EXHIBIT 10.21
--------------------------------------------------------------------------------
CREDIT AGREEMENT
--------------------------------------------------------------------------------
between
CHROMCRAFT REVINGTON, INC.
and
WELLS FARGO BANK, N.A.
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Dated as of September 20, 2005
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SECTION 1.
Definitions.........................................................1
1.1. Defined Terms
...................................................1
1.2. Rules of Construction
..........................................12
1.3. Accounting
Terms................................................12
SECTION 2.
Credit.............................................................12
2.1.
Commitments.....................................................12
2.1.1. Revolving Commitment.................................12
2.2.
Interest........................................................13
2.2.1. Revolving Commitment.................................13
2.2.2. General..............................................13
2.3. Payments of Principal and Interest.
............................13
2.3.1. Revolving Commitment.................................13
2.3.2. Method of Payment....................................13
2.3.3. Banking Day .........................................13
2.4. Method of
Advance...............................................14
2.4.1. Revolving Commitment.................................14
2.4.2. General..............................................14
2.5. Procedures for Electing Optional
Rates..........................14
2.6.
Fees............................................................16
2.6.1. Commitment Fee - Revolving Commitment................16
2.6.2. Closing Fee .........................................17
2.7. Reductions of Revolving Commitment
.............................17
2.8. Issuance of Letters of Credit
..................................17
2.9. Letters of Credit
Fees..........................................18
2.10. Reimbursement of Letters of Credit
............................18
2.11. Use of
Proceeds................................................19
SECTION 3.
Guaranty...........................................................19
SECTION 4. Representations and
Warranties.....................................20
4.1. Organization; Corporate
Powers..................................20
4.2.
Authority.......................................................20
4.3. No
Conflict.....................................................21
4.4. Financial Statements
...........................................21
4.5. No Material Adverse
Change......................................21
4.6.
Taxes...........................................................21
4.6.1. Tax Examinations ....................................21
4.6.2. Payment of Taxes.....................................22
4.7. Litigation; Loss Contingencies and
Violations...................22
4.8.
Subsidiaries....................................................22
4.9. Employee Benefits
..............................................22
4.10. Accuracy of
Information........................................24
4.11. Material
Agreements............................................24
4.12. Compliance with Laws
..........................................24
4.13. Assets and Properties
.........................................24
4.14.
Insurance......................................................24
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4.15. Environmental
Matters..........................................24
4.16.
Solvency.......................................................25
4.17.
Indebtedness...................................................25
4.18. Contracts of Surety
...........................................25
4.19.
Licenses.......................................................26
4.20. Force Majeure
.................................................26
4.21. Margin
Stock...................................................26
4.22.
Approvals......................................................26
4.23.
Regulation.....................................................26
4.24.
ESOP...........................................................26
4.25.
General........................................................26
4.26. Supplemental Disclosure
.......................................26
SECTION 5.
Covenants..........................................................27
5.1. Affirmative
Covenants...........................................27
5.1.1. Financial Reporting..................................27
5.1.2. Good Standing .......................................28
5.1.3. Taxes, Etc...........................................29
5.1.4. Maintain Properties..................................29
5.1.5. Insurance ...........................................29
5.1.6. Books and Records ...................................29
5.1.7. Reports .............................................29
5.1.8. Licenses.............................................30
5.1.9. Notice of Material Adverse Change ...................30
5.1.10. Conduct of Business ................................30
5.1.11. Compliance with Laws ...............................30
5.1.12. Use of Proceeds.....................................30
5.1.13. Loan Payments.......................................30
5.1.14. Adjusted Consolidated Tangible Net Worth............30
5.1.15. Leverage Ratio .....................................30
5.1.16. Interest Coverage Ratio.............................31
5.1.17. Notice of Environmental Matters.....................31
5.1.18. Banking Accounts....................................31
5.1.19. ESOP................................................31
5.2. Negative Covenants
.............................................32
5.2.1. Dispose of Property..................................32
5.2.2. Further Encumber ....................................32
5.2.3. Dividends ...........................................33
5.2.4. Purchase Stock.......................................33
5.2.5. Borrowings...........................................33
5.2.6. Loans, Etc ..........................................33
5.2.7. Guarantees...........................................33
5.2.8. Merger, Acquisitions, Etc ...........................33
5.2.9. Change Name and Place of Business....................34
5.2.10. Accounting Policies ................................34
5.2.11. Change of Business..................................34
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5.2.12. Benefit Plans ......................................34
5.2.13. ESOP................................................34
5.2.14. Transactions with Affiliates........................35
5.2.15. Sales and Leasebacks................................35
5.2.16. Corporate Documents ................................35
5.2.17. Restrictive Agreements..............................35
SECTION 6. Conditions Precedent to Loans
.....................................35
6.1. Conditions to Initial Advance
..................................35
6.1.1. Authorization .......................................36
6.1.2. Loan Documents ......................................36
6.1.3. Guaranty.............................................36
6.1.4. Incumbency Certificates .............................36
6.1.5. Opinion of Counsel ..................................36
6.1.6. UCC Searches ........................................36
6.1.7. Regulation U.........................................36
6.1.8. Compliance Certificate ..............................36
6.1.9. Commitment Fees .....................................36
6.1.10. Termination of Existing Credit Agreement ...........36
6.1.11. Certificate of No Default ..........................37
6.1.12. Additional Documentation............................37
6.2. Conditions to Subsequent
Advances...............................37
6.2.1. No Default...........................................37
6.2.2. Representations and Warranties.......................37
6.2.3. Legal Matters .......................................37
6.2.4. Expenses ............................................37
6.3. Special Conditions to Advances for Permitted
Acquisitions.......37
6.3.1. Written Requests.....................................37
6.3.2. Acquisition Documents................................37
6.3.3. Representations of Target's Financial Statements ....38
6.3.4. Expenses ............................................38
6.4.
General.........................................................38
SECTION 7.
Default............................................................38
SECTION 8. Remedy
............................................................40
8.1. Acceleration
...................................................40
8.2. Deposit to Secure Reimbursement Obligations
....................41
8.3.
Subrogation.....................................................41
8.4. Preservation of
Rights..........................................41
8.5. Default Rate
...................................................41
SECTION 9. Benefit of Agreement;
Assignment, Participations...................42
9.1. Successors and
Assigns..........................................42
9.2.
Participations..................................................42
9.2.1. Permitted Participants; Effect ......................42
9.2.2. Voting Rights .......................................42
9.2.3. Benefit of Setoff....................................43
9.3.
Assignments.....................................................43
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9.3.1. Permitted Assignments ...............................43
9.3.2. Effect; Effective Date ..............................43
9.4. Dissemination of Information
...................................43
SECTION 10. General Provisions
...............................................44
10.1. Waivers, Amendments and Remedies
..............................44
10.2. Survival of Representations
...................................44
10.3. Governmental Regulation
.......................................44
10.4.
Taxes..........................................................44
10.5. Choice of
Law..................................................44
10.6. Headings
......................................................44
10.7. Entire Agreement
..............................................45
10.8. Expenses
......................................................45
10.9. Indemnification
...............................................45
10.10. Confidentiality
..............................................46
10.11. Giving
Notice.................................................46
10.12.
Counterparts..................................................46
10.13. Incorporation by
Reference....................................47
10.14. Time of
Essence...............................................47
10.15. No Joint
Venture..............................................47
10.16. Severability
.................................................47
10.17. Waiver of
Setoff..............................................47
10.18.
Gender........................................................47
10.19. Right of
Setoff...............................................47
10.20. Lender Not in
Control.........................................47
10.21. Additional Amounts Payable
...................................48
10.22. Application of
Proceeds.......................................48
10.23. Relationship of Parties; Mutual Release of Consequential
Damages.......................................................49
10.24. Waiver of Jury
Trial..........................................49
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CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT,
dated as of the 20th
day of September,
2005,
between CHROMCRAFT REVINGTON, INC., a
Delaware corporation (the "Borrower"), and
WELLS FARGO BANK, N.A., a national banking association (the "Lender"). The
parties agree as follows:
SECTION 1.
----------
Definitions
-----------
1.1. Defined Terms. As used in this Agreement:
"Adjusted Consolidated Tangible Net Worth" means, on any date
of
determination, the amount by which (a)
Consolidated Net Worth exceeds (b) the
sum of (i) all assets which would be
classified as intangible assets under GAAP,
including without limitation, goodwill
(whether representing the excess of cost
over book value of assets acquired or
otherwise), patents, trademarks, trade
names, copyrights, franchises, operating
permits, unamortized debt discount and
expense, organization costs, and research
and development costs, (ii) minority
interests in subsidiaries, (iii) cash set
apart and held in a sinking or other
similar fund established for the purpose of
redemption or other retirement of
capital stock, and (iv) any revaluation or
other write-up in book value of
assets subsequent to the date hereof.
"Adjusted LIBOR" means, for each LIBOR Loan, the rate per annum
(rounded up, if necessary, to the nearest
1/16%) determined by the Lender to be
equal to the quotient of (a) the LIBOR
divided by (b) 1 minus the Reserve
Requirement.
"Advance" means a disbursement of proceeds of the Loans.
"Affiliate" means, with respect to any Person, any other Person
(a)
directly or indirectly through one or more
intermediaries, controlling,
controlled by, or under common control
with, such Person, and (b) that directly
or indirectly owns more than Ten Percent
(10%) of any class of the voting
securities or Capital Stock of or equity
interests in such Person. A Person
shall be deemed to control another Person
if such Person possesses, directly or
indirectly, the power to direct or cause
the direction of the management and
policies of such other Person, whether
through the ownership of voting
securities, by contract or otherwise.
"Agreement" means this Credit Agreement, as amended from time to
time.
"Alternate Base Rate" means, for any day, a rate of interest per
annum
equal to, at Borrower's election, (i) the
Prime Rate for such day, (ii) the sum
of the Federal Funds Effective Rate for
such day plus 1/2% per annum, or (iii)
the Daily LIBOR Rate plus the Applicable
Margin for LIBOR Loans.
"Alternate Base Rate Loan" means any Loan when and to the extent
that
the interest rate thereof is determined by
reference to the Alternate Base Rate.
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"Applicable Margin" and "Applicable Fee" is determined by reference
to
the following tables:
Applicable Margin
Applicable Margin for
Alternate Base Rate
Leverage Ratio
for LIBOR Loans
Rate Loans
--------------
---------------
----------
Greater than or equal
to 1.50 to 1.00
1.25%
0.00%
Less than 1.50 to 1.00
but greater than or equal
to 1.00 to 1.00
1.00%
0.00%
Less than 1.00 to 1.00
0.75%
0.00%
Applicable Fee
Applicable Fee
for Standby Letters for
Commitment
Leverage Ratio
of Credit
Fee
--------------
---------
---
Greater than or equal
to 1.5 to 1.00
1.25%
0.25%
Less than 1.50 to 1.00
but greater than or equal
to 1.00 to 1.00
1.00%
0.20%
Less than 1.00 to 1.00
0.75%
0.15%
The Applicable Margin and the Applicable
Fee shall initially be determined based
on a Leverage Ratio as determined by
Borrower's Financial Statements as of the
fiscal quarter ended July 2, 2005. The
Applicable Margin and Applicable Fee
shall be subject to adjustment quarterly
commencing with Borrower's Financial
Statements as of the fiscal quarter ending
October 1, 2005. Adjustments, if any,
to the Applicable Margin and the Applicable
Fee shall be effective three (3)
Banking Days after the Lender has received
Borrower's Financial Statements
delivered to the Lender pursuant to Section
5.1.1 hereof for the immediately
preceding fiscal quarter. In the event the
Lender has not received the required
Financial Statements pursuant to Section
5.1.1 hereof within the time periods
provided therein, the maximum Leverage
Ratio and the highest Applicable Margin
and Applicable Fee set forth in the
foregoing tables shall be conclusively
presumed to be correct until three (3)
Banking Days after the applicable
Financial Statements are so delivered. In
no event shall the Applicable Margin
and the Applicable Fee be adjusted downward
if there exists a Default on the
date on which such downward adjustment
would otherwise become effective until
such time as the Default has been cured,
waived or ceases to exist. The
provisions of this definition are not
intended to, and shall not be construed
to, authorize any violation by Borrower of
Section 5.1.16 hereof or to
constitute a waiver thereof or any
commitment by the Lender to waive any
violation by Borrower of Section 5.1.16
hereof.
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"Authorized Officer" means any officer or employee of Borrower
whose
authority to perform acts to be performed
only by an Authorized Officer under
the terms of this Agreement are evidenced
by (a) a certified copy of an
appropriate resolution of the Board of
Directors of Borrower, or (b) a written
authorization specifying an employee of
Borrower signed by an Authorized
Officer.
"Banking Day" means a day on which the principal domestic office of
the
Lender is open for the purpose of
conducting substantially all of its business
activities, and, if the applicable day
relates to a LIBOR Loan, LIBOR Interest
Period, or notice with respect to a LIBOR
Loan, a day on which dealings in U.S.
dollar deposits are carried on in the
London interbank market and Lender is open
for business in London.
"Borrower" shall have the meaning ascribed in the first paragraph
of
this Agreement.
"Capital Stock" means (i) in the case of a corporation,
corporate
stock, (ii) in the case of an association
or business entity, any and all
shares, interest, participations, rights or
other equivalents (however
designated) of corporate stock, (iii) in
the case of a partnership, partnership
interests (whether general or limited) and
(iv) any other interest or
participation that confers on a Person the
right to receive a share of the
profits and losses of, or distributions of
assets of, the issuing Person.
"Capitalized Lease" means any lease of property which would be
capitalized on a balance sheet of a Person
prepared in accordance with GAAP.
"Capitalized Lease Obligations" means the amount of the obligations
of
a Person under Capitalized Leases which
would be shown as liabilities on a
balance sheet of such Person prepared in
accordance with GAAP.
"Change in Control" means, and shall be deemed to have occurred if,
(a)
any Person or group of Persons (other than
(i) Borrower, (ii) any Subsidiary of
Borrower, (iii) any employee or director
benefit plan or stock plan of Borrower
[including the ESOP] or a Subsidiary of
Borrower or any trustee or fiduciary
with respect to any such plan when acting
in that capacity or any trust related
to any such plan) shall have acquired
beneficial ownership of shares
representing more than Twenty-Five Percent
(25%) of the combined voting power
represented by the outstanding voting
shares of Borrower (within the meaning of
Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, and
the applicable rules and regulations
thereunder), or (b) during any period of
twelve (12) consecutive months, commencing
before or after the date of this
Agreement, individuals who on the first day
of such period were directors of
Borrower (together with any replacement or
additional directors who were
nominated or elected by a majority of
directors then in office) cease to
constitute a majority of the Board of
Directors of Borrower, or (c) Borrower
consolidates with or merges into another
corporation or conveys, transfers or
leases all or substantially all of its
property to any Person, or any
corporation consolidates with or merges
into Borrower, in either event pursuant
to a transaction in which the outstanding
Capital Stock of Borrower is
reclassified or changed into or exchanged
for cash, securities or other
property.
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"Code" means the Internal Revenue Code of 1986, as amended from
time to
time, and all regulations promulgated
thereunder.
"Commitment Fee" means the fee required to be paid by Borrower
pursuant
to Section 2.6.1 hereof.
"Compliance Certificate" means a Compliance Certificate, in the
form
attached hereto as Exhibit A, duly executed
by the chief executive officer or
chief financial officer of Borrower.
"Consolidated Net Worth" means the excess of Borrower's
consolidated
total assets over Borrower's Consolidated
Total Liabilities, each determined in
accordance with GAAP and as shown on the
balance sheets furnished to the Lender
from time to time pursuant to Section 5.1.1
hereof.
"Consolidated Total Liabilities" means the consolidated total
liabilities of Borrower and its
Subsidiaries, determined in accordance with GAAP
and as shown on the Financial Statements
furnished to the Lender from time to
time pursuant to Section 5.1.1 hereof.
"Contaminant" means any waste, pollutant, hazardous substance,
toxic
substance, hazardous waste, special waste,
petroleum or petroleum-derived
substance or waste, asbestos,
polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste,
and includes but is not limited to
these terms as defined in Environmental
Laws.
"Contingent Obligation", as applied to any Person, means any
Contractual Obligation, contingent or
otherwise, of that Person with respect to
any Indebtedness of another or other
obligation or liability of another,
including, without limitation, any such
Indebtedness, obligation or liability of
another directly or indirectly guaranteed,
endorsed (otherwise than for
collection or deposit in the ordinary
course of business), co-made or discounted
or sold with recourse by that Person, or in
respect of which that Person is
otherwise directly or indirectly liable,
including Contractual Obligations
(contingent or otherwise but excluding any
supply contract obligations arising
in the ordinary course of business) arising
through or liability or any security
therefor, or to provide funds for the
payment or discharge thereof (whether in
the form of loans, advances, stock
purchases, capital contributions or
otherwise), or to maintain solvency,
assets, level of income, or other financial
condition, or to make payment other than
for value received.
"Contractual Obligation", as applied to any Person, means any
provision
of any equity or debt securities issued by
that Person or any indenture,
mortgage, deed of trust, security
agreement, pledge agreement, guaranty,
contract, undertaking, agreement or
instrument, in any case in writing, to which
that Person is a party or by which it or
any of its properties is bound, or to
which it or any of its properties is
subject.
"Daily LIBOR Rate" means, for each applicable Alternate Base Rate
Loan,
the rate per annum (rounded up, if
necessary, to the nearest 1/8%) determined by
the Lender to be equal to the quotient of
(a) the Base LIBOR divided by (b) 1
minus the Reserve Requirement. For purposes
of this definition, "Base LIBOR"
means the rate per annum for United States
dollar deposits quoted by the Lender
as of 10:00 a.m. on each Business Day as
the "Inter-Bank Market Offered Rate",
with the understanding that such rate is
quoted by the Lender for the purpose of
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calculating effective rates of interest for
loans making reference thereto, for
the delivery of funds on such Business Day
for a period of time equal to one (1)
day in an amount equal to the applicable
Alternate Base Loan. Borrower
understands and agrees that the Lender may
base its quotation of the Inter-Bank
Market Offered Rate upon such offers or
other market indicators of the
Inter-Bank Market as the Lender in its sole
discretion deems appropriate
including, but not limited to, the rate
offered for United States dollar
deposits on the London Inter-Bank Market.
The Daily LIBOR Rate shall adjust
daily pursuant to any change in the rate
announced internally by the Lender.
"EBITDAE" means, with respect to Borrower and its Subsidiaries
determined on a consolidated basis in
accordance with GAAP, the sum of (a) Net
Income, plus (b) to the extent deducted in
determining Net Income, income taxes
paid or accrued, plus (c) interest expense,
plus (d) to the extent deducted in
determining Net Income, depreciation and
amortization, plus (e) to the extent
deducted in determining Net Income, ESOP
Compensation; in each instance
determined for the trailing four (4)
quarter period ending on the date of
determination.
"Employee Benefit Plans" shall have the meaning ascribed in Section
4.9
hereof.
"Environmental Laws" means all provisions of laws, statutes,
ordinances, rules, regulations, permits,
licenses, judgments, writs,
injunctions, decrees, orders, awards and
standards promulgated by any
Governmental Authority concerning the
protection of, or regulation of the
discharge of substances into, the
environment or concerning the health or safety
of persons with respect to environmental
hazards, and includes, without
limitation, the Hazardous Materials
Transportation Act, 42 U.S.C. Section 1801
et seq., the Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of
1986, 42 U.S.C. Sections 9601 et seq.,
Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act
of 1976 and Solid and Hazardous Waste
Amendments of 1984, 42 U.S.C. Sections 6901
et seq., Federal Water Pollution
Control Act, as amended by the Clean Water
Act of 1977, 33 U.S.C. Sections 1251
et seq., Clean Air Act of 1966, as amended,
42 U.S.C. Sections 7401 et seq.,
Toxic Substances Control Act of 1976, 15
U.S.C. Sections 2601 et seq., the
Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. Section 7401 et
seq., Occupational Safety and Health Act of
1970, as amended, 29 U.S.C. Sections
651 et seq., Emergency Planning and
Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., National
Environmental Policy Act of 1975, 42
U.S.C. Sections 4321 et seq., Safe Drinking
Water Act of 1974, as amended, 42
U.S.C. Sections 300(f) et seq., and any
similar or implementing state law, and
all amendments, rules, and regulations
promulgated thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended.
"ERISA Affiliate" means any trade or business, whether or not
incorporated, which together with Borrower
would be treated as a single employer
under ERISA.
"ESOP" means the employee stock ownership plan and trust
established
pursuant to the ESOP Plan.
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"ESOP Compensation" means Borrower's compensation expense
determined in
accordance with the American Institute of
Certified Public Accountants Statement
of Position 93-6.
"ESOP Loan" means the Twenty Million Dollar ($20,000,000) loan
from
Borrower to the ESOP to be used to acquire
qualifying employer securities of
Borrower.
"ESOP Plan" means the Chromcraft Revington, Inc. Employee Stock
Ownership Plan adopted by Borrower
effective January 1, 2002 and the Chromcraft
Revington, Inc. Employee Stock Ownership
Trust effective January 1, 2002.
"Facilities" means the Revolving Commitment, the Letters of Credit,
and
any other credit facility provided by the
Lender from time to time pursuant to
this Agreement.
"Federal Funds Effective Rate" means, for any day, an interest 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 for
such day (or, if such day is not a
Banking Day, for the immediately preceding
Banking Day) by the Federal Reserve
Bank of New York, or, if such rate is not
so published for any day which is a
Banking Day, the average of the quotations
at approximately 10:00 A.M. (Chicago
time) on such day on such transactions
received by the Lender from three (3)
Federal funds brokers of recognized
standing selected by the Lender in its sole
discretion (rounded upward, if necessary,
to the nearest 1/16%).
"Financial Statements" means, as the context may require, (a)
the
consolidated balance sheets of Borrower and
its Subsidiaries as of July 2, 2005
and their consolidated statements of income
and retained earnings and
consolidated statement of cash flows for
the periods then ended, and (b) the
consolidated financial statements of
Borrower and its Subsidiaries furnished
from time to time pursuant to Section 5.1.1
hereof; in all cases, together with
any accompanying notes thereto, and any
other documents or data furnished in
connection therewith, prepared in
accordance with the terms and limitations as
set forth in Section 4.4 hereof.
"GAAP" means generally accepted accounting principles in the
United
States of America in effect from time to
time as promulgated by the Financial
Accounting Standards Board and recognized
and interpreted by the American
Institute of Certified Public
Accountants.
"Governmental Authority" means any nation or government, any state
or
other political subdivision thereof, and
any entity exercising executive,
legislative, judicial, regulatory or
administrative functions of or pertaining
to government, including, without limiting
the generality of the foregoing, any
agency, body, commission, court or
department thereof, whether federal, state,
local or foreign.
"Gross Negligence" means recklessness, or actions taken or omitted
with
conscious indifference to or the complete
disregard of consequences. Gross
Negligence does not mean the absence of
ordinary care or diligence, or an
inadvertent act or inadvertent failure to
act. If the term "gross negligence" is
used with respect to Lender or any
indemnitee in any of the other Loan
Documents, it shall have the meaning set
forth herein.
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"Guarantors" means, jointly and severally, Chromcraft
Corporation,
Peters-Revington Corporation, Silver
Furniture Co., Inc., Silver Furniture
Manufacturing Co., Inc., CRI Capital
Corporation, Korn Industries, Incorporated,
CRI Corporation-Sumter, Cochrane Furniture
Company, Inc., CRI Realty Company,
LLC and any other Subsidiaries of Borrower
from time to time.
"Guaranty" means the Subsidiary Guaranty, in substantially the form
of
Exhibit C hereto, duly executed by each of
the Guarantors to the Lender in
connection with the Obligations, including
any modification or replacement
thereof.
"Hedging Obligations" of a Person means any and all obligations of
such
Person, whether absolute or contingent and
howsoever and whensoever created,
arising, evidenced or acquired (including
all renewals, extensions and
modifications thereof and substitutions
therefor), under (a) any and all
agreements, devices or arrangements
designed to protect at least one of the
parties thereto from the fluctuations of
interest rates, commodity prices,
exchange rates or forward rates applicable
to such party's assets, liabilities
or exchange transactions, including, but to
limited to, dollar-endorsement or
cross-currency interest rate exchange
agreements, forward currency exchange
agreements, interest rate cap or collar
protection agreements, forward rate
currency or interest rate options, puts and
warrants, and (b) any and all
cancellations, buy backs, reversals,
terminations or assignments of any of the
foregoing.
"Indebtedness" of any Person means, without duplication, such
Person's
(a) obligations for borrowed money, (b)
obligations representing the deferred
purchase price of property or services
(other than accounts payable arising in
the ordinary course of such Person's
business payable on terms customary in the
trade or otherwise consistent with such
Person's past practices), (c)
obligations, whether or not assumed,
secured by Liens or payable out of the
proceeds or products from property or
assets now or hereafter owned or acquired
by such Person, (d) obligations which are
evidenced by notes, acceptances or
other instruments, (e) Capitalized Lease
Obligations, (f) Contingent
Obligations, (g) obligations with respect
to letters of credit and (h) Hedging
Obligations. The amount of Indebtedness of
any Person at any date shall be
without duplication (i) the outstanding
balance at such date of all
unconditional obligations as described
above and the maximum liability of any
such Contingent Obligations at such date
and (ii) in the case of Indebtedness of
others secured by a Lien to which the
property or assets owned or held by such
Person is subject, the lesser of the fair
market value at such date of any asset
subject to a Lien securing the Indebtedness
of others and the amount of the
Indebtedness secured.
"Interest Coverage Ratio" means, with respect to Borrower and
its
Subsidiaries determined on a consolidated
basis in accordance with GAAP, the
ratio of (a) EBITDAE divided by (b)
interest expense; in each case determined
for the trailing four (4) quarter period
ending on the date of determination.
The Interest Coverage Ratio shall be
determined in accordance with GAAP as shown
in the Financial Statements.
"Lender" has the meaning ascribed in the first paragraph of
this
Agreement.
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<PAGE>
"Letters of Credit" means standby and commercial letters of credit,
now
or hereafter issued by the Lender, from
time to time, at the request of, and for
the account of, Borrower and issued on
behalf of Borrower or a Guarantor
pursuant to Section 2.8 hereof.
"Letter of Credit Applications" means, collectively, each
Application
for Standby Letter of Credit and each
Application and Agreement for Irrevocable
Letter of Credit, in the forms prescribed
by the Lender, duly executed by
Borrower in favor of the Lender, from time
to time, to govern a Letter of
Credit, as any of the same may be amended
from time to time.
"Leverage Ratio" means, with respect to Borrower and its
Subsidiaries
determined on a consolidated basis in
accordance with GAAP, the ratio of (a) all
interest-bearing Indebtedness (including
Capitalized Lease Obligations but
excluding any letters of credit), divided
by (b) EBITDAE. The Leverage Ratio
shall be determined in accordance with GAAP
and as shown in the Financial
Statements.
"LIBOR" means, with respect to each LIBOR Advance for the
relevant
LIBOR Interest Period, the applicable
British Bankers' Association Interest
Settlement Rate for deposits in U.S.
dollars appearing on Reuters Screen FRBD as
of 11:00 a.m. (London time) two (2) Banking
Days prior to the first day of such
LIBOR Interest Period, and having a
maturity equal to such LIBOR Interest
Period, provided that, (a) if Reuters
Screen FRBD is not available to the Lender
for any reason, the applicable LIBOR for
the relevant LIBOR Interest Period
shall instead be the applicable British
Bankers' Association Interest Settlement
Rate for deposits in U.S. dollars as
reported by any other generally recognized
financial information service as of 11:00
a.m. (London time) two (2) Banking
Days prior to the first day of such LIBOR
Interest Period, and (b) if no such
British Bankers' Association Interest
Settlement Rate is available to the
Lender, the applicable LIBOR for the
relevant LIBOR Interest Period shall
instead be the rate determined by the
Lender to be the rate at which Lender or
one of its affiliate banks offers to place
deposits in U.S. dollars with
first-class lenders in the London interbank
market at approximately 11:00 a.m.
(London time) two (2) Banking Days prior to
the first day of such LIBOR Interest
Period, in the appropriate amount of
Lender's relevant LIBOR Advance and having
a maturity approximately equal to such
LIBOR Interest Period.
"LIBOR Interest Period" means, with respect to a LIBOR Advance,
a
period of one (1), two (2), three (3) or
six (6) months commencing on a Banking
Day selected by Borrower pursuant to this
Agreement. Such LIBOR Interest Period
shall end on the day which corresponds
numerically to such date one (1), two
(2), three (3) or six (6) months
thereafter, provided, however, that if there is
no such numerically corresponding day in
such next, second (2nd), third (3rd) or
sixth (6th) succeeding month, such LIBOR
Interest Period shall end on the last
Banking Day of such next, second (2nd),
third (3rd) or sixth (6th) succeeding
month. If a LIBOR Interest Period would
otherwise end on a day which is not a
Banking Day, such LIBOR Interest Period
shall end on the next succeeding Banking
Day, provided, however, that if said next
succeeding Banking Day falls in a new
calendar month, such LIBOR Interest Period
shall end on the immediately
preceding Banking Day.
"LIBOR Loans" means any Loan when and to the extent that the
interest
rate thereof is determined by reference to
the Adjusted LIBOR.
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<PAGE>
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit
arrangement, encumbrance or preference,
priority or security agreement or
preferential arrangement of any kind or nature
whatsoever (including, without limitation,
the interest of a vendor or lessor
under any conditional sale, Capitalized
Lease or other title retention
agreement).
"Loan Documents" means this Agreement, the Note, the Guaranty,
any
Letter of Credit Applications, and any
other documents or instruments now or
hereafter executed and delivered by or on
behalf of Borrower to the Lender to
evidence, govern or secure the
Obligations.
"Loans" means the Revolving Loans.
"Material Adverse Effect" means a material adverse effect upon (a)
the
business, condition (financial or
otherwise), operations, performance,
properties or prospects of Borrower, or
Borrower and its Subsidiaries, taken as
a whole, (b) the ability of Borrower or any
of its Subsidiaries to perform their
respective obligations under the Loan
Documents in any material respect, or (c)
the ability of the Lender to enforce in any
material respect the Obligations.
"Net
Income" means, for any period, the consolidated net income of
Borrower after deductions for income taxes
determined in accordance with GAAP,
plus any non-cash restructuring charges
(net of income tax benefit) incurred by
the Borrower and its Subsidiaries in the
normal course of business to the extent
that any such charges were deducted in
computing the consolidated net income,
and as shown on Borrower's consolidated
Financial Statements furnished to the
Lender pursuant to Section 5.1.1
hereof.
"Note"
means the Revolving Note.
"Obligations" means all of the unpaid principal amount of, and
accrued
interest on, the Note, actual and
contingent reimbursement obligations under the
Letters of Credit, all commitment fees,
Letter of Credit fees, all other
obligations and liabilities of Borrower to
the Lender in connection with the
Facilities of every type and description,
direct or indirect, absolute or
contingent, due or to become due, now
existing or hereafter arising, or
otherwise arising under the Loan Documents
whether or not contemplated by
Borrower or the Lender as of the date
hereof, including, without limitation, all
reasonable costs of collection and
enforcement of any and all thereof, including
reasonable attorneys' fees.
"Optional Rate"
means a rate selected by Borrower to be calculated by
reference to the Adjusted LIBOR.
"Participants" shall have the meaning ascribed thereto in
Section
10.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established
pursuant to ERISA, or any successor
entity.
"Permissible Increment" means a minimum principal amount of Ten
Thousand Dollars ($10,000) and minimum
increments of One Thousand Dollars
($1,000) above Ten Thousand Dollars
($10,000).
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"Permitted Encumbrances" means (a) Liens for taxes or assessments
which
are not yet due, Liens for taxes or
assessments or Liens of judgments which are
being contested, appealed or reviewed in
good faith by appropriate proceedings
which prevent foreclosure of any such Lien
or levy of execution thereunder and
against which Liens, if any, adequate
insurance or reserves have been provided;
(b) pledges or deposits to secure payment
of workers' compensation obligations
and deposits or indemnities to secure
public or statutory obligations or for
similar purposes; (c) any Liens and other
security interests in favor of the
Lender under the Loan Documents; (d) Liens
imposed by law, such as carrier's,
warehousemen's and mechanics' Liens and
other similar Liens arising in the
ordinary course of business which secure
payment of obligations not more than
sixty (60) days past due; (e) utility
easements, building restrictions, zoning
ordinances and such other encumbrances or
charges against real property as are
of a nature generally existing with respect
to properties of a similar character
and which do not in any material way affect
the marketability of the same or
interfere with the use thereof in the
business of a Person; (f) lessors'
interests under Capitalized Leases; (g)
Liens encumbering only assets not
constituting current assets and securing
Indebtedness of Borrower and its
Subsidiaries not exceeding in the aggregate
Ten Percent (10%) of Borrower's
Adjusted Consolidated Tangible Net Worth at
any one time outstanding; and (h)
those further encumbrances (if any) shown
on Schedule I hereto.
"Person" means and includes an individual, a partnership, a
joint
venture, a corporation, a limited liability
company, a trust, an unincorporated
organization and a Governmental
Authority.
"Prepayment Premium" means the excess, if any, determined by the
Lender
of (a) the present value, at the time of
prepayment, of the interest payments
which would have been payable on account of
an amount prepaid from the date of
prepayment until the end of the period
during which interest would have accrued
at the Optional Rate, but for prepayment,
less (b) the present value at the time
of a prepayment of interest payments
calculated at the Reinvestment Rate. The
discount rate used by the Lender in
determining such present value calculations
shall be the Reinvestment Rate.
"Prime Rate" means a rate per annum equal to the prime rate of
interest
announced from time to time by the Lender
as its "prime rate" (which is not
necessarily the lowest rate charged to any
customer), as adjusted on the
effective date of each change in such
established and quoted rate, provided that
such prime rate shall not necessarily be
representative of the rate of interest
actually charged by the Lender on any loan
or class of loans.
"Qualified Investments" means (a) short term obligations of, or
fully
guaranteed by, the United States of
America, (b) commercial paper rated A-1 or
better by Standard & Poor's Corporation
or P-1 or better by Moody's Investors
Service, Inc., (c) demand deposit accounts
maintained in the ordinary course of
business, and (d) certificates of deposit
issued by commercial lenders having
capital and surplus in excess of One
Hundred Million Dollars ($100,000,000).
"Reinvestment Rate" means a rate which the Lender estimates, at
the
time of a prepayment, it would receive upon
reinvesting the principal amount of
the prepayment in an
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<PAGE>
obligation which presents a credit risk
substantially similar (as determined in
accordance with the commercial credit
rating system then used by the Lender) to
that which is then presented by the LIBOR
Loans for a period approximately equal
to the balance of the period during which
interest would accrue on the amount of
LIBOR Loans prepaid, but for
prepayment.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge,
dispersal, leaching or migration into
the indoor or outdoor environment,
including the movement of Contaminants
through or in the air, soil, surface water
or groundwater.
"Reserve Requirement" means, for any LIBOR Loan for any LIBOR
Interest
Period therefor, the daily average of the
stated maximum rate (expressed as a
decimal) at which reserves, including any
marginal, supplemental, or emergency
reserves, are required to be maintained
during such LIBOR Interest Period under
Regulation D by member lenders of the
Federal Reserve System against
"Eurocurrency liabilities" (as such term is
used in Regulation D), but without
benefit or credit of proration, exemptions,
or offsets that might otherwise be
available from time to time under
Regulation D. Without limiting the effect of
the foregoing, the Reserve Requirement
shall reflect any other reserves required
to be maintained by the Lender against any
category of liabilities that includes
deposits by reference to which the Adjusted
LIBOR is to be determined or any
category or extension of credit or other
assets that includes LIBOR Loans.
"Revolving Commitment" means $35,000,000.
"Revolving Commitment Period" means the period from the date
hereof
until September 20, 2008.
"Revolving Loans" means the advances and loans made by the Lender
to
Borrower under Section 2 hereof pursuant to
the Revolving Commitment, including
any extensions or renewals thereof.
"Revolving Note" means the Credit Note, substantially in the form
of
Exhibit B hereto, duly executed by Borrower
to the Lender to evidence the
Revolving Loans, including any and all
renewals, extensions, replacements and
modifications thereof.
"Solvent" means, when used with respect to any Person, that at the
time
of determination:
(a) the fair
value of its assets (both at fair valuation and at
present fair saleable value) is equal to or in excess of the
total amount of its liabilities, including, without
limitation, contingent liabilities; and
(b) it is then
able and expects to be able to pay its debts as
they mature; and
(c) it has
capital sufficient to carry on its business as
conducted and as proposed to be conducted.
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<PAGE>
With respect to contingent liabilities
(such as litigation, guarantees and
pension plan liabilities), such liabilities
shall be computed at the amount
which, in light of all the facts and
circumstances existing at the time,
represent the amount which can be
reasonably be expected to become an actual or
mature liability.
"Subordinated Debt" means any Indebtedness of Borrower that is
subordinated to the full, final and
irrevocable payment of the Obligations in
form and substance acceptable to the
Lender.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the
outstanding securities having ordinary
voting power of which shall at the time
be owned or controlled, directly or
indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and
one or more of its Subsidiaries, or
(ii) any partnership, limited liability
company, association, joint venture or
similar business organization more than 50%
of the ownership interests having
ordinary voting power of which shall at the
time be so owned or controlled.
Unless otherwise expressly provided, all
references herein to a "Subsidiary"
shall mean a Subsidiary of Borrower.
"Target" shall have the meaning ascribed thereto in Section
6.3.1
hereof.
"Transferee" shall have the meaning ascribed in Section 10.4
hereof.
"Unmatured Default" means any event which with notice, or lapse of
time
or both, would constitute a Default.
1.2. Rules of Construction. The foregoing definitions shall be
equally
applicable to both the singular and plural
forms of the defined terms. Use of
the terms "herein", "hereof", and
"hereunder" shall be deemed references to this
Agreement in its entirety and not to the
Section clause in which such term
appears.
1.3. Accounting Terms. All accounting terms not specifically
defined
herein shall be construed in accordance
with GAAP consistent with those applied
in the preparation of the Financial
Statements.
SECTION 2.
----------
Credit
------
2.1. Commitments.
2.1.1.
Revolving Commitment. Subject to the terms and conditions of
this Agreement, the Lender agrees to make
Revolving Loans to Borrower from time
to time during the Revolving Commitment
Period in a principal amount not in
excess of the unborrowed portion of the
Revolving Commitment on the borrowing
date. No requested Revolving Loan Advance
shall cause the aggregate outstanding
balance of the Revolving Loan Advances plus
the face amounts of outstanding
Letters of Credit and unreimbursed drawings
thereunder to exceed the aggregate
Revolving Commitment. During the
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<PAGE>
Revolving Commitment Period, Borrower may
use the Revolving Commitment by
borrowing, prepaying the Revolving Loans in
whole or in part, and reborrowing,
all in accordance with the terms and
conditions hereof. The Revolving Loans made
by the Lender pursuant hereto shall be
evidenced by the Revolving Note.
2.2. Interest.
2.2.1. Revolving Commitment. Prior to maturity or Default, the
principal amount of the Revolving Loans
outstanding from time to time shall bear
interest at a rate per annum equal to the
Alternate Base Rate, except that at
the option of Borrower, exercised as
provided in Section 2.5 hereof, interest
may accrue prior to maturity on any
Permissible Increment of outstanding
Advances of the Revolving Loans at a per
annum rate equal to the Adjusted LIBOR
plus the Applicable Margin. At the
expiration of each LIBOR Interest Period on
such Permissible Increment, unless Borrower
selects an Optional Rate as provided
in Section 2.5 hereof, interest on such
Permissible Increment shall again accrue
at the Alternate Base Rate.
2.2.2. General. Interest shall be due and payable for the exact
number
of days principal is outstanding and shall
be calculated on the basis of a three
hundred sixty (360) day year. Any change in
the interest rates occasioned by a
change in the Alternate Base Rate shall be
effective on the same day as the
change in the Alternate Base Rate.
Notwithstanding Section 8.5 hereof, the
Lender may allow the election of an
Optional Rate under Section 2.5(a) hereof
while there exists a Default, after the
maturity of any Facility, whether by
acceleration or otherwise, and while and so
long as there shall exist any
uncured Default under any Facility, the
Facilities shall bear interest at a per
annum rate equal to Three Percent (3%)
above the otherwise applicable rates.
2.3. Payments of Principal and Interest.
2.3.1. Revolving Commitment. Interest only on the outstanding
Advances
of the Revolving Loans from time to time
shall be due and payable throughout the
term of the Revolving Commitment (a) on the
first day of each calendar month
with respect to each Alternate Base Rate
Loan, and (b) on the last day of an
applicable LIBOR Interest Period with
respect to each LIBOR Loan and, in the
case of a LIBOR Interest Period greater
than three (3) months, at three (3)
month intervals after the first day of such
LIBOR Interest Period. The entire
principal balance of the Revolving Loans,
together with all accrued and unpaid
interest thereon, and all fees and charges
payable in connection therewith,
shall be due and payable on September 20,
2008.
2.3.2. Method of Payment. All payments of principal and
interest
hereunder shall be made by Borrower to the
Lender at its offices in
Indianapolis, Indiana by 12:00 Noon
(Indianapolis time) on the date when due.
2.3.3. Banking Day. If any installment of principal or interest
provided herein becomes due and payable on
a date other than a Banking Day, the
maturity of the
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<PAGE>
installment of principal or interest shall
be extended to the next succeeding
Banking Day, and interest shall be payable
during such extension of maturity.
2.4. Method of Advance.
2.4.1. Revolving Commitment. As Borrower desires to obtain
Revolving
Loans hereunder, Borrower shall give the
Lender notice of Borrower's intention
to borrow pursuant to the Revolving
Commitment by not later than 11:00 a.m.
(Indianapolis time), on the proposed
Banking Day of borrowing, subject to
Section 2.5 hereof with respect to Optional
Rate Advances and subject to
compliance with Section 6.3 hereof. Each
request once received by the Lender
shall be irrevocable, subject to Section
2.5(h) hereof. Such notice may be made
orally by an Authorized Officer, or upon a
request transmitted to the Lender by
telex, facsimile machine or other form of
written electronic communication and
signed by an Authorized Officer. The Lender
may rely, without further inquiry,
on all such requests which shall have been
received by it in good faith by
anyone reasonably believed to be an
Authorized Officer. The Lender may require
telephonic or other oral requests to be
followed immediately by a written
request. Each request shall in and of
itself constitute a representation and
warranty on behalf of Borrower that no
Default or Unmatured Default has occurred
and is continuing or would result from the
making of the requested Advance and
that the requested Advance shall not cause
the principal balance of the
Revolving Loans to exceed the aggregate
Revolving Commitment. The aggregate
principal amount of Revolving Loans (other
than Revolving Loans made by payment
of Letters of Credit) made on any borrowing
date shall be in Permissible
Increments.
2.4.2. General. All Advances by the Lender and payments by
Borrower
shall be recorded by the Lender on its
books and records, and the principal
amount outstanding from time to time, plus
interest payable thereon shall be
determined from the books and records of
the Lender. The books and records of
the Lender shall be presumed prima facie
correct as to such matters.
2.5. Procedures for Electing Optional Rates. Optional Rates may
be
elected only in accordance with the
following procedures and subject to the
other conditions contained in this
Agreement:
(a) No Optional Rate may be elected at any time a Default exists
and
unless the Lender otherwise agrees in
writing, no Optional Rate may be elected
at any time an Unmatured Default
exists.
(b) Borrower shall notify the Lender of its election or renewal of
an
Optional Rate prior to 11:00 a.m.
(Indianapolis time) not less than three (3)
Banking Days prior to the commencement of a
LIBOR Interest Period, specifying
(i) the election or renewal date, (ii) the
amount of the Loan (or Loans taken
together) elected or renewed which amount
shall be in a Permissible Increment,
and (iii) the duration of the LIBOR
Interest Period selected to apply thereto.
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<PAGE>
(c) An election of an Optional Rate may be communicated by
telephone or
by telex, facsimile machine or other form
of written electronic communication,
or by a writing delivered to the Lender.
Borrower shall confirm in writing any
election communicated by telephone. The
Lender shall be entitled to rely on any
verbal communication of the election of an
Optional Rate which is received by a
designated employee of the Lender from
anyone reasonably believed in good faith
by such employee to be authorized.
(d) Not more than Six (6) Optional Rate Advances may be selected at
any
one time to apply to outstanding
Advances.
(e) Notwithstanding any other provision of this Agreement, in the
event
that the Lender determines (which
determination if made in good faith shall be
conclusive and binding upon Borrower) that
by reason of circumstances affecting
the London interbank market, adequate and
reasonable means do not exist for
ascertaining the LIBOR for any LIBOR
Interest Period at a time when LIBOR Loans
are outstanding, or quotations of interest
rate for the relevant deposits
referred to in definition of the Adjusted
LIBOR are not being provided in the
relevant amounts or for the relevant
maturities for purposes of determining the
rate of interest on a LIBOR Loan as
provided herein, or if the Lender determines
(which determination if made in good faith
shall be conclusive) that the
relevant rates of interest referred to in
the definition of the Adjusted LIBOR
upon the basis of which the rate of
interest for any such type of Loan is to be
determined, to not accurately cover the
cost to the Lender of making or
maintaining such types of Loans, the Lender
shall forthwith give notice of such
determination, confirmed in writing, to
Borrower. If such notice is given, (i)
the obligation of the Lender to make LIBOR
Loans shall be suspended until the
Lender notifies Borrower that the
circumstances giving rise to such suspension
no longer exists, and (ii) the then
outstanding principal amount of each LIBOR
Loan shall be converted, on the last day of
the then current LIBOR Interest
Period applicable to such Loan, to an
Alternate Base Rate Loan (subject to
selection of any other permitted Optional
Rate hereunder, subject to the
provisions of Sections 2.2 and 2.5
hereof).
(f) If any law or any governmental regulation, guideline or order
or
interpretation or application thereof by
any Governmental Authority charged with
the interpretation or administration
thereof or compliance with any request or
directive of any central bank or other
Governmental Authority whether or not
having the force of law (i) imposes,
modifies or deems applicable any reserve,
special deposit or similar requirement
against assets held by, credit extended
by, deposits with or for the account of, or
other acquisition of funds by, the
Lender (other than requirements expressly
included herein in the determination
of the applicable Optional Rate hereunder),
or (ii) imposes upon the Lender any
other condition or expense with respect to
this Agreement, or the making,
maintenance or funding of any part of the
proceeds of an Optional Rate Advance
or any security therefor; and the result of
any of the foregoing is to increase
the cost to, reduce the income receivable
by, or impose any expense upon the
Lender with respect to the outstanding
balance of the Loans bearing interest at
an Optional Rate or the making, maintenance
or funding of any part thereof by an
amount which the Lender deems to be
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<PAGE>
material (the Lender being deemed for this
purpose to have made, maintained or
funded the proceeds of an Optional Rate
Advance from certificates of deposit),
the Lender shall from time to time notify
Borrower of the amount determined in
good faith (using any averaging and
attribution methods employed in good faith)
by the Lender (which determination if made
in good faith shall be conclusive and
binding upon Borrower) to be necessary to
compensate the Lender for such
increase in cost, reduction in income or
additional expense. Such amount shall
be due and payable by Borrower to the
Lender ten (10) Banking Days after such
notice is given. A certificate as to the
amount of such increase in cost,
reduction in income or additional expense
delivered by the Lender to Borrower
shall be conclusive as to such amount due
and payable.
(g) Any payment of the outstanding principal balance of a LIBOR
Loan on
a day other than the last day of the
corresponding LIBOR Interest Period
(whether or not such payment is mandatory
or automatic and whether or not such
payment is then due) shall be subject to
contemporaneous payment of the
Prepayment Premium if, at the time of
prepayment, the Reinvestment Rate is less
than the Adjusted LIBOR plus the Applicable
Margin. If at the time of any
voluntary or mandatory prepayment of any
portion of the principal of any Loan,
then any prepayment of principal will be
applied first to the portion of a Loan
or Loans on which interest accrues by
reference to the Alternate Base Rate and
next to the portion or portions at which
interest accrues by reference to the
Adjusted LIBOR.
(h) In addition to the compensation required by Section 2.5 (f) and
(g)
hereof, Borrower shall indemnify the Lender
(on a net basis) against any loss or
expense (including loss of margin) which
the Lender has sustained or incurred as
a consequence of any attempt by Borrower to
revoke (expressly, by later
inconsistent notices or otherwise) in whole
or in part any notice stated herein
to be irrevocable (the Lender having in its
sole discretion the option (a) to
give effect to such attempted revocation
and obtain indemnity under this Section
2.5(h), or (b) to treat such attempted
revocation as having no force or effect,
as if never made). If the Lender sustains
or incurs any such loss or expense it
shall notify Borrower of the amount
determined in good faith by the Lender
(which determination shall be presumed to
be correct) to be necessary to
indemnify the Lender for such loss or
expense. Such amount shall be due and
payable by Borrower to the Lender ten (10)
Banking Days after such notice is
given.
2.6. Fees.
2.6.1. Commitment Fee - Revolving Commitment. Borrower shall pay to
the
Lender, a Commitment Fee equal to the
Applicable Fee on the average daily
unborrowed portion of the Revolving
Commitment from the date hereof to and
including the termination of the Revolving
Commitment Period, which fee shall be
due and payable quarterly in arrears,
within fifteen (15) days of receipt of an
invoice therefor. [As a point of
clarification, issued Letters of Credit
pursuant to this Agreement shall be
considered borrowings for calculation of the
Commitment Fee.] Such Commitment Fee shall
be calculated on the basis of the
actual number of days elapsed and a Three
Hundred Sixty (360) day year.
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<PAGE>
2.6.2. Closing Fee. Borrower shall pay the Lender a fee on or
before
closing in the amount set forth in the
commitment letter between Borrower and
the Lender dated as of July 7, 2005.
2.7. Reductions of Revolving Commitment. Borrower may
permanently
reduce the Revolving Commitment in whole,
or in part in integral multiples of
One Million Dollars ($1,000,000), upon at
least three (3) Banking Days' written
notice to the Lender, which notice shall
specify the amount of any such
reduction, provided, however, that the
amount of the Revolving Commitment may
not be reduced below the aggregate
principal amount of the outstanding Revolving
Loan Advances plus the face amount of any
outstanding Letters of Credit and
unreimbursed drawings thereunder.
2.8. Issuance of Letters of Credit. Subject to the terms and
conditions
hereof, the Lender agrees, upon receipt of
a completed and executed proper
application, to issue from time to time
during the Revolving Commitment Period,
commercial and standby Letters of Credit
for the account of Borrower. The
Letters of Credit shall not be payable to
the beneficiary thereof less than One
(1) Banking Day after presentment for
payment. The commercial Letters of Credit
shall have an expiration date not later
than the earlier of six months from the
date of issuance or one day before the
expiration of the Revolving Commitment
Period. The standby Letters of Credit shall
have an expiration date not later
than one day before the expiration of the
Revolving Commitment Period. The
aggregate of the Letters of Credit
outstanding plus the aggregate amount of
unreimbursed drawings under the Letters of
Credit shall not exceed Ten Million
Dollars ($10,000,000). The amount of any
Letter of Credit outstanding at any
time for all purposes hereof shall be the
maximum amount which could be drawn
thereunder under any circumstances from and
after the date of determination.
Each Letter of Credit issued pursuant to
this Agreement and each unreimbursed
drawing thereunder shall count against and
reduce the Revolving Commitment by
the amount of such Letter of Credit
outstanding unless and until such Letter of
Credit expires by its terms or otherwise
terminates or the amount of a drawing
thereunder is reimbursed, in which event
the Revolving Commitment shall be
reinstated by the amount of such Letter of
Credit or the amount of such
reimbursement, as the case may be. Each
such Letter of Credit shall conform to
the general requirements of the Lender for
the issuance of such credits, as to
form and substance, shall be subject to the
Uniform Customs and Practices for
Documentary Credits (1993 Revision),
International Chamber of Commerce
Publication No. 500 and shall be a letter
of credit which the Lender may
lawfully issue. Each payment of a Letter of
Credit by the Lender shall be
reimbursed by Advances under the Revolving
Commitment evidenced by the Revolving
Note. If and to the extent a drawing is at
any time made under any Letter of
Credit, the Lender shall notify Borrower of
such draw and Borrower agrees to pay
to the Lender immediately and
unconditionally upon demand for reimbursement, in
lawful money of the United States, an
amount equal to each amount which shall be
so drawn, together with interest from the
date of such drawing to and including
the date such payment is reimbursed to the
Lender or converted to Revolving
Commitment as provided herein. Until demand
for reimbursement, such interest
shall be calculated at a variable rate per
annum equal to the Alternate Base
Rate, and interest shall be calculated
after such demand at a variable rate per
annum equal to the Alternate Base Rate plus
Three Percent (3%). All such
interest shall be calculated on the basis
that an entire year's interest is
earned in Three Hundred Sixty (360) days.
Borrower hereby irrevocably authorizes
the Lender to refinance, without notice to
Borrower, the
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<PAGE>
reimbursement Obligation of Borrower
arising out of any such drawing into
Revolving Loans, evidenced by the Revolving
Note and for all purposes under, on
and subject to the terms and conditions of
this Agreement, but without regard to
the conditions precedent to making an
Advance under the Revolving Commitment or
to any requirement of this Agreement that
each Revolving Loan be in a minimum
amount or multiple; provided, however, that
an Advance under the Revolving
Commitment in spite of Borrower's failure
to satisfy any conditions precedent to
making an Advance shall not constitute a
waiver of any Default by the Lender.
This Agreement and the other Loan Documents
shall supersede any terms of any
letter of credit applications or other
documents which are irreconcilably
inconsistent with the terms hereof or
thereof.
2.9. Letters of Credit Fees. Borrower agrees to pay to the
Lender,
Letter of Credit fees of One-Eighth Percent
(1/8%) of the face amount of each
commercial Letter of Credit (subject to a
minimum fee in each case of Fifty
Dollars ($50) and the Applicable Fee per
annum of the face amount of each
standby Letter of Credit at the time of
issuance. Borrower shall also pay a
negotiating fee equal to One-Eighth Percent
(1/8%) for drafts of commercial
Letters of Credit presented for payment
(subject to a minimum fee in each case
of Fifty Dollars ($50). The Lender shall
also be entitled to charge to Borrower
and retain its standard and customary fees
for the issuance of standby Letters
of Credit, which fees shall be due and
payable upon such issuance. Upon not less
than one (1) day prior notice from the
Lender, Borrower authorizes the Lender to
collect such fees by deducting the amount
thereof from the deposit account of
Borrower.
2.10. Reimbursement of Letters of Credit. The obligation of
Borrower to
reimburs
