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Published CUSIP Number: 667747AA7
CREDIT AGREEMENT
Dated as of May 20, 2005
Among
NORTHWEST PIPE COMPANY,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent
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.....................................14
1.03 Accounting
Terms..................................................14
1.04
Rounding..........................................................15
1.05 Times of
Day......................................................15
1.06 Letter of Credit
Amounts..........................................15
ARTICLE II. THE COMMITMENTS AND CREDIT
EXTENSIONS.............................15
2.01 Committed
Loans...................................................15
2.02 Borrowings,
Conversions and Continuations of Committed Loans......15
2.03 Letters of
Credit.................................................16
2.04 This section
intentionally left blank.............................21
2.05
Prepayments.......................................................21
2.06 Termination or
Reduction of Commitments...........................22
2.07 Repayment of
Loans................................................22
2.08
Interest..........................................................22
2.09
Fees..............................................................22
2.10 Computation of
Interest and Fees..................................23
2.11 Evidence of
Debt..................................................23
2.12 Payments
Generally; Agent's Clawback..............................23
2.13 Sharing of
Payments...............................................24
ARTICLE III. TAXES, YIELD PROTECTION AND
ILLEGALITY...........................25
3.01
Taxes.............................................................25
3.02
Illegality........................................................25
3.03 Inability to
Determine Rates......................................26
3.04 Increased
Costs...................................................26
3.05 Compensation for
Losses...........................................27
3.06 Mitigation
Obligations............................................27
3.07
Survival..........................................................27
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS.........................27
4.01 Conditions of
Initial Credit Extension............................27
4.02 Conditions to
all Credit Extensions...............................29
ARTICLE V. REPRESENTATIONS AND
WARRANTIES.....................................29
5.01 Existence,
Qualification and Power; Compliance with Laws..........29
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5.02 Authorization;
No Contravention...................................29
5.03 Governmental
Authorization; Other Consents........................30
5.04 Binding
Effect....................................................30
5.05 Financial
Statements; No Material Adverse Effect; No Internal
Control
Event.....................................................30
5.06
Litigation........................................................30
5.07 No
Default........................................................30
5.08 Ownership of Property;
Liens......................................30
5.09 Environmental
Compliance..........................................30
5.10
Insurance.........................................................31
5.11
Taxes.............................................................31
5.12 ERISA
Compliance..................................................31
5.13
Subsidiaries......................................................31
5.14 Margin
Regulations; Investment Company Act; Public Utility
Holding Company
Act...............................................31
5.15
Disclosure........................................................32
5.16 Compliance with
Laws..............................................32
5.17 Intellectual
Property; Licenses, Etc..............................32
5.18 Rights in
Collateral; Priority of Liens...........................32
ARTICLE VI. AFFIRMATIVE
COVENANTS.............................................32
6.01 Financial
Statements..............................................32
6.02 Certificates;
Other Information...................................33
6.03
Notices...........................................................34
6.04 Payment of
Obligations............................................34
6.05 Preservation of
Existence, Etc....................................34
6.06 Maintenance of
Properties.........................................34
6.07 Maintenance of
Insurance..........................................35
6.08 Compliance with
Laws..............................................35
6.09 Books and
Records.................................................35
6.10 Inspection
Rights.................................................35
6.11 Use of
Proceeds...................................................35
6.12 Financial
Covenants...............................................35
6.13 Additional
Guarantors.............................................36
6.14 Collateral
Records................................................36
6.15 Security
Interests and Real Property Liens........................36
6.16 Other
Services....................................................37
ARTICLE VII. NEGATIVE
COVENANTS...............................................37
7.01
Liens.............................................................37
7.02
Investments.......................................................38
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7.03
Indebtedness......................................................38
7.04 Fundamental
Changes...............................................38
7.05
Dispositions......................................................39
7.06 Restricted
Payments...............................................39
7.07 Change in Nature
of Business......................................39
7.08 Transactions
with Affiliates......................................39
7.09 Burdensome
Agreements.............................................40
7.10 Use of
Proceeds...................................................40
ARTICLE VIII. EVENTS OF DEFAULT AND
REMEDIES..................................40
8.01 Events of
Default.................................................40
8.02 Remedies Upon
Event of Default....................................41
8.03 Application of
Funds..............................................42
ARTICLE IX. ADMINISTRATIVE
AGENT..............................................42
9.01 Appointment and
Authorization of Administrative Agent.............42
9.02 Rights as a
Lender................................................42
9.03 Exculpatory
Provisions............................................43
9.04 Reliance by
Administrative Agent..................................43
9.05 Delegation of
Duties..............................................43
9.06 Resignation of
Agent..............................................43
9.07 Non-Reliance on
Agent and Other Lenders...........................44
9.08 No Other Duties,
Etc..............................................44
9.09 Administrative
Agent May File Proofs of Claim.....................44
9.10 Guaranty
Matters..................................................45
9.11 Collateral
Matters................................................45
ARTICLE X.
MISCELLANEOUS......................................................46
10.01 Amendments,
Etc...................................................46
10.02 Notices;
Effectiveness; Electronic Communications.................47
10.03 No Waiver; Cumulative
Remedies....................................48
10.04 Expenses; Indemnity;
Damage Waiver................................48
10.05 Payments Set
Aside................................................49
10.06 Successors and
Assigns............................................50
10.07 Treatment of Certain
Information; Confidentiality.................52
10.08 Right of
Setoff...................................................52
10.09 Interest Rate
Limitation..........................................52
10.10 Counterparts ;
Integration; Effectiveness.........................53
10.11 Survival of
Representations and Warranties........................53
10.12
Severability......................................................53
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10.13 Governing Law;
Jurisdiction; Etc..................................53
10.14 Waiver of Right to
Trial by Jury..................................54
10.15 USA PATRIOT Act
Notice............................................54
10.16 Time of the
Essence...............................................54
10.17 Certain Agreements Not
Enforceable................................54
SCHEDULES
1.01
Existing Letters
of Credit
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 and Notice of Prepayment of Committed Loan(s)
B
Intentionally left blank
C
Note
D
Compliance
Certificate
E
Assignment
and Assumption
F
Guaranty
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CREDIT AGREEMENT
CREDIT AGREEMENT (this "Agreement") is
entered into as of May 20, 2005 , among
NORTHWEST PIPE COMPANY, an Oregon
corporation ("Borrower"), each lender from
time to time party hereto (collectively,
"Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A.("Bank
of America"), as Administrative Agent
and L/C Issuer. Borrower has requested that
Bank of America provide a revolving
credit facility, and Bank of America is
willing to do so on the terms and
conditions set forth herein. However the
parties understand and agree that Bank
of America may ask to assign a portion of
its rights and obligations under this
Agreement to another bank or banks.
Therefore this Agreement is prepared with
provisions contemplating multiple lenders
and an Administrative Agent. This has
been done so that this Agreement will be
appropriate for use with additional
lenders which may become parties to this
Agreement. Until there are additional
lenders, the term "Lender" or "Lenders"
shall refer to Bank of America, and all
rights and duties of the Administrative
Agent shall be of benefit to, and
performed by Bank of America. In addition,
whether or not there is more than one
Lender hereunder, Bank of America will act
as Collateral Agent pursuant to the
Intercreditor and Collateral Agency
Agreement defined below. When used in
connection with Collateral, "Agent'' shall
refer to Bank of America in its
capacity as Collateral Agent.
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:
"Additional Covenant" has the meaning
specified in Section 10.01(h).
"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, except that "Agent"
shall refer to Bank of America as
Collateral Agent in the context of
Collateral as described in the introductory
paragraphs to this Agreement.
"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, when and if Agent
becomes active as Administrative Agent.
"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 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 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.
"Applicable Rate" means, from time to time,
the following percentages per annum,
based upon the Consolidated Total Debt to
Consolidated EBITDA Ratio (the
"Financial Covenant") as set forth in the
most recent Compliance Certificate
received by Agent pursuant to Section
6.02(b):
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Applicable Rate
Eurodollar Rate
+
Consolidated Total
__________
Pricing Debt to
EBITDA
Commitment Standby Letters
of Base
Rate
Level
Ratio
Fee
Credit
+ or -
--------------------------------------------------------------------------------
1
>=2.75:1
0.25%
1.50%
0.00%
2
>=2.25:1 but <2.75:1 0.25%
1.25%
0.00%
3
>=1.75:1 but <2.25:1 0.20%
1.00%
-0.25%
4
<1.75:1
0.15%
0.75%
-0.50%
Any increase or decrease in the Applicable
Rate resulting from a change in the
Financial Covenant 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
One 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
continue until the first Business Day of
the month following the date such
Compliance Certificate is in fact
delivered. The Applicable Rate in effect from
the Closing Date through June 30, 2005
shall be determined based upon Pricing
Level 2.
"Asset Coverage Ratio" means the ratio of
(a) the sum of (i) 85% of Eligible
Accounts Receivable, plus (ii) 60% of
Eligible Inventory, plus (iii) 30% of
Eligible Property, Plant and Equipment to
(b) Consolidated Total Debt. All of
the foregoing shall be determined by Agent
upon receipt and review of all
collateral reports required in the Loan
Documents and such other documents and
collateral information as Agent may from
time to time require. This ratio shall
be calculated at the end of each fiscal
quarter of Borrower.
"Assignment and Assumption" means an
assignment and assumption entered into by a
Lender and an Eligible 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.
"Audited Financial Statements" means the
audited consolidated balance sheet of
Borrower and its Subsidiaries for the
fiscal year ended December 31, 2004, 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.
"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 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.
"Borrower" has the meaning specified in the
introductory paragraph hereto.
"Borrower Materials" has the meaning
specified in Section 6.02.
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"Borrowing" means a Committed
Borrowing.
"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 Office is located and, if such
day relates to any Eurodollar Rate Loan,
means any such day on which dealings in
Dollar deposits are conducted by and
between banks in the London interbank
eurodollar market.
"Cash Collateralize" has the meaning
specified in Section 2.03(g).
"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 any individual(s) or
entity(s) acting in concert shall have
acquired by contract or otherwise, or shall
have entered into a contract or
arrangement that, upon consummation
thereof, will result in its or their
acquisition of the power to exercise,
directly or indirectly, a controlling
influence over the management or policies
of such Person, or control over 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 individual(s) or
entity(s) or group has the right to acquire
pursuant to any option right)
representing 25% or more of the combined
voting power of such securities.
"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.
"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 Agent" means Bank of America
acting as Collateral Agent with respect
to Collateral pursuant to the terms of the
Intercreditor and Collateral Agency
Agreement.
"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 its capacity as
Collateral Agent in Collateral securing all
or part of the Obligations each in
form and substance satisfactory to
Agent.
"Commitment" means, as to each Lender, its
obligation to (a) make Committed
Loans to Borrower pursuant to Section 2.01,
and (b) purchase participations in
L/C Obligations, 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.
"Committed Borrowing" means a borrowing
consisting of simultaneous Committed
Loans of the same Type and, in the case of
Eurodollar 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 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, provided, however, that, absent
objection from Agent, Borrower may
provide the information required by
Schedule 2 to Exhibit D in a different
format.
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"Consolidated EBITDA" means, for any
period, for Borrower and its Subsidiaries,
consolidated net income, plus to the extent
deducted in the calculation thereof
(i) consolidated interest expense, (ii)
consolidated depreciation and
amortization, (iii) consolidated income
taxes and (iv) consolidated non-cash
expenses resulting from a change in
accounting principles relating to stock
options. Consolidated net income shall not
include extraordinary gains. The
EBITDA of companies acquired by Borrower
through permitted acquisitions shall be
included as set forth below based on
financial statements and information
reported to the SEC by Borrower. Such
EBITDA from such acquisitions shall be
incorporated into Consolidated EBITDA on a
decreasing prorated basis, with 100%
of the acquired companies' EBITDA included
in the calculation for the first
calendar quarter ending following such
acquisition, 75% included in the second
quarter ending after such acquisition, 50%
included in the third quarter ending
following such acquisition, and 25%
included in the fourth quarter ending
following such acquisition. Thereafter,
none of such EBITDA from an acquired
company shall be incorporated into
Consolidated EBITDA.
"Consolidated EBITDAR" means, for any
period, for Borrower and its Subsidiaries,
Consolidated EBITDA plus consolidated lease
and other rent payments for the most
recently-completed quarter preceding the
date of determination multiplied by
four.
"Consolidated Fixed Charge Coverage Ratio"
means the ratio of Consolidated
EBITDAR to the sum of (a) consolidated
interest expense for the four fiscal
quarters immediately preceding the date of
determination, (b) consolidated
current maturities of long-term debt, plus
consolidated current maturities of
capital leases as shown on Borrower's
consolidated balance sheet on the date of
determination and (c) consolidated lease
and other rent payments calculated for
the most recently completed quarter
preceding the date of determination,
multiplied by four.
"Consolidated Tangible Net Worth" means for
Borrower and its Subsidiaries, the
total value of assets, including leaseholds
and leasehold improvements and
reserves against assets but excluding
goodwill, patents, trade marks, trade
names, organization expense, unamortized
debt discount and expense, capitalized
or deferred research and development costs,
deferred marketing expenses, and
other like intangibles, and monies due from
Affiliates, officers, directors,
employees, shareholders, members or
managers (less Total Liabilities, including
but not limited to accrued and deferred
income taxes).
"Consolidated Total Debt" shall mean, on
any date of determination, for Borrower
and its Subsidiaries (i) any indebtedness
for borrowed money (including
commercial paper and revolving credit line
borrowings), (ii) any indebtedness of
Borrower or its Subsidiaries which is
evidenced by bonds, debentures or notes,
(iii) any indebtedness of Borrower or its
Subsidiaries representing the deferred
purchase price of property, (iv) any
indebtedness whether or not representing
obligations for borrowed money (other than
trade, payroll and taxes payable),
(v) indebtedness of a third party secured
by liens on the assets of Borrower or
a Subsidiary, (vi) capital lease
obligations of Borrower or a Subsidiary, (vii)
guaranties of Borrower or a Subsidiary,
(viii) obligations with respect to
swaps, letters of credit if drawn, and
similar obligations of Borrower or a
Subsidiary, or (ix) mandatory redeemable
preferred stock or its equivalent of
Borrower or a Subsidiary. Consolidated
Total Debt shall be reduced by the amount
of cash held by Borrower on deposit with
Agent. Consolidated Total Debt does not
include indebtedness of any Subsidiary owed
to Borrower or another Subsidiary.
"Consolidated Total Debt to Consolidated
EBITDA Ratio" means the ratio of
Consolidated Total Debt to Consolidated
EBITDA for the period of four
consecutive fiscal quarters of Borrower
then most recently ended.
"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.
"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.
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"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 Rate,
if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided,
however, that with respect to a Eurodollar
Rate Loan, the Default Rate shall be
an interest rate equal to the interest rate
(including any Applicable Rate)
otherwise applicable to such Loan plus 2%
per annum, and (b) when used with
respect to L/C Fees, a rate equal to the
Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that
(a) has failed to fund any portion of
the Committed Loans, or participations in
L/C Obligations required to be funded
by it hereunder within one Business Day of
the date required to be funded by it
hereunder, (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 (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.
"Eligible Accounts Receivable" means trade
accounts created in the ordinary
course of Borrower's business, upon which
Borrower's right to receive payment is
absolute and not contingent upon the
fulfillment of any condition whatsoever,
other than the obligation to provide future
deliveries under phased purchase
contracts, and in which Agent has a
perfected security interest of first
priority, and shall not include, unless
agreed to by Agent in writing and in
advance:
(i)
any account
which is more than one hundred twenty (120) days past
due, except with respect to any account for which Borrower has
provided extended payment terms not to exceed one hundred
eighty
(180) days and any such extended payment account is more than
thirty
(30) days past due;
(ii)
that portion of any
account for which there exists any right of
setoff, defense or discount (except regular discounts allowed in
the
ordinary course of business to promote prompt payment) or for
which
any defense or counterclaim has been asserted;
(iii) any
account which represents an obligation of the United States
government or any agency of the United States (except accounts
which
represent obligations of the United States government for which
the
assignment provisions of the Federal Assignment of Claims Act,
as
amended or recodified from time to time, have been complied with
to
Agent's satisfaction);
(iv)
any account which
represents an obligation of an account debtor
located in a foreign country other than an account debtor located
in
the Canadian provinces of Alberta, British Columbia, Manitoba,
Ontario, Saskatchewan, the Yukon Territory, or other
jurisdiction
approved in advance and in writing by Agent, as long as, in
Agent's
determination, such Canadian or other jurisdictions recognize
Agent's first priority security interest in and right to
collect
such account as a consequence of any security agreements and
UCC
filings in favor of Agent or Borrower has obtained a letter of
credit or foreign receivable insurance in form and substance
satisfactory to Agent;
(v)
any account,
which arises from the sale or lease to or performance
of services for, or represents an obligation of, an employee,
affiliate, partner, member, parent or subsidiary of Borrower;
(vi)
that portion of any account, which represents retention rights
on
the part of the account debtor;
(vii) This
subsection intentionally left blank.
(viii)
that portion of any account from an account debtor which
represents
the amount by which Borrower's total accounts from said account
debtor exceeds twenty-five percent (25%) of Borrower's total
accounts; and
5
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(ix)
any account deemed
ineligible by Agent when Agent, in its sole
discretion, deems the creditworthiness or financial condition of
the
account debtor to be unsatisfactory.
"Eligible Assignee" means (a) a Lender; (b)
an Affiliate of a Lender; and (c)
any other Person (other than a natural
person) approved by (i) Agent and the L/C
Issuer, and (ii) unless an Event of Default
has occurred and is continuing,
Borrower (each such approval not to be
unreasonably withheld or delayed);
provided that notwithstanding the
foregoing, "Eligible Assignee" shall not
include Borrower or any of Borrower's
Affiliates or Subsidiaries.
"Eligible Inventory" means inventory
acquired or manufactured in the ordinary
course of Borrower's business and in which
Agent has a perfected security
interest of first priority and shall be
inclusive of costs and estimated
earnings in excess of billings on
uncompleted contracts, but shall not include:
(A)
work in process
and inventory that is obsolete, unsaleable or
damaged;
(B)
parts and
supplies;
(C)
propane tank
inventory that is not accounted for at any specific
United States location; or
(D)
any inventory
not located in the United States.
"Eligible Property Plant and Equipment"
means Borrower's net property, plant and
equipment, other than real property, at
book value in accordance with GAAP, in
which Agent has a perfected security
interest or lien of first priority, less
any of such property not located in the
United States and less all rolling
stock. Eligible Property Plant and
Equipment shall also include Borrower's real
property at book value in accordance with
GAAP located in the United States,
even if Agent does not have a lien on it,
so long as such real property is not
subject to any Lien other than a Lien
described in Section 7.01(a), 7.01(c),
7.01(d), 7.01(g) or 7.01(h).
"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.
"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).
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<PAGE>
"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 Sections 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
Rate.
"Eurodollar Rate" means for any Interest
Period with respect to a Eurodollar
Rate Loan, a rate per annum determined by
Agent pursuant to the following
formula:
Eurodollar Rate =
Eurodollar Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period (rounded
upwards,
as
necessary, to the nearest 1/100 of 1%) 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 (rounded upwards,
as
necessary,
to the nearest 1/100 of 1%) 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 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.
"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
Rate
Loan shall
be adjusted automatically as of the effective date of any
change in
the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Committed
Loan that bears interest at a rate
based on the Eurodollar 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 Borrower is located.
"Existing Credit Agreement" has the meaning
given in Section 4.01(a)(x).
"Existing Letters of Credit" means those
letters of credit listed on Schedule
1.01.
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<PAGE>
"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 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 each domestic Material
Subsidiary.
"Guaranty" means each Guaranty made by a
Guarantor in favor of Agent for the
benefit of Lenders, in the form attached
hereto as Exhibit F.
"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.
"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:
(a)
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;
(b)
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;
8
<PAGE>
(c)
net obligations
of such Person under any Swap Contract;
(d)
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);
(e)
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;
(f)
capital leases
(but not operating leases);
(g)
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
(h)
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.
"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.
"Intercreditor and Collateral Agency
Agreement" means that Amended and Restated
Intercreditor and Collateral Agency
Agreement entered into contemporaneously
herewith among "Prudential Investors,"
"Credit Agreement Lenders," "1997
Noteholders," "1998 Noteholders,"
"Collateral Agent" and "Credit Parties" as
those terms are defined in the
Intercreditor and Collateral Agency Agreement.
"Interest Payment Date" means, (a) as to
any Loan other than a Base 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 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 Base Rate Loan, the last
Business Day of each March, June,
September and December and the Maturity
Date.
"Interest Period" means, as to each
Eurodollar Rate Loan, the period commencing
on the date such Eurodollar Rate Loan is
disbursed or converted to or continued
as a Eurodollar Rate Loan and ending on the
date one, two, three, six or nine
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.
9
<PAGE>
"Internal Control Event" means a material
weakness in, or fraud that involves
management or other employees who have a
significant role in, Borrower's
internal controls over financial reporting,
in each case as described in the
Securities Laws.
"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.
"IRS" means the United States Internal
Revenue Service.
"ISP" means, with respect to any Standby
Letter of Credit, the "International
Standby Practices 1998" published by the
Institute of International Banking Law
& Practice (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 any 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.
"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
thirty days prior to 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.
10
<PAGE>
"L/C Sublimit" means an amount equal to
$15,000,000. 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.
"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 letter of
credit issued hereunder and shall include
Existing Letter[s] of Credit. A Letter of
Credit may be a commercial letter of
credit or a standby letter of credit.
"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).
"Loan" means an extension of credit by a
Lender to Borrower under Article II in
the form of a Committed Loan.
"Loan Documents" means this Agreement, each
Note, each Issuer Document, each
Collateral Document, and each Guaranty.
"Loan Parties" means Borrower and each
Guarantor, if any.
"Material Adverse Effect" means (a) a
material adverse change in, or a material
adverse effect upon, the operations,
business, properties, liabilities (actual
or contingent), condition (financial or
otherwise) or prospects of Borrower or
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.
"Material Subsidiary" means any Subsidiary
of Borrower, the assets of which
equal or exceed 10% of the assets of
Borrower and all Subsidiaries on a
consolidated basis.
"Maturity Date" means the date which is
five years after the Closing Date.
"Most Favored Lender Notice" has the
meaning specified in Section 10.01(h).
"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.
"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.
"Obligations" shall also include any
obligations or liabilities of any Loan
Party to Bank of America arising out of
any Swap Contract.
"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
11
<PAGE>
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 on any date, the
aggregate outstanding principal amount
thereof after giving effect to any
borrowings and prepayments or repayments of
Committed Loans 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.
"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.
"Platform" has the meaning specified in
Section 6.02.
"Principal Lending Agreement" has the
meaning specified in Section 10.01(h).
"Register" has the meaning specified in
Section 10.06(c).
"Registered Public Accounting Firm" has the
meaning specified in the Securities
Laws and shall be independent of Borrower
as prescribed by the Securities Laws.
"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 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, or (b) with respect
to an L/C Credit Extension, an L/C
Application.
"Required Lenders" means, as of any date of
determination, Lender, or if there
is more than one Lender, then two or more
Lenders having 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, Lender, or if
there is more than one Lender, then two
or more Lenders 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 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.
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"Responsible Officer" means the chief
executive officer, president, chief
financial officer, treasurer or assistant
treasurer of a Loan Party. 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. Borrower may designate
additional persons, each of which
shall be a Responsible Officer if a
Responsible Officer designates each such
additional person in writing and provides
Agent a specimen signature.
"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).
"Sarbanes-Oxley" means the Sarbanes-Oxley
Act of 2002.
"SEC" means the Securities and Exchange
Commission, or any Governmental
Authority succeeding to any of its
principal functions.
"Securities Laws" means the Securities Act
of 1933, the Securities Exchange Act
of 1934, Sarbanes-Oxley and the applicable
accounting and auditing principles,
rules, standards and practices promulgated,
approved or incorporated by the SEC
or the Public Company Accounting Oversight
Board, as each of the foregoing may
be amended and in effect on any applicable
date hereunder.
"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).
"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 $5,000,000
"Total Liabilities" means the sum of
current liabilities plus long term
liabilities.
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"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 or a Eurodollar Rate Loan.
"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
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.
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<PAGE>
(c) This
subsection intentionally left blank.
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 Pacific
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 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, 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 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 11:00 a.m. (i) three
Business Days prior to the requested date
of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of
any conversion of Eurodollar Rate
Loans to Base Rate Committed Loans, and
(ii) on the requested date of any
Borrowing of Base Rate Committed Loans;
provided, however, that if the Borrower
wishes to request Eurodollar Rate Loans
having an Interest Period other than
one, two, three, six or nine months in
duration as provided in the definition of
"Interest Period", the applicable notice
must be received by Agent not later
than 11:00 a.m. four Business Days prior to
the requested date of such
Borrowing, conversion or continuation,
whereupon Agent shall give prompt notice
to Lenders of such request and determine
whether the requested Interest Period
is acceptable to all of them. Not later
than 11:00 a.m., three Business Days
before the requested date of such
Borrowing, conversion or continuation, Agent
shall notify Borrower (which notice may be
by telephone) whether or not the
requested Interest Period has been
consented to by all Lenders. 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, conversion
to or continuation of Eurodollar Rate Loans
shall be in a principal amount of
$2,000,000 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 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 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 Rate Loans. If Borrower
requests a Borrowing of, conversion to, or
continuation of Eurodollar 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.
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(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
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 Rate Loan may be
continued or converted only on the last day
of an Interest Period for such
Eurodollar Rate Loan. During the existence
of a Default, no Loans may be
requested as, converted to or continued as
Eurodollar Rate Loans without the
consent of the Required Lenders, and the
Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate
Loans be converted to Base Rate
Committed Loans at the end of the
applicable Interest Period.
(d) Agent
shall promptly notify Borrower and Lenders of the interest rate
applicable to any Interest Period for
Eurodollar 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 10 Interest Periods in
effect with respect to Committed 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, shall not exceed such Lender's
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. All Existing Letters
of Credit shall be deemed to have been
issued pursuant hereto, and from and
after the Closing Date shall be subject to
and governed by the terms and
conditions hereof.
(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 months after the
date of issuance or last extension,
unless the Required Lenders have approved
such expiry date; or
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<PAGE>
(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;
(C) This subsection intentionally left blank;
(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
(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 11:00
a.m. at least two 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; and (G) 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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(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.
(iv) If Borrower so requests in any applicable L/C Application,
the
L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of
Credit that has automatic extension
provisions (each, an "Auto-Extension Letter
of Credit"); provided that any such
Auto-Extension Letter of Credit must permit
the L/C Issuer to prevent any such
extension at least once in each twelve-month
period (commencing with the date of
issuance of such Letter of Credit) by giving
prior notice to the beneficiary thereof not
later than a day (the "Non-Extension
Notice Date") in each such twelve-month
period to be agreed upon at the time
such Letter of Credit is issued. Unless
otherwise directed by the L/C Issuer,
Borrower shall not be required to make a
specific request to the L/C Issuer for
any such extension. Once an Auto-Extension
Letter of Credit has been issued, the
Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer
to permit the extension of such Letter of
Credit at any time to an expiry date
not later than the L/C Expiration Date;
provided, however, that the L/C Issuer
shall not permit any such extension if (A)
the L/C Issuer has determined that it
would not be permitted, or would have no
obligation, at such time to issue such
Letter of Credit in its revised form (as
extended) under the terms hereof (by
reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or
otherwise), or (B) it has received notice
(which may be by telephone or in
writing) on or before the day that is five
Business Days before the
Non-Extension Notice Date (1) from Agent
that the Required Lenders have elected
not to permit such extension or (2) from
Agent, any Lender or Borrower that one
or more of the applicable conditions
specified in Section 4.02 is not then
satisfied, and in each such case directing
the L/C Issuer not to permit such
extension.
(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
11:00 a.m. 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 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.
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<PAGE>
(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. A
certificate of the L/C Issuer submitted to
any 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
(appropriately adjusted, in the case of
interest payments, to reflect the period
of time during which such Lender's L/C
Advance was outstanding) 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;
19
<PAGE>
(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 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 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).
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.
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<PAGE>
(h)
Applicability of ISP and UCP. Unless otherwise expressly agreed by
the
L/C Issuer and Borrower when a Letter of
Credit is issued (including any such
agreement applicable to an Existing Letter
of Credit), (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") (i) for
each commercial Letter of Credit equal to
1/8 of 1% per annum or such lesser
amount as is agreed to by Agent, Lenders
and Borrower times the daily amount
available to be drawn under such Letter of
Credit , and (ii) for each standby
Letter of Credit equal to the Applicable
Rate times the daily 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) computed on a quarterly basis
in arrears and (ii) due and payable
on the first Business Day after the end 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. If
there is any change in the Applicable Rate
during any quarter, the daily amount
available to be drawn under each standby
Letter of Credit shall be computed and
multiplied by the Applicable Rate
separately for each period during such quarter
that such Applicable Rate was in effect.
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) L/C
Issuer customary charges. 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 not refundable.
(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 This
section intentionally left blank.
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
11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar
Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii)
any prepayment of Eurodollar Rate Loans
shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000
in excess thereof; and (iii) any
prepayment of Base Rate Committed 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. 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
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. The notice described in this
subsection may be given in the form of
Exhibit A.
(b) This
subsection intentionally left blank.
(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.
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<PAGE>
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 11:00 a.m.
five Business Days prior to the date
of termination or reduction, (ii) any such
partial reduction shall be in an
aggregate amount of $5,000,000 or any whole
multiple of $1,000,000 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
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.
2.07
Repayment of Loans. Borrower shall repay to Lenders on the
Maturity
Date the aggregate principal amount of
Committed Loans outstanding on such date.
2.08
Interest.
(a)
Subject to the provisions of subsection (b) below, (i) each
Eurodollar
Rate Loan shall bear interest on the
outstanding principal amount thereof for
each Interest Period at a rate per annum
equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate;
and (ii) 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 or
minus the Applicable Rate as the case may
be.
(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.
(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 Rate 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 Maturity Date. The
commitment fee shall be calculated
quarterly in arrears, and if there is any
change in the Applicable Rate during
any quarter, the actual daily amount shall
be computed and multiplied by the
Applicable Rate separately for each period
during such quarter that such
Applicable Rate was in effect.
22
<PAGE>
(b) This
subsection intentionally left blank.
(c)
Lender's Upfront Fee. On the Closing Date, Borrower shall pay
to
Lender an Upfront Fee in the amount set
forth in the revised commitment letter
dated as of March 23, 2005. Such Upfront
Fee is for the credit facilities
committed by Lender under this Agreement
and is fully earned on the date paid.
The Upfront Fee is non-refundable for any
reason whatsoever.
2.10
Computation of Interest and Fees. All computations of interest
for
Base Rate Loans when the Base Rate is
determined by Bank of America's "prime
rate" shall be made on the basis of a year
of 365 or 366 days, as the case may
be, and actual days elapsed. All other
computations of fees and interest shall
be made on the basis of a 360-day year and
actual days elapsed. 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.
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. 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)
General. All payments to be made by Borrower shall be made
without
condition or deduction for any
counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided
herein, all payments by Borrower
hereunder shall be made to Agent, for the
account of the respective Lenders to
which such payment is owed, at the
Administrative Agent's Office in Dollars and
in immediately available funds not later
than 12:00 noon on the date specified
herein. Agent will promptly distribute to
each Lender its Applicable
Percentage(or other applicable share as
provided herein) of such payment in like
funds as received by wire transfer to such
Lender's Lending Office. All payments
received by Agent after 12:00 noon shall be
deemed received on the next
succeeding Business Day and any applicable
interest or fee shall continue to
accrue. If any payment to be made by
Borrower shall come due on a day other than
a Business Day, payment shall be made on
the next following Business Day, and
such extension of time shall be reflected
in computing interest or fees, as the
case may be.
(b) (i)
Funding by Lenders; Presumption by Agent. Unless Agent shall
have
received notice from a Lender prior to the
proposed date of any Committed
Borrowing of Eurodollar Rate Loans (or, in
the case of any Committed Borrowing
of Base Rate Loans, prior to 12:00 noon on
the date of such Committed Borrowing)
that such Lender will not make available to
Agent such Lender's share of such
Committed Borrowing, Agent may assume that
such Lender has made such share
available on such date in accordance with
Section 2.02 (or, in the case of a
Committed Borrowing of Base Rate Loans,
that such Lender has made such share
available in accordance with and at the
time required by Section 2.02) and may,
in reliance upon such assumption, make
available to Borrower a corresponding
amount. In such event, if a Lender has not
in fact made its share of the
applicable Committed Borrowing available to
Agent, then the applicable Lender
and Borrower severally agree to pay to
Agent forthwith on demand such
corresponding amount in immediately
available funds with interest thereon, for
23
<PAGE>
each day from and including the date such
amount is made available to Borrower
to but excluding the date of payment to
Agent, at (A) in the case of a payment
to be made by such Lender, the greater of
the Federal Funds Rate and a rate
determined by Agent in accordance with
banking industry rules on interbank
compensation, plus any administrative,
processing or similar fees customarily
charged by Agent in connection with the
foregoing and (B) in the case of a
payment to be made by Borrower, the
interest rate applicable to Base Rate Loans.
If Borrower and such Lender shall pay such
interest to Agent for the same or an
overlapping period, Agent shall promptly
remit to Borrower the amount of such
interest paid by Borrower for such period.
If such Lender pays its share of the
applicable Committed Borrowing to Agent,
then the amount so paid shall
constitute such Lender's Committed Loan
included in such Committed Borrowing.
Any payment by Borrower shall be without
prejudice to any claim Borrower may
have against a Lender that shall have
failed to make such payment to Agent.
(ii) Payments by Borrower; Presumptions by Agent. Unless Agent
shall
have received notice from Borrower prior to
the date on which any payment is due
to Agent for the account of the Lenders or
the L/C Issuer hereunder that
Borrower will not make such payment, Agent
may assume that Borrower has made
such payment on such date in accordance
herewith and may, in reliance upon such
assumption, distribute to Lenders or the
L/C Issuer, as the case may be, the
amount due. In such event, if Borrower has
not in fact made such payment, then
each of Lenders or the L/C Issuer, as the
case may be, severally agrees to repay
to Agent forthwith on demand the amount so
distributed to such Lender or the L/C
Issuer, in immediately available funds with
interest thereon, for each day from
and including the date such amount is
distributed to it to but excluding the
date of payment to Agent, at the greater of
the Federal Funds Rate and a rate
determined by Agent in accordance with
banking industry rules on interbank
compensation. A notice of Agent to any
Lender or Borrower with respect to any
amount owing under this subsection (b)
shall be conclusive, absent manifest
error.
(c)
Failure to Satisfy Conditions Precedent. If any Lender makes
available
to Agent funds for any Loan to be made by
such Lender as provided in the
foregoing provisions of this Article II,
and such funds are not made available
to Borrower by Agent because the conditions
to the applicable Credit Extension
set forth in Article IV are not satisfied
or waived in accordance with the terms
hereof, Agent shall return such funds (in
like funds as received from such
Lender) to such Lender, without
interest.
(d)
Obligations of Lenders Several. The obligations of Lenders
hereunder
to make Committed Loans, to fund
participations in Letters of Credit and to make
payments under Section 10.04(c) are several
and not joint. The failure of any
Lender to make any Committed Loan, to fund
any such participation or to make any
payment under Section 10.04(c) on any date
required hereunder shall not relieve
any other Lender of its corresponding
obligation to do so on such date, and no
Lender shall be responsible for the failure
of any other Lender to so make its
Committed Loan, purchase its participation
or to make its payment under Section
10.04(c):
(e)
Funding Source. Nothing herein shall be deemed to obligate any
Lender
to obtain the funds for any Loan in any
particular place or manner or to
constitute a representation by any Lender
that it has obtained or will obtain
the funds for any Loan in any particular
place or manner.
2.13
Sharing of Payments. If any Lender shall, by exercising any right
of
setoff or counterclaim or otherwise, obtain
payment in respect of any principal
of or interest on any of the Committed
Loans made by it, or the participations
in L/C Obligations held by it resulting in
such Lender's receiving payment of a
proportion of the aggregate amount of such
Committed Loans or participations and
accrued interest thereon greater than its
pro rata share thereof as provided
herein, then the Lender receiving such
greater proportion shall (a) notify Agent
of such fact, and (b) purchase (for cash at
face value) participations in the
Committed Loans and subparticipations in
L/C Obligations of the other Lenders,
or make such other adjustments as shall be
equitable, so that the benefit of all
such payments shall be shared by the
Lenders ratably in accordance with the
aggregate amount of principal of and
accrued interest on their respective
Committed Loans and other amounts owing
them, provided that:
(i) if any such participations or subparticipations are
purchased
and all or any portion of the payment
giving rise thereto is recovered, such
participations or subparticipations shall
be rescinded and the purchase price
restored to the extent of such recovery,
without interest; and
(ii) the provisions of this Section shall not be construed to
apply
to (x) any payment made by Borrower
pursuant to and in accordance with the
express terms of this Agreement or (y) any
payment obtained by a Lender as
consideration for the assignment of or sale
of a participation in any of its
Committed Loans or subparticipations in L/C
Obligations to any assignee or
participant, other than to Borrower or any
Subsidiary thereof (as to which the
provisions of this Section shall
apply).
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Each Loan Party consents to the foregoing
and agrees, to the extent it may
effectively do so under applicable law,
that any Lender acquiring a
participation pursuant to the foregoing
arrangements may exercise against such
Loan Party rights of setoff and
counterclaim with respect to such participation
as fully as if such Lender were a direct
creditor of such Loan Party in the
amount of such participation.
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes.
(a)
Payments Free of Taxes. Any and all payments by Borrower to or
on
account of any obligation of Borrower
hereunder or under any other Loan Document
shall be made free and clear of and without
reduction or withholding for any
Indemnified Taxes or Other Taxes, provided
that if Borrower shall be required by
any applicable law to deduct any
Indemnified Taxes (including any Other Taxes)
from such payments, then, (i) the sum
payable shall be increased as necessary so
that after making all required deductions
(including deductions applicable to
additional sums payable under this
Section), Agent, Lender or L/C Issuer, as the
case may be, receives an amount equal to
the sum it would have received had no
such deductions been made, (ii) Borrower
shall make such deductions, and (iii)
Borrower shall timely pay the full amount
deducted to the relevant Governmental
Authority in accordance with applicable
law.
(b)
Payment of Other Taxes by Borrower. Without limiting the provisions
of
subsection (a) above, Borrower shall timely
pay any Other Taxes to the relevant
Governmental Authority in accordance with
applicable law.
(c)
Indemnification by Borrower. Borrower shall indemnify Agent,
each
Lender and the L/C Issuer, within 10 days
after demand therefor, for the full
amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or
attributable to amounts payable under this
Section) paid by Agent, such Lender or the
L/C Issuer, as the case may be, and
any penalties, interest and reasonable
expenses arising therefrom or with
respect thereto, whether or not such
Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by
the relevant Governmental Authority.
A certificate as to the amount of such
payment or liability delivered to
Borrower by a Lender or the L/C Issuer
(with a copy to Agent), or by Agent on
its own behalf or on behalf of a Lender or
the L/C Issuer, shall be conclusive
absent manifest error.
(d)
Evidence of Payments. Upon request by Agent, as soon as
practicable
after any payment of Indemnified Taxes or
Other Taxes by Borrower to a
Governmental Authority, Borrower shall
deliver to Agent the original or a
certified copy of a receipt issued by such
Governmental Authority evidencing
such payment, a copy of the return
reporting such payment or other evidence of
such payment reasonably satisfactory to
Agent.
(e) Status
of Lenders. Any Lender, if requested by Borrower or Agent,
shall deliver such documentation prescribed
by applicable law or reasonably
requested by Borrower or Agent as will
enable the Borrower or Agent to determine
whether or not such Lender is subject to
backup withholding or information
reporting requirements.
(f)
Treatment of Certain Refunds. If Agent, any Lender or the L/C
Issuer
determines, in its sole discretion, that it
has received a refund of any Taxes
or Other Taxes as to which it has been
indemnified by Borrower or with respect
to which Borrower has paid additional
amounts pursuant to this Section, it shall
pay to Borrower an amount equal to such
refund (but only to the extent of
indemnity payments made, or additional
amounts paid, by Borrower under this
Section with respect to the Taxes or Other
Taxes giving rise to such refund),
net of all out-of-pocket expenses of Agent,
such Lender or the L/C Issuer, as
the case may be, and without interest
(other than any interest paid by the
relevant Governmental Authority with
respect to such refund), provided that
Borrower, upon the request of Agent, such
Lender or the L/C Issuer, agrees to
repay the amount paid over to the Borrower
(plus any penalties, interest or
other charges imposed by the relevant
Governmental Authority) to Agent, such
Lender or the L/C Issuer in the event
Agent, such Lender or the L/C Issuer is
required to repay such refund to such
Governmental Authority. This subsection
shall not be construed to require Agent,
any Lender or the L/C Issuer to make
available its tax returns (or any other
information relating to its taxes that
it deems confidential) to the Borrower or
any other Person.
3.02
Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental
Authority has asserted that it is unlawful,
for any Lender or its applicable Lending
Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or
charge interest rates based upon the
Eurodollar Rate, or any Governmental
Authority has imposed material restrictions
on the authority of such Lender to purchase
or sell, or to take deposits of,
Dollars in the London interbank market,
then, on notice thereof by such Lender
to Borrower through Agent, any obligation
of such Lender to make or continue
Eurodollar Rate Loans or to convert Base
Rate Committed Loans to Eurodollar Rate
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Loans shall be suspended until such Lender
notifies Agent and Borrower that the
circumstances giving rise to such
determination no longer exist. Upon receipt of
such notice, Borrower shall, upon demand
from such Lender (with a copy to
Agent), prepay or, if applicable, convert
all Eurodollar Rate Loans of such
Lender to Base Rate Loans, either on the
last day of the Interest Period
therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such
Lender may not lawfully continue to
maintain such Eurodollar Rate Loans. Upon
any such prepayment or conversion,
Borrower shall also pay accrued interest on
the amount so prepaid or converted
and all amounts due under Section 3.05 in
accordance with the terms thereof due
to such prepayment or conversion.
3.03
Inability to Determine Rates. If Agent determines in connection
with
any request for a Eurodollar Rate Loan or a
conversion to or continuation
thereof that (a) Dollar deposits are not
being offered to banks in the London
interbank eurodollar market for the
applicable amount and Interest Period of
such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for
determining the Eurodollar Base Rate for
any requested Interest Period with
respect to a proposed Eurodollar Rate Loan,
or (c) the Eurodollar Base Rate for
any requested Interest Period with respect
to a proposed Eurodollar Rate Loan
does not adequately and fairly reflect the
cost to such Lenders of funding such
Loan, Agent will promptly so notify
Borrower and each Lender. Thereafter, the
obligation of Lenders to make or maintain
Eurodollar Rate Loans shall be
suspended until Agent (upon the instruction
of the Required Lenders) revokes
such notice. Upon receipt of such notice,
Borrower may revoke any pending
request for a Borrowing of, conversion to
or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to
have converted such request into a
request for a Committed Borrowing of Base
Rate Loans in the amount specified
therein.
3.04
Increased Costs.
(a)
Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit,
compulsory loan, insurance charge or
similar requirement against assets of,
deposits with or for the account of, or
credit extended or participated in by,
any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or
the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any
kind
whatsoever with respect to this Agreement,
any Letter of Credit, any
participation in a Letter of Credit or any
Eurodollar Rate Loan made by it, or
change the basis of taxation of payments to
such Lender or the L/C Issuer in
respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section
3.01 and the imposition of, or any change
in the rate of, any Excluded Tax
payable by such Lender or the L/C Issuer);
or
(iii) impose on any Lender or the L/C Issuer or the London
interbank
market any other condition, cost or expense
affecting this Agreement or
Eurodollar Rate Loans made by such Lender
or any Letter of Credit or
participation therein;
and the result of any of the foregoing
shall be to increase the cost to such
Lender of making or maintaining any
Eurodollar Rate Loan (or of maintaining its
obligation to make any such Loan), or to
increase the cost to such Lender or the
L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or
of maintaining its obligation to
participate in or to issue any Letter of
Credit), or to reduce the amount of any sum
received or receivable by such
Lender or the L/C Issuer hereunder (whether
of principal, interest or any other
amount) then, upon request of such Lender
or the L/C Issuer, Borrower will pay
to such Lender or the L/C Issuer, as the
case may be, such additional amount or
amounts as will compensate such Lender or
the L/C Issuer, as the case may be,
for such additional costs incurred or
reduction suffered.
(b)
Capital Requirements. If any Lender or the L/C Issuer determines
that
any Change in Law affecting such Lender or
the L/C Issuer or any Lending Office
of such Lender or such Lender's or the L/C
Issuer's holding company, if any,
regarding capital requirements has or would
have the effect of reducing the rate
of return on such Lender's or the L/C
Issuer's capital or on the capital of such
Lender's or the L/C Issuer's holding
company, if any, as a consequence of this
Agreement, the Commitments of such Lender
or the Loans made by, or
participations in Letters of Credit held
by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level
below that which such Lender or the
L/C Issuer or such Lender's or the L/C
Issuer's holding company could have
achieved but for such Change in Law (taking
into consideration such Lender's or
the L/C Issuer's policies and the policies
of such Lender's or the L/C Issuer's
holding company with respect to capital
adequacy), then from time to time
Borrower will pay to such Lender or the L/C
Issuer, as the case may be, such
additional amount or amounts as will
compensate such Lender or the L/C Issuer or
such Lender's or the L/C Issuer's holding
company for any such reduction
suffered.
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(c)
Certificates for Reimbursement. A certificate of a Lender or the
L/C
Issuer setting forth the amount or amounts
necessary to compensate such Lender
or the L/C Issuer or its holding company,
as the case may be, as specified in
subsection (a) or (b) of this Section and
delivered to Borrower shall be
conclusive absent manifest error. Borrower
shall pay such Lender or the L/C
Issuer, as the case may be, the amount
shown as due on any such certificate
within 10 days after receipt thereof.
(d) Delay
in Requests. Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant
to the foregoing provisions of this
Section shall not constitute a waiver of
such Lender's or the L/C Issuer's right
to demand such compensation, provided that
Borrower shall not be required to
compensate a Lender or the L/C Issuer
pursuant to the foregoing provisions of
this Section for any increased costs
incurred or reductions suffered more than
nine months prior to the date that such
Lender or the L/C Issuer, as the case
may be, notifies Borrower of the Change in
Law giving rise to such increased
costs or reductions and of such Lender's or
the L/C Issuer's intention to claim
compensation therefor (except that, if the
Change in Law giving rise to such
increased costs or reductions is
retroactive, then the nine-month period
referred to above shall be extended to
include the period of retroactive effect
thereof).
3.05
Compensation for Losses. Upon demand of any Lender (with a copy
to
Agent) from time to time, Borrower shall
promptly compensate such Lender for and
hold such Lender harmless from any loss,
cost or expense incurred by it as a
result of:
(a) any
continuation, conversion, payment or prepayment of any Loan
other
than a Base Rate Loan on a day other than
the last day of the Interest Period
for such Loan (whether voluntary,
mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any
failure by Borrower (for a reason other than the failure of
such
Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other
than a Base Rate Loan on the date or in the
amount notified by Borrower;
including any loss of anticipated profits
and any loss or expense arising from
the liquidation or reemployment of funds
obtained by it to maintain such Loan or
from fees payable to terminate the deposits
from which such funds were obtained.
Borrower shall also pay any customary
administrative fees charged by such Lender
in connection with the foregoing. For
purposes of calculating amounts payable by
Borrower to Lenders under this Section
3.05, each Lender shall be deemed to have
funded each Eurodollar Rate Loan made by it
at the Eurodollar Base Rate used in
determining the Eurodollar Rate for such
Loan by a matching deposit or other
borrowing in the London interbank
eurodollar market for a comparable amount and
for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so
funded.
3.06
Mitigation Obligations. If any Lender requests compensation
under
Section 3.04, or Borrower is required to
pay any additional amount to any Lender
or any Governmental Authority for the
account of any Lender pursuant to Section
3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender
shall use reasonable efforts to designate a
different Lending Office for funding
or booking its Loans hereunder or to assign
its rights and obligations hereunder
to another of its offices, branches or
affiliates, if, in the judgment of such
Lender, such designation or assignment (i)
would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or
eliminate the need for the notice pursuant
to Section 3.02, as applicable, and
(ii) in each case, would not subject such
Lender to any unreimbursed cost or
expense and would not otherwise be
disadvantageous to such Lender. Borrower
hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in
connection with any such designation or
assignment.
3.07
Survival. All of Borrower's obligations under this Article III
shall
survive termination of the Aggregate
Commitments and repayment of all other
Obligations hereunder.
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01
Conditions of Initial Credit Extension. The obligation of the
L/C
Issuer and each Lender to make its initial
Credit Extension hereunder is subject
to satisfaction of the following conditions
precedent:
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(a)
Agent's receipt of the following, each of which shall be originals
or
telecopies (followed promptly by originals)
unless otherwise specified, each
properly executed by a Responsible Officer
of the signing Loan Party, each dated
the Closing Date (or, in the case of
certificates of governmental officials, a
recent date before the Closing Date) and
each in form and substance satisfactory
to Agent and each of the Lenders:
(i) executed counterparts of this Agreement , all Collateral
Documents and each Guaranty, sufficient in
number for distribution to Agent,
each Lender and Borrower;
(ii) a Note executed by Borrower in favor of each Lender
requesting
a Note;
(iii) such certificates of resolutions or other action,
incumbency
certificates including specimen signatures
and/or other certificates of
Responsible Officers of each Loan Party as
Agent may require evidencing the
identity, authority and capacity of each
Responsible Officer thereof authorized
to act as a Responsible Officer in
connection with this Agreement and the other
Loan Documents to which such Loan Party is
a party;
(iv) such documents and certifications as Agent may reasonably
require to evidence that each Loan Party is
duly organized or formed, and that
each Loan Party is validly existing, in
good standing and qualified to engage in
business in each jurisdiction where its
ownership, lease or operation of
properties or the conduct of its business
requires such qualification, except to
the extent that failure to do so could not
reasonably be expected to have a
Material Adverse Effect;
(v) a favorable opinion of counsel to the Loan Parties acceptable
to
Agent addressed to Agent and each Lender,
as to the matters set forth concerning
the Loan Parties and the Loan Documents in
form and substance satisfactory to
Agent;
(vi) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all
consents, licenses and approvals required in
connection with the execution, delivery and
performance by such Loan Party and
the validity against s
