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EXHIBIT 10.1
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[Published CUSIP Number: ______________]
CREDIT AGREEMENT
DATED AS OF MAY 17, 2007
AMONG
NORTH AMERICAN GALVANIZING & COATINGS, INC.,
AS BORROWER,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, SWING LINE LENDER
AND L/C ISSUER,
AND
THE OTHER LENDERS PARTY HERETO
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TABLE OF CONTENTS
Section Page
ARTICLE I. DEFINITIONS AND ACCOUNTING
TERMS....................................1
1.01 Defined
Terms.....................................................1
1.02 Other Interpretive
Provisions....................................23
1.03 Accounting
Terms.................................................23
1.04
Rounding.........................................................24
1.05 Times of
Day.....................................................24
1.06 Letter of Credit
Amounts.........................................24
ARTICLE II. THE COMMITMENTS AND CREDIT
EXTENSIONS.............................24
2.01 Committed
Loans..................................................24
2.02 Borrowings, Conversions and Continuations of Committed
Loans.....25
2.03 Letters of
Credit................................................26
2.04 Swing Line
Loans.................................................33
2.05
Prepayments......................................................36
2.06 Termination or Reduction of
Commitments..........................37
2.07 Repayment of
Loans...............................................38
2.08
Interest.........................................................38
2.09
Fees.............................................................39
2.10 Computation of Interest and Fees; Retroactive Adjustments
of
Applicable
Margin................................................39
2.11 Evidence of
Debt.................................................40
2.12 Payments Generally; Agent's
Clawback.............................40
2.13 Sharing of
Payments..............................................42
2.14 Increase in Aggregate
Commitments................................43
ARTICLE III. TAXES, YIELD PROTECTION AND
ILLEGALITY...........................45
3.01
Taxes............................................................45
3.02
Illegality.......................................................46
3.03 Inability to Determine
Rates.....................................46
3.04 Increased
Costs..................................................47
3.05 Compensation for
Losses..........................................48
3.06 Mitigation
Obligations...........................................49
3.07
Survival.........................................................49
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS.........................49
4.01 Conditions of Initial Credit
Extension...........................49
4.02 Conditions to all Credit
Extensions..............................52
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ARTICLE V. REPRESENTATIONS AND
WARRANTIES.....................................52
5.01 Existence, Qualification and
Power...............................52
5.02 Authorization; No
Contravention..................................53
5.03 Governmental Authorization; Other
Consents.......................53
5.04 Binding
Effect...................................................53
5.05 Financial Statements; No Material Adverse
Effect.................53
5.06
Litigation.......................................................53
5.07 No
Default.......................................................54
5.08 Ownership of Property;
Liens.....................................54
5.09 Environmental
Compliance.........................................54
5.10
Insurance........................................................54
5.11
Taxes............................................................54
5.12 ERISA
Compliance.................................................54
5.13
Subsidiaries.....................................................55
5.14 Margin Regulations; Investment Company
Act.......................55
5.15
Disclosure.......................................................55
5.16 Compliance with
Laws.............................................56
5.17 Taxpayer Identification
Number...................................56
5.18 Intellectual Property; Licenses,
Etc.............................56
5.19 Rights in Collateral; Priority of
Liens..........................56
ARTICLE VI. AFFIRMATIVE
COVENANTS.............................................56
6.01 Financial
Statements.............................................56
6.02 Certificates; Other
Information..................................57
6.03
Notices..........................................................60
6.04 Payment of
Obligations...........................................60
6.05 Preservation of Existence,
Etc...................................60
6.06 Maintenance of
Properties........................................60
6.07 Maintenance of
Insurance.........................................61
6.08 Compliance with
Laws.............................................61
6.09 Books and
Records................................................61
6.10 Inspection
Rights................................................61
6.11 Use of
Proceeds..................................................61
6.12 Financial
Covenants..............................................61
6.13
Subsidiaries.....................................................62
6.14 Collateral
Records...............................................62
6.15 Security
Interests...............................................62
6.16 Principal
Depository.............................................63
6.17 Real Property; Letter of
Credit..................................63
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ARTICLE VII. NEGATIVE
COVENANTS...............................................63
7.01
Liens............................................................63
7.02 Investments;
Acquisitions........................................64
7.03
Indebtedness.....................................................65
7.04 Fundamental
Changes..............................................65
7.05
Dispositions.....................................................66
7.06 Restricted
Payments..............................................66
7.07 Change in Nature of
Business.....................................67
7.08 Transactions with
Affiliates.....................................67
7.09 Burdensome
Agreements............................................67
7.10 Use of
Proceeds..................................................67
7.11 Minimum
Availability.............................................67
7.12 Capital
Expenditures.............................................67
ARTICLE VIII. EVENTS OF DEFAULT AND
REMEDIES..................................68
8.01 Events of
Default................................................68
8.02 Remedies Upon Event of
Default...................................70
8.03 Application of
Funds.............................................70
8.04 Marshalling; Order of
Realization................................71
ARTICLE IX. ADMINISTRATIVE
AGENT..............................................71
9.01 Appointment and Authorization of Administrative
Agent............71
9.02 Rights as a
Lender...............................................72
9.03 Exculpatory
Provisions...........................................72
9.04 Reliance by Administrative
Agent.................................73
9.05 Delegation of
Duties.............................................73
9.06 Resignation of
Agent.............................................73
9.07 Non-Reliance on Agent and Other
Lenders..........................74
9.08 No Other Duties,
Etc.............................................74
9.09 Administrative Agent May File Proofs of
Claim....................74
9.10 Guaranty
Matters.................................................75
9.11 Collateral
Matters...............................................75
ARTICLE X.
MISCELLANEOUS......................................................77
10.01 Amendments,
Etc..................................................77
10.02 Notices; Effectiveness; Electronic
Communications................78
10.03 No Waiver; Cumulative
Remedies...................................80
10.04 Expenses; Indemnity; Damage
Waiver...............................80
10.05 Payments Set
Aside...............................................82
10.06 Successors and
Assigns...........................................82
10.07 Treatment of Certain Information;
Confidentiality................86
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10.08 Right of
Setoff..................................................87
10.09 Interest Rate
Limitation.........................................87
10.10 Counterparts; Integration;
Effectiveness.........................87
10.11 Survival of Representations and
Warranties.......................88
10.12
Severability.....................................................88
10.13 Governing Law; Jurisdiction;
Etc.................................88
10.14 Waiver of Jury
Trial.............................................89
10.15 No Advisory or Fiduciary
Responsibility..........................89
10.16 USA PATRIOT ACT
Notice...........................................90
10.17 Time of the
Essence..............................................90
SCHEDULES
2.01 Commitments and Applicable Percentages
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office, Certain Addresses for
Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Permitted Acquisition Certificate
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of
May 17,
2007 (the "Effective Date"), among NORTH AMERICAN GALVANIZING
& COATINGS, INC.,
a Delaware corporation ("Borrower"), each lender from time to
time party hereto
(collectively, "Lenders" and individually, a "Lender"), and BANK
OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
Borrower has requested that Lenders provide a revolving
credit
facility, that the L/C Issuer provide a letter of credit
subfacility, and that
the Swing Line Lender provide a swing line subfacility, and
Lenders, Swing Line
Lender and L/C Issuer are willing to do so on the terms and
conditions set forth
herein. In consideration of the mutual covenants and agreements
herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following
terms
shall have the meanings set forth below:
"Account" shall have the meaning assigned to such term in
Revised
Article Nine of the UCC.
"Account Debtor" means a Person obligated on an Account.
"Acquisition" means any transaction or series of related
transactions
for the purpose of or resulting, directly or indirectly, in (a)
the acquisition
of all or substantially all of the assets of a Person, or of any
business or
division of a Person, (b) the acquisition of in excess of fifty
percent (50%) of
the Equity Interests of any Person, or otherwise causing any
Person to become a
Subsidiary, or (c) a merger or consolidation or any other
combination with
another Person (other than a Person that is a Subsidiary).
"Administrative Agent" or "Agent" means Bank of America in its
capacity
as administrative agent under any of the Loan Documents, or any
successor
administrative agent.
"Administrative Agent's Office" means Agent's address and,
as
appropriate, account as set forth on Schedule 10.02, or such
other address or
account as Agent may from time to time notify Borrower and
Lenders.
"Administrative Questionnaire" means an Administrative
Questionnaire in
a form supplied by Agent.
"Adverse Environmental Determination" means: (a) a judgment is
entered
against the Borrower or any Guarantor by a court of competent
jurisdiction, (b)
a written agreement by the Borrower or any Guarantor, (c) an
order, decree or
official pronouncement by a Governmental Authority, or (d) a
determination is
made by any Person authorized to do so by the Borrower or any
Guarantor, in any
of such cases, that either:
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(i) the total cost to remediate the alleged environmental
contamination at the Lake River facility previously operated by
the
former subsidiary of Borrower, Lake River Corporation (the "Lake
River
Remediation Cost"), is greater than $5 million (and the
liability of
Borrower and its Subsidiaries on a consolidated basis therefor
has not
been fully and finally determined to be less than $2.5
million),
(ii) the liability of Borrower and its Subsidiaries on a
consolidated basis for the Lake River Remediation Cost is
greater than
$2.5 million,
(iii) the cost to remediate any alleged environmental
contamination of any other land that occurred as a result of
the
operation of the Lake River facility (the "Third Party Lake
River
Cost") is greater than $5 million (and the liability of Borrower
and
its Subsidiaries on a consolidated basis therefor has not been
fully
and finally determined to be less than $2.5 million),
(iv) the liability of Borrower and its Subsidiaries on a
consolidated basis for the Third Party Lake River Cost is
greater than
$2.5 million,
(v) the sum of the Lake River Remediation Cost and Third
Party
Lake River Cost exceeds $5 million (and the liability of
Borrower and
its Subsidiaries on a consolidated basis therefor has not been
fully
and finally determined to be less than $2.5 million in the
aggregate),
or
(vi) the liability of Borrower and its Subsidiaries on a
consolidated basis for the Lake River Remediation Cost and Third
Party
Lake River Cost exceeds $2.5 million in the aggregate;
provided that in all cases above the following that may be paid
or
agreed to be paid by Borrower shall be ignored: (A) the cost of
any site
assessments or environmental reports and (B) the cost incurred
by Borrower, if
any, to remove storage tanks, pumping equipment, pipelines,
boilers, steam lines
and appurtenances thereto from the Lake River facility site.
"Affiliate" means, with respect to any Person, another Person
that
directly, or indirectly through one or more intermediaries,
Controls or is
Controlled by or is under common Control with the Person
specified.
"Aggregate Commitments" means the Commitments of all
Lenders.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, from time to time, the following
percentages
per annum, based upon the Leverage Ratio as set forth in the
most recent
Compliance Certificate received by Agent pursuant to Section
6.02(b):
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<TABLE><CAPTION>
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Applicable Margin
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<S> <C>
Applicable Applicable
Base Rate LIBOR Fixed LIBOR
Pricing Applicable Rate Margin Floating Rate Commitment
Level Leverage Ratio Margin (bps) (bps) Margin (bps) Fee
(bps)
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I Greater than 3.00x 25 200 200 25.0
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II Greater than or equal to 12.5 175 175 20.0
2.50x but less than 3.00x
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III Greater than or equal to 0 150 150 17.5
2.00x but less than 2.50x
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IV Greater than or equal to -12.5 125 125 15.0
1.50x but less than 2.00x
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V Greater than or equal to -25 100 100 12.5
1.00x but less than 1.50x
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VI Less than 1.00x -37.5 75 75 10.0
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</TABLE>
Any increase or decrease in the Applicable Margin resulting from
a
change in the Leverage Ratio shall become effective as of the
first Business Day
of the month immediately following the date a Compliance
Certificate is
delivered pursuant to Section 6.02(b); provided, however, that
if a Compliance
Certificate is not delivered when due in accordance with such
Section, then
Pricing Level I shall apply as of the first Business Day of the
month following
the date such Compliance Certificate was required to have been
delivered and
shall remain in effect until the fifth (5th) Business Day after
Agent's receipt
of the Compliance Certificate. The Applicable Margin in effect
from the Closing
Date through the first Business Day of the month immediately
following the date
a Compliance Certificate is delivered pursuant to Section
6.02(b) shall be
determined based upon Pricing Level VI.
Notwithstanding anything to the contrary contained in this
definition,
the determination of Applicable Margin for any period shall be
subject to the
provisions of Section 2.10(b).
"Applicable Percentage" means with respect to any Lender at any
time,
the percentage (carried out to the ninth decimal place) of the
Aggregate
Commitments represented by such Lender's Commitment at such
time. If the
commitment of each Lender to make Loans and the obligation of
the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to
Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable
Percentage of
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each Lender shall be determined based on the Applicable
Percentage of such
Lender most recently in effect, giving effect to any subsequent
assignments. The
initial Applicable Percentage of each Lender is set forth
opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to
which such Lender becomes a party hereto, as applicable.
"Asset Coverage Ratio" means, as of any date of determination,
the
ratio of (a) the sum of (i) cash and cash equivalents of the
Borrower and its
Domestic Subsidiaries as of such date plus (ii) Accounts of the
Borrower and its
Domestic Subsidiaries as of such date plus (iii) Inventory of
the Borrower and
its Domestic Subsidiaries as of such date (valued at the lower
of cost
determined on a LIFO basis or market value) plus (iv) the
depreciated book value
of property, plant and equipment of the Borrower and its
Domestic Subsidiaries
as of such date to (b) Consolidated Funded Indebtedness of the
Borrower and its
Subsidiaries as of such date.
"Assignee Group" means two or more Eligible Assignees that
are
Affiliates of one another.
"Assignment and Assumption" means an assignment and assumption
entered
into by a Lender and an assignee (with the consent of any party
whose consent is
required by Section 10.06(b)), and accepted by Agent, in
substantially the form
of Exhibit E or any other form approved by Agent.
"Attributable Indebtedness" means, on any date, (a) in respect
of any
capital lease of any Person, the capitalized amount thereof that
would appear on
a balance sheet of such Person prepared as of such date in
accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of
the remaining lease payments under the relevant lease that would
appear on a
balance sheet of such Person prepared as of such date in
accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated
balance
sheet of Borrower and its Subsidiaries for the fiscal year ended
December 31,
2006, and the related consolidated statements of income or
operations,
shareholders' equity and cash flows for such fiscal year of
Borrower and its
Subsidiaries, including the notes thereto.
"AutoBorrow Agreement" means that certain agreement between
Borrower
and Bank of America, dated as of the date of this Agreement,
with respect to the
services provided by Bank of America to the Borrower that
constitute Bank of
America's AutoBorrow program.
"Availability Period" means the period from and including the
Closing
Date to the earliest of (a) the Maturity Date, (b) the date of
termination of
the Aggregate Commitments pursuant to Section 2.06, and (c) the
date of
termination of the commitment of each Lender to make Loans and
of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.
"Bank of America" means Bank of America, N.A. and its
successors.
"Base Rate" means for any day a fluctuating rate per annum equal
to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest
in effect for such day as publicly
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announced from time to time by Bank of America as its "prime
rate." The "prime
rate" is a rate set by Bank of America based upon various
factors including Bank
of America's costs and desired return, general economic
conditions and other
factors, and is used as a reference point for pricing some
loans, which may be
priced at, above, or below such announced rate. Any change in
such rate
announced by Bank of America shall take effect at the opening of
business on the
day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base
Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the
Base
Rate.
"Basic Fixed Charge Coverage Ratio" means the ratio of (a) the
sum of
Operating Cash Flow, minus income tax expense, dividends,
capital stock
repurchases, and Maintenance Capital Expenditures, plus rent and
lease expense,
all for the applicable rolling four fiscal quarters, to (b)
current maturities
of long term liabilities, current maturities of Capitalized
Lease Obligations
and Implied Amortization as of the last day of such rolling four
quarters, plus
interest expense, lease expense and rent expense during such
four rolling fiscal
quarters.
"BBA LIBOR" has the meaning assigned to such term in the
definition of
"Eurodollar Base Rate."
"Bond Audit" means the Internal Revenue Service review of the
Harris
County Industrial Development Corporation Adjustable Rate
Industrial Development
Bonds, Series 2000, issued in 2000.
"Borrower" has the meaning specified in the introductory
paragraph
hereto.
"Borrower Materials" has the meaning specified in Section
6.02.
"Borrowing" means a Committed Borrowing or a Swing Line
Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or
other day
on which commercial banks are authorized to close under the Laws
of, or are in
fact closed in, the state where Administrative Agent's Oklahoma
office is
located and, if such day relates to any Eurodollar Fixed Rate
Loan, means any
such day on which dealings in Dollar deposits are conducted by
and between banks
in the London interbank eurodollar market.
"Capitalized Lease" of a Person means any lease of property by
such
Person as lessee which would be capitalized on a balance sheet
of such Person
prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of
the
obligations of such Person under Capitalized Leases.
"Cash Collateralize" has the meaning specified in Section
2.03(g).
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"Change in Law" means the occurrence, after the date of this
Agreement,
of any of the following: (a) the adoption or taking effect of
any law, rule,
regulation or treaty, (b) any change in any law, rule,
regulation or treaty or
in the administration, interpretation or application thereof by
any Governmental
Authority or (c) the making or issuance of any request,
guideline or directive
(whether or not having the force of law) by any Governmental
Authority.
"Change of Control" means, with respect to any Person, an event
or
series of events by which:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
but
excluding any employee benefit plan of such person or its
subsidiaries,
and any person or entity acting in its capacity as trustee,
agent or
other fiduciary or administrator of any such plan) becomes
the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the
Securities Exchange Act of 1934, except that a person or group
shall be
deemed to have "beneficial ownership" of all securities that
such
person or group has the right to acquire, whether such right
is
exercisable immediately or only after the passage of time (such
right,
an "option right")), directly or indirectly, of 35% or more of
the
equity securities of such Person entitled to vote for members of
the
board of directors or equivalent governing body of such Person
on a
fully-diluted basis (and taking into account all such securities
that
such person or group has the right to acquire pursuant to any
option
right); or
(ii) during any period of 12 consecutive months, a majority
of
the members of the board of directors or other equivalent
governing
body of such Person cease to be composed of individuals (a) who
were
members of that board or equivalent governing body on the first
day of
such period, (b) whose election or nomination to that board
or
equivalent governing body was approved by individuals referred
to in
clause (a) above constituting at the time of such election
or
nomination at least a majority of that board or equivalent
governing
body or (c) whose election or nomination to that board or
other
equivalent governing body was approved by individuals referred
to in
clauses (a) and (b) above constituting at the time of such
election or
nomination at least a majority of that board or equivalent
governing
body (excluding, in the case of both clause (b) and clause (c),
any
individual whose initial nomination for, or assumption of office
as, a
member of that board or equivalent governing body occurs as a
result of
an actual or threatened solicitation of proxies or consents for
the
election or removal of one or more directors by any person or
group
other than a solicitation for the election of one or more
directors by
or on behalf of the board of directors).
"Chase L/C" means a certain Letter of Credit in favor of
JPMorgan Chase
Bank, N.A. in the amount of $6,000,000.00.
"Closing Date" means the first date all the conditions precedent
in
Section 4.01 are satisfied or waived in accordance with Section
10.01.
"Code" means the Internal Revenue Code of 1986.
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"Collateral" shall mean any and all assets and rights and
interests in
or to property of Borrower and each of the other Loan Parties,
whether real or
personal, tangible or intangible, in which a Lien is granted or
purported to be
granted pursuant to the Collateral Documents.
"Collateral Documents" means all agreements, instruments and
documents
now or hereafter executed and delivered in connection with this
Agreement
pursuant to which Liens are granted or purported to be granted
to Agent in
Collateral securing all or part of the Obligations each in form
and substance
reasonably satisfactory to Agent.
"Commitment" means, as to each Lender, its obligation to (a)
make
Committed Loans to Borrower pursuant to Section 2.01, (b)
purchase
participations in L/C Obligations, and (c) purchase
participations in Swing Line
Loans, in an aggregate principal amount at any one time
outstanding not to
exceed the amount set forth opposite such Lender's name on
Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender
becomes a party
hereto, as applicable, as such amount may be adjusted from time
to time in
accordance with this Agreement.
"Commitment Increase" has the meaning assigned to such term in
Section
2.14(a).
"Committed Borrowing" means a borrowing consisting of
simultaneous
Committed Loans of the same Type and, in the case of Eurodollar
Fixed Rate
Loans, having the same Interest Period made by each of the
Lenders pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed
Borrowing,
(b) a conversion of Committed Loans from one Type to the other,
or (c) a
continuation of Eurodollar Fixed Rate Loans, pursuant to Section
2.02(a), which,
if in writing, shall be substantially in the form of Exhibit
A.
"Compliance Certificate" means a certificate substantially in
the form
of Exhibit D.
"Consolidated Funded Indebtedness" means, for Borrower and
its
Subsidiaries on a consolidated basis, the sum of the following
(without
duplication): (i) all Indebtedness for borrowed money, (ii) all
Indebtedness for
the deferred purchase price of property or services, (iii) all
Indebtedness
evidenced by a note, acceptance or other like instrument, (iv)
all Capitalized
Lease Obligations, (v) all cash overdrafts, and (vi) the
aggregate undrawn and
available amount of all outstanding Letters of Credit.
"Contractual Obligation" means, as to any Person, any provision
of any
security issued by such Person or of any agreement, instrument
or other
undertaking to which such Person is a party or by which it or
any of its
property is bound.
"Control" means the possession, directly or indirectly, of the
power to
direct or cause the direction of the management or policies of a
Person, whether
through the ability to exercise voting power, by contract or
otherwise.
"Controlling" and "Controlled" have meanings correlative
thereto.
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"Credit Extension" means each of the following: (a) a Borrowing
and (b)
an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States,
and all other liquidation, conservatorship, bankruptcy,
assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency,
reorganization, or similar debtor relief Laws of the United
States or other
applicable jurisdictions from time to time in effect and
affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event
of
Default or that, with the giving of any notice, the passage of
time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations
other
than L/C Fees an interest rate equal to (i) the Base Rate plus
(ii) the
Applicable Margin, if any, applicable to Base Rate Loans plus
(iii) 2% per
annum; provided, however, that with respect to a Eurodollar
Fixed Rate Loan, the
Default Rate shall be an interest rate equal to the interest
rate (including any
Applicable Margin) otherwise applicable to such Loan plus 2% per
annum, and (b)
when used with respect to L/C Fees, a rate equal to 2% per
annum.
"Defaulting Lender" means any Lender that (a) has failed to fund
any
portion of the Committed Loans, participations in L/C
Obligations or
participations in Swing Line Loans required to be funded by it
hereunder within
one Business Day of the date required to be funded by it
hereunder unless such
failure has been cured, (b) has otherwise failed to pay over to
Agent or any
other Lender any other amount required to be paid by it
hereunder within one
Business Day of the date when due, unless the subject of a good
faith dispute or
unless such failure has been cured, or (c) has been deemed
insolvent or become
the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license,
lease or
other disposition (including any sale and leaseback transaction)
of any property
by any Person, including any sale, assignment, transfer or other
disposal, with
or without recourse, of any notes or accounts receivable or any
rights and
claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means a Subsidiary that is organized,
formed or
chartered under the laws of any state of the United States of
America or the
District of Columbia.
"Eligible Account" shall mean an Account that meets the
following
standards until the same is collected in full: (a) the Account
is genuine and in
all respects what it purports to be; (b) the Account was created
in the ordinary
course of business of Borrower or a Domestic Subsidiary; (c) the
Account arises
from (i) the bona fide performance of services by Borrower or a
Domestic
Subsidiary that have been fully performed, acknowledged and
accepted by the
Account Debtor or (ii) the bona fide sale or lease of goods by
Borrower or a
Domestic Subsidiary, and such goods have been completed in
accordance with the
Account Debtor's specifications (if any) and delivered to and
accepted by the
Account Debtor; (d) the Account is unconditionally due and owing
from an Account
Debtor; (e) the sum of money does not remain unpaid for a period
in excess of
ninety (90) days beyond the Invoice Date; (f) the Account is
not
8
<PAGE>
a contra account and is not otherwise subject to any dispute,
set-off,
recoupment, counterclaim or other claim or to any rescission,
cancellation or
avoidance which would reduce or eliminate the amount to be paid
by the Account
Debtor, and the Account Debtor has not received or requested
permission to pay
the same in installments at dates later than were originally due
and payable; it
being further understood that contract retainages will not
constitute Eligible
Accounts; (g) the Account is not subject to any concession or
understanding with
the Account Debtor of any kind that is not disclosed to and
approved by Agent in
writing; (h) the Account does not result from the sale or lease
of any goods
held on consignment; (i) the Account Debtor is not an Affiliate
of Borrower or
any Subsidiary; and (j) the Account Debtor is not a director,
officer or an
employee of Borrower or any Subsidiary, nor a member of the
family of any
director, officer or employee of Borrower or any Subsidiary, nor
any
proprietorship or partnership owned in whole or in part by any
such director,
officer or employee of Borrower or any Subsidiary, or by any
member of the
family of any such Person. The specifications with respect to
the term "Eligible
Accounts" are adopted for the purpose of determining Implied
Amortization and
the designation of such specifications shall not be interpreted
to limit in any
respect any Lien granted to Agent in Accounts.
"Eligible Assignee" means any Person that meets the requirements
to be
an assignee under Section 10.06(b)(iii), (v) and (vi) (subject
to such consents,
if any, as may be required under Section 10.06(b)(iii)).
"Environmental Laws" means any and all Federal, state, local,
and
foreign statutes, laws, regulations, ordinances, rules,
judgments, orders,
decrees, permits, concessions, grants, franchises, licenses,
agreements or
governmental restrictions relating to pollution and the
protection of the
environment or the release of any materials into the
environment, including
those related to hazardous substances or wastes, air emissions
and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or
otherwise
(including any liability for damages, costs of environmental
remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or
any of their
respective Subsidiaries directly or indirectly resulting from or
based upon (a)
violation of any Environmental Law, (b) the generation, use,
handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c)
exposure to any Hazardous Materials, (d) the release or
threatened release of
any Hazardous Materials into the environment or (e) any
contract, agreement or
other consensual arrangement pursuant to which liability is
assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the
shares
of capital stock of (or other ownership or profit interests in)
such Person, all
of the warrants, options or other rights for the purchase or
acquisition from
such Person of shares of capital stock of (or other ownership or
profit
interests in) such Person, all of the securities convertible
into or
exchangeable for shares of capital stock of (or other ownership
or profit
interests in) such Person or warrants, rights or options for the
purchase or
acquisition from such Person of such shares (or such other
interests), and all
of the other ownership or profit interests in such Person
(including
partnership, member or trust interests therein), whether voting
or nonvoting,
and whether or not such shares, warrants, options, rights or
other interests are
outstanding on any date of determination.
9
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" means any trade or business (whether or
not
incorporated) under common control with Borrower within the
meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension
Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a
Pension Plan
subject to Section 4063 of ERISA during a plan year in which it
was a
substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a cessation
of operations that is treated as such a withdrawal under Section
4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any
ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer
Plan is in
reorganization; (d) the filing of a notice of intent to
terminate, the treatment
of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or
the commencement of proceedings by the PBGC to terminate a
Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes
grounds under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any
liability under Title IV of ERISA, other than for PBGC premiums
due but not
delinquent under Section 4007 of ERISA, upon Borrower or any
ERISA Affiliate.
"Eurodollar Base Rate" has the meaning specified in the
definition of
Eurodollar Fixed Rate.
"Eurodollar Fixed Rate" means for any Interest Period with
respect to a
Eurodollar Fixed Rate Loan, a rate per annum determined by Agent
pursuant to the
following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period the
rate per annum equal to the British Bankers Association LIBOR
Rate
("BBA LIBOR"), as published by Reuters (or other commercially
available
source providing quotations of BBA LIBOR as designated by Agent
from
time to time) at approximately 11:00 a.m., London time, two
Business
Days prior to the commencement of such Interest Period, for
Dollar
deposits (for delivery on the first day of such Interest Period)
with a
term equivalent to such Interest Period. If such rate is not
available
at such time for any reason, then the "Eurodollar Base Rate" for
such
Interest Period shall be the rate per annum determined by Agent
to be
the rate at which deposits in Dollars for delivery on the first
day of
such Interest Period in same day funds in the approximate amount
of the
Eurodollar Fixed Rate Loan being made, continued or converted by
Bank
of America and with a term equivalent to such Interest Period
would be
offered by Bank of America's London Branch to major banks in the
London
interbank eurodollar market at their request at approximately
11:00
a.m. (London time) two Business Days prior to the commencement
of such
Interest Period.
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<PAGE>
"Eurodollar Reserve Percentage" means, for any day during
any
Interest Period, the reserve percentage (expressed as a
decimal,
carried out to five decimal places) in effect on such day,
whether or
not applicable to any Lender, under regulations issued from time
to
time by the Board of Governors of the Federal Reserve System of
the
United States for determining the maximum reserve
requirement
(including any emergency, supplemental or other marginal
reserve
requirement) with respect to Eurocurrency funding (currently
referred
to as "Eurocurrency liabilities"). The Eurodollar Rate for
each
outstanding Eurodollar Fixed Rate Loan shall be adjusted
automatically
as of the effective date of any change in the Eurodollar
Reserve
Percentage.
"Eurodollar Fixed Rate Loan" means a Committed Loan that bears
interest
at a rate based on the Eurodollar Fixed Rate.
"Eurodollar Floating Rate" means a fluctuating rate of interest
per
annum equal to the BBA LIBOR, as published by Reuters (or other
commercially
available source providing quotations of BBA LIBOR as selected
by Agent from
time to time) as determined for each banking day at
approximately 11:00 a.m.
London time two (2) Business Days prior to the date in question,
for U.S. Dollar
deposits (for delivery on the first day of such interest period)
with a one
month term, as adjusted from time to time in the Agent's sole
discretion for
reserve requirements, deposit insurance assessment rates and
other regulatory
costs. If such rate is not available at such time for any
reason, then the rate
for that interest period will be determined by such alternate
method as
reasonably selected by the Agent.
"Eurodollar Floating Rate Loan" means a Committed Loan that
bears
interest at a rate based on the Eurodollar Floating Rate.
"Eurodollar Rate Loan" means a Committed Loan that bears
interest at a
rated based on the Eurodollar Fixed Rate or the Eurodollar
Floating Rate.
"Event of Default" has the meaning specified in Section
8.01.
"Excluded Taxes" means, with respect to Agent, any Lender, the
L/C
Issuer or any other recipient of any payment to be made by or on
account of any
obligation of Borrower hereunder, (a) taxes imposed on or
measured by its
overall net income (however denominated), and franchise taxes
imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political
subdivision
thereof) under the laws of which such recipient is organized or
in which its
principal office is located or, in the case of any Lender, in
which its
applicable Lending Office is located, and (b) any branch profits
taxes imposed
by the United States or any similar tax imposed by any other
jurisdiction in
which
"Federal Funds Rate" means, for any day, the rate per annum
equal to
the weighted average of the rates on overnight Federal funds
transactions with
members of the Federal Reserve System arranged by Federal funds
brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day
next succeeding such day; provided that (a) if such day is not a
Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on
the next preceding Business Day as so published on the next
succeeding Business
Day, and (b) if no such rate is so published on such next
succeeding Business
Day, the Federal
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<PAGE>
Funds Rate for such day shall be the average rate (rounded
upward, if necessary,
to a whole multiple of 1/100 of 1%) charged to Bank of America
on such day on
such transactions as determined by Agent.
"FRB" means the Board of Governors of the Federal Reserve System
of the
United States.
"GAAP" means generally accepted accounting principles in the
United
States set forth in the opinions and pronouncements of the
Accounting Principles
Board and the American Institute of Certified Public Accountants
and statements
and pronouncements of the Financial Accounting Standards Board
or such other
principles as may be approved by a significant segment of the
accounting
profession in the United States, that are applicable to the
circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United
States or
any other nation, or of any political subdivision thereof,
whether state or
local, and any agency, authority, instrumentality, regulatory
body, court,
central bank or other entity exercising executive, legislative,
judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to
government (including any supra-national bodies such as the
European Union or
the European Central Bank).
"Guarantee" means, as to any Person, any (a) any obligation,
contingent
or otherwise, of such Person guaranteeing or having the economic
effect of
guaranteeing any Indebtedness or other obligation payable or
performable by
another Person (the "primary obligor") in any manner, whether
directly or
indirectly, and including any obligation of such Person, direct
or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase
or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease
property,
securities or services for the purpose of assuring the obligee
in respect of
such Indebtedness or other obligation of the payment or
performance of such
Indebtedness or other obligation, (iii) to maintain working
capital, equity
capital or any other financial statement condition or liquidity
or level of
income or cash flow of the primary obligor so as to enable the
primary obligor
to pay such Indebtedness or other obligation, or (iv) entered
into for the
purpose of assuring in any other manner the obligee in respect
of such
Indebtedness or other obligation of the payment or performance
thereof or to
protect such obligee against loss in respect thereof (in whole
or in part), or
(b) any Lien on any assets of such Person securing any
Indebtedness or other
obligation of any other Person, whether or not such Indebtedness
or other
obligation is assumed by such Person (or any right, contingent
or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The
amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable
amount of the related primary obligation, or portion thereof, in
respect of
which such Guarantee is made or, if not stated or determinable,
the maximum
reasonably anticipated liability in respect thereof as
determined by the
guaranteeing Person in good faith. The term "Guarantee" as a
verb has a
corresponding meaning.
"Guarantor" means, separately and collectively, the following:
(i)
NORTH AMERICAN GALVANIZING COMPANY, a Delaware corporation, (ii)
NAGALV-OHIO,
INC., a Delaware corporation, (iii) ROGERS GALVANIZING COMPANY -
KANSAS CITY, an
Oklahoma corporation, (iv) PREMIER COATINGS, INC., an
Oklahoma
12
<PAGE>
corporation, and (v) REINFORCING SERVICES, INC., an Oklahoma
corporation, and
all future Domestic Subsidiaries.
"Guaranty" means the Guaranty made by each Guarantor in favor of
Agent
and for the benefit of the Lenders, in form and substance
reasonably
satisfactory to Agent.
"Hazardous Materials" means all explosive or radioactive
substances or
wastes and all hazardous or toxic substances, wastes or other
pollutants,
including petroleum or petroleum distillates, asbestos or
asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes
and all other substances or wastes of any nature regulated
pursuant to any
Environmental Law.
"Implied Amortization" as of any date shall be an amount equal
to (a)
(i) the sum of (A) the Outstanding Amount of all Loans as of
such date and (B)
all Unreimbursed Amounts as of such date less (ii) the sum of
(A) 50% of raw
material Inventory of Borrower and all Domestic Subsidiaries as
of such date and
(B) 80% of Eligible Accounts as of such date (but in no event
less than 0)
divided by (b) 7.
"Increasing Lender" means a Lender that agrees to increase
its
Commitment pursuant to Section 2.14 or a new Lender that becomes
a party to this
Agreement pursuant to Section 2.14.
"Indebtedness" means, as to any Person at a particular time,
without
duplication, all of the following, whether or not included as
indebtedness or
liabilities in accordance with GAAP:
(i) all obligations of such Person for borrowed money and
all
obligations of such Person evidenced by bonds, debentures,
notes, loan
agreements or other similar instruments;
(ii) all direct or contingent obligations of such Person
arising under letters of credit (including standby and
commercial),
bankers' acceptances, bank guaranties, surety bonds and
similar
instruments;
(iii) net obligations of such Person under any Swap
Contract;
(iv) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade
accounts
payable in the ordinary course of business and, in each case,
not past
due for more than 90 days after the date on which such trade
account
payable was created unless such amounts are being contested in
good
faith by proceedings diligently conducted);
(v) indebtedness (excluding prepaid interest thereon)
secured
by a Lien on property owned or being purchased by such
Person
(including indebtedness arising under conditional sales or other
title
retention agreements), whether or not such indebtedness shall
have been
assumed by such Person or is limited in recourse;
(vi) capital leases and Synthetic Lease Obligations;
13
<PAGE>
(vii) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any
Equity
Interest in such Person or any other Person, valued, in the case
of a
redeemable preferred interest, at the greater of its voluntary
or
involuntary liquidation preference plus accrued and unpaid
dividends;
and
(viii) all Guarantees of such Person in respect of any of
the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall
include
the Indebtedness of any partnership or joint venture (other than
a joint venture
that is itself a corporation or limited liability company) in
which such Person
is a general partner or a joint venturer, unless such
Indebtedness is expressly
made non-recourse to such Person. The amount of any net
obligation under any
Swap Contract on any date shall be deemed to be the Swap
Termination Value
thereof as of such date. The amount of any capital lease or
Synthetic Lease
Obligation as of any date shall be deemed to be the amount of
Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Interest Payment Date" means, (a) as to any Eurodollar Fixed
Rate
Loan, the last day of each Interest Period applicable to such
Loan and the
Maturity Date; provided, however, that if any Interest Period
for a Eurodollar
Fixed Rate Loan exceeds three months, the respective dates that
fall every three
months after the beginning of such Interest Period shall also be
Interest
Payment Dates; and (b) as to any Eurodollar Floating Rate Loan
and any Base Rate
Loan (including a Swing Line Loan), the last Business Day of
each June,
September, December and March and the Maturity Date.
"Interest Period" means, as to each Eurodollar Fixed Rate Loan,
the
period commencing on the date such Eurodollar Fixed Rate Loan is
disbursed or
converted to or continued as a Eurodollar Fixed Rate Loan and
ending on the date
one (1), two (2), three (3), six (6) or nine (9) months
thereafter, as selected
by Borrower in its Committed Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day
that
is not a Business Day shall be extended to the next succeeding
Business
Day unless such Business Day falls in another calendar month, in
which
case such Interest Period shall end on the next preceding
Business Day;
(ii) any Interest Period that begins on the last Business
Day
of a calendar month (or on a day for which there is no
numerically
corresponding day in the calendar month at the end of such
Interest
Period) shall end on the last Business Day of the calendar month
at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"Inventory" means all inventory that is owned by the Borrower
and its
Domestic Subsidiaries and is located at the Borrower's or its
Domestic
Subsidiaries' places of business or
14
<PAGE>
other inventory locations acceptable to Agent, and that, in
Agent's reasonable
opinion, is in good and saleable condition and is not obsolete
or unmerchantable
and that Agent, in its reasonable judgment, deems to be eligible
Inventory,
based on the credit and collateral considerations that Agent
customarily may
deem appropriate. Inventory shall not include goods or materials
that are (a)
not in good condition, (b) not in conformance with all
applicable standards
imposed by any Governmental Authority, (c) not currently
saleable or usable in
the normal course of business of the Borrower or its Domestic
Subsidiaries, (d)
damaged in shipment or (e) returned from customers as defective
merchandise.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of
(a) the purchase
or other acquisition of capital stock or other securities of
another Person, (b)
a loan, advance or capital contribution to, Guarantee or
assumption of debt of,
or purchase or other acquisition of any other debt or equity
participation or
interest in, another Person, including any partnership or joint
venture interest
in such other Person and any arrangement pursuant to which the
investor
Guarantees Indebtedness of such other Person, or (c) the
purchase or other
acquisition (in one transaction or a series of transactions) of
assets of
another Person that constitute a business unit. For purposes of
covenant
compliance, the amount of any Investment shall be the amount
actually invested,
without adjustment for subsequent increases or decreases in the
value of such
Investment.
"Invoice Date" means the date of the invoice for the services
rendered
or the goods sold or leased to an Account Debtor of Borrower or
any Guarantor.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the
"International
Standby Practices 1998" published by the Institute of
International Banking Law
& Practice, Inc. (or such later version thereof as may be in
effect at the time
of issuance).
"Issuer Documents" means with respect to any Letter of Credit,
the L/C
Application, and any other document, agreement and instrument
entered into by
the L/C Issuer and Borrower (or any Subsidiary) or in favor of
the L/C Issuer
and relating to such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal,
state
and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes
and administrative or judicial precedents or authorities,
including the
interpretation or administration thereof by any Governmental
Authority charged
with the enforcement, interpretation or administration thereof,
and all
applicable administrative orders, directed duties, requests,
licenses,
authorizations and permits of, and agreements with, any
Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
funding
of its participation in any L/C Borrowing in accordance with its
Applicable
Percentage.
"L/C Application" means an application and agreement for the
issuance
or amendment of a Letter of Credit in the form from time to time
in use by the
L/C Issuer.
15
<PAGE>
"L/C Borrowing" means an extension of credit resulting from a
drawing
under any Letter of Credit which has not been reimbursed on the
date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the
issuance thereof or extension of the expiry date thereof, or the
increase of the
amount thereof.
"L/C Expiration Date" means the day that is the Maturity Date
then in
effect (or, if such day is not a Business Day, the next
preceding Business Day).
"L/C Fee" has the meaning specified in Section 2.03(i).
"L/C Issuer" means Bank of America in its capacity as issuer of
Letters
of Credit hereunder, or any successor issuer of Letters of
Credit hereunder.
"L/C Obligations" means, as at any date of determination, the
aggregate
amount available to be drawn under all outstanding Letters of
Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For
purposes of computing the amount available to be drawn under any
Letter of
Credit, the amount of such Letter of Credit shall be determined
in accordance
with Section 1.06. For all purposes of this Agreement, if on any
date of
determination a Letter of Credit has expired by its terms but
any amount may
still be drawn thereunder by reason of the operation of Rule
3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the
amount so
remaining available to be drawn.
"L/C Sublimit" means an amount equal to $2,000,000.00 plus an
amount
equal to the face amount of the Chase L/C; provided that after
the earlier of
June 30, 2007 and the Honor Date as to the Chase L/C, the L/C
Sublimit shall be
$2,000,000.00. The L/C Sublimit is part of, and not in addition
to, the
Aggregate Commitments.
"Lender" has the meaning specified in the introductory paragraph
hereto
and, as the context requires, includes Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices
of such
Lender described as such in such Lender's Administrative
Questionnaire, or such
other office or offices as a Lender may from time to time notify
Borrower and
Agent.
"Letter of Credit" means any standby letter of credit issued
hereunder.
"Leverage Ratio" shall mean the ratio of Consolidated Funded
Indebtedness to Operating Cash Flow calculated in the manner set
forth in
Section 6.12(a).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference,
priority or other security interest or preferential arrangement
in the nature of
a security interest of any kind or nature whatsoever (including
any conditional
sale or other title retention agreement, any easement, right of
way or other
encumbrance on title to real property, and any financing lease
having
substantially the same economic effect as any of the
foregoing).
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<PAGE>
"Loan" means an extension of credit by a Lender to Borrower
under
Article II in the form of a Committed Loan or a Swing Line
Loan.
"Loan Documents" means this Agreement, each Note, each Issuer
Document,
each Collateral Document and each Guaranty.
"Loan Parties" means, collectively, Borrower and each Person
(other
than Agent, the L/C Issuer, Swing Line Lender, or any Lender)
executing a Loan
Document including, without limitation, each Guarantor and each
Person executing
a Collateral Document.
"Maintenance Capital Expenditures" means, for any period,
Borrower's
depreciation expense for such period.
"Material Adverse Effect" means (a) a material adverse change
in, or a
material adverse effect upon, the operations, business,
properties, liabilities
(actual or contingent), or financial condition of Borrower and
its Subsidiaries
taken as a whole; (b) a material impairment of the ability of
any Loan Party to
perform its obligations under any Loan Document to which it is a
party; or (c) a
material adverse effect upon the legality, validity, binding
effect or
enforceability against any Loan Party of any Loan Document to
which it is a
party.
"Maturity Date" means May 17, 2012; provided, however, that if
such
date is not a Business Day, the Maturity Date shall be the next
preceding
Business Day.
"Multiemployer Plan" means any employee benefit plan of the
type
described in Section 4001(a)(3) of ERISA, to which Borrower or
any ERISA
Affiliate makes or is obligated to make contributions, or during
the preceding
five plan years, has made or been obligated to make
contributions.
"MWR Suit" means the case styled Metropolitan Water
Reclamation
District of Greater Chicago v. Lake River Corporation et al,
Case No.
03-cv-00754, pending in the United States District Court for the
Northern
District of Illinois, Eastern Division, along with any appeals
from any orders
or judgments entered therein.
"Note" means a promissory note made by Borrower in favor of a
Lender
evidencing Loans made by such Lender, substantially in the form
of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising
under any Loan
Document or otherwise with respect to any Loan or Letter of
Credit, whether
direct or indirect (including those acquired by assumption),
absolute or
contingent, due or to become due, now existing or hereafter
arising and
including interest and fees that accrue after the commencement
by or against any
Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief
Laws naming such Person as the debtor in such proceeding,
regardless of whether
such interest and fees are allowed claims in such
proceeding.
"Operating Cash Flow" means, for Borrower and its Subsidiaries
on a
consolidated basis, for any period: (a) net income or loss for
such period,
excluding (i) extraordinary gains and losses, if any, for such
period and (ii)
the write-up or write-down of assets for such period, plus
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(b) the sum of (i) depreciation expense for such period, (ii)
amortization
expense for such period, (iii) interest expense during such
period, (iv) income
tax expense during such period and (v) Target Operating Cash
Flow for such
period, in each case determined in accordance with GAAP and each
for the
twelve-month period ended as of the date of determination;
provided, however,
that for purposes of the term "Operating Cash Flow," (A)
expenses associated
with the MWR Suit and/or paid as a result of an Adverse
Environmental
Determination up to an aggregate of $1,500,000 incurred after
the Closing Date
shall be considered extraordinary losses, and (B) expenses
associated with the
Bond Audit up to an aggregate of $200,000 incurred after the
Closing Date shall
be considered extraordinary losses.
"Organization Documents" means, (a) with respect to any
corporation,
the certificate or articles of incorporation and the bylaws (or
equivalent or
comparable constitutive documents with respect to any non-U.S.
jurisdiction);
(b) with respect to any limited liability company, the
certificate or articles
of formation or organization and operating agreement; and (c)
with respect to
any partnership, joint venture, trust or other form of business
entity, the
partnership, joint venture or other applicable agreement of
formation or
organization and any agreement, instrument, filing or notice
with respect
thereto filed in connection with its formation or organization
with the
applicable Governmental Authority in the jurisdiction of its
formation or
organization and, if applicable, any certificate or articles of
formation or
organization of such entity.
"Other Taxes" means all present or future stamp, intangible
or
documentary taxes or any other excise or property taxes, charges
or similar
levies arising from any payment made hereunder or under any
other Loan Document
or from the execution, delivery or enforcement of, or otherwise
with respect to,
this Agreement or any other Loan Document.
"Outstanding Amount" means (i) with respect to Committed Loans
and
Swing Line Loans on any date, the aggregate outstanding
principal amount thereof
after giving effect to any borrowings and prepayments or
repayments of Committed
Loans and Swing Line Loans, as the case may be, occurring on
such date; and (ii)
with respect to any L/C Obligations on any date, the amount of
such L/C
Obligations on such date after giving effect to any L/C Credit
Extension
occurring on such date and any other changes in the aggregate
amount of the L/C
Obligations as of such date, including as a result of any
reimbursements by
Borrower of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as
such term
is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by
Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate
contributes or has
an obligation to contribute, or in the case of a multiple
employer or other plan
described in Section 4064(a) of ERISA, has made contributions at
any time during
the immediately preceding five plan years.
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"Permitted Acquisition" means any individual Acquisition which
is not
otherwise prohibited by this Agreement and with respect to which
each of the
following conditions shall have been satisfied:
(i) As of the closing of the Acquisition, after giving
effect
to such Acquisition, no Default or Event of Default shall exist
or
occur as a result of, and after giving effect to, such
Acquisition;
(ii) The total consideration paid by Borrower for such
Acquisition shall not, without Required Lenders' written
approval,
exceed $5,000,000.00;
(iii) The total consideration paid by Borrower for all
Acquisitions during the current fiscal year, in the aggregate,
after
giving effect to the Acquisition, shall not exceed
$10,000,000.00;
(iv) Borrower has provided to Agent and Lenders all
information and documentation reasonably requested by Agent and
Lenders
regarding the Acquisition;
(v) the prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent governing
body of
the Target is obtained;
(vi) the Target is in the same or similar line of business
as
Borrower;
(vii) in the case of an Acquisition that entails a merger or
consolidation or other combination with another Person, the
Borrower is
the surviving entity; and
(viii) not less than five (5) Business Days prior to the
closing of such Acquisition, Agent shall have received a
certificate in
a form substantially similar to that form attached hereto as
Exhibit F
and otherwise acceptable to Agent, dated on or immediately prior
to the
date of the Acquisition, executed by the president or a vice
president
of Borrower confirming that all representations and warranties
set
forth in the Loan Documents continue to be true and correct in
all
material respects immediately prior to and after giving effect
to the
Acquisition and the transactions contemplated thereby, and, for
any
Acquisition in which the total consideration is $5,000,000 or
more,
certifying pro formal financial statements of the Borrower and
its
Subsidiaries demonstrating compliance with the covenants set
forth in
Sections 6.12(a) and (b) including in such calculation Target
Operating
Cash Flow (as if the business, assets, or Person acquired had
been
acquired since the first (1st) day of the period for which such
pro
forma financial statements are delivered and had been managed
and
conducted in accordance with the Borrower's standard
business
practices) for the prior four (4) fiscal quarters of the
Borrower and
its Subsidiaries.
"Person" means any natural person, corporation, limited
liability
company, trust, joint venture, association, company,
partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is
defined in
Section 3(3) of ERISA) established by Borrower or, with respect
to any such plan
that is subject to Section 412 of the Code or Title IV of ERISA,
any ERISA
Affiliate.
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"Platform" has the meaning specified in Section 6.02.
"Public Lender" has the meaning specified in Section 6.02.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such
Person's
Affiliates and the partners, directors, officers, employees,
agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section
4043(c)
of ERISA, other than events for which the thirty (30) day notice
period has been
waived.
"Request for Credit Extension" means (a) with respect to a
Borrowing,
conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with
respect to an L/C Credit Extension, a L/C Application, and (c)
with respect to a
Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination,
Lenders
(including in all cases Bank of America) having in the aggregate
more than 50%
of the Aggregate Commitments or, if the commitment of each
Lender to make Loans
and the obligation of the L/C Issuer to make L/C Credit
Extensions have been
terminated pursuant to Section 8.02, Lenders (including in all
cases Bank of
America) holding in the aggregate more than 50% of the Total
Outstandings (with
the aggregate amount of each Lender's risk participation and
funded
participation in L/C Obligations and Swing Line Loans being
deemed "held" by
such Lender for purposes of this definition); provided that the
Commitment of,
and the portion of the Total Outstandings held or deemed held
by, any Defaulting
Lender shall be excluded for purposes of making a determination
of Required
Lenders.
"Responsible Officer" means the chief executive officer,
president,
chief financial officer, treasurer, assistant treasurer or
controller of a Loan
Party and, solely for purposes of notices given pursuant to
Article II, any
other officer or employee of the applicable Loan Party so
designated by any of
the foregoing officers in a notice to Agent. Any document
delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be
conclusively
presumed to have been authorized by all necessary corporate,
partnership and/or
other action on the part of such Loan Party and such Responsible
Officer shall
be conclusively presumed to have acted on behalf of such Loan
Party.
"Restricted Payment" means any dividend or other distribution
(whether
in cash, securities or other property) with respect to any
capital stock or
other Equity Interest of Borrower or any Subsidiary, or any
payment (whether in
cash, securities or other property), including any sinking fund
or similar
deposit, on account of the purchase, redemption, retirement,
acquisition,
cancellation or termination of any such capital stock or other
Equity Interest
or on account of any return of capital to Borrower's
stockholders, partners or
members (or the equivalent Person thereof).
"SEC" means the Securities and Exchange Commission, or any
Governmental
Authority succeeding to any of its principal functions.
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"Security Agreement" means a security agreement in form
reasonably
acceptable to Agent, to be entered by Borrower and each Domestic
Subsidiary in
favor of the Agent, in order to grant the Agent, for the ratable
benefit of the
Lenders, a security interest in and to (i) substantially all
personal property
of Borrower and the Domestic Subsidiaries, and (ii) all shares
of capital stock
or other Equity Interests of Borrower or any Domestic Subsidiary
in all Domestic
Subsidiaries, provided that in the case of such capital stock or
other Equity
Interests, such security agreement may be in the form of a
separate pledge
agreement.
"Subsidiary" of a Person means a corporation, partnership,
joint
venture, limited liability company or other business entity of
which a majority
of the shares of securities or other interests having ordinary
voting power for
the election of directors or other governing body (other than
securities or
interests having such power only by reason of the happening of a
contingency)
are at the time beneficially owned, or the management of which
is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both,
by such Person. Unless otherwise specified, all references
herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of
Borrower.
"Swap Contract" means (a) any and all rate swap transactions,
basis
swaps, credit derivative transactions, forward rate
transactions, commodity
swaps, commodity options, forward commodity contracts, equity or
equity index
swaps or options, bond or bond price or bond index swaps or
options or forward
bond or forward bond price or forward bond index transactions,
interest rate
options, forward foreign exchange transactions, cap
transactions, floor
transactions, collar transactions, currency swap transactions,
cross-currency
rate swap transactions, currency options, spot contracts, or any
other similar
transactions or any combination of any of the foregoing
(including any options
to enter into any of the foregoing), whether or not any such
transaction is
governed by or subject to any master agreement, and (b) any and
all transactions
of any kind, and the related confirmations, which are subject to
the terms and
conditions of, or governed by, any form of master agreement
published by the
International Swaps and Derivatives Association, Inc., any
International Foreign
Exchange Master Agreement, or any other master agreement (any
such master
agreement, together with any related schedules, a "Master
Agreement"), including
any such obligations or liabilities under any Master
Agreement.
"Swap Termination Value" means, in respect of any one or more
Swap
Contracts, after taking into account the effect of any legally
enforceable
netting agreement relating to such Swap Contracts, (a) for any
date on or after
the date such Swap Contracts have been closed out and
termination value(s)
determined in accordance therewith, such termination value(s),
and (b) for any
date prior to the date referenced in clause (a), the amount(s)
determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or
more mid-market or other readily available quotations provided
by any recognized
dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a
Lender).
"Swing Line Borrowing" means a borrowing of a Swing Line Loan
pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as
provider
of Swing Line Loans, or any successor swing line lender
hereunder.
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"Swing Line Loan" has the meaning specified in Section
2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line
Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the
form of Exhibit B.
"Swing Line Sublimit" means $10,000,000.00.
"Synthetic Lease Obligation" means the monetary obligation of a
Person
under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or
(b) an agreement for the use or possession of property creating
obligations that
do not appear on the balance sheet of such Person but which,
upon the insolvency
or bankruptcy of such Person, would be characterized as the
indebtedness of such
Person (without regard to accounting treatment).
"Target" means any Person that has been or may be acquired
pursuant to
an Acquisition permitted under this Agreement.
"Target Operating Cash Flow" means, for any Target,
(a) with respect to pro forma calculations required pursuant
to
subparagraph (vii) of the definition of "Permitted Acquisition,"
either (i) the
actual Operating Cash Flow of the Target for the four quarter
period ended
immediately prior to the date of such Acquisition or (ii) an
amount agreed upon
by Borrower and Required Lenders for the four (4) quarter period
ended
immediately prior to the date of such Acquisition; and
(b) with respect to the calculation of any financial covenant
as
reported by Borrower pursuant to the requirements of Section
6.12 or applicable
to the calculation of the Applicable Margin, either (i) the
actual Operating
Cash Flow for each Target for the portion of the four (4)
quarter period ended
on the date of determination that is prior to the date of the
Acquisition of
such Target or (ii) an amount agreed upon by Borrower and
Required Lenders for
the portion of the four (4) quarter period ended on the date of
determination
that is prior to the date of the Acquisition of such Target.
"Taxes" means all present or future taxes, levies, imposts,
duties,
deductions, withholdings, assessments, fees or other charges
imposed by any
Governmental Authority, including any interest, additions to tax
or penalties
applicable thereto.
"Threshold Amount" means $750,000.00.
"Total Outstandings" means the aggregate Outstanding Amount of
all
Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its character as
a Base
Rate Loan, a Eurodollar Fixed Rate Loan or a Eurodollar Floating
Rate Loan.
"UCC" means the Uniform Commercial Code as adopted and in effect
in the
State of Oklahoma from time to time.
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<PAGE>
"Unfunded Pension Liability" means the excess of a Pension
Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value
of that Pension Plan's assets, determined in accordance with the
assumptions
used for funding the Pension Plan pursuant to Section 412 of the
Code for the
applicable plan year.
"United States" and "U.S." mean the United States of
America.
"Unreimbursed Amount" has the meaning specified in Section
2.03(c)(i).
1.02 Other Interpretive Provisions. With reference to this
Agreement
and each other Loan Document, unless otherwise specified herein
or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to
the
singular and plural forms of the terms defined. Whenever the
context may
require, any pronoun shall include the corresponding masculine,
feminine and
neuter forms. The words "include," "includes" and "including"
shall be deemed to
be followed by the phrase "without limitation." The word "will"
shall be
construed to have the same meaning and effect as the word
"shall." Unless the
context requires otherwise, (i) any definition of or reference
to any agreement,
instrument or other document (including any Organization
Document) shall be
construed as referring to such agreement, instrument or other
document as from
time to time amended, supplemented or otherwise modified
(subject to any
restrictions on such amendments, supplements or modifications
set forth herein
or in any other Loan Document), (ii) any reference herein to any
Person shall be
construed to include such Person's successors and assigns, (iii)
the words
"herein," "hereof" and "hereunder," and words of similar import
when used in any
Loan Document, shall be construed to refer to such Loan Document
in its entirety
and not to any particular provision thereof, (iv) all references
in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be
construed to
refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan
Document in which such references appear, (v) any reference to
any law shall
include all statutory and regulatory provisions consolidating,
amending,
replacing or interpreting such law and any reference to any law
or regulation
shall, unless otherwise specified, refer to such law or
regulation as amended,
modified or supplemented from time to time, and (vi) the words
"asset" and
"property" shall be construed to have the same meaning and
effect and to refer
to any and all tangible and intangible assets and properties,
including cash,
securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date
to
a later specified date, the word "from" means "from and
including;" the words
"to" and "until" each mean "to but excluding;" and the word
"through" means "to
and including."
(c) Section headings herein and in the other Loan Documents
are
included for convenience of reference only and shall not affect
the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) Generally. All accounting terms not specifically or
completely
defined herein shall be construed in conformity with, and all
financial data
(including financial ratios and other financial calculations)
required to be
submitted pursuant to this Agreement shall be
23
<PAGE>
prepared in conformity with, GAAP applied on a consistent basis,
as in effect
from time to time, applied in a manner consistent with that used
in preparing
the Audited Financial Statements, except as otherwise
specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set
forth in any
Loan Document, and either Borrower or the Required Lenders shall
so request,
Agent, Lenders and Borrower shall negotiate in good faith to
amend such ratio or
requirement to preserve the original intent thereof in light of
such change in
GAAP (subject to the approval of the Required Lenders); provided
that, until so
amended, (i) such ratio or requirement shall continue to be
computed in
accordance with GAAP prior to such change therein and (ii)
Borrower shall
provide to Agent and Lenders financial statements and other
documents required
under this Agreement or as reasonably requested hereunder
setting forth a
reconciliation between calculations of such ratio or requirement
made before and
after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities. All
references herein to consolidated financial statements of
Borrower and its
Subsidiaries or to the determination of any amount for Borrower
and its
Subsidiaries on a consolidated basis or any similar reference
shall, in each
case, be deemed to include each variable interest entity that
Borrower is
required to consolidate pursuant to FASB Interpretation No. 46 -
Consolidation
of Variable Interest Entities: an interpretation of ARB No. 51
(January 2003) as
if such variable interest entity were a Subsidiary as defined
herein.
1.04 Rounding. Any financial ratios required to be maintained
by
Borrower pursuant to this Agreement shall be calculated by
dividing the
appropriate component by the other component, carrying the
result to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all references
herein to
times of day shall be references to Central time (daylight or
standard, as
applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified herein
the
amount of a Letter of Credit at any time shall be deemed to be
the stated amount
of such Letter of Credit in effect at such time; provided,
however, that with
respect to any Letter of Credit that, by its terms or the terms
of any Issuer
Document related thereto, provides for one or more automatic
increases in the
stated amount thereof, the amount of such Letter of Credit shall
be deemed to be
the maximum stated amount of such Letter of Credit after giving
effect to all
such increases, whether or not such maximum stated amount is in
effect at such
time.
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set
forth
herein, each Lender severally agrees to make loans (each such
loan, a "Committed
Loan") to Borrower from time to time, on any Business Day during
the
Availability Period, in an aggregate amount not to exceed at any
time
outstanding the amount of such Lender's Commitment; provided,
however, that
after giving effect to any Committed Borrowing, (i) the Total
Outstandings shall
not exceed
24
<PAGE>
the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the
Committed Loans of any Lender, plus such Lender's Applicable
Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender's
Applicable
Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed
such Lender's Commitment. Within the limits of each Lender's
Commitment, and
subject to the other terms and conditions hereof, Borrower may
borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01.
Committed Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Committed
Loans. (a)
Each Committed Borrowing, each conversion of Committed Loans
from one Type to
the other, and each continuation of Eurodollar Fixed Rate Loans
shall be made
upon Borrower's irrevocable notice to Agent, which may be given
by telephone.
Each such notice must be received by Agent not later than Noon
(i) three (3)
Business Days prior to the requested date of any Borrowing of
Eurodollar Fixed
Rate Loans, of any conversion to or continuation of Eurodollar
Fixed Rate Loans,
or of any conversion of Eurodollar Fixed Rate Loans to
Eurodollar Floating Rate
Loans or Base Rate Committed Loans, and (ii) on the requested
date of any
Borrowing of Base Rate Committed Loans or Eurodollar Floating
Rate Loans, of any
conversion of Base Rate Committed Loans to Eurodollar Floating
Rate Loans or of
any conversion of Eurodollar Floating Rate Loans to Base Rate
Committed Loans.
Each telephonic notice by Borrower pursuant to this Section
2.02(a) must be
confirmed promptly by delivery to Agent of a written Committed
Loan Notice,
appropriately completed and signed by a Responsible Officer of
Borrower. Each
Borrowing of Eurodollar Fixed Rate Loans, conversion to
Eurodollar Fixed Rate
Loans, or continuation of Eurodollar Fixed Rate Loans shall be
in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof. Except
as provided in Sections 2.03(c) and 2.04(c), each Borrowing of
or conversion to
Base Rate Committed Loans or Eurodollar Floating Rate Loans
shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall
specify (i)
whether Borrower is requesting a Committed Borrowing, a
conversion of Committed
Loans from one Type to the other, or a continuation of
Eurodollar Fixed Rate
Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as
the case may be (which shall be a Business Day), (iii) the
principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the
Type of
Committed Loans to be borrowed or to which existing Committed
Loans are to be
converted, and (v) if applicable, the duration of the Interest
Period with
respect thereto. If Borrower fails to specify a Type of
Committed Loan in a
Committed Loan Notice or if Borrower fails to give a timely
notice requesting a
conversion or continuation, then the applicable Committed Loans
shall be made
as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate
Loans shall be effective as of the last day of the Interest
Period then in
effect with respect to the applicable Eurodollar Fixed Rate
Loans. If Borrower
requests a Borrowing of, conversion to, or continuation of
Eurodollar Fixed Rate
Loans in any such Committed Loan Notice, but fails to specify an
Interest
Period, it will be deemed to have specified an Interest Period
of one month.
(b) Following receipt of a Committed Loan Notice, Agent
shall
promptly notify each Lender of the amount of its Applicable
Percentage of the
applicable Committed Loans, and if no timely notice of a
conversion or
continuation is provided by Borrower, Agent shall notify each
Lender of the
details of any automatic conversion to Base Rate Loans described
in the
preceding subsection. In the case of a Committed Borrowing, each
Lender shall
make the amount of its Committed Loan available to Agent in
immediately
available funds at
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<PAGE>
Administrative Agent's Office not later than 1:00 p.m. on the
Business Day
specified in the applicable Committed Loan Notice. Upon
satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the
initial Credit Extension, Section 4.01), Agent shall make all
funds so received
available to Borrower in like funds as received by Agent either
by (i) crediting
the account of Borrower on the books of Bank of America with the
amount of such
funds or (ii) wire transfer of such funds, in each case in
accordance with
instructions provided to (and reasonably acceptable to) Agent by
Borrower;
provided, however, that if, on the date the Committed Loan
Notice with respect
to such Borrowing is given by Borrower, there are L/C Borrowings
outstanding,
then the proceeds of such Borrowing first, shall be applied, to
the payment in
full of any such L/C Borrowings, and second, shall be made
available to Borrower
as provided above.
(c) Except as otherwise provided herein, a Eurodollar Fixed
Rate
Loan may be continued or converted only on the last day of an
Interest Period
for such Eurodollar Fixed Rate Loan. During the existence of a
Default, no Loans
may be requested as, converted to or continued as Eurodollar
Fixed Rate Loans
without the consent of the Required Lenders, and the Required
Lenders may demand
that any or all of the then outstanding Eurodollar Fixed Rate
Loans be converted
immediately to Base Rate Committed Loans or Eurodollar Floating
Rate Loans and
Borrower agrees to pay all amounts due under Section 3.05 in
accordance with the
terms thereof due to any such conversion.
(d) Agent shall promptly notify Borrower and Lenders of the
interest rate applicable to any Interest Period for Eurodollar
Fixed Rate Loans
upon determination of such interest rate.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and
all continuations
of Committed Loans as the same Type, there shall not be more
than six (6)
Interest Periods in effect with respect to Eurodollar Fixed Rate
Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth
herein, (A) the L/C Issuer agrees, in reliance upon the
agreements of
the other Lenders set forth in this Section 2.03, (1) from time
to time
on any Business Day during the period from the Closing Date
until the
L/C Expiration Date, to issue Letters of Credit for the account
of
Borrower, and to amend or extend Letters of Credit previously
issued by
it, in accordance with subsection (b) below, and (2) to honor
drawings
under the Letters of Credit; and (B) the Lenders severally agree
to
participate in Letters of Credit issued for the account of
Borrower and
any drawings thereunder; provided that after giving effect to
any L/C
Credit Extension with respect to any Letter of Credit, (x) the
Total
Outstandings shall not exceed the Aggregate Commitments, (y)
the
aggregate Outstanding Amount of the Committed Loans of any
Lender, plus
such Lender's Applicable Percentage of the Outstanding Amount of
all
L/C Obligations, plus such Lender's Applicable Percentage of
the
Outstanding Amount of all Swing Line Loans shall not exceed
such
Lender's
26
<PAGE>
Commitment, or (z) the Outstanding Amount of the L/C Obligations
shall
not exceed the L/C Sublimit. Each request by Borrower for the
issuance
or amendment of a Letter of Credit shall be deemed to be a
representation by Borrower that the L/C Credit Extension so
requested
complies with the conditions set forth in the proviso to the
preceding
sentence. Within the foregoing limits, and subject to the terms
and
conditions hereof, Borrower's ability to obtain Letters of
Credit shall
be fully revolving, and accordingly Borrower may, during the
foregoing
period, obtain Letters of Credit to replace Letters of Credit
that have
expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit,
if:
(A) the expiry date of such requested Letter of
Credit would occur more than twelve (12) months after the
date
of issuance or last extension, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter of
Credit would occur after the L/C Expiration Date, unless all
the Lenders have approved such expiry date.
(iii) The L/C Issuer shall be under no obligation to issue
any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of
Credit,
or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter
of
Credit in particular or shall impose upon the L/C Issuer
with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not
otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer applicable to
letters of credit generally;
(C) except as otherwise agreed by Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount
less than $50,000;
(D) such Letter of Credit is to be denominated in a
currency other than Dollars;
(E) a default of any Lender's obligations to fund
under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has
entered
into satisfactory arrangements with Borrower or such Lender
to
eliminate the L/C Issuer's risk with respect to such Lender;
or
27
<PAGE>
(F) unless specifically provided for in this
Agreement, such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any
drawing
thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such
Letter
of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation
at such
time to issue such Letter of Credit in its amended form under
the terms
hereof, or (B) the beneficiary of such Letter of Credit does not
accept
the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the
documents
associated therewith, and the L/C Issuer shall have all of the
benefits
and immunities (A) provided to Agent in Article IX with respect
to any
acts taken or omissions suffered by the L/C Issuer in connection
with
Letters of Credit issued by it or proposed to be issued by it
and
Issuer Documents pertaining to such Letters of Credit as fully
as if
the term "Administrative Agent" or "Agent" as used in Article
IX
included the L/C Issuer with respect to such acts or omissions,
and (B)
as additionally provided herein with respect to the L/C
Issuer.
(b) Procedures for Issuance and Amendment of Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of Borrower delivered to the L/C
Issuer
(with a copy to Agent) in the form of a L/C Application,
appropriately
completed and signed by a Responsible Officer of Borrower. Such
L/C
Application must be received by the L/C Issuer and Agent not
later than
Noon at least two (2) Business Days (or such later date and time
as
Agent and the L/C Issuer may agree in a particular instance in
their
sole discretion) prior to the proposed issuance date or date
of
amendment, as the case may be. In the case of a request for an
initial
issuance of a Letter of Credit, such L/C Application shall
specify in
form and detail satisfactory to the L/C Issuer: (A) the
proposed
issuance date of the requested Letter of Credit (which shall be
a
Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D)
the name and address of the beneficiary thereof; (E) the
documents to
be presented by such beneficiary in case of any drawing
thereunder; (F)
the full text of any certificate to be presented by such
beneficiary in
case of any drawing thereunder; (G) the purpose and nature of
the
requested Letter of Credit; and (H) such other matters as the
L/C
Issuer may require. In the case of a request for an amendment of
any
outstanding Letter of Credit, such L/C Application shall specify
in
form and detail satisfactory to the L/C Issuer (A) the Letter of
Credit
to be amended; (B) the proposed date of amendment thereof (which
shall
be a Business Day); (C) the nature of the proposed amendment;
and (D)
such other matters as the L/C Issuer may require.
Additionally,
Borrower shall furnish to the L/C Issuer and Agent such other
documents
and information pertaining to such requested Letter of Credit
issuance
or amendment, including any Issuer Documents, as the L/C Issuer
or
Agent may require.
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<PAGE>
(ii) Promptly after receipt of any L/C Application at the
address set forth in Section 10.02 for receiving L/C
Applications and
related correspondence, the L/C Issuer will confirm with Agent
(by
telephone or in writing) that Agent has received a copy of such
L/C
Application from Borrower and, if not, the L/C Issuer will
provide
Agent with a copy thereof. Unless the L/C Issuer has received
written
notice from any Lender, Agent or any Loan Party, at least one
Business
Day prior to the requested date of issuance or amendment of
the
applicable Letter of Credit, that one or more applicable
conditions in
Article IV shall not then be satisfied, then, subject to the
terms and
conditions hereof, the L/C Issuer shall, on the requested date,
issue a
Letter of Credit for the account of Borrower or enter into
the
applicable amendment, as the case may be, in each case in
accordance
with the L/C Issuer's usual and customary business
practices.
Immediately upon the issuance of each Letter of Credit, each
Lender
shall be deemed to, and hereby irrevocably and unconditionally
agrees
to, purchase from the L/C Issuer a risk participation in such
Letter of
Credit in an amount equal to the product of such Lender's
Applicable
Percentage times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with
respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver
to Borrower and Agent a true and complete copy of such Letter of
Credit
or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit
of any notice of a drawing under such Letter of Credit, the L/C
Issuer
shall notify Borrower and Agent thereof. Not later than Noon on
the
date of any payment by the L/C Issuer under a Letter of Credit
(each
such date, an "Honor Date"), Borrower shall reimburse the L/C
Issuer
through Agent in an amount equal to the amount of such drawing.
If
Borrower fails to so reimburse the L/C Issuer by such time,
Agent shall
promptly notify each Lender of the Honor Date, the amount of
the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of
such Lender's Applicable Percentage thereof. In such event,
Borrower
shall be deemed to have requested a Committed Borrowing of Base
Rate
Loans to be disbursed on the Honor Date in an amount equal to
the
Unreimbursed Amount, without regard to the minimum and
multiples
specified in Section 2.02 for the principal amount of Base Rate
Loans,
but subject to the amount of the unutilized portion of the
Aggregate
Commitments and the conditions set forth in Section 4.02 (other
than
the delivery of a Committed Loan Notice). Any notice given by
the L/C
Issuer or Agent pursuant to this Section 2.03(c)(i) may be given
by
telephone if immediately confirmed in writing; provided that the
lack
of such an immediate confirmation shall not affect the
conclusiveness
or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to Agent for the account of the
L/C
Issuer at the Administrative Agent's Office in an amount equal
to its
Applicable Percentage of the Unreimbursed Amount not later than
1:00
p.m. on the Business Day specified in such notice by Agent,
whereupon,
subject to the provisions of Section 2.03(c)(iii), each Lender
that so
makes
29
<PAGE>
funds available shall be deemed to have made a Base Rate
Committed Loan
to Borrower in such amount. Agent shall remit the funds so
received to
the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans
because
the conditions set forth in Section 4.02 cannot be satisfied or
for any
other reason, Borrower shall be deemed to have incurred from the
L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
that
is not so refinanced, which L/C Borrowing shall be due and
payable on
demand (together with interest) and shall bear interest at the
Default
Rate. In such event, each Lender's payment to Agent for the
account of
the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment
in respect of its participation in such L/C Borrowing and
shall
constitute an L/C Advance from such Lender in satisfaction of
its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Committed Loan or L/C
Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for
any
amount drawn under any Letter of Credit, interest in respect of
such
Lender's Applicable Percentage of such amount shall be solely
for the
account of the L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under
Letters of
Credit, as contemplated by this Section 2.03(c), shall be
absolute and
unconditional and shall not be affected by any circumstance,
including
(A) any setoff, counterclaim, recoupment, defense or other right
which
such Lender may have against the L/C Issuer, Borrower or any
other
Person for any reason whatsoever; (B) the occurrence or
continuance of
a Default, or (C) any other occurrence, event or condition,
whether or
not similar to any of the foregoing; provided, however, that
each
Lender's obligation to make Committed Loans pursuant to this
Section
2.03(c) is subject to the conditions set forth in Section 4.02
(other
than delivery by Borrower of a Committed Loan Notice). No such
making
of an L/C Advance shall relieve or otherwise impair the
obligation of
Borrower to reimburse the L/C Issuer for the amount of any
payment made
by the L/C Issuer under any Letter of Credit, together with
interest as
provided herein.
(vi) If any Lender fails to make available to Agent for the
account of the L/C Issuer any amount required to be paid by such
Lender
pursuant to the foregoing provisions of this Section 2.03(c) by
the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled
to recover from such Lender (acting through Agent), on demand,
such
amount with interest thereon for the period from the date such
payment
is required to the date on which such payment is immediately
available
to the L/C Issuer at a rate per annum equal to the greater of
the
Federal Funds Rate and a rate determined by the L/C issuer
in
accordance with banking industry rules on interbank
compensation, plus
any administrative, processing or similar fees customarily
charged by
the LC/ Issuer in connection with the foregoing. If such Lender
pays
such amount (with interest and fees as aforesaid), the amount so
paid
shall constitute such Lender's Committed Loan included in the
relevant
Committed Borrowing or L/C Advance in respect of the relevant
L/C
Borrowing, as the case may be. A certificate of the L/C
Issuer
submitted to any
30
<PAGE>
Lender (through Agent) with respect to any amounts owing under
this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment
under
any Letter of Credit and has received from any Lender such
Lender's L/C
Advance in respect of such payment in accordance with Section
2.03(c),
if Agent receives for the account of the L/C Issuer any payment
in
respect of the related Unreimbursed Amount or interest thereon
(whether
directly from Borrower or otherwise, including proceeds of
Cash
Collateral applied thereto by Agent), Agent will distribute to
such
Lender its Applicable Percentage thereof in the same funds as
those
received by Agent.
(ii) If any payment received by Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned
under any of the circumstances described in Section 10.05
(including
pursuant to any settlement entered into by the L/C Issuer in
its
discretion), each Lender shall pay to Agent for the account of
the L/C
Issuer its Applicable Percentage thereof on demand of Agent,
plus
interest thereon from the date of such demand to the date such
amount
is returned by such Lender, at a rate per annum equal to the
Federal
Funds Rate from time to time in effect. The obligations of
Lenders
under this clause shall survive the payment in full of the
Obligations
and the termination of this Agreement.
(e) Obligations Absolute. The obligation of Borrower to
reimburse
the L/C Issuer for each drawing under each Letter of Credit and
to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable,
and shall be
paid strictly in accordance with the terms of this Agreement
under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff,
defense
or other right that Borrower or any Subsidiary may have at any
time
against any beneficiary or any transferee of such Letter of
Credit (or
any Person for whom any such beneficiary or any such transferee
may be
acting), the L/C Issuer or any other Person, whether in
connection with
this Agreement, the transactions contemplated hereby or by such
Letter
of Credit or any agreement or instrument relating thereto, or
any
unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent,
invalid or insufficient in any respect or any statement therein
being
untrue or inaccurate in any respect; or any loss or delay in
the
transmission or otherwise of any document required in order to
make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit
against presentation of a draft or certificate that does not
strictly
comply with the terms of such Letter of Credit; or any payment
made by
the L/C Issuer under such Letter of Credit to any Person
purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee
for
31
<PAGE>
the benefit of creditors, liquidator, receiver or other
representative
of or successor to any beneficiary or any transferee of such
Letter of
Credit, including any arising in connection with any proceeding
under
any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether
or
not similar to any of the foregoing, including any other
circumstance
that might otherwise constitute a defense available to, or a
discharge
of, Borrower or any Subsidiary.
Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and,
in the
event of any claim of noncompliance with Borrower's instructions
or
other irregularity, Borrower will immediately notify the L/C
Issuer.
Borrower shall be conclusively deemed to have waived any such
claim
against the L/C Issuer and its correspondents unless such notice
is
given as aforesaid.
(f) Role of L/C Issuer. Each Lender and Borrower agree that,
in
paying any drawing under a Letter of Credit, the L/C Issuer
shall not have any
responsibility to obtain any document (other than any sight
draft, certificates
and documents expressly required by the Letter of Credit) or to
ascertain or
inquire as to the validity or accuracy of any such document or
the authority of
the Person executing or delivering any such document. None of
the L/C Issuer,
Agent, any of their respective Related Parties nor any
correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i)
any action taken or omitted in connection herewith at the
request or with the
approval of Lenders or the Required Lenders, as applicable; (ii)
any action
taken or omitted in the absence of gross negligence or willful
misconduct; or
(iii) the due execution, effectiveness, validity or
enforceability of any
document or instrument related to any Letter of Credit or Issuer
Document.
Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or
transferee with respect to its use of any Letter of Credit;
provided, however,
that this assumption is not intended to, and shall not, preclude
Borrower's
pursuing such rights and remedies as it may have against the
beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, Agent,
any of their respective Related Parties nor any correspondent,
participant or
assignee of the L/C Issuer, shall be liable or responsible for
any of the
matters described in clauses (i) through (v) of Section 2.03(e);
provided,
however, that anything in such clauses to the contrary
notwithstanding, Borrower
may have a claim against the L/C Issuer, and the L/C Issuer may
be liable to
Borrower, to the extent, but only to the extent, of any direct,
as opposed to
consequential or exemplary, damages suffered by Borrower which
Borrower proves
were caused by the L/C Issuer's willful misconduct or gross
negligence or the
L/C Issuer's willful failure to pay under any Letter of Credit
after the
presentation to it by the beneficiary of a sight draft and
certificate(s)
strictly complying with the terms and conditions of a Letter of
Credit. In
furtherance and not in limitation of the foregoing, the L/C
Issuer may accept
documents that appear on their face to be in order, without
responsibility for
further investigation, regardless of any notice or information
to the contrary,
and the L/C Issuer shall not be responsible for the validity or
sufficiency of
any instrument transferring or assigning or purporting to
transfer or assign a
Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective
for any reason.
(g) Cash Collateral. Upon the request of Agent, (i) if the
L/C
Issuer has honored any full or partial drawing request under any
Letter of
Credit and such drawing has
32
<PAGE>
resulted in an L/C Borrowing, or (ii) if, as of the L/C
Expiration Date, any L/C
Obligation for any reason remains outstanding, Borrower shall,
in each case,
immediately Cash Collateralize the then Outstanding Amount of
all L/C
Obligations. Sections 2.05 and 8.02(c) set forth certain
additional requirements
to deliver Cash Collateral hereunder. For purposes hereof, "Cash
Collateralize"
means to pledge and deposit with or deliver to Agent, for the
benefit of the L/C
Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to
Agent and the L/C Issuer (which documents are hereby consented
to by Lenders) in
an amount not to exceed the then Outstanding Amount of all L/C
Obligations.
Derivatives of such term have corresponding meanings. Borrower
hereby grants to
Agent, for the benefit of the L/C Issuer and Lenders, a security
interest in all
such cash, deposit accounts and all balances therein and all
proceeds of the
foregoing. Cash collateral shall be maintained in blocked,
non-interest bearing
deposit accounts at Bank of America.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by the L/C Issuer and Borrower when a Letter of Credit is
issued, (i) the
rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the
rules of the Uniform Customs and Practice for Documentary
Credits, as most
recently published by the International Chamber of Commerce (the
"ICC") at the
time of issuance shall apply to each commercial Letter of
Credit.
(i) L/C Fees. Borrower shall pay to Agent for the account of
each
Lender in accordance with its Applicable Percentage a L/C fee
(the "L/C Fee")
for each standby Letter of Credit equal to one percent (1%) per
annum on the
entire amount available to be drawn under such Letter of Credit.
For purposes of
computing the daily amount available to be drawn under any
Letter of Credit, the
amount of such Letter of Credit shall be determined in
accordance with Section
1.06. L/C Fees shall be (i) due and payable on the last Business
Day of each
March, June, September and December, commencing with the first
such date to
occur after the issuance of such Letter of Credit, on the L/C
Expiration Date
and thereafter on demand and (ii) computed on a quarterly basis
in arrears.
Notwithstanding anything to the contrary contained herein, upon
the request of
the Required Lenders, while any Event of Default exists, all L/C
Fees shall
accrue at the Default Rate.
(j) Documentary and Processing Charges Payable to L/C
Issuer.
Borrower shall pay directly to the L/C Issuer for its own
account the customary
issuance, presentation, amendment and other processing fees, and
other standard
costs and charges, of the L/C Issuer relating to letters of
credit as from time
to time in effect. Such individual customary fees and standard
costs and charges
are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any
conflict
between the terms hereof and the terms of any Issuer Documents,
the terms hereof
shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set
forth
herein, Swing Line Lender agrees, in reliance upon the
agreements of the other
Lenders set forth in this Section 2.04, to consider in its sole
and absolute
discretion making loans (each such loan, a "Swing Line Loan") to
Borrower from
time to time on any Business Day during the Availability
33
<PAGE>
Period in an aggregate amount not to exceed at any time
outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such
Swing Line Loans,
when aggregated with the Applicable Percentage of the
Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as
Swing Line Lender,
may exceed the amount of such Lender's Commitment; provided,
however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings
shall not
exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of
the Committed Loans of any Lender, plus such Lender's Applicable
Percentage of
the Outstanding Amount of all L/C Obligations, plus such
Lender's Applicable
Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed
such Lender's Commitment. The Swing Line is a discretionary,
uncommitted
facility and Swing Line Lender may terminate or suspend the
Swing Line at any
time in its sole discretion upon notice to Borrower which notice
may be given by
Swing Line Lender before or after Borrower requests a Swing Line
Loan hereunder.
All Swing Line Loans shall either be Base Rate Loans or
Eurodollar Floating Rate
Loans, depending on the interest rate in effect therefor
pursuant to Section
2.08(a). Immediately upon the making of a Swing Line Loan, each
Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from
Swing Line Lender a risk participation in such Swing Line Loan
in an amount
equal to the product of such Lender's Applicable Percentage
times the amount of
such Swing Line Loan.
(b) Borrowing Procedures. Unless the Swing Line has been
terminated or suspended by the Swing Line Lender as provided in
subsection (a)
above, each Swing Line Borrowing shall be made upon Borrower's
irrevocable
notice to Swing Line Lender and Agent, which may be given by
telephone. Each
such notice must be received by Swing Line Lender and Agent not
later than 1:00
p.m. on the requested borrowing date, and shall specify (i) the
amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing
date, which shall be a Business Day. Each such telephonic notice
must be
confirmed promptly by delivery to Swing Line Lender and Agent of
a written Swing
Line Loan Notice, appropriately completed and signed by a
Responsible Officer of
Borrower. Promptly after receipt by Swing Line Lender of any
telephonic Swing
Line Loan Notice, Swing Line Lender will confirm with Agent (by
telephone or in
writing) that Agent has also received such Swing Line Loan
Notice and, if not,
Swing Line Lender will notify Agent (by telephone or in writing)
of the contents
thereof. Unless (x) the Swing Line has been terminated or
suspended by the Swing
Line Lender as provided in subsection (a) above, or (y) the
Swing Line Lender
has received notice (by telephone or in writing) from Agent
(including at the
request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line
Borrowing (A) directing Swing Line Lender not to make such Swing
Line Loan as a
result of the limitations set forth in the proviso to the first
sentence of
Section 2.04(a), or (B) that one or more of the applicable
conditions specified
in Article IV is not then satisfied, then, subject to the terms
and conditions
hereof, Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date
specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan
available to Borrower. Lenders agree that Swing Line Lender may
agree to modify
the borrowing procedures used in connection with the Swing Line
in its
discretion and without affecting any of the obligations of
Lenders hereunder
other than notifying Agent of a Swing Line Loan Notice. In the
event of any
conflict between the terms hereof and the terms of the
AutoBorrow Agreement with
respect to the administration of the borrowing, funding and
repayment of the
Swing Line Loans between the Borrower and the Swing Line Lender,
the terms of
the AutoBorrow Agreement shall control. In all other matters
related to
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Swing Line Loans, including the obligations of the Lenders to
purchase
participations in the Swing Line Loans, the terms of this
Agreement shall
control.
(c) Refinancing of Swing Line Loans.
(i) Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of Borrower (which hereby
irrevocably
authorizes Swing Line Lender to so request on its behalf), that
each
Lender make a Base Rate Committed Loan in an amount equal to
such
Lender's Applicable Percentage of the amount of Swing Line Loans
then
outstanding. Such request shall be made in writing (which
written
request shall be deemed to be a Committed Loan Notice for
purposes
hereof) and in accordance with the requirements of Section
2.02,
without regard to the minimum and multiples specified therein
for the
principal amount of Base Rate Loans, but subject to the
unutilized
portion of the Aggregate Commitments and the conditions set
forth in
Section 4.02. Swing Line Lender shall furnish Borrower with a
copy of
the applicable Committed Loan Notice promptly after delivering
such
notice to Agent. Each Lender shall make an amount equal to
its
Applicable Percentage of the amount specified in such Committed
Loan
Notice available to Agent in immediately available funds for
the
account of Swing Line Lender at the Administrative Agent's
Office not
later than 1:00 p.m. on the day specified in such Committed
Loan
Notice, whereupon, subject to Section 2.04(c)(ii), each Lender
that so
makes funds available shall be deemed to have made a Base
Rate
Committed Loan to Borrower in such amount. Agent shall remit the
funds
so received to Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Committed Borrowing in accordance with
Section
2.04(c)(i), the request for Base Rate Committed Loans submitted
by
Swing Line Lender as set forth herein shall be deemed to be a
request
by Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender's
payment
to Agent for the account of Swing Line Lender pursuant to
Section
2.04(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Lender fails to make available to Agent for the
account of Swing Line Lender any amount required to be paid by
such
Lender pursuant to the foregoing provisions of this Section
2.04(c) by
the time specified in Section 2.04(c)(i), Swing Line Lender
shall be
entitled to recover from such Lender (acting through Agent), on
demand,
such amount with interest thereon for the period from the date
such
payment is required to the date on which such payment is
immediately
available to Swing Line Lender at a rate per annum equal to the
greater
of the Federal Funds Rate and a rate determined by Swing Line
Lender in
accordance with banking industry rules on interbank
compensation, plus
any administrative, processing or similar fees customarily
charged by
Swing Line Lender in connection with the foregoing. If such
Lender pays
such amount (with interest and fees as aforesaid), the amount so
paid
shall constitute such Lender's Committed Loan included in the
relevant
Committed Borrowing or funded participation in the relevant
Swing Line
Loan, as the case may be. A certificate of Swing Line Lender
submitted
to any Lender (through Agent) with respect to any amounts owing
under
this clause (iii) shall be conclusive absent manifest error.
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(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans
pursuant to
this Section 2.04(c) shall be absolute and unconditional and
shall not
be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such
Lender may
have against Swing Line Lender, Borrower or any other Person for
any
reason whatsoever, (B) the occurrence or continuance of a
Default, or
(C) any other occurrence, event or condition, whether or not
similar to
any of the foregoing; provided, however, that each Lender's
obligation
to make Committed Loans pursuant to this Section 2.04(c) is
subject to
the conditions set forth in Section 4.02. No such funding of
risk
participations shall relieve or otherwise impair the obligation
of
Borrower to repay Swing Line Loans, together with interest as
provided
herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if Swing Line Lender
receives
any payment on account of such Swing Line Loan, Swing Line
Lender will
distribute to such Lender its Applicable Percentage thereof in
the same
funds as those received by Swing Line Lender.
(ii) If any payment received by Swing Line Lender in respect
of principal or interest on any Swing Line Loan is required to
be
returned by Swing Line Lender under any of the circumstances
described
in Section 10.05 (including pursuant to any settlement entered
into by
Swing Line Lender in its discretion), each Lender shall pay to
Swing
Line Lender its Applicable Percentage thereof on demand of
Agent, plus
interest thereon from the date of such demand to the date such
amount
is returned, at a rate per annum equal to the Federal Funds
Rate. Agent
will make such demand upon the request of Swing Line Lender.
The
obligations of Lenders under this clause shall survive the
payment in
full of the Obligations and the termination of this
Agreement.
(e) Interest for Account of Swing Line Lender. Swing Line
Lender
shall be responsible for invoicing Borrower for interest on the
Swing Line
Loans. Until each Lender funds its Base Rate Committed Loan or
risk
participation pursuant to this Section 2.04 to refinance such
Lender's
Applicable Percentage of any Swing Line Loan, interest in
respect of such
Applicable Percentage shall be solely for the account of Swing
Line Lender.
(f) Payments Directly to Swing Line Lender. Borrower shall
make
all payments of principal and interest in respect of the Swing
Line Loans
directly to Swing Line Lender.
2.05 Prepayments.
(a) Borrower may, upon notice to Agent, at any time or from
time
to time voluntarily prepay Committed Loans in whole or in part
without premium
or penalty; provided that (i) such notice must be received by
Agent not later
than Noon (A) three Business Days prior to any date of
prepayment of Eurodollar
Fixed Rate Loans and (B) on the date of prepayment of Base Rate
Committed Loans
or Eurodollar Floating Rate Loans; (ii) any prepayment of
Eurodollar Fixed Rate
Loans shall be in a principal amount of $1,000,000 or a whole
multiple of
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$500,000 in excess thereof; and (iii) any prepayment of Base
Rate Committed
Loans or Eurodollar Floating Rate Loans shall be in a principal
amount of
$500,000 or a whole multiple of $100,000 in excess thereof or,
in each case, if
less, the entire principal amount thereof then outstanding. Each
such notice
shall specify the date and amount of such prepayment and the
Type(s) of
Committed Loans to be prepaid and, if Eurodollar Fixed Rate
Loans are to be
prepaid, the Interest Period(s) of such Loans. Agent will
promptly notify each
Lender of its receipt of each such notice, and of the amount of
such Lender's
Applicable Percentage of such prepayment. If such notice is
given by Borrower,
Borrower shall make such prepayment and the payment amount
specified in such
notice shall be due and payable on the date specified therein.
Any prepayment of
a Eurodollar Fixed Rate Loan shall be accompanied by all accrued
interest on the
amount prepaid, together with any additional amounts required
pursuant to
Section 3.05. Each such prepayment shall be applied to the
Committed Loans of
Lenders in accordance with their respective Applicable
Percentages.
(b) Borrower may, upon notice to Swing Line Lender (with a copy
to
Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in
whole or in part without premium or penalty; provided that (i)
such notice must
be received by Swing Line Lender and Agent not later than 1:00
p.m. on the date
of the prepayment, and (ii) any such prepayment shall be in a
minimum principal
amount of $100,000. Each such notice shall specify the date and
amount of such
prepayment. If such notice is given by Borrower, Borrower shall
make such
prepayment and the payment amount specified in such notice shall
be due and
payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time
exceed
the Aggregate Commitments then in effect, Borrower shall
immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal
to such excess; provided, however, that Borrower shall not be
required to Cash
Collateralize the L/C Obligations pursuant to this Section
2.05(c) unless after
the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate
Commitments then in effect.
2.06 Termination or Reduction of Commitments. Borrower may, upon
notice
to Agent, terminate the Aggregate Commitments, or from time to
time permanently
reduce the Aggregate Commitments; provided that (i) any such
notice shall be
received by Agent not later than Noon three Business Days prior
to the date of
termination or reduction, (ii) any such partial reduction shall
be in an
aggregate amount of $1,000,000 or any whole multiple of $500,000
in excess
thereof, (iii) Borrower shall not terminate or reduce the
Aggregate Commitments
if, after giving effect thereto and to any concurrent
prepayments hereunder, the
Total Outstandings would exceed the Aggregate Commitments, and
(iv) if, after
giving effect to any reduction of the Aggregate Commitments, the
L/C Sublimit or
the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such
Sublimit shall be automatically reduced by the amount of such
excess. Agent will
promptly notify the Lenders of any such notice of termination or
reduction of
the Aggregate Commitments. Any reduction of the Aggregate
Commitments shall be
applied to the Commitment of each Lender according to its
Applicable Percentage.
All fees accrued until the effective date of any termination of
the Aggregate
Commitments shall be paid on the effective date of such
termination.
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2.07 Repayment of Loans.
(a) Borrower shall repay to Lenders on the Maturity Date the
aggregate principal amount of Committed Loans outstanding on
such date.
(b) Borrower shall repay to Swing Line Lender each Swing Line
Loan
on the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i)
each
Eurodollar Fixed Rate Loan shall bear interest on the
outstanding principal
amount thereof for each Interest Period at a rate per annum
equal to the
Eurodollar Fixed Rate for such Interest Period plus the
Applicable Margin; (ii)
each Eurodollar Floating Rate Loan shall bear interest on the
outstanding
principal amount thereof from the applicable borrowing date at a
rate per annum
equal to the Eurodollar Floating Rate plus the Applicable
Margin; and (iii) each
Base Rate Committed Loan shall bear interest on the outstanding
principal amount
thereof from the applicable borrowing date at a rate per annum
equal to the Base
Rate plus the Applicable Margin; and (iv) each Swing Line Loan
shall bear
interest on the outstanding principal amount thereof from the
applicable
borrowing date at a rate per annum equal to either (A) the Base
Rate plus the
Applicable Margin or (B) the Eurodollar Floating Rate plus the
Applicable
Margin, provided that all Swing Line Loans shall bear interest
at the Eurodollar
Floating Rate plus the Applicable Margin from the Closing Date
until Borrower
provides notice of its desire to change the rate applicable to
Swing Line Loans
to the Base Rate plus the Applicable Margin pursuant to the
following sentence.
Borrower may change the rate of interest applicable to Swing
Line Loans upon
Borrower's notice to Agent, which may be given by telephone and
which must be
received by Agent on the requested date of any such change in
the interest rate.
(b) (i) If any amount of principal of any Loan is not paid
when
due (without regard to any applicable grace periods), whether at
stated
maturity, by acceleration or otherwise, such amount shall
thereafter bear
interest at a fluctuating interest rate per annum at all times
equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(ii) If any amount (other than principal of any Loan)
payable
by Borrower under any Loan Document is not paid when due
(without
regard to any applicable grace periods), whether at stated
maturity, by
acceleration or otherwise, then upon the request of the
Required
Lenders, such amount shall thereafter bear interest at a
fluctuating
interest rate per annum at all times equal to the Default Rate
to the
fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any
Event of Default exists, Borrower shall pay interest on the
principal
amount of all outstanding Obligations hereunder at a
fluctuating
interest rate per annum at all times equal to the Default Rate
to the
fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and
payable upon
demand.
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<PAGE>
(c) Interest on each Loan shall be due and payable in arrears
on
each Interest Payment Date applicable thereto and at such other
times as may be
specified herein. Interest hereunder shall be due and payable in
accordance with
the terms hereof before and after judgment, and before and after
the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in
subsections
(i) and (j) of Section 2.03:
(a) Commitment Fee. Borrower shall pay to Agent for the account
of
each Lender in accordance with its Applicable Percentage, a
commitment fee equal
to the Applicable Margin times the actual daily amount by which
the Aggregate
Commitments exceed the sum of (i) the Outstanding Amount of
Committed Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment
fee shall accrue
at all times during the Availability Period, including at any
time during which
one or more of the conditions in Article IV is not met, and
shall be due and
payable quarterly in arrears on the last Business Day of each
March, June,
September and December, commencing with the first such date to
occur after the
Closing Date, and on the last day of the Availability Period.
The commitment fee
shall be calculated quarterly in arrears, and if there is any
change in the
Applicable Margin during any quarter, the actual daily amount
shall be computed
and multiplied by the Applicable Margin separately for each
period during such
quarter that such Applicable Margin was in effect.
(b) Upfront Fee. On the Effective Date, Borrower shall pay
to
Agent an upfront fee in an amount of $31,250.00. Such upfront
fee is fully
earned on the date paid. The upfront fee is nonrefundable for
any reason
whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments
of
Applicable Margin.
(a) All computations of interest for the following shall be
made
on the basis of a year of 365 or 366 days, as the case may be,
and actual days
elapsed: (i) Base Rate Loans when the Base Rate is determined by
Bank of
America's "prime rate," (ii) Eurodollar Floating Rate Loans and
(iii) Commitment
Fees. All other computations of fees and interest shall be made
on the basis of
a 360-day year and actual days elapsed (which results in more
fees or interest,
as applicable, being paid than if computed on the basis of a
365-day year).
Interest shall accrue on each Loan for the day on which the Loan
is made, and
shall not accrue on a Loan, or any portion thereof, for the day
on which the
Loan or such portion is paid, provided that any Loan that is
repaid on the same
day on which it is made shall, subject to Section 2.12(a), bear
interest for one
day. Each determination by Agent of an interest rate or fee
hereunder shall be
conclusive and binding for all purposes, absent manifest
error.
(b) If, as a result of any restatement of or other adjustment
to
the financial statements of Borrower or for any other reason,
Borrower or the
Lenders determine that (i) the Financial Covenant used in the
definition
"Applicable Margin" as calculated by Borrower as of any
applicable date was
inaccurate and (ii) a proper calculation of such Financial
Covenant would have
resulted in different pricing for such period, then either (as
applicable) (A)
Borrower shall immediately and retroactively be obligated to pay
to Agent for
the account of the applicable
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<PAGE>
Lenders, promptly on demand by Agent (or, after the occurrence
of an actual or
deemed entry of an order for relief with respect to Borrower
under the
Bankruptcy Code of the United States, automatically and without
further action
by Agent, any Lender or the L/C Issuer), an amount equal to the
excess of the
amount of interest and fees that should have been paid for such
period over the
amount of interest and fees actually paid for such period or (B)
the applicable
Lenders shall credit to Borrower an amount equal to the excess
of the amount of
interest and fees actually paid for such period over the amount
of interest and
fees that should have been paid for such period. This paragraph
shall not limit
the rights of Agent, any Lender or the L/C Issuer, as the case
may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII.
The obligations
under this paragraph shall survive the termination of the
Aggregate Commitments
and the repayment of all other Obligations hereunder.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be
evidenced
by one or more accounts or records maintained by such Lender and
by Agent in the
ordinary course of business. The accounts or records maintained
by Agent and
each Lender shall be conclusive absent manifest error of the
amount of the
Credit Extensions made by Lenders to Borrower and the interest
and payments
thereon. Any failure to so record or any error in doing so shall
not, however,
limit or otherwise affect the obligation of Borrower hereunder
to pay any amount
owing with respect to the Obligations. In the event of any
conflict between the
accounts and records maintained by any Lender and the accounts
and records of
Agent in respect of such matters, the accounts and records of
Agent shall
control in the absence of manifest error. Upon the request of
any Lender made
through Agent, Borrower shall execute and deliver to such Lender
(through Agent)
a Note, which shall evidence such Lender's Loans in addition to
such accounts or
records. Each Lender may attach schedules to its Note and
endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and
payments with
respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and Agent shall maintain in
accordance with its
usual practice accounts or records evidencing the purchases and
sales by such
Lender of participations in Letters of Credit and Swing Line
Loans. In the event
of any conflict between the accounts and records maintained by
Agent and the
accounts and records of any Lender in respect of such matters,
the accounts and
records of Agent shall control in the absence of manifest
error.
2.12 Payments Generally; Agent's Clawback.
(a) (i) General. All payments to be made by Borrower shall
be
made without condition or deduction for any counterclaim,
defense, recoupment or
setoff. Except as otherwise expressly provided herein, all
payments by Borrower
hereunde
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