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CREDIT AGREEMENT
dated as of
FEBRUARY 20, 2008
By and Among
LHC GROUP, INC.,
a Delaware corporation
as Borrower
and
CAPITAL ONE, NATIONAL ASSOCIATION
as Agent
and
CAPITAL ONE, NATIONAL ASSOCIATION
as Lender
and
CAPITAL ONE CORPORATION
As Sole Book Runner and
Sole Lead Arranger
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1
Section
1.1. Defined Terms
1
Section 1.2. Accounting Terms
14
ARTICLE II
LINE OF CREDIT LOAN COMMITMENT
14
Section 2.1. The Line of Credit
14
Section 2.2. Revolving Loans
14
Section 2.2.1. Revolving Loans
14
Section 2.2.2. Letters of Credit
15
Section 2.2.3. Procedures for Obtaining Letters of Credit
16
Section 2.2.4. Manner and Notice of Borrowing Under the Line of
Credit
16
Section 2.2.5. Use of Proceeds
17
Section 2.2.6. Several Obligations
17
Section 2.3. Swing Line
17
Section 2.4 Accordion Option
18
ARTICLE III
NOTES EVIDENCING THE
LOANS
19
Section 3.1. Notes
19
Section 3.1.1. Form of Notes
19
Section 3.1.2. Issuance of Additional Notes
19
Section 3.1.3. Payment of the Notes
19
Section 3.1.4. Payment to the Lenders
19
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Section 3.1.5. Sharing of Payments, Etc.
20
Section 3.1.6. Non-Receipt of Funds by the Agent
20
ARTICLE IV
INTEREST RATES
20
Section 4.1. Options
20
Section 4.1.1. Base Rate Loans
20
Section 4.1.2. Eurodollar Loans
21
Section 4.2. Interest Rate Determination
21
Section 4.3. Conversion Option
21
ARTICLE V
CHANGE OF CIRCUMSTANCES
21
Section 5.1. Unavailability of Funds or Inadequacy of Pricing
21
Section 5.2. Change in Laws
22
Section 5.3. Increased Cost or Reduced Return
22
Section 5.4. Breakage Costs
24
Section 5.5. Discretion of Lender as to Manner of Funding
24
Section 5.6. Foreign Lenders
24
ARTICLE VI
FEES
25
Section 6.1. Facility Fee
25
Section 6.2. Unused Fees
25
Section 6.3. Letter of Credit Fee
25
ARTICLE VII
CERTAIN GENERAL PROVISIONS
26
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Section 7.1. Payments
26
Section 7.2. No Offset, etc
26
Section 7.3. Rate Management Transactions
26
Section 7.4. Calculation of Fees
26
ARTICLE VIII
PREPAYMENTS
26
Section
8.1. Voluntary Prepayments
26
Section 8.2. Mandatory Prepayment Resulting from Overadvances
26
ARTICLE IX
SECURITY FOR THE INDEBTEDNESS
27
Section 9.1. Security
27
ARTICLE X
CONDITIONS PRECEDENT
27
Section 10.1. Condition Precedent to Effectiveness of this
Agreement 27
Section 10.2. Conditions Precedent to all Revolving Loans
28
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
28
Section 11.1. Corporate Authority of the Borrower
28
Section 11.2. Financial Statements
29
Section 11.3. Litigation
29
Section 11.4. Approvals
30
Section 11.5. Required Insurance
30
Section 11.6. Licenses
30
Section 11.7. Adverse Agreements
30
Section 11.8. Default or Event of Default
30
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Section 11.9. Employee Benefit Plans
30
Section 11.10. Investment Company Act
30
Section 11.11. Intentionally Omitted
30
Section 11.12. Regulations X, T and U
30
Section 11.13. Location of Offices and Records
31
Section 11.14. Information
31
Section 11.15. Environmental Matters
31
Section 11.16. Solvency of the Borrower
32
Section 11.17. Governmental Requirements
32
Section 11.18. Authority of the Guarantor
32
Section 11.19. Survival of Representations and Warranties
33
ARTICLE XII
AFFIRMATIVE COVENANTS
33
Section 12.1. Financial Statements; Other Reporting Requirements
33
Section 12.2. Notice of Default; Litigation; ERISA Matters
35
Section 12.3. Maintenance of Existence, Properties and Liens
35
Section 12.4. Taxes
35
Section 12.5. Compliance with Environmental Laws
35
Section 12.6. Further Assurances
37
Section 12.7. Financial Covenants
37
Section 12.8. Operations
37
Section 12.9. Change of Location
38
Section 12.10. Employee Benefit Plans
38
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Section 12.11. Deposit and Operating Accounts
38
Section 12.12. Field Audits; Other Information
38
Section 12.13. Insurance
38
Section 12.14. Subsidiaries
38
Section 12.15. Collateral Documents
39
Section 12.16. Post-Closing Requirements
39
Section 12.17. Excluded Subsidiaries
39
ARTICLE XIII
NEGATIVE COVENANTS
40
Section 13.1. Limitations on Fundamental Changes
40
Section 13.2. Disposition of Assets
40
Section 13.3. Intentionally Omitted
40
Section 13.4. Encumbrances; Negative Pledge
40
Section 13.5. Debts
42
Section 13.6. Investments, Loan and Revolving Loans
43
Section 13.7. Intentionally Omitted
44
Section 13.8. Transactions with Affiliates
44
ARTICLE XIV
EVENTS OF DEFAULT
44
Section 14.1. Events of Default
44
Section 14.2. Waivers
46
ARTICLE XV
THE AGENT AND THE LENDERS
47
Section 15.1. Appointment and Authorization
47
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Section 15.2. Intentionally Omitted
48
Section 15.3. Consultation with Counsel
48
Section 15.4. Documents
48
Section 15.5. Resignation or Removal of Agent
48
Section 15.6. Responsibility of Agent
48
Section 15.7. Independent Investigation
50
Section 15.8. Indemnification
50
Section 15.9. Benefit of Article XV
50
Section 15.10. Pro Rata Treatment
50
Section 15.11. Intentionally Omitted
51
Section 15.12. Other Financings
51
Section 15.13. Interests of the Lenders
51
Section 15.14. Investments
51
ARTICLE XVI
MISCELLANEOUS
52
Section 16.1. No Waiver; Modification in Writing
52
Section 16.2. Addresses for Notices
52
Section 16.3. Fees and Expenses
53
Section 16.4. Right of Set-off
53
Section 16.5. Waiver of Marshaling
53
Section 16.6. Governing Law
53
Section 16.7. Consent to Loan Participation
53
Section 16.8. Consent to Syndication
54
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Section 16.9. Permitted Assignment
54
Section 16.10. Indemnity
54
Section 16.11. Maximum Interest Rate
56
Section 16.12. Waiver of Jury Trial; Submission to Jurisdiction
56
Section 16.13. Severability
57
Section 16.14. Headings
57
Section 16.15. Confidentiality 57
SCHEDULES
Schedule 1.1(a ) Excluded Subsidiaries
Schedule 1.1(b) Guarantors
Schedule 6 Designated Fee Account
Schedule 11.3 Litigation
Schedule 13.4 Encumbrances
Schedule 13.5 Existing Indebtedness
Schedule 13.6 Existing Investments
Schedule 13.8 Transactions with Affiliates
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CREDIT AGREEMENT
THIS
CREDIT AGREEMENT (the
"Agreement") dated as
of February 20, 2008, is
by and among LHC GROUP, INC., a Delaware corporation (the "Borrower"), the
LENDERS, and CAPITAL ONE, NATIONAL ASSOCIATION, a national banking
association,
individually as
a Lender and as Administrative Agent, and CAPITAL ONE
CORPORATION, as sole bookrunner and sole lead arranger.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. Defined Terms. As used in this Agreement, and unless
the
context requires a different meaning, the following terms have the
meanings
indicated:
"Accordion Option"
shall have the meaning assigned to such term in Section
2.4
of this Agreement.
"Acquisition" shall mean any transaction or series of related
transactions,
consummated
on or after
the date hereof, by which the Borrower or any
Subsidiary directly,
(i) acquires a majority voting interest in any active
business, or all or substantially all of the assets, of any Person,
whether
through purchase
of assets, merger or otherwise, or (ii) acquires
securities or other
ownership interests of any Person
having at least a
majority of combined
voting power of the then outstanding securities or
other ownership interests of such Person.
"Agent" shall mean
Capital One, National
Association
in its capacity as
contractual,
administrative, and
collateral representative of the Lenders
pursuant to Article XV, and not in its individual capacity as a
Lender, and
any
successor Agent appointed pursuant to Article XV.
"Agreement" shall mean this Credit Agreement, as the same may from time to
time
be amended, modified,
supplemented,
or restated
and in effect from
time
to time.
"Base Rate" shall mean the base rate of interest established from time to
time
by The Wall Street
Journal, as the
"prime" lending rate on corporate
loans posted by at least seventy-five percent (75%) of the nation's
thirty
largest banks, and
which is not necessarily the lowest rate charged by any
of
the Lenders,
such rate to be
adjusted automatically
on and as of the
effective date of any change in such Base Rate.
"Base Rate Interest Period" shall mean, with respect to any Base
Rate Loan,
the
period ending on the last day of each month, provided, however, that
(i)
if any Base Rate
Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next
succeeding
Business Day, and (ii) if any Base Rate Interest Period would
otherwise end
after the Termination Date, such Interest Period shall end on the
Termination Date.
Page 1 of 59
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"Base Rate Loans"
shall mean any Loan during any period which bears
interest based upon the Base Rate.
"Base Rate Margin" shall mean, with respect to each Base Rate
Loan:
(i) minus 0.25% if the
Leverage Ratio is less than 1.00 to 1.0; or
(ii) plus 0.00% if the Leverage Ratio is greater than or equal to
1.00
to 1.0.
The
Base Rate Margin shall
be determined
by the Agent from time
to time,
based on the Leverage Ratio as set forth in the Compliance
Certificate most
recently delivered
by the Borrower pursuant to Section 12.1(c). Any
adjustment to the Base
Rate Margin shall be effective (a) in the case of a
Compliance Certificate
delivered in
connection with
quarterly
financial
statements of the Borrower delivered pursuant to Section 12.1(b),
as of the
date
60 days following
the end of the last
day of the applicable
fiscal
quarter covered by
such Compliance
Certificate, and (b)
in the case of a
Compliance Certificate
delivered in connection with annual financial
statements of the Borrower delivered pursuant to Section 12.1(a),
as of the
date
90 days following
the end of the last
day of the applicable
fiscal
year
covered by such
Compliance
Certificate.
If the Borrower fails to
deliver a Compliance Certificate pursuant to Section 12.1(c), the
Base Rate
Margin shall
equal the percentage corresponding to item (ii) of this
definition until
the date of the delivery of the required Compliance
Certificate. As of the
date hereof, and thereafter until changed as
provided above,
the Base Rate Margin
is determined based on
item (ii) of
this
definition.
"Borrower" shall mean LHC Group, Inc., a Delaware corporation,
together with its successors and assigns.
"Borrowing Date" means the date elected by Borrower pursuant to
Section 2.2.4. hereof for a Revolving Loan.
"Business Day" means a
day other than a Saturday, Sunday or legal holiday
for
commercial
banks under the laws
of the State of Louisiana or a day on
which national banks
are authorized to be
closed in Lafayette
and/or New
Orleans, Louisiana.
"Capital Lease Obligations" means any Debt represented by
obligations under
a
lease that is required to be capitalized for financial reporting
purposes
in
accordance with GAAP.
"Capital One" means Capital One, National Association in its individual
capacity as a Lender, and its successors and assigns.
Page 2 of 59
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"Collateral" shall
mean any interest
in any kind of
property or assets
pledged, mortgaged or
otherwise subject to
an Encumbrance in favor of the
Agent for the benefit of the Lenders pursuant to the Collateral
Documents.
"Collateral Documents"
shall collectively
refer to any and all
documents
now
or hereafter in which an Encumbrance is created on any
property of the
Borrower or of any other Person to secure payment of the
Indebtedness
(or
any
part thereof) of the Borrower to the Lenders under this Agreement and
the
Notes, including the
Pledge Agreement and any joinder thereto executed
by
the Borrower and any Guarantor.
"Commitments" shall
mean collectively the
Line of Credit Loan Commitments
of
each Lender as specified on the signature page(s) of this Agreement or
specified in connection with an assignment made pursuant to Section 16.9
hereof.
"Commitment
Percentage" shall mean
for each Lender the
percentage of the
Commitment of
such Lender divided by the aggregate amount of all
Commitments of all Lenders.
"Compliance
Certificate" shall
have the meaning
assigned to such term in
Section 12.1(c) of this Agreement.
"Consolidated Current
Assets" shall mean the total of the Borrower's
consolidated current assets determined in accordance with GAAP.
"Consolidated Current
Liabilities" shall
mean the total of the Borrower's
consolidated current
liabilities
plus the existing
outstanding
balance
under the Line of Credit, determined in accordance with GAAP.
"Debt" shall mean without duplication: (i) indebtedness for
borrowed money;
(ii)
the face amounts of all outstanding standby and commercial letters
of
credit and bankers acceptances, matured or unmatured, issued on behalf of
Borrower; (iii)
guaranties of the Debt of any other Person, whether direct
or
indirect, whether by agreement to purchase the indebtedness of any
other
Person or by agreement
for the furnishing of funds to any other Person
through the purchase or lease of goods, supplies or services (or by way
of
stock purchase, capital contribution, advance or loan) in each case
for the
purpose of paying or discharging the Debt of any other Person; and
(iv) the
present value
of all obligations for the payment of rent or hire of
property of any kind (real or personal) under leases or lease agreements
required to be capitalized under GAAP.
"Default" shall mean
an event which with the giving of notice or the lapse
of
time (or both) would constitute an Event of Default hereunder.
"Defaulting Lender" is used herein as defined in Section 3.1.4
hereof.
"Disposition" means any sale, transfer, lease, contribution,
conveyance or
other disposition
(including
by way of merger)
of, or the
granting of
options, warrants or
other rights to, any asset to any other Person (other
than
to the Borrower or a Subsidiary) in one or a series of transactions.
The
term "Dispose" has a correlative meaning.
Page 3 of 59
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"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean the Borrower's consolidated earnings before interest
taxes, depreciation, and amortization, all as determined in
accordance with
GAAP.
"Encumbrances" shall
mean individually,
collectively and
interchangeably
any
and all presently existing and/or future mortgages, liens, privileges,
servitudes,
rights-of-way and other contractual and/or statutory security
interests and
rights of every
nature and kind that, now and/or in the
future may affect the property of Borrower or any part or parts
thereof.
"Environmental Laws"
shall mean any federal, state, local or tribal
statute, law, rule, regulation, ordinance, code, permit, consent,
approval,
license, written
policy or rule of
common law now or
hereafter in effect
and
in each case as amended, and any judicial or administrative
interpretation
thereof, including any
judicial or
administrative
order,
injunction,
consent decree
or judgment, or other authorization or
requirement whenever
promulgated,
issued
or modified, including the
requirement to
register underground
storage tanks, well plugging and
abandonment
requirements, and
oil and gas
waste disposal requirements
relating to:
(i) emissions,
discharges, spills,
migration, movement,
releases or
threatened releases of pollutants, contaminants, Hazardous Materials, or
hazardous or toxic
materials or wastes
into or onto soil,
land, ambient
air,
surface water, ground
water, watercourses,
publicly owned
treatment
works, drains, sewer systems, wetlands or septic systems;
(ii) the use, treatment, storage, disposal, handling,
manufacturing,
transportation, or
shipment of Hazardous
Materials or
hazardous and/or
toxic wastes,
material, products or by-products containing Hazardous
Materials (or of equipment or apparatus containing Hazardous
Materials); or
(iii) otherwise
relating to
pollution or the protection of human
health or the environment, including, without limitation, the
Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C.
ss.ss. 9601 et seq.,
as amended, the
Resource Conservation
and Recovery
Act,
42 U.S.C. ss.ss.
6901 et seq., as
amended, the Hazardous
Materials
Transportation Act, 49
U.S.C. ss.ss. 1801 et
seq., as amended, the
Clean
Water Act, 33 U.S.C. ss.ss. 1251 et seq., as amended, the Toxic Substances
Control Act, 15 U.S.C. ss.ss. 2601 et seq., as amended,
the Clean Air Act,
42
U.S.C. ss.ss.
7401 et seq., as
amended, the federal
Water Pollution
Control Act, 33 U.S.C.
ss. 1251 et seq.,
as amended,
the Safe Drinking
Water Act, 42 U.S.C.
ss.ss. 300f et seq.,
as amended,
the Atomic Energy
Act,
42 U.S.C. ss.ss.
2011 et seq., as
amended, the Natural
Gas Pipeline
Safety Act of 1968, 49
U.S.C. ss. 1671 et
seq., as amended,
the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.C.S. ss.ss. 136 et
seq., as
amended, and the
Occupational Safety
and Health Act, 29 U.S.C. ss.ss. 651
et
seq., as amended, and all comparable statutes of the State of
Louisiana,
and
all comparable local Governmental Requirements in such state.
Page 4 of 59
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"Environmental
Liabilities" means
with respect to any Person, any and all
liabilities,
responsibilities,
losses, sums paid in settlement of claims,
obligations, charges,
actions (formal or informal), claims (including,
without limitation,
claims for personal
injury or for property
damage),
liens, administrative proceedings, damages (including, without
limitation,
loss
or damage resulting from the occurrence of an Event of Default),
punitive damages,
consequential damages, treble damages, penalties, fines,
monetary sanctions,
interest, court costs, response and remediation costs,
stabilization costs,
encapsulation costs, treatment, storage, or disposal
costs, groundwater monitoring or environmental sampling costs,
other causes
of
action and any other costs and expenses (including, without limitation,
reasonable
attorneys',
experts', and
consultants'
fees,
costs of
investigation and feasibility studies and disbursements in
connection with
any
investigative,
administrative or judicial proceeding), whether direct
or
indirect, known or
unknown, absolute or
contingent, past,
present or
future arising under,
pursuant to or in connection with any Environmental
Law,
or any other binding obligation of such Person requiring
abatement of
pollution or protection of human health and the environment.
"Environmental Lien"
means a Lien in favor of any Governmental Authority
for
(i) any liability
under Environmental Laws or (ii) damages arising
from, or costs
incurred by such
Governmental Authority
in response to, a
Release or
threatened
Release
of a Hazardous Materials into the
environment.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
amended from time to time.
"ERISA Group"
means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses
(whether or
not
incorporated) under common control which, together with the
Borrower or
any
Subsidiary,
are treated as a
single employer under Section 414 of the
Internal Revenue Code.
"Excluded Subsidiary"
shall mean any entity
listed on Schedule 1.1(a) and
any
Subsidiary
in which the owner of
the minority ownership
interest in
such
entity has not consented to the execution, delivery and performance
of
the
Guaranty by such
entity; provided
that the Borrower shall have put
forth reasonable efforts to obtain such consent.
"Eurodollar Business
Day" shall mean any date other than Saturday, Sunday
or a
day on which banking institutions are generally authorized or
obligated by law or
executive order to close in the City of London,
England.
"Eurodollar Interest
Period" shall mean,
with respect to any
Eurodollar
Loan
(i) initially, the
period commencing on the date such Eurodollar Loan
is
made and ending one (1) month (or such other period agreed upon by the
Borrower and the
Lenders) thereafter,
and (ii) thereafter, each period
commencing on the day following the last day of the next preceding
Interest
Period applicable to such Eurodollar Loan and ending one (1) month
(or such
other period
agreed upon by the
Borrower and the Lenders) thereafter;
provided, however,
that (a) if any Eurodollar Interest Period would
otherwise expire on a day which is not a Business Day, such
Interest Period
shall expire on the next succeeding Business Day unless the result of
such
extension would be to
extend such Interest
Period into the next
calendar
month, in which case
such Interest
Period shall end on the immediately
preceding Business Day, (b) if any Eurodollar Interest Period
begins on the
last
Business Day of a calendar month (or on a day for which there
is no
numerically
corresponding day in
the calendar
month at the end of such
Interest Period) such Interest Period shall end on the last
Business Day of
a
calendar month,
and (c) any
Eurodollar
Interest Period which would
otherwise expire after
the Termination
Date shall end on the
Termination
Date.
Page 5 of 59
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"Eurodollar Loan"
shall mean any Loan during any period which bears
interest at the Eurodollar Rate.
"Eurodollar Margin"
shall mean with respect to each Eurodollar Loan under
the
Line of Credit:
(i) 1.25% per annum if
the Leverage Ratio is less than 1.00 to 1.0;
(ii) 1.50% per annum if the Leverage Ratio is greater than or equal
to
1.00 to 1.0 but less than 1.50 to 1.0;
(iii) 1.75% per annum if the Leverage Ratio is greater than or equal
to 1.50 to 1.0 but less than 2.00 to 1.0; or
(iv) 2.00% per annum if the Leverage Ratio is greater than or equal
to
2.00 to 1.0.
The
Eurodollar
Margin shall be
determined by the Agent from time to time,
based on the Leverage Ratio as set forth in the Compliance
Certificate most
recently delivered
by the Borrower pursuant to Section 12.1(c). Any
adjustment to the Eurodollar Margin shall be effective (a) in the
case of a
Compliance Certificate
delivered in
connection with
quarterly
financial
statements of the Borrower delivered pursuant to Section 12.1(b),
as of the
date
60 days following
the end of the last
day of the applicable
fiscal
quarter covered by
such Compliance
Certificate, and (b)
in the case of a
Compliance Certificate
delivered in connection with annual financial
statements of the Borrower delivered pursuant to Section 12.1(a),
as of the
date
90 days following
the end of the last
day of the applicable
fiscal
year
covered by such
Compliance
Certificate.
If the Borrower fails to
deliver a Compliance Certificate pursuant to Section 12.1(c), the
Eurodollar Margin shall equal the percentage corresponding to item (iv) of
this
definition until the
date of the delivery of the required Compliance
Certificate. As of the
date hereof, and thereafter until changed as
provided above, the
Eurodollar Margin is
determined based on
item (i) of
this
definition.
Page 6 of 59
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"Eurodollar Rate"
shall mean with respect to any Eurodollar Interest
Period, the
offered rate for U.S. Dollar deposits of not less than
$1,000,000 as of 11:00 A.M. City of London, England time two (2)
Eurodollar
Business Days prior to the first date of each Eurodollar Interest
Period as
shown on the
display designated as "British Bankers Assoc. Interest
Settlement Rates" on the Telerate system ("Telerate"), Reuters
Screen LIBOR
01
Page, or such other
page or pages as may replace such pages on Telerate
for
the purpose of displaying such rate, rounded upwards, if necessary to
the
nearest 1/16% and
adjusted for the
maximum cost of reserves, if any.
Provided, however, that if such rate is not available on Telerate
then such
offered rate shall be
otherwise independently obtained by the Agent from an
alternate,
substantially similar independent source available to the Agent
or
shall be calculated by the Agent by substantially similar
methodology as
that
theretofore used to determine such offered rate in Telerate.
"Event of
Default"
shall
mean
individually,
collectively
and
interchangeably any of
the Events of Default
set forth below in Section
14.1. hereof.
"Federal Funds Rate"
means, for any day, the rate per annum
equal to the
weighted average of the rates on overnight federal funds transaction with
members of the Federal
Reserve System
arranged by federal fund brokers on
such
day, as published by the Federal Reserve Bank of New York on the
Business Day, next succeeding such day; provided, however, that (i)
if such
day
is not a Business Day,
the Federal Funds Rate for such day shall
be
such
rate on such
transactions on the
next preceding
Business Day as so
published on the next succeeding Business Day, and (ii) if no such
rate is
so
published on the next
succeeding Business
Day, the Federal Funds
Rate
for
such day shall be the average of quotations for such Business Day on
such
transactions
received by the Agent from three (3) federal funds
brokers of recognized
standing selected by it. If, for any
reason, the
Agent shall have
determined
(which determination shall be conclusive,
absent manifest
error) that it is
unable to ascertain
the Federal Funds
Rate, including the
inability or failure of the Agent to obtain sufficient
quotations in
accordance
with the terms
hereof, the Base Rate shall be
determined without regard to clause (i) of the first sentence of the
definition of
Base Rate until the circumstances giving rise to such
inability no longer exist.
"GAAP" shall mean, at any time, accounting principles generally
accepted in
the
United States as then in effect.
"Governmental Authority" shall mean any nation or government,
any state or
other political
subdivision
thereof, or entity exercising executive,
legislative,
judicial, regulatory
or administrative functions of or
pertaining to government.
"Governmental
Requirement" shall
mean any applicable
state, federal or
local law, statute, ordinance, code, rule, regulation, order or
decree.
Page 7 of 59
<PAGE>
"Guarantor" means
individually and collectively, each entity set forth on
Schedule 1.1(b), and each of their respective successors and assigns,
and
any
future Subsidiary of Borrower that is not an Excluded
Subsidiary.
"Guaranty" means that
certain Commercial
Guaranty of even date
with this
Agreement executed by
each Guarantor in favor of the Agent for the ratable
benefit of the Lenders, as amended, supplemented and/or restated from
time
to
time and in effect, and any joinder to such Commercial Guaranty
executed
after the date of the Agreement by a Subsidiary of the Borrower
that is not
an
Excluded Subsidiary.
"Hazardous Materials" means (1) hazardous materials, hazardous wastes, and
hazardous substances
including,
but not limited to, those substances,
materials and
wastes listed in the United States Department of
Transportation
Hazardous Materials
Table, 49 C.F.R. ss. 172.101, as
amended, or
listed by the federal Environmental Protection Agency as
hazardous substances
under or pursuant to 40 C.F.R. Part 302, as amended,
or
substances,
materials,
contaminants
or wastes which are or become
regulated under any Environmental Law, including without
limitation, those
substances, materials,
contaminants or wastes
as defined in the following
statutes and
their implementing regulations: the Hazardous Materials
Transportation Act, 49
U.S.C. ss. 1801 et
seq., as amended, the
Resource
Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq., as
amended, the
Comprehensive
Environmental
Response, Compensation
and Liability Act, 42
U.S.C. ss. 9601 et seq., as amended, the Toxic Substances Control Act, 15
U.S.C. ss. 2601 et seq., as amended, the Clean Air Act, 42 U.S.C. ss.
7401
et
seq., as amended, the federal Water Pollution Control Act, 33
U.S.C. ss.
1251
et seq., as amended,
the Occupational Safety and Health Act, 2 U.S.C.
ss.
651 et seq., as amended, the Safe Drinking Water Act, 42 U.S.C.
ss.300f
et
seq., as amended and
the Natural Gas
Pipeline Safety Act of
1968, 49
U.S.C. ss.
1671 et seq., as amended; (2) all substances, materials,
contaminants or wastes
listed in all comparable statutes of the States of
Louisiana and Texas and in comparable local Requirements of Law in such
states; (3) acid gas,
sour water streams or sour water vapor streams
containing hydrogen sulfide or other forms of sulphur, sodium hydrosulfide
and
ammonia; (4)
Hydrocarbons;
(5) natural gas,
synthetic gas, and any
mixtures thereof;
(6) asbestos
and/or any material
which contains 1%
or
more, by weight,
of any hydrated mineral silicate, including but not
limited to chrysotile, amosite, crocidolite, tremolite,
anthophylite and/or
actinolite, whether
friable or
non-friable; (7)
PCB's, or PCB containing
materials or
fluids; (8) radon; (9) naturally occurring radioactive
material, radioactive
substances or waste;
(10) salt water and
other oil
and
gas wastes and (11) any other hazardous or noxious substance,
material,
pollutant, emission, or solid, liquid or gaseous waste.
"Indebtedness" shall mean, at any time, all obligations,
indebtedness, and
liabilities, whether now existing or arising in the future, of the
Borrower
to
the Lenders
or any of them (or in the case of a Rate Management
Transaction, any
affiliate thereof) pursuant to or arising under the
Agreement, including
all Reimbursement
Obligations,
obligations
of the
Borrower under
Rate Management Transactions (including all renewals,
extensions,
modifications, and
substitution thereof and therefor) and all
cancellations, buy
backs, reversals,
terminations, or assignments of Rate
Management Transactions, and the indebtedness of the
Borrower evidenced by
the
Notes, including
principal, interest,
costs, expenses and
reasonable
attorneys' fees and all other fees and charges, together with all fees and
other indebtedness
and costs and
expenses for which the Borrower is
responsible under this Agreement or under any of the Related
Documents.
Page 8 of 59
<PAGE>
"Interest Payment
Date" shall mean (i) for a Base Rate
Loan, the last
Business Day of each month such Loan is outstanding, (ii) for a Eurodollar
Loan, the last Eurodollar Business Day of each Eurodollar
Interest Period
for
such Loan.
"Interest Period"
shall mean any Base Rate Interest Period or Eurodollar
Interest Period.
"Internal Revenue
Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means,
with respect to any Person, (a) the purchase or other
acquisition of any stock or other equity interest in another
Person, (b) a
loan, advance or
extension of credit to, capital contribution to, or
purchase or other
acquisition of any Debt of, another Person, or (c) the
purchase or
other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute the
business or a
division or operating unit of another Person.
"Lenders" shall
mean the lending institutions listed on the signature
page(s) of this Agreement, and their respective successors and
assigns, and
any
other lending institutions that become a signatory party to the
Agreement in the future.
"Letters of Credit"
shall mean the letters
of credit issued by
the Agent
pursuant to Section 2.2.2. hereof.
"Leverage Ratio"
shall mean the ratio produced by the following
calculation:
the sum of all senior
funded Debt by the Lenders or any of
them
to Borrower and/or any Guarantor divided by EBITDA, tested quarterly
on a
rolling four quarters basis.
"Liabilities" shall
mean, as to any Person, all indebtedness, liabilities
and
obligations of such Person, whether matured or unmatured,
liquidated or
unliquidated, primary
or secondary, direct or indirect, absolute, fixed or
contingent, and whether or not required to be considered pursuant
to GAAP.
"Line of Credit"
shall mean the revolving line of credit in the total
maximum aggregate
principal amount of the Commitments extended by the
Lenders pursuant to the Line of Credit Loan Commitment.
"Line of Credit Loan Commitment" shall mean (i) for all Lenders,
$25,000,000.00 or such other amount pursuant to Section 2.4; and
(ii) as to
any
Lender, its
obligation to make
Revolving Loans
hereunder on its
Pro
Rata
Part of the Line of Credit and purchase its Pro Rata Part of
participations in
Letters of Credit issued hereunder by the Agent in
amounts not exceeding an amount equal to its Commitment Percentage times
the
Line of Credit Loan Commitment in existence at the time of
determination.
Page 9 of 59
<PAGE>
"Loans" shall mean, collectively, all Revolving Loans.
"Loan Documents" shall mean this Agreement, the Notes, any other documents
and
instruments evidencing
any portion of the Indebtedness, the Guaranty,
the
Collateral Documents, and any other instruments and documents,
whether
now
or hereafter existing, executed in connection with the
Indebtedness.
"Material Adverse
Effect" shall mean an event which causes a material
adverse effect on the business, assets, operations or financial
condition
of
the Borrower and its Subsidiaries, taken as a whole.
"Maximum Rate" shall mean, at any particular time in question,
the maximum
non-usurious rate of interest which under applicable law may then be
charged on the
Indebtedness or any other obligations hereunder. If such
Maximum Rate
changes after the date hereof, the Maximum Rate shall be
automatically increased or decreased, as the case may be, without
notice to
Borrower from time to
time as the effective
date of each
change in such
Maximum Rate.
"Multiemployer Plan"
means at any time a
multiemployer
plan within the
meaning of
Section 4001(a)(3) of ERISA to which any member of
the ERISA
Group is then making or accruing an obligation to make
contributions or has
within the preceding
five plan years made
contributions,
including for
these purposes
any Person
which ceased to be a
member of the ERISA Group
during such five year period.
"Notes" shall mean the Revolving Notes.
"Other Financing" is used herein as defined in Section 15.12.
hereof.
"Payor" is used herein as defined in Section 3.1.6. hereof.
"Permitted
Encumbrances" shall
have the meaning
ascribed to such term in
Section 13.4. hereof.
"Permitted Investments" means (a) direct obligations of, or
obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of
America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of
America), in
each case maturing within one year from the date of
acquisition thereof;
(b) Investments in
commercial paper
maturing within
270
days from the date of acquisition thereof and having, at such date of
acquisition, the
highest credit rating
obtainable from
Standard & Poor's
Ratings Service or from Moody's Investors Service, Inc.; (c)
Investments in
certificates of deposit, banker's acceptances and time deposits
maturing
within one year from the date of acquisition thereof issued or guaranteed
by
or placed with, and money market deposit accounts issued or offered by,
any
domestic office of any
commercial bank organized under the laws of the
United States of America or any State thereof that has a combined
capital
and
surplus and undivided
profits of not less
than $250,000,000.00;
(d)
fully collateralized
repurchase agreements with a term of not more than 30
days
for securities
described in clause
(a) above and entered into with a
financial institution
satisfying
the criteria described in clause (c)
above; and (e) shares of funds registered under the Investment
Company Act
of
1940, as amended, that
have assets of at least $100,000,000 and invest
only
in obligations
described in clauses (a) through (d) above to the
extent that such
shares are rated by Moody's Investors Service, Inc. or
Standard &
Poor's Ratings Service in one of the two highest rating
categories assigned by such agency for shares of such nature.
Page 10 of 59
<PAGE>
"Person" shall mean an
individual or a
corporation,
partnership,
trust,
joint venture,
incorporated or
unincorporated
association,
joint stock
company, government,
or an agency or
political subdivision
thereof, or
other entity of any kind.
"Pledge Agreement"
shall mean that certain Security Agreement by certain
Subsidiaries of the
Borrower in favor of
the Agent, affecting
ownership
interests in certain Excluded Subsidiaries, as the Security Agreement may
be
amended, supplemented
and/or restated from
time to time and in effect,
and
any joinder to such Security Agreement executed by a Subsidiary
of the
Borrower.
"Pro
Rata" or "Pro Rata
Part" shall mean for each Lender, (i) for all
purposes where no Loan is outstanding, such Lender's Commitment
Percentage
for
matters relating to the Line of Credit Loan Commitment and (ii)
otherwise, the
proportion which the portion of the outstanding Loans owed
to
such Lender bears to the aggregate outstanding Loans owed to Lenders
at
the
time in question (calculated separately for each Lender for Loans
under
the
Line of Credit).
"Purchase Money
Indebtedness"
means
Debt incurred to finance the
acquisition,
construction or
improvement of any fixed or capital assets,
including Debt
assumed in
connection
with the acquisition of any such
assets or secured by an Encumbrance on any such assets prior to the
acquisition thereof, and any extension, renewal or replacement of any
such
Debt.
"Rate Management Transaction" means any transaction (including an
agreement
with
respect thereto)
now existing or
hereafter entered into
between the
Borrower and any Lender or affiliate thereof which is (i) an interest
rate
protection agreement, foreign currency exchange agreement or other
interest
or
interest rate hedging
agreement entered into in the ordinary course and
not
for speculative purposes or (ii) a commodity price hedging
agreement or
arrangement entered
into in the ordinary
course and not for
speculative
purposes.
Page 11 of 59
<PAGE>
"Reimbursement
Obligations" shall
mean at any time, the
obligations
of
Borrower in respect of all Letters of Credit then outstanding to reimburse
amounts paid by the
Lenders (or any of
them) in respect of any drawing or
drawings under a Letter of Credit.
"Release" means any release, spill, emission, leak, injection, deposit,
disposal, discharge,
dispersal,
leaching or migration
of any Hazardous
Materials into
the environment or into or out of any real
property of
Borrower, including
the movement of Hazardous Materials through or in the
air,
soil, surface water, groundwater and/or land which could reasonably
be
expected to form the basis of an Environmental Liability against
Borrower.
"Remedial Action" means any action to (i) clean up, remove, treat
or in any
other way address Hazardous Materials in the environment,
(ii) prevent the
Release or threat of Release or minimize the further Release of Hazardous
Materials so they do
not mitigate
or endanger or threaten to endanger
public health or welfare or the environment or (iii) perform
pre-remedial
studies and investigations and post-remedial monitoring and
care.
"Request for
Revolving Loan" shall mean the Borrower's request for a
Revolving Loan.
"Required Lenders"
shall mean (i) if there are two (2) or
fewer Lenders
under this Agreement, then "Required Lenders" shall mean all
Lenders (other
than
Defaulting Lenders who are not entitled to vote); or (ii) if there
are
three (3) or more Lenders under this Agreement, then "Required Lenders"
shall mean
Lenders having more than sixty-six percent (66%) of the
aggregate amount of the Commitments (not held by Defaulting Lenders
who are
not
entitled to vote), or if the Commitments have been terminated or
reduced to zero,
Lenders holding more than 66% of the principal amount of
the
aggregate outstanding Loans and Reimbursement Obligations (not held by
Defaulting Lenders who
are not entitled to vote). Commitments, Revolving
Loans and
Reimbursement
Obligation held by
Defaulting
Lenders shall be
disregarded when
determining the
Required Lenders.
For purposes of
this
definition, a Lender
(other than the Agent with respect to the Swing Line)
shall be deemed to hold a Swing Line interest or a Reimbursement
Obligation
to
the extent such Lender has acquired a participation therein under the
terms of this
Agreement and has not failed to perform its obligations in
respect of such participation.
"Required Payment" is used herein as defined in Section 3.1.6
hereof.
"Revolving Loans"
shall mean all advances under the Line of Credit
(including
advances under the Swing Line) made by the
Lenders under the
Notes to the Borrower in accordance with and subject to the terms of
their
respective Commitments.
"Revolving Notes"
shall mean collectively (i) the promissory notes of even
date
herewith in the maximum aggregate principal amount of the
Commitment
of
each Lender
party hereto and substantially in the form of Exhibit C
attached hereto,
executed by Borrower,
(ii) any promissory
note or notes
that
may be executed
by Borrower in the future that are payable to the
order of a
Lender pursuant to the Agreement, and (iii) any and all
modifications,
renewals, and/or
extension of any of the foregoing
promissory notes.
Page 12 of 59
<PAGE>
"Required Payment" is used herein as defined in Section 3.1.6
hereof.
"Solvent" shall mean,
when used with respect to any Person on a particular
day,
that on such date (i) the fair value of the property of such Person
is
greater than the total amount of liabilities, including without
limitation,
contingent liabilities, of such person, (ii) the present fair
salable value
of
the assets
of such person is not less than the amount that will be
required to pay the probable liability of such Person on its
debts as they
become absolute and matured, (iii) such Person is able to
realize upon its
assets and pay its debts and other liabilities, contingent obligations and
other commitments as
they mature in the ordinary course of business, (iv)
such
Person does not intend to, and does not believe that it will, incur
debts and liabilities beyond such Person's ability to pay as such
debts and
liabilities mature,
and (v) such
Person is not
engaged in business or
a
transaction, and is
not about to engage in business or a transaction, for
which such Person's
property would constitute unreasonably small capital
after giving due
consideration to the prevailing practice in the industry
in
which such person is
engaged. In
computing the amount of contingent
liabilities at any
time, it is
intended that such liabilities will be
computed at
the amount which, in light of all of the facts and
circumstances existing
at such time,
represents
the amount
that can be
reasonably expected to become an actual or matured liability.
"Subsidiaries" shall
mean at any date with
respect to any Person
all the
corporations, limited
liability company, or other business entities of
which such Person at such date, directly or indirectly, owns or controls
more
than 50% of the
outstanding
ownership interest or capital stock
(excluding directors' qualifying shares), and "Subsidiary" means
any one of
the
Subsidiaries.
"Swing Line"
shall mean all Swing Line Loans, up to a total maximum
aggregate principal amount of $2,000,000.00, made to Borrower by the Swing
Line
Lender.
"Swing Line Lender" shall mean Capital One.
"Swing Line Loans" shall have the meaning assigned to such term in
Section
2.3
below.
"Tangible Net Worth"
shall mean the sum of the Borrower's common stock,
preferred stock,
capital surplus and
retained earnings less treasury stock
and
the sum of all intangible assets (including, without limitation, good
will, franchises,
licenses, patents,
trademarks, trade names, copyrights,
service marks and brand names).
"Termination Date" shall mean the earlier to occur of (i) February
20, 2010
or
(ii) the date of termination of the Commitments pursuant to Article XIV
hereof.
Page 13 of 59
<PAGE>
"Total Liabilities"
shall mean the total consolidated liabilities of
Borrower, as determined in accordance with GAAP.
"Total Outstandings"
shall mean as of any date, without duplication, the
sum
of (i) the total principal balance outstanding on the Notes, plus
(ii)
the
total face amount of all outstanding Letters of Credit plus (iii)
the
total of all Reimbursement Obligations.
"Tranche" shall mean a
Eurodollar Loan for a
particular Interest
Period
and/or a Base Rate Loan.
"UCC" shall mean the Uniform Commercial Code-Secured Transactions
(La. R.S.
10:9-101 et seq.) in the State of Louisiana, as amended from time to time,
provided that if by reason of mandatory provisions of law, the
perfection
or
effect of perfection
or non-perfection of the Lender's Encumbrances
against the Collateral
is governed by the
Uniform Commercial
Code as in
effect in a
jurisdiction other
than the State of
Louisiana,
then "UCC"
means the Uniform
Commercial Code as the
same may be amended from time to
time
and in effect in such other jurisdiction.
"Unused Amount" shall
have the meaning
assigned to such a term in Section
6.2
of the Agreement.
Section 1.2.
Accounting Terms. All
accounting terms not specifically
defined herein
shall be construed in accordance with GAAP, and all
financial data
submitted pursuant to
this Agreement shall
be prepared in
accordance with GAAP.
ARTICLE II
LINE OF CREDIT LOAN COMMITMENT
Section 2.1. The Line
of Credit. Subject to
the terms and
conditions of
this Agreement,
each Lender agrees
severally (a) to make
its Pro Rata Part of
Revolving Loans to the Borrower during the period from the date
hereof until the
Termination Date,
by making Revolving Loans under the Line of Credit to
the
Borrower from time to time; provided, however, that at no time shall the
sum of
the aggregate
principal amount of
such Revolving Loans to the Borrower at such
time outstanding exceed the Line of Credit Loan Commitment.
Notwithstanding
the
foregoing, it is
agreed and understood
that each Lender's
obligation to fund
Revolving Loans is
limited to such Lender's Line of Credit Loan Commitment less
its Pro Rata Part of the Total Outstandings.
Section 2.2. Revolving Loans.
Section 2.2.1. Revolving Loans. Subject to the terms and conditions
of this
Agreement, each Lender
severally agrees to make Revolving Loans to the Borrower
from time to time under the Line of Credit. Within the limits set forth
herein,
the Borrower
may borrow
from the Lenders hereunder, repay any and all such
Revolving Loans as
hereinafter provided,
and reborrow
thereunder;
provided,
however, each Revolving Loan, subject to availability, shall be in
an amount not
less than $1,000,000.00. The Borrower's obligation to repay
the Revolving Loans
made by the Lenders shall be evidenced by the Notes. Revolving Loans under the
Line of Credit shall bear interest, at Borrower's option, at the Base
Rate plus
or minus the Base Rate Margin or the Eurodollar Rate plus the
Eurodollar Margin.
The total number of Tranches under the Line of Credit which may
be outstanding
at any time hereunder
shall never
exceed seven (7) Tranches, whether such
Tranches are Base Rate
Loans, Eurodollar Loans, or a combination thereof.
Notwithstanding any
provision in this
Agreement to the
contrary, the
parties
acknowledge and agree
that upon any
breach of Section 2.2.1, the Lenders'
obligation to make
Revolving Loans is
suspended until such
breach is cured to
the reasonable satisfaction of the Required Lenders.
Page 14 of 59
<PAGE>
Section 2.2.2. Letters
of Credit. On the terms and conditions hereinafter
set forth, the Agent
shall from time to time during the period beginning on the
date of this Agreement
and ending on the
Facility A
Termination
Date, upon
request of Borrower,
issue standby letters of credit for the
account of the
Borrower or a Subsidiary for general corporate purposes in such amounts as
the
Borrower may request but not to exceed in the aggregate
face amount at any
time
outstanding the sum of $2,500,000.00 (subject to the additional
limitations on
the amounts thereof
set forth in Section
2.2.3. below), each such letter of
credit shall have an
expiry date no later than the earlier of one (1) year from
the date of issuance
or the Termination Date, whichever occurs first (the
"Letters of
Credit"); provided, however, a Letter of Credit may contain a
provision providing
for the automatic
extension of the expiration date in the
absence of a notice of non-renewal from the Agent but, except as
provided below,
such provision
shall not permit the
extension of the
expiration date of
such
Letter of Credit beyond the Termination Date; and provided, further, that a
Letter of Credit may
have an expiration
date after the Termination Date if
Borrower provides not
later than ninety (90) days prior to the Termination Date
cash collateral
acceptable to Agent for any such Letter of Credit. On each day
during the period while any such Letter of Credit is issued and
outstanding
in
accordance with the provisions of this Agreement, the sum of the face amount of
each such outstanding
Letter of Credit
shall be treated as a
Revolving Loan
under the Line of Credit. The Line of Credit Loan Commitment of each Lender
shall be deemed to be utilized for all purposes hereof in an amount equal to
such Lender's Commitment Percentage of the undrawn face amount of
such Letter of
Credit. Each
Lender agrees that, upon issuance of any Letter of Credit
hereunder, it
shall automatically acquire a participation in the Agent's
liability under
such Letter of Credit in an amount equal to such Lender's
Commitment Percentage
of such liability, and each Lender (other than Agent)
thereby shall
absolutely,
unconditionally and
irrevocably assume, as
primary
obligor and not as surety, and shall be unconditionally obligated to Agent to
pay and discharge when due, its Commitment Percentage of Agent's
liability under
such Letter of Credit,
provided such Letter
of Credit was issued in accordance
with the provisions of this Agreement. Borrower hereby
unconditionally agrees to
pay and reimburse
the Agent for the
amount of each payment under any Letter of
Credit that is in substantial compliance with the provisions of such Letter
of
Credit, without
presentment,
demand, or protest and in accordance
with this
Section 2.2.2. Upon
receipt from any beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Agent shall promptly
notify
the Borrower of the demand and the date upon which such payment is
to be made by
the Agent to such beneficiary in respect of such demand.
Forthwith upon
receipt
of such notice from the Agent, Borrower shall advise the Agent
whether or not it
intends to
borrow under the Line of Credit to finance its obligations to
reimburse the Agent,
and if so, submit a Request for Revolving Loan as provided
in Section 2.2.4. hereof.
Page 15 of 59
<PAGE>
Section 2.2.3.
Procedure for Obtaining Letters of Credit. The amount and
date of issuance,
renewal, extension or reissuance of a Letter of Credit
pursuant to the Section 2.2.2. shall be designated by the
Borrower's
written
request delivered
to the Agent at least
three (3) Business
Days prior to the
date of such issuance,
renewal, extension or
reissuance.
Concurrently with or
promptly following
the delivery of the request for a Letter of Credit,
the
Borrower shall
execute and deliver to
the Agent an
application and
agreement
with respect to the Letter of Credit, said application and agreement to be in
the form customarily
used by the
Agent. The terms of this Agreement shall
control in case of any
conflict between
the terms of this
Agreement and the
Agent's form of application and agreement with respect to Letters
of Credit. The
Agent shall not be obligated to issue, renew, extend or reissue such
Letters of
Credit if (i) the Agent does not approve the requested form of the Letter of
Credit or any of the terms thereof, such approval not to be unreasonably
withheld, (ii) the
amount thereon when
added to the amount of the outstanding
Letters of Credit exceeds $2,500,000.00, or (iii) the amount thereof when
added
to the total
outstanding Revolving
Loans under the Line of Credit would exceed
the Line of Credit Loan Commitment. Borrower agrees to pay the Agent a
fee for
the issuance of each Letter of Credit, which fee shall be due and
payable by the
Borrower to the Agent upon issuance of each Letter of Credit by the
Agent and on
each anniversary
date of such issuance while such Letter of Credit is
outstanding. The said
fee shall be a per annum fee in the amount equal to the
lesser of either (a)
1.5% per annum or (b) the applicable Eurodollar Margin,
times the face amount
of the Letter of Credit for such period (calculated
separately for each Letter of Credit).
Section 2.2.4.
Manner and Notice of
Borrowing Under the Line of Credit.
Requests For
Revolving Loans under the Line of Credit may be made by the
Borrower, in writing
(including facsimile
transmission) to the
Agent and such
requests shall be
fully authorized
by the Borrower if made by any one of
the
persons designated by
the Borrower in writing to the Agent. The form of Request
for Revolving Loan is attached hereto as Exhibit "B", and includes
a designation
by Borrower of the Borrowing Date. The Agent shall have the
right, but not the
obligation, to verify
any telephone requests by calling the person who made the
request at the
telephone number
designated
by the Borrower in
writing to the
Agent. Requests
For Revolving Loans must be received by not
later than 11:00
a.m. (Central Time)
(i) one (1) Business Day prior to the Borrowing Date in the
case of Base Rate Loans, or (ii) three (3) Business
Days prior to any
proposed
Borrowing Date in the case of Eurodollar Loans. Upon receipt of
such Request for
Revolving Loan, the
Agent shall advise each Lender thereof; provided, that if
the Lenders
have received at least one (1) Business Day's notice of such
Revolving Loan
prior to funding
of a Base Rate
Loan, or at least three (3)
Business Days' notice of each Revolving Loan prior to the funding
in the case of
a Eurodollar
Loan, each Lender shall provide the Agent at its office at
313
Carondelet Street,
New Orleans, Louisiana 70130, not later than 1:00 p.m.,
Central Time, on the Borrowing Date, in immediately available funds, its Pro
Rata share of the
requested Revolving Loan, but the aggregate of all such
outstanding fundings
by each Lender shall never exceed such Lender's available
Line of Credit Loan Commitment. Not later than 2:00 p.m.,
Central Time, on
the
Borrowing Date, the Agent shall make available to Borrower the
aggregate amount
of such requested
Revolving Loan in the manner requested in the Request for
Revolving Loan.
The Agent and the
Lenders shall not incur any liability to
Borrower in acting upon any Request for Revolving Loan referred to above which
the Agent and the
Lenders believe
in good faith to have been given by a
duly
authorized officer or other person authorized to borrow on behalf
of Borrower or
for otherwise acting
in good faith under this Section 2.2.4. Each Request for
Revolving Loan
for a Revolving Loan must specify whether such Loan is a
Eurodollar Loan or a
Base Rate Loan. The aggregate outstanding amount of
principal and
interest due by the
Borrower at any given time under the Line of
Credit shall be and constitute the indebtedness of the Borrower to the Lenders
under the Notes made by the Borrower. When each Revolving Loan is made by the
Lenders to the Borrower hereunder, the Borrower shall be deemed to
have renewed
and reissued the Notes for the amount of the Revolving Loan plus
all amounts due
by the Borrower
to the Lenders under the Line of Credit Loan Commitment
immediately prior to such Revolving Loan.
Page 16 of 59
<PAGE>
Section 2.2.5. Use of Proceeds. The Borrower shall use the
proceeds of the
Revolving Loans to finance (i) the repayment in full of its
existing senior debt
to CF Blackburn,
L.L.C., (ii) certain
acquisitions and
capital
expenditures,
(iii) working capital, and (iv) other general corporate
purposes.
Section 2.2.6. Several
Obligations.
The obligations of the
Lenders under
the Line of Credit Loan Commitment are several and not joint. The
failure of any
Lender to make a Revolving Loan required to be made by it
shall not relieve any
other Lender of its
obligation to make its Revolving Loan, and no Lender shall
be responsible for the failure of any other Lender to make the
Revolving Loan to
be made by such other Lender.
Section 2.3.
Swing Line.
Subject to the terms
and conditions
set forth
herein, the Swing Line
Lender shall from time to time until the
Termination
Date, upon the request of the Borrower, and provided that all of the
applicable
conditions precedent
specified in Section 10.2 have been satisfied, make loans
("Swing Line Loans") to the Borrower in an aggregate principal amount not to
exceed at any one time outstanding $2,000,000. Swing Line Loans shall be in
any
amount and
shall, unless otherwise expressly stated in this Agreement,
constitute "Loans"
for all purposes hereunder, except they shall not be
considered a utilization of the Commitment of the Swing Line Lender
or any other
Lender for purposes of calculating commitment fees hereunder. Notwithstanding
the foregoing
sentence, the
aggregate amount of all Loans (including all Swing
Line Loans) and
outstanding Letters of
Credit shall not at any time exceed the
aggregate of the
Commitments. To
request a Swing Line Loan, the Borrower shall
notify the Agent and the Swing Line Lender of such request by
telephone no later
than 11:00 a.m., Lafayette, Louisiana, time, on the date of the proposed
Swing
Line Loan, and shall confirm promptly by hand delivery or
telecopy to the Agent
and the Swing Line Lender a written borrowing request in a form
approved by the
Agent and signed by the Borrower. Each request for a Swing Line Loan
shall be
irrevocable and shall
state specifically that the Loan is to be a Swing
Line
Loan and not a Revolving Loan, the amount of the Swing Line Loan
requested, the
date on which such Swing Line Loan is to be made, which shall be a
Business Day,
and how the proceeds of such Swing Line Loan are to be disbursed.
All Swing Line
Loans shall bear interest at an annual rate equal to Base Rate from
time to time
in effect plus or minus the Base Rate Margin from time to time in effect.
Subject to the terms and conditions of this Agreement, all Swing Line Loans may
be borrowed, prepaid and re-borrowed; provided that any and all such
Swing Line
Loans then outstanding
shall be due and
payable in full on the earliest of (i)
on Tuesday of each week, or on the next Business Day thereafter if Tuesday is
not a Business Day, (ii) on the first date, after the date that such Swing
Line
Loan is made, that a Revolving Loan is made, and (iii) the
Termination Date.
At
any time, but not less
frequently
than weekly,
upon the request of
the Swing
Line Lender,
each Lender other than the Swing Line Lender
shall purchase a
participating interest in any one or more Swing Line Loans in an
amount equal to
the product
of multiplying (x) its Commitment Percentage times (y) the
outstanding balance of such Swing Line Loans. No later than 1:00
p.m. Lafayette,
Louisiana, time on the
date such request is made (or on the next Business Day,
if such request is
made after 11:00 a.m.,
Lafayette, Louisiana,
time), each
Lender will transfer to the Swing Line Lender, in immediately available funds,
the amount of its
participation.
Whenever, at any time after the Swing Line
Lender has received
from any Lender such Lender's participating interest in a
Swing Line Loan, the Swing Line Lender receives any payment on
account thereof,
the Swing Line Lender will distribute to such Lender its
participating
interest
in such amount
(appropriately
adjusted, in the case
of interest payments,
to
reflect the period of time during which such Lender's participating
interest was
outstanding and funded); provided, however, that in the event that
such payment
received by the Swing Line Lender is required to be returned, such Lender will
return to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it. Each Lender's obligation to purchase such
participating
interests shall be
absolute and
unconditional and
shall not be
affected by any circumstances, including, without limitation, (i) any
set-off,
counterclaim, recoupment, defense or other rights which such Lender
or any other
Person may have against the Swing Line Lender or any other Person
for any reason
whatsoever; (ii) the occurrence or existence of a Default or an
Event of Default
or the termination of the Commitments; (iii) any adverse change in
the condition
(financial or otherwise) of the Borrower or any other Person; (iv)
any breach of
this Agreement
by the Borrower or any other Person; or (v) any other
circumstance,
happening or event
whatsoever, whether or
not similar to any of
the foregoing. Each
Swing Line Loan, once so participated, shall cease to be a
Swing Line Loan for
purposes of this
Agreement and shall become a Revolving
Loan.
Page 17 of 59
<PAGE>
Section 2.4. Accordion Option. Subject to the terms and
conditions of this
Agreement, the
Borrower shall have the option to increase
the Line of Credit
Loan Commitment
from $25,000,000.00 to a total maximum aggregate principal
amount of $50,000,000.00 (the "Accordion Option"). The Accordion Option shall
expire and terminate on the Termination Date. To exercise the Accordion
Option,
the Borrower
must send written notice of such exercise to the Agent. Upon
Agent's receipt of
such written notice,
Agent will
endeavor to obtain
signed
loan commitments from financial institutions acceptable to Agent in
increments
of not less than
$5,000,000.00. If such
signed loan
commitments are
procured
(and accepted by
Borrower),
the Agent,
the Borrower, and the Lenders will
execute any necessary
amendment to this Agreement and Borrower will execute the
Revolving Note(s) to evidence the increased Line of Credit.
Notwithstanding
the
foregoing, the
Accordion Option
cannot be exercised (i) at any time that there
is an existing Event
of Default under this
Agreement or (ii) if
such exercise
would cause an Event of Default under this Agreement.
Page 18 of 59
<PAGE>
ARTICLE III
NOTES EVIDENCING THE REVOLVING LOANS
------------------------------------
Section 3.1. Notes.
Section 3.1.1. Form of
Notes. The Revolving Loan shall be evidenced by the
Revolving Notes
in the aggregate face amount of the Line of Credit Loan
Commitment.
Notwithstanding the
face amount of the Notes, the actual principal
amount due from Borrower to the Lenders on account of the Notes,
as of any date
of computation, shall be the sum of Revolving Loans then and
theretofore made on
account thereof, less
all principal payments
actually received by Lenders in
collected funds with respect thereto. Although the Notes are dated of
even date
herewith, interest
in respect
thereof shall be payable only for the period
during which the loans
evidenced thereby are outstanding and, although the
stated amount of the Notes may be higher, the Notes shall be enforceable,
with
respect to Borrower's
obligation to pay the principal amount thereof, only to
the extent of the unpaid principal amount of the Revolving
Loans.
Section 3.1.2.
Issuance of Additional
Notes. From time to
time new Notes
may be issued to other Lenders as such Lenders become parties to
this Agreement.
Upon request from the
Agent, Borrower
shall execute and deliver to Agent
any
such new or additional
Notes. From time to time as new Notes are
issued the
Agent shall require that each Lender exchange their Notes for newly
issued Notes
to reflect the amount of each Lender's Commitment hereunder. The Agent shall,
upon the written
request of Borrower,
cause the Lenders to
return to Borrower
the Notes which have
been replaced
within a reasonable period of time after
Borrower's request.
Under no circumstances
will the issuance of
new Notes, or
the return of the Notes to the Borrower which have been
replaced, constitute a
novation or other discharge of the outstanding indebtedness of Borrower to
the
Lenders under the Line of Credit.
Section 3.1.3. Payment of the Notes. Subject to the requirements of
Article
VIII below,
interest on the unpaid principal balance of the Notes shall be
payable on each Interest Payment Date and on the
Termination Date.
Subject to
the requirements of Article VIII below, the outstanding
principal due under
the
Notes shall be due and payable on the Termination Date.
Section 3.1.4.
Payment to the
Lenders. Each Lender's Pro Rata Part of
payment or prepayment
of the Loans shall be
directed by wire
transfer to such
Lender by the Agent at the address provided to the Agent for such Lender for
payments no later than 2:00 p.m., Lafayette, Louisiana, time on the
Business Day
such payments or
prepayments
are deemed
hereunder to have been received by
Agent; provided, however, in the event that any Lender shall have
failed to make
a Revolving Loan as contemplated under Article II hereof (a
"Defaulting Bank")
and the Agent or another Lender or Lenders shall have made such
Revolving Loan,
payment received by
Agent for the account of such Defaulting Bank(s) shall not
be distributed to such Defaulting Bank(s) until such Revolving Loan
or Revolving
Loans shall have been
repaid in full to the
Lender or Lenders who
funded such
Revolving Loan or Revolving Loans. For the sole purpose of
calculating interest,
any payment or
prepayment
received by the Agent
at any time after 12:00 noon,
Lafayette, Louisiana,
time on a Business Day shall be deemed to have been
received on the next
Business Day. Interest shall cease to accrue on any
principal as of the end of the day preceding the Business Day on
which any such
payment or prepayment is deemed hereunder to have been received by
the Agent. If
the Agent fails to
transfer any principal amount to any Lender as
provided
above, then the Agent
shall promptly direct such principal amount by wire
transfer to such Lender.
Page 19 of 59
<PAGE>
Section 3.1.5.
Sharing of
Payments, Etc. If any Lender shall obtain
any
payment (whether voluntary, involuntary, or otherwise) on
account of the Loans,
(including, without
limitation, any set-off) which is in excess of its Pro Rata
Part of payments on the Loans, as the case may be, obtained by all
Lenders, such
Lender shall purchase
from the other
Lenders such
participation
as shall be
necessary to cause such purchasing Lender to share the excess payment
pro rata
with each of them;
provided that, if all
or any portion of such excess payment
is thereafter
recovered from such
purchasing
Lender, the purchase shall be
rescinded and the
purchase price restored to the extent of the recovery.
Borrower agrees that
any Lender so
purchasing a
participation
from another
Lender pursuant to
this Section may, to
the fullest extent
permitted by law,
exercise all of its
rights of payment
(including
the right of
offset) with
respect to such
participation
as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
Section 3.1.6.
Non-Receipt
of Funds by the Agent
Unless the Agent
shall
have been notified by a Lender or Borrower (the "Payor") prior to the date on
which such Lender is to make payment to the Agent of the proceeds
of a Revolving
Loan to be made by it
hereunder or
Borrower is to make a
payment to the Agent
for the account of one or more of the Lenders, as the case may be (such
payment
being herein called
the "Required
Payment"),
which notice shall be
effective
upon receipt, that the Payor does not intend to make the Required
Payment to the
Agent, the Agent may
assume that the Required Payment has been made and may, in
reliance upon such
assumption
(but shall not be
required to), make the amount
thereof available to
the intended recipient
on such date and, if the Payor has
not in fact made the
Required Payment
to the Agent, the recipient of such
payment shall,
on demand,
pay to the Agent the
amount made
available to it
together with interest
thereon in respect of the period commencing on the date
such amount was made
available by the Agent
until the date the Agent recovers
such amount at the rate applicable to such portion of the
applicable
Revolving
Loan. Any payment due from any Lender to Agent pursuant hereto shall bear
interest at the Federal Funds Rate.
ARTICLE IV
INTEREST RATES
--------------
Section 4.1. Options.
Section 4.1.1. Base Rate Loans. On Base Rate Loans, Borrower agrees to pay
interest monthly
calculated on the
basis of a year
consisting of 365/360 days
with respect to the unpaid principal amount of each Base Rate Loan
from the date
the proceeds thereof
are made available to Borrower until maturity (whether by
acceleration or
otherwise), at a
varying rate per annum equal to the lesser of
(i) the Maximum Rate
and (ii) the Base Rate plus or minus the Base Rate Margin.
Past due principal, to the extent permitted by law, shall bear
interest, payable
upon demand,
at the lesser of (i)
the Maximum Rate and
(ii) the default
rate
specified in the Notes.
Page 20 of 59
<PAGE>
Section 4.1.2.
Eurodollar Loans. On Eurodollar Loans, Borrower agrees to
pay interest
calculated
on the basis of a year consisting of 360 days with
respect to the unpaid principal amount of each Eurodollar Loan from
the date the
proceeds thereof are
made available
to Borrower
until maturity (whether by
acceleration or
otherwise), at a
varying rate per annum equal to the lesser of
(i) the Maximum Rate and (ii) the Eurodollar Rate plus the Eurodollar Margin.
Past due principal, to the extent permitted by law, shall bear
interest, payable
on demand,
at the lesser of (i)
the Maximum
Rate and (ii) the
default rate
specified in the
Notes. Unless otherwise requested by Borrower, upon the
expiration of each Interest Period applicable to Eurodollar Loans,
the Borrower
shall be deemed to have elected to maintain all applicable
Eurodollar
Loans as
Eurodollar Loans with an Interest Period of one (1) month.
Section 4.2. Interest
Rate Determination.
The Agent shall
determine each
interest rate
applicable
to any Base
Rate Loan or Eurodollar Loan and its
determination shall be
conclusive absent manifest error. The Agent shall notify
the Borrower of each interest rate determination within a reasonable time after
each such determination.
Section 4.3. Conversion Option. Borrower may elect from time to
time (i) to
convert all or any part of its Eurodollar Loans to Base Rate Loans
by giving the
Agent irrevocable
notice of such election in writing prior to 11:00 a.m.
(Lafayette, Louisiana
time) on the conversion date and such conversion shall be
made on the requested
conversion date,
provided that any such conversion of
Eurodollar Loan shall
only be made on the last day of the Eurodollar Interest
Period with
respect thereof, and (ii) to convert all or any
part of its Base
Rate Loans to Eurodollar Loans by giving the Agent irrevocable
written notice of
such election three (3) Business Days prior to the proposed
conversion and
such
conversion shall be made on the requested conversion date or, if such
requested
conversion date is not
a Business
Day on the next
succeeding
Business Day;
provided, however,
the conversion amount
shall not be less than $1,000,000.00.
Any such conversion shall not be deemed a prepayment of any Note or
a prepayment
of any of the Loans for purposes of this Agreement.
ARTICLE V
CHANGE OF CIRCUMSTANCES
-----------------------
Section 5.1. Unavailability of Funds or Inadequacy of Pricing. In
the event
that, in connection
with any proposed
Eurodollar Loan,
the Agent reasonably
determines,
which determination
shall, absent manifest error, be final,
conclusive and binding upon all parties, due to changes in circumstances
since
the date hereof,
adequate and fair means do not exist for determining the
Eurodollar Rate or
such rate will not accurately reflect the costs to the
Lenders of funding
Eurodollar Loans for such Eurodollar Interest Period, the
Agent shall give notice of such determination to the Borrower,
whereupon, until
the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to
make, continue or
convert Loans
into Eurodollar Loans shall be suspended, and all loans to
Borrower shall be Base Rate Loans during the period of
suspension.
Page 21 of 59
<PAGE>
Section 5.2. Change in
Laws. If at any time
after the date hereof any new
law or any change in existing laws or in the interpretation by any
governmental
authority, central bank, or comparable agency charged with the
administration or
interpretation
thereof, of any new or
existing laws shall make it unlawful for
the such Lender
to make or
continue to maintain or fund Eurodollar Loans
hereunder, then such
Lender shall promptly
notify Borrower in
writing of such
Lender's obligation to
make, continue or
convert Loans into
Eurodollar Loans
under this Agreement
shall be suspended until it is no longer unlawful for such
Lender to make or
maintain Eurodollar
Loans. Upon receipt of such notice,
Borrower shall
either repay the outstanding Eurodollar Loans owed to the
Lenders, without
penalty, on the last
day of the current Interest Periods (or,
if any Lender may not
lawfully continue to
maintain and fund such
Eurodollar
Loans, immediately),
or Borrower
may convert
such Eurodollar Loans at such
appropriate time to Base Rate Loans.
Section 5.3.
Increased Cost or Reduced Return. (i) If, after the date
hereof, the adoption
of any applicable law, rule, or regulation, or any change
in any applicable law, rule, or regulation, or any change in the
interpretation
or administration
thereof by any
governmental
authority,
central bank, or
comparable agency charged with the interpretation or administration
thereof, or
compliance by any
Lender with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(A)
shall subject such Lender to any tax, duty, or other charge with
respect to any Eurodollar Loans, the Notes, or its
obligation to make
Eurodollar Loans,
or change the basis of taxation of any amounts
payable to such Lender under this Agreement, or the Notes, in respect
of any Eurodollar
Loans (other than franchise taxes and taxes imposed
on the overall net income of such Lender);
(B)
shall impose, modify,
or deem applicable any reserve, special deposit,
assessment, or similar
requirement (other than reserve requirements,
if any, taken into
account in the
determination
of the Eurodollar
Rate) relating to any
extensions of credit or other assets of, or any
deposits with or other
liabilities or
commitments
of, such Lender,
including the Commitment of such Lender hereunder; or
(C)
shall impose on such Lender or on the London interbank market any
other condition
affecting this
Agreement or its Notes or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase in a material
respect the
cost to such Lender of making, converting into, continuing,
or maintaining any
Eurodollar Loans
or to reduce in a material respect any sum received or
receivable by such
Lender under this
Agreement or its Note with respect to any
Eurodollar Loans,
then pursuant to
Section 5.3(v)
Borrower shall pay to
such
Lender such amount or amounts as are reasonably necessary to compensate such
Lender for
such increased cost or reduction. If such Lender requests
compensation by
Borrower under this
Section 5.3.,
Borrower may, by
notice to
such Lender,
suspend the obligation of such Lender to make or continue
Eurodollar Loans, or to convert all or part of the Base Rate Loans
owing to such
Lender to Eurodollar
Loans, until the event or condition
giving rise to
such
request ceases to be in effect; provided that such suspension
shall not affect
the right of such Lender to receive the compensation so
requested.
Page 22 of 59
<PAGE>
(ii) If, after
the date hereof, such Lender shall have
reasonably determined
that the adoption of any applicable law, rule, or
regulation
regarding capital
adequacy or any change therein or in the
interpretation or administration thereof by any governmental
authority, central
bank, or comparable
agency charged with the interpretation or administration
thereof, or any
request or directive regarding capital adequacy (whether or not
having the force of law) of any such governmental authority, central bank, or
comparable agency,
has or would have the
effect of reducing the rate of return
on the capital
of such Lender or any corporation controlling Lender as a
consequence of such Lender's obligations hereunder to a level below that
which
such Lender or such
corporation
could have
achieved but for such adoption,
change, request,
or directive
(taking into
consideration
its policies
with
respect to capital adequacy), then from time to time pursuant to
Section 5.3(v)
Borrower shall pay to
such Lender
such additional amount or amounts as are
reasonably necessary to compensate Lender for such reduction.
(iii) Each Lender shall promptly notify Borrower of any event
of which it has knowledge, occurring after the date hereof,
which will entitle
such Lender to
compensation pursuant
to this Section 5.3. Each Lender will
designate a separate
lending office, if
applicable, if such
designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Lender, be otherwise disadvantageous to
it.
(iv) If any Lender
gives notice to the
Borrower (either by
Lender or through the
Agent) pursuant to
Section 5.3.
hereof, Lender shall
simultaneously give to
the Borrower a
statement signed by an officer of such
Lender setting forth in reasonable detail the basis for, and the
calculation of
such additional cost, reduced payments or capital requirements,
as the case may
be, and the additional amounts required to compensate Lender
therefor.
(v) Within fifteen
(15) days after receipt by the Borrower of
any notice referred to
in Section 5.3., the
Borrower shall pay to
such Lender
such additional
amounts as are
required to compensate such Lender for the
increased cost, reduce
payments or increase
capital requirements identified
therein, as the case may be; provided, that the Borrower shall not be
obligated
to compensate such Lender for any increased costs, reduced payments
or increased
capital requirements
to the extent that
such Lender incurs the same prior to a
date six (6) months before such Lender gives the required
notice.
Page 23 of 59
<PAGE>
Section 5.4. Breakage Costs. Without duplication under any
other provision
hereof, if any
Lender incurs any actual loss, cost, expense or premium
reasonably incurred by reason of the liquidation or re-employment
of deposits or
other funds acquired by such Lender to fund or maintain any
Eurodollar
Loan or
the relending or reinvesting of such deposits or amounts paid or
prepaid to such
Lender as a result of any of the following events other than any
such occurrence
as a result in the change of circumstances described in Sections
5.1. and 5.2.:
(i) any payment,
prepayment or
conversion of a Eurodollar Loan on a
date
other than the last day of its Eurodollar Interest Period (whether by
acceleration, prepayment or otherwise);
(ii) any failure to make a principal payment of a Eurodollar
Loan on
the
due date thereof; or
(iii) any failure
by the Borrower to borrow, continue, prepay or
convert to a
Eurodollar
Loan on the dates
specified in a notice given
pursuant to this Agreement.
then the Borrower
shall within 15 days after demand pay to such Lender such
amount as is reasonably necessary to compensate such
Lender for such loss, cost
or expense.
If such Lender makes such a claim for compensation, it shall
simultaneously furnish
to Borrower a statement setting forth the amount of such
loss, cost or expense
in reasonable detail
(including an
explanation
of the
basis for and the
computation of such
loss, cost or expense)
and the amounts
shown on such statement shall be conclusive and binding absent
manifest error.
Section 5.5. Discretion of Lender as to Manner of Funding.
Notwithstanding
any provisions of this Agreement to the contrary, each Lender shall be entitled
to fund and maintain
its funding of all or any part of its Revolving Loans in
any manner it sees fit, it being understood, however, that for the purposes of
this Agreement all determinations hereunder, except as may
otherwise be provided
in this Article V,
shall be made as if
each Lender
had actually funded and
maintained each
Eurodollar
Loan through the purchase of deposits having a
maturity corresponding
to the last day of the Eurodollar Interest Period
applicable to
such Eurodollar Loan and bearing an interest rate to the
applicable interest rate for such Eurodollar Period.
Section 5.6. Foreign
Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction
in which the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments
hereunder or under any
other
Loan Document shall deliver to the Borrower (with a copy to the Agent),
at the
time or times
prescribed by
applicable
law or reasonably requested by the
Borrower or the Agent,
such properly completed and executed documentation
prescribed by
applicable
law as will permit
such payments to be
made without
withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the Borrower or the Agent, shall deliver such other
documentation
prescribed by
applicable
law or reasonably requested by the Borrower or
the
Agent as will enable the Borrower or the Agent to determine
whether or not
such
Lender is subject to backup withholding or information reporting requirements.
As used in this
Section, the term
"Foreign Lender" means any Lender that is
organized under the laws of a jurisdiction other than that in which
the Borrower
is resident for tax
purposes (it being understood that for purposes of this
definition, the United States of America, each State thereof and
the District of
Columbia shall be deemed to constitute a single jurisdiction).
Page 24 of 59
<PAGE>
ARTICLE VI
FEES
----
Section 6.1. Facility
Fees. The Borrower shall pay to the Agent for the
benefit of the Lenders a facility fee of 0.125% of the Commitment.
The foregoing
facility fee shall be
due and payable on the
date hereof
and, the Borrower
hereby authorizes
the Agent to debit
its account specified on Schedule 6
attached hereto and
maintained with Capital One for collection of the foregoing
facility fee.
Section 6.2. Unused
Fees. The Borrower shall pay to the Agent (for the Pro
Rata benefit of the
Lenders) an unused fee
calculated as follows:
(i) if the
Leverage Ratio
as set forth in the Compliance Certificate most recently
delivered by the Borrower pursuant to Section 12.1(c) is
less than 1.50 to 1.0,
then the unused
fee for such
period set forth in the applicable Compliance
Certificate will be the amount equal to 0.25% times the Unused
Amount; and (ii)
if the Leverage Ratio as set forth in the Compliance Certificate most recently
delivered by the Borrower pursuant to Section 12.1(c) is greater than or
equal
to 1.50 to 1.0, then the unused fee will be the amount equal to
0.375% times the
Unused Amount.
If the Borrower fails to deliver a Compliance Certificate
pursuant to
Section 12.1(c), the unused fee shall equal the percentage
corresponding to item (ii) of this Section 6.2 until the date of
the delivery of
the required
Compliance
Certificate. The
unused portion of the Line of Credit
Commitment shall be
determined
on a daily
basis by subtracting the Total
Outstandings from the Commitments, and by averaging said daily
amounts for such
period set forth in the applicable Compliance Certificate for which the fee
is
to be determined (the "Unused Amount"). The foregoing unused fee to be
paid in
arrears upon
notice from the Agent to the Borrower after the delivery of a
Compliance Certificate delivered by the Borrower pursuant to
Section 12.1(c) and
on the Termination
Date; provided however the first unused fee due
hereunder
shall be due and payable on April 30, 2008 (for the prorated
portion of the fee
for the first quarter of 2008). On the day of such notice to the
Borrower, the
Borrower hereby
authorizes the Agent to debit its account specified on Schedule
6 attached
hereto and maintained with Capital One for collection of the
foregoing unused fee.
Section 6.3. Letter of Credit Fee. The Borrower shall pay to the
Agent (for
the Pro Rata benefit of the Lenders) a fee for each Letter of
Credit as provided
in Sections 2.2.3. of this Agreement. The foregoing fee shall be
due and payable
at least one (1) Business Day prior to the issuance of a
Letter of Credit.
The
Borrower hereby
authorizes the Agent to debit its account specified in Schedule
6 attached hereto and
maintained
with Capital One for
the collection of
said
fee.
Page 25 of 59
<PAGE>
ARTICLE VII
CERTAIN GENERAL PROVISIONS
--------------------------
Section 7.1. Payments.
All payments of principal, interest, fees and any
other amounts due hereunder or under any of the other Related
Documents shall be
made to the Agent at its office in New Orleans, Louisiana at 313 Carondelet
Street, New Orleans,
Louisiana 70130, or at
such other location that the Agent
may from time to time
designate in
writing to the
Borrower, in each case in
immediately available funds.
Section 7.2. No Offset, etc. All payments by the Borrower
hereunder and
under any of the other Related Documents shall be made without setoff and
free
and clear of and
without deduction
for any taxes,
levies, imposts, duties,
charges, fees,
deductions,
withholdings,
compulsory
loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction
or any political subdivision thereof or taxing or other authority
therein unless
the Borrower is compelled by law to make such deduction or
withholding.
If any
such obligation is
imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents,
the Borrower will
pay
to the Agent, on the
date on which such amount is due and payable hereunder or
under such other Related Document, such additional amount in
Dollars as shall be
necessary to enable
the Lender to receive the same net amount which the Lender
would have received on
such due date had no such obligation been imposed upon
the Borrower. The
Borrower will deliver
promptly to the Agent
certificates or
other valid vouchers
for all taxes or other charges deducted from or paid with
respect to payments
made by the
Borrower hereunder or under such other Loan
Documents.
Section 7.3. Rate
Management
Transactions.
The Borrower is
permitted to
enter into
Rate Management Transactions with the Lenders (and/or their
affiliates).
Section 7.4.
Calculation of Fees.
The fees set forth in
Article VI above
will be calculated on the basis of a year consisting of 360
days.
ARTICLE VIII
PREPAYMENTS
-----------
Section 8.1. Voluntary Prepayments. Borrower may at any time and from
time
to time, without premium or penalty, prepay Base Rate Loans.
Borrower may at any
time and from time to time, without penalty or premium subject to
Section 5.4.
hereof, prepay
Eurodollar
Loans outstanding upon at least three
(3) Business
Day's notice to the Agent.
Section 8.2. Mandatory Prepayment Resulting From Overadvances. In
the event
the unpaid principal
amount of the
Revolving Loans ever exceeds the Line of
Credit Loan Commitment, the Borrower unconditionally agrees, within five (5)
days after notice
from Agent of the
occurrence
of such an excess
amount (an
"overadvance") to make a lump sum payment to the Agent in an amount
equal to the
overadvance.
Page 26 of 59
<PAGE>
ARTICLE IX
SECURITY FOR THE INDEBT
