
shall be in any
amount and shall, unless otherwise expressly stated in this
Agreement,
constitute "Loans" for all purposes hereunder, except they shall
not be
considered a utilization of the Commitment of the Swing Line Lender
or any other
Lender for purposes of calculating commitment fees hereunder.
Notwithstanding
the foregoing sentence, the aggregate amount of all Loans
(including all Swing
Line Loans) and outstanding Letters of Credit shall not at any time
exceed the
aggregate of the Commitments. To request a Swing Line Loan, the
Borrower shall
notify the Agent and the Swing Line Lender of such request by
telephone no later
than 11:00 a.m., Lafayette, Louisiana, time, on the date of the
proposed Swing
Line Loan, and shall confirm promptly by hand delivery or telecopy
to the Agent
and the Swing Line Lender a written borrowing request in a form
approved by the
Agent and signed by the Borrower. Each request for a Swing Line
Loan shall be
irrevocable and shall state specifically that the Loan is to be a
Swing Line
Loan and not a Revolving Loan, the amount of the Swing Line Loan
requested, the
date on which such Swing Line Loan is to be made, which shall be a
Business Day,
and how the proceeds of such Swing Line Loan are to be disbursed.
All Swing Line
Loans shall bear interest at an annual rate equal to Base Rate from
time to time
in effect plus or minus the Base Rate Margin from time to time in
effect.
Subject to the terms and conditions of this Agreement, all Swing
Line Loans may
be borrowed, prepaid and re-borrowed; provided that any and all
such Swing Line
Loans then outstanding shall be due and payable in full on the
earliest of (i)
on the first Business Day of each month, (ii) on the first date,
after the date
that such Swing Line Loan is made, that a Revolving Loan is made,
and (iii) the
Termination Date. At any time, but not less frequently than weekly,
upon the
request of the Swing Line Lender, each Lender other than the Swing
Line Lender
shall purchase a participating interest in any one or more Swing
Line Loans in
an amount equal to the product of multiplying (x) its Commitment
Percentage
times (y) the outstanding balance of such Swing Line Loans. No
later than 1:00
p.m. Lafayette, Louisiana, time on the date such request is made
(or on the next
Business Day, if such request is made after 11:00 a.m., Lafayette,
Louisiana,
time), each Lender will transfer to the Swing Line Lender, in
immediately
available funds, the amount of its participation. Whenever, at any
time after
the Swing Line Lender has received from any Lender such Lender's
participating
interest in a Swing Line Loan, the Swing Line Lender receives any
payment on
account thereof, the Swing Line Lender will distribute to such
Lender its
participating interest in such amount (appropriately adjusted, in
the case of
interest payments, to reflect the period of time during which such
Lender's
participating interest was outstanding and funded); provided,
however, that in
the event that such payment received by the Swing Line Lender is
required to be
returned, such Lender will return to the Swing Line Lender any
portion thereof
previously distributed by the Swing Line Lender to it. Each
Lender's obligation
to purchase such participating interests shall be absolute and
unconditional and
shall not be affected by any circumstances, including, without
limitation, (i)
any set-off, counterclaim, recoupment, defense or other rights
which such Lender
or any other Person may have against the Swing Line Lender or any
other Person
for any reason whatsoever; (ii) the occurrence or existence of a
Default or an
Event of Default or the termination of the Commitments; (iii) any
adverse change
in the condition (financial or otherwise) of the Borrower or any
other Person;
(iv) any breach of this Agreement by the Borrower or any other
Person; or (v)
any other circumstance, happening or event whatsoever, whether or
not similar to
any of the foregoing. Each Swing Line Loan, once so participated,
shall cease to
be a Swing Line Loan for purposes of this Agreement and shall
become a Revolving
Loan.
18
<PAGE>
ARTICLE III
NOTES EVIDENCING THE REVOLVING LOANS
------------------------------------
Section 3.1. Notes.
Section 3.1.1. Form of Notes. The Revolving Loan shall be evidenced
by the
Revolving Notes in the aggregate face amount of the Line of Credit
Loan
Commitment. Notwithstanding the face amount of the Notes, the
actual principal
amount due from Borrower to the Lenders on account of the Notes, as
of any date
of computation, shall be the sum of Revolving Loans then and
theretofore made on
account thereof, less all principal payments actually received by
Lenders in
collected funds with respect thereto. Although the Notes are dated
of even date
herewith, interest in respect thereof shall be payable only for the
period
during which the loans evidenced thereby are outstanding and,
although the
stated amount of the Notes may be higher, the Notes shall be
enforceable, with
respect to Borrower's obligation to pay the principal amount
thereof, only to
the extent of the unpaid principal amount of the Revolving
Loans.
Section 3.1.2. Issuance of Additional Notes. From time to time new
Notes
may be issued to other Lenders as such Lenders become parties to
this Agreement.
Upon request from the Agent, Borrower shall execute and deliver to
Agent any
such new or additional Notes. From time to time as new Notes are
issued the
Agent shall require that each Lender exchange their Notes for newly
issued Notes
to reflect the amount of each Lender's Commitment hereunder. The
Agent shall,
upon the written request of Borrower, cause the Lenders to return
to Borrower
the Notes which have been replaced within a reasonable period of
time after
Borrower's request. Under no circumstances will the issuance of new
Notes, or
the return of the Notes to the Borrower which have been replaced,
constitute a
novation or other discharge of the outstanding indebtedness of
Borrower to the
Lenders under the Line of Credit.
Section 3.1.3. Payment of the Notes. Subject to the requirements of
Article
VIII below, interest on the unpaid principal balance of the Notes
shall be
payable on each Interest Payment Date and on the Termination Date.
Subject to
the requirements of Article VIII below, the outstanding principal
due under the
Notes shall be due and payable on the Termination Date.
Section 3.1.4. Payment to the Lenders. Each Lender's Pro Rata Part
of
payment or prepayment of the Loans shall be directed by wire
transfer to such
Lender by the Agent at the address provided to the Agent for such
Lender for
payments no later than 2:00 p.m., Lafayette, Louisiana, time on the
Business Day
such payments or prepayments are deemed hereunder to have been
received by
Agent; provided, however, in the event that any Lender shall have
failed to make
a Revolving Loan as contemplated under Article II hereof (a
"Defaulting Bank")
and the Agent or another Lender or Lenders shall have made such
Revolving Loan,
payment received by Agent for the account of such Defaulting
Bank(s) shall not
be distributed to such Defaulting Bank(s) until such Revolving Loan
or Revolving
Loans shall have been repaid in full to the Lender or Lenders who
funded such
Revolving Loan or Revolving Loans. For the sole purpose of
calculating interest,
any payment or prepayment received by the Agent at any time after
12:00 noon,
Lafayette, Louisiana, time on a Business Day shall be deemed to
have been
received on the next Business Day. Interest shall cease to accrue
on any
principal as of the end of the day preceding the Business Day on
which any such
payment or prepayment is deemed hereunder to have been received by
the Agent. If
the Agent fails to transfer any principal amount to any Lender as
provided
above, then the Agent shall promptly direct such principal amount
by wire
transfer to such Lender.
19
<PAGE>
Section 3.1.5. Sharing of Payments, Etc. If any Lender shall obtain
any
payment (whether voluntary, involuntary, or otherwise) on account
of the Loans,
(including, without limitation, any set-off) which is in excess of
its Pro Rata
Part of payments on the Loans, as the case may be, obtained by all
Lenders, such
Lender shall purchase from the other Lenders such participation as
shall be
necessary to cause such purchasing Lender to share the excess
payment pro rata
with each of them; provided that, if all or any portion of such
excess payment
is thereafter recovered from such purchasing Lender, the purchase
shall be
rescinded and the purchase price restored to the extent of the
recovery.
Borrower agrees that any Lender so purchasing a participation from
another
Lender pursuant to this Section may, to the fullest extent
permitted by law,
exercise all of its rights of payment (including the right of
offset) with
respect to such participation as fully as if such Lender were the
direct
creditor of Borrower in the amount of such participation.
Section 3.1.6. Non-Receipt of Funds by the Agent Unless the Agent
shall
have been notified by a Lender or Borrower (the "Payor") prior to
the date on
which such Lender is to make payment to the Agent of the proceeds
of a Revolving
Loan to be made by it hereunder or Borrower is to make a payment to
the Agent
for the account of one or more of the Lenders, as the case may be
(such payment
being herein called the "Required Payment"), which notice shall be
effective
upon receipt, that the Payor does not intend to make the Required
Payment to the
Agent, the Agent may assume that the Required Payment has been made
and may, in
reliance upon such assumption (but shall not be required to), make
the amount
thereof available to the intended recipient on such date and, if
the Payor has
not in fact made the Required Payment to the Agent, the recipient
of such
payment shall, on demand, pay to the Agent the amount made
available to it
together with interest thereon in respect of the period commencing
on the date
such amount was made available by the Agent until the date the
Agent recovers
such amount at the rate applicable to such portion of the
applicable Revolving
Loan. Any payment due from any Lender to Agent pursuant hereto
shall bear
interest at the Federal Funds Rate.
ARTICLE IV
INTEREST RATES
--------------
Section 4.1. Options.
Section 4.1.1. Base Rate Loans. On Base Rate Loans, Borrower agrees
to pay
interest monthly calculated on the basis of a year consisting of
365/360 days
with respect to the unpaid principal amount of each Base Rate Loan
from the date
the proceeds thereof are made available to Borrower until maturity
(whether by
acceleration or otherwise), at a varying rate per annum equal to
the lesser of
(i) the Maximum Rate and (ii) the Base Rate plus or minus the Base
Rate Margin.
Past due principal, to the extent permitted by law, shall bear
interest, payable
upon demand, at the lesser of (i) the Maximum Rate and (ii) the
default rate
specified in the Notes.
20
<PAGE>
Section 4.1.2. Eurodollar Loans. On Eurodollar Loans, Borrower
agrees to
pay interest calculated on the basis of a year consisting of 360
days with
respect to the unpaid principal amount of each Eurodollar Loan from
the date the
proceeds thereof are made available to Borrower until maturity
(whether by
acceleration or otherwise), at a varying rate per annum equal to
the lesser of
(i) the Maximum Rate and (ii) the Eurodollar Rate plus the
Eurodollar Margin.
Past due principal, to the extent permitted by law, shall bear
interest, payable
on demand, at the lesser of (i) the Maximum Rate and (ii) the
default rate
specified in the Notes. Unless otherwise requested by Borrower,
upon the
expiration of each Interest Period applicable to Eurodollar Loans,
the Borrower
shall be deemed to have elected to maintain all applicable
Eurodollar Loans as
Eurodollar Loans with an Interest Period of one (1) month.
Section 4.2. Interest Rate Determination. The Agent shall determine
each
interest rate applicable to any Base Rate Loan or Eurodollar Loan
and its
determination shall be conclusive absent manifest error. The Agent
shall notify
the Borrower of each interest rate determination within a
reasonable time after
each such determination.
Section 4.3. Conversion Option. Borrower may elect from time to
time (i) to
convert all or any part of its Eurodollar Loans to Base Rate Loans
by giving the
Agent irrevocable notice of such election in writing prior to 11:00
a.m.
(Lafayette, Louisiana time) on the conversion date and such
conversion shall be
made on the requested conversion date, provided that any such
conversion of
Eurodollar Loan shall only be made on the last day of the
Eurodollar Interest
Period with respect thereof, and (ii) to convert all or any part of
its Base
Rate Loans to Eurodollar Loans by giving the Agent irrevocable
written notice of
such election three (3) Business Days prior to the proposed
conversion and such
conversion shall be made on the requested conversion date or, if
such requested
conversion date is not a Business Day on the next succeeding
Business Day;
provided, however, the conversion amount shall not be less than
$1,000,000.00.
Any such conversion shall not be deemed a prepayment of any Note or
a prepayment
of any of the Loans for purposes of this Agreement.
ARTICLE V
CHANGE OF CIRCUMSTANCES
-----------------------
Section 5.1. Unavailability of Funds or Inadequacy of Pricing. In
the event
that, in connection with any proposed Eurodollar Loan, the Agent
reasonably
determines, which determination shall, absent manifest error, be
final,
conclusive and binding upon all parties, due to changes in
circumstances since
the date hereof, adequate and fair means do not exist for
determining the
Eurodollar Rate or such rate will not accurately reflect the costs
to the
Lenders of funding Eurodollar Loans for such Eurodollar Interest
Period, the
Agent shall give notice of such determination to the Borrower,
whereupon, until
the Agent notifies the Borrower that the circumstances giving rise
to such
suspension no longer exist, the obligation of the Lenders to make,
continue or
convert Loans into Eurodollar Loans shall be suspended, and all
loans to
Borrower shall be Base Rate Loans during the period of
suspension.
21
<PAGE>
Section 5.2. Change in Laws. If at any time after the date hereof
any new
law or any change in existing laws or in the interpretation by any
governmental
authority, central bank, or comparable agency charged with the
administration or
interpretation thereof, of any new or existing laws shall make it
unlawful for
the such Lender to make or continue to maintain or fund Eurodollar
Loans
hereunder, then such Lender shall promptly notify Borrower in
writing of such
Lender's obligation to make, continue or convert Loans into
Eurodollar Loans
under this Agreement shall be suspended until it is no longer
unlawful for such
Lender to make or maintain Eurodollar Loans. Upon receipt of such
notice,
Borrower shall either repay the outstanding Eurodollar Loans owed
to the
Lenders, without penalty, on the last day of the current Interest
Periods (or,
if any Lender may not lawfully continue to maintain and fund such
Eurodollar
Loans, immediately), or Borrower may convert such Eurodollar Loans
at such
appropriate time to Base Rate Loans.
Section 5.3. Increased Cost or Reduced Return. (i) If, after the
date
hereof, the adoption of any applicable law, rule, or regulation, or
any change
in any applicable law, rule, or regulation, 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 Lender with any request or directive (whether or
not having
the force of law) of any such governmental authority, central bank,
or
comparable agency:
(A)
shall subject such
Lender to any tax, duty, or other charge with
respect to any Eurodollar Loans, the Notes, or its obligation to
make
Eurodollar Loans, or change the basis of taxation of any
amounts
payable to such Lender under this Agreement, or the Notes, in
respect
of any Eurodollar Loans (other than franchise taxes and taxes
imposed
on the overall net income of such Lender);
(B)
shall impose, modify,
or deem applicable any reserve, special deposit,
assessment, or similar requirement (other than reserve
requirements,
if any, taken into account in the determination of the
Eurodollar
Rate) relating to any extensions of credit or other assets of, or
any
deposits with or other liabilities or commitments of, such
Lender,
including the Commitment of such Lender hereunder; or
(C)
shall impose on such
Lender or on the London interbank market any
other condition affecting this Agreement or its Notes or any of
such
extensions of credit or liabilities or commitments;
22
<PAGE>
and the result of any of the foregoing is to increase in a material
respect the
cost to such Lender of making, converting into, continuing, or
maintaining any
Eurodollar Loans or to reduce in a material respect any sum
received or
receivable by such Lender under this Agreement or its Note with
respect to any
Eurodollar Loans, then pursuant to Section 5.3(v) Borrower shall
pay to such
Lender such amount or amounts as are reasonably necessary to
compensate such
Lender for such increased cost or reduction. If such Lender
requests
compensation by Borrower under this Section 5.3., Borrower may, by
notice to
such Lender, suspend the obligation of such Lender to make or
continue
Eurodollar Loans, or to convert all or part of the Base Rate Loans
owing to such
Lender to Eurodollar Loans, until the event or condition giving
rise to such
request ceases to be in effect; provided that such suspension shall
not affect
the right of such Lender to receive the compensation so
requested.
(ii) If, after the
date hereof, such Lender shall have
reasonably determined that the adoption of any applicable law,
rule, or
regulation regarding capital adequacy or any change therein or in
the
interpretation or administration thereof by any governmental
authority, central
bank, or comparable agency charged with the interpretation or
administration
thereof, or any request or directive regarding capit
