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EXHIBIT 10.41
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT is executed as
of
the 30th day of April, 2004 ("Closing
Date"), by VALLEY NATIONAL GASES, INC., a
West Virginia corporation (the "Company"),
VALLEY NATIONAL GASES INCORPORATED, a
Pennsylvania corporation ("VNGI"), VALLEY
NATIONAL GASES DELAWARE, INC., a
Delaware corporation ("VNGDI"), the Lenders
from time to time party hereto, BANK
ONE, NA, a national banking association
having its main office in Chicago,
Illinois, as Administrative Agent ("Agent")
and Sole Lead Arranger, National
City Bank, as Syndication Agent, and Fifth
Third Bank, as Documentation Agent.
RECITALS
1. The Company, VNGDI, VNGI, the Agent and certain lenders are
parties to a Second Amended and Restated
Credit Agreement, dated as of May 1,
2000 (as the same has been amended,
modified and supplemented prior to the
Closing Date and as in effect immediately
prior to the execution of this
Agreement, the "Prior Agreement").
2. By Loan Assignment and Modification Agreement, dated as of
the
Closing Date (the "Transfer Agreement"),
certain of the lenders parties to the
Prior Agreement have sold, transferred and
assigned to the Lenders specified
interests in and obligations under the
Prior Agreement and the documents
executed in connection therewith, and the
indebtedness, obligations and
liabilities evidenced thereby, arising
therefrom, pursuant to or by virtue
thereof, and their lending commitments
thereunder.
3. The Company, VNGDI and VNGI (referred to herein collectively,
as
the "Credit Parties", and individually as a
"Credit Party") have requested the
Lenders and the Agent to amend, and as so
amended, to restate the Prior
Agreement, subject to and in accordance
with the terms of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the premises, the mutual
covenants and agreements herein, and each
act performed and to be performed
hereunder, the Lenders, the Agent and the
Credit Parties agree to amend, and as
so amended, to restate, the Prior Agreement
as follows:
ARTICLE I.
DEFINITION OF TERMS
Section 1.01. ACCOUNTING TERMS -- DEFINITIONS. All accounting
and
financial terms used in this Agreement are
used with the meanings such terms
would be given in accordance with GAAP
except as may be otherwise specifically
provided in this Agreement. The following
terms have the meanings indicated when
used in this Agreement with the initial
letter capitalized:
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"Acquisition Seller Debt" means, collectively (i) the Existing
Acquisition
Seller
Debt, and (ii) any deferred purchase price of a New Acquisition
payable by
the Company to the Acquisition Sellers or any of them with
respect to that New
Acquisition evidenced by or payable under the terms of
a
promissory note or non-compete agreement or other Debt
instrument.
"Acquisition Sellers" means, collectively (i) the Existing
Acquisition
Sellers,
and (ii) any and all Persons from whom the Company acquires a
New
Acquisition, and when used in the singular form, means any of
the
Acquisition Sellers, as the context so requires.
"Additional EBITDA Amount" means such amount as may be approved by
the
Agent in
its sole discretion of EBITDA of a Related Business Entity
acquired
in a New Acquisition for the period of four (4) calendar
quarters
immediately preceding the New Acquisition Closing Date for such
New
Acquisition or for such other period of four (4) calendar
quarters
preceding
such New Acquisition Closing Date as may be agreed and approved
by the
Agent, provided that, such amount is subject to redetermination
by
the Agent
at its sole discretion to reflect elimination of expenses
(including
salaries, benefits and associated payroll costs for employees
who have
been identified for termination as a result of the New
Acquisition and are to be terminated; rent expenses for leases that
are to
be
terminated within sixty (60) days of closing of the New
Acquisition;
reduction
of cost of goods sold due to lower gas margins from increased
volume
discounts; and any other identifiable, immediate net cost
savings
deemed
applicable by the Agent) of such Related Business Entity by
virtue
of the
acquisition.
"Advance"
means a borrowing hereunder, (i) funded by some or all of the
Lenders on
the same Borrowing Date, or (ii) converted or continued by the
Lenders on
the same date of conversion or continuation, consisting, in
either
case, of the aggregate amount of the several Loans of the same
Type
and, in
the case of Eurodollar Loans, for the same Interest Period. The
term
"Advance" shall include Swing Line Loans unless otherwise
expressly
provided.
"Affiliate" means, with respect to any Person, any officer,
shareholder or
director
of such Person and any Person or group acting in concert in
respect of
the Person in question that, directly or indirectly, controls
or is
controlled by or is under common control with such Person.
"Agent"
means Bank One in its capacity as contractual representative of
the
Lenders pursuant to Article VIII, and not in its individual
capacity
as a
Lender, Swing Line Lender, or issuer of Letters of Credit, and
any
successor
Agent appointed pursuant to Article VIII.
"Aggregate
Commitment" means the aggregate of the Commitments of all of
the
Lenders, as increased or reduced from time to time pursuant to
the
terms of
this Agreement.
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"Aggregate
Outstanding Credit Exposure" means, at any time, the aggregate
of the
Outstanding Credit Exposures of all the Lenders.
"Agreement" means this Third Amended and Restated Credit Agreement,
as
amended,
modified, supplemented and/or restated from time to time and at
any
time.
"Alternate
Base Rate" means, for any day, a rate of interest per annum
equal to
the higher of (i) the Prime Rate for such day and (ii) the sum
of
the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per
annum at
which commitment
fees are accruing on the Unused Revolving Loans
Commitment
at such time as set forth in the Pricing Schedule.
"Applicable L/C Fee Rate" means, at any time, the percentage rate
per
annum at
which letter of credit fees are accruing pursuant to Section
2.03(h) at
such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at
any
time, the
percentage rate per annum which is applicable at such time with
respect to
Advances of such Type as set forth in the Pricing Schedule.
"Approved
Fund" means any Fund that is administered or managed by (a) a
Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate
of
an entity
that administers or manages a Lender.
"Arranger"
means Banc One Capital Markets, Inc., its successors and
assigns.
"Asset
Sale Payment" has the meaning ascribed to such term in Section
2.06
of this
Agreement.
"Authorized Officer" means the President or the Chief Financial
Officer of
the
Company or such other officer whose authority to perform acts to
be
performed
only by an Authorized Officer under the terms of this Agreement
is
evidenced to the Agent by a certified copy of an appropriate
resolution
of the
Board of Directors of the Company.
"Bank One"
means Bank One, NA, a national banking association having its
principal
office in Chicago, Illinois, in its individual capacity, and
its
successors.
"Borrowing
Date" means a date on which an Advance is made hereunder.
"Business
Day" means (i) with respect to any borrowing, payment or rate
selection
of Eurodollar Advances, a day (other than a Saturday or Sunday)
on which
banks generally are open in Chicago and New York City for the
conduct of
substantially all of their commercial lending activities,
interbank
wire transfers can be made on the Fedwire system and dealings
in
United
States dollars are carried on in the London interbank market
and
(ii) for
all other purposes, a day (other than a Saturday or Sunday) on
which
banks generally are open in Chicago for the conduct of
substantially
all of
their
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commercial
lending activities and interbank wire transfers can be made on
the
Fedwire system.
"Capital
Lease" shall mean any lease of property (whether real, personal
or mixed)
which, to the extent required by GAAP, is accounted for as a
capital
lease or a Capital Expenditure on the consolidated balance
sheet
of the
Credit Parties and their respective Subsidiaries.
"Cash
Collateral" means any and all cash (or qualified investment
property
as may be
acceptable to the Required Lenders in their sole discretion)
required
or permitted to be pledged by any Person to the Agent for the
pro
rata
benefit of the Lenders and the Agent under this Agreement as
security
for all or
any part of the Obligations, which shall be held by the Agent
for the
benefit of the Lenders and the Agent, as secured parties, in a
cash or
securities collateral account maintained with the Agent
("Collateral Account") under which the Agent for the benefit of
the
Lenders
and the Agent are granted a pledge, security interest and Lien
in
and to the
Collateral Account, the cash and any and all other investment
property
or other property at any time held in the Collateral Account,
and
all
proceeds and substitutions of any of the foregoing (collectively,
the
"Collateral Account Property"), pursuant to a pledge agreement,
account
control
agreement and such other security and collateral assignment
documents
as may be required by the Required Lenders to attach and
perfect
and
maintain perfection of such security interests and liens in the
Collateral
Account Property, all in form and substance satisfactory in all
respects
to the Required Lenders.
"Change of
Control" means: VNGDI shall cease to own Voting Stock of the
Company in
an aggregate representing 100% of the total aggregate voting
power of
all classes of the Voting Stock of the Company, calculated on a
fully
diluted basis, including Convertible Securities convertible into
or
exchangeable for Voting Stock of the Company; or VNGI shall cease
to own
Voting
Stock of VNGDI in an aggregate representing 100% of the total
aggregate
voting power of all classes of the Voting Stock of VNGDI,
calculated
on a fully diluted basis, including Convertible Securities
convertible into or exchangeable for Voting Stock of VNGDI.
"Closing
Date" has the meaning ascribed to such term in the preamble to
this Agreement.
"Code"
means the Internal Revenue Code of 1986, as amended.
"Collateral" means all present and future assets of each of the
Credit
Parties
and their respective Subsidiaries upon which a Lien is
purported
to be
created by this Credit Agreement, or any other Loan Document
executed
in connection with, pursuant to or by virtue of this Credit
Agreement,
and all proceeds and products of any of the foregoing.
"Commitment" means, with respect to each Lender, its commitment to
make
Revolving
Loans and to participate in Swing Line Loans and Letters of
Credit as
set forth in Article II of this Agreement. The amount of the
initial
Commitment of each Lender is set forth on Schedule 1.01-a
attached
to this
Agreement and made a part hereof for all
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purposes,
as amended from time to time and at any time in accordance with
the terms
of this Agreement.
"Commitment Percentage" means, when used with reference to any
Lender and
any
described aggregate or total amount, an amount equal to the
result
obtained
by multiplying such described aggregate or total amount by the
percentage
set opposite its designation on Schedule 1.01-a under the
heading
and caption "Commitment Percentage", as amended from time to
time
and at any
time in accordance with the terms of this Agreement, or as the
context
requires, shall mean, when used with reference to any Lender,
the
percentage
set opposite its designation on Schedule 1.01-a under the
heading
"Commitment Percentage", as amended from time to time and at
any
time in
accordance with the terms of this Agreement.
"Common
Stock" means, with respect to any corporation, the common stock
of
such
corporation, and any class of capital stock of such corporation
now
or
hereafter authorized having the right to share in distributions
either
of
earnings or assets of such corporation without limit as to amount
or
percentage.
"Company"
has the meaning ascribed to such term in the preamble to this
Agreement.
"Company's
Auditors" means one of the six (6) largest independent
certified
public accounting firms in the U.S.
"Company
Pledge Agreement" has the meaning ascribed to such term in
Section
4.01(f) of this Agreement.
"Company
Security Agreement" means the Amended and Restated Security
Agreement,
dated as of May 1, 2000, executed by the Company in favor of
the Agent
for the benefit of the Lenders and the Agent, as the same has
been and
hereafter may be amended, modified, supplemented, replaced
and/or
restated
from time to time and at any time.
"Consolidated Net Income" means, for any period, the net income of
the
Credit
Parties and their respective Subsidiaries, computed on a
consolidated basis and in accordance with GAAP for such period.
"Conversion/Continuation Notice" is defined in Section 2.05(e).
"Convertible Securities" means evidences of indebtedness, shares of
stock
or other
securities which are convertible into or exchangeable for, with
or without
payment of additional consideration, shares of Common Stock,
either immediately or
upon the arrival of a specified date or the
happening
of a specified event.
"Credit
Enhancement" means, in reference to the prohibited purposes of
Letters of
Credit described in Section 2.03(a) of this Agreement, the
enhancement or support of or security for any credit extended or to
be
extended
by any Person to the Company or any Subsidiary or Affiliate of
the
Company or any other Credit Party, including any Debt of the
Company
for
borrowed money, Capital Lease obligations, and any guarantees,
endorsements and other contingent obligations of the Company or any
other
Credit
Party
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with
respect to indebtedness, liabilities or obligations of any
other
Person;
provided, that, the term "Credit Enhancement" shall not include
Acquisition Seller Debt.
"Credit
Party" and "Credit Parties" have the respective meanings
ascribed
to such
terms in the Recitals to this Agreement.
"Debt"
means, with reference to any Person, all indebtedness,
liabilities
and
obligations, contingent or otherwise, which in accordance with
GAAP
should be
classified upon such Person's balance sheet as liabilities, but
in any event
including (without duplication) liabilities secured by any
lien on
property owned or acquired by such Person (whether or not the
liability
secured thereby shall have been assumed and whether or not such
Person is
personally liable for the payment thereof), obligations under
leases
which have been (or which in accordance with GAAP should be)
capitalized for financial reporting purposes, and all
guarantees,
endorsements and other contingent obligations of such Person with
respect
to
indebtedness, liabilities or obligations of others.
"Draft"
means a drawing or other demand for payment under a Letter of
Credit.
"EBITDA"
means, with respect to the Credit Parties and their respective
Subsidiaries for
any period, Consolidated Net Income for such period,
plus,
without duplication and to the extent deducted in determining
Consolidated Net Income, the sum, for such period, of (i)
interest
expense,
(ii) income tax expense, (iii) depreciation, (iv) amortization
expense
(all determined in accordance with GAAP), and (v) for the
calendar
quarter
ending June 30, 2003, and any period which includes such
calendar
quarter,
extraordinary charges not in excess of $3,417,000.00 identified
on
Schedule 1.01-b as taken during the calendar quarter ending June,
2003.
For purposes of determining EBITDA for the Credit Parties and
their
respective
Subsidiaries on a pro forma basis to determine the effect of a
New
Acquisition on compliance with the covenants in Section 5.01(g)
of
this
Agreement, to determine whether the Qualification Condition to
any
New
Acquisition has been satisfied, and to determine the Applicable
Fee
Rate,
Applicable L/C Fee Rate, and the Applicable Margin, (i) "EBITDA"
for
any period
of four fiscal quarters of the Company that ends on any New
Acquisition Closing Date will be deemed to include the Additional
EBITDA
Amount
calculated with respect to the Related Business Entity acquired
(or
assumed to
be acquired) on such New Acquisition Closing Date; and (ii)
EBITDA for
any period of four fiscal quarters of the Company that ends
within one
year after any New Acquisition Closing Date will be deemed to
include an
amount equal to (A) the Additional EBITDA Amount calculated
with
respect to the Related Business Entity acquired (or assumed to
be
acquired)
on such New Acquisition Closing Date, minus (B) 1/12 of such
Additional
EBITDA Amount for each full calendar month that has elapsed
between
such New Acquisition Closing Date and the end of such period,
minus (C)
1/360 of such Additional EBITDA Amount for each day of any
partial
calendar month that has elapsed between such New Acquisition
Closing
Date and the end of such period.
"EBITDAR"
means, with respect to the Credit Parties and their respective
Subsidiaries for any period, the EBITDA for such period, plus the
Rent
Expense
for such period.
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"Environmental Laws" means all federal, state and local laws
and
implementing regulations, now or hereafter effective during the
term of
this
Agreement, relating to pollution or protection of the
environment,
including
laws or regulations relating to or permitting emissions,
discharges, releases or threatened releases of pollutants,
contaminants,
chemicals,
or industrial, toxic or hazardous substances or wastes into the
environment (including without limitation ambient air, surface
water,
ground
water, or land), or to the manufacture, processing,
distribution,
use,
treatment, storage, disposal, transport, or handling of
pollutants,
contaminants, chemicals, industrial wastes, or hazardous
substances. Such
laws shall
include, but not be limited to: (a) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended,
42
U.S.C.
Section 9601 et seq.; (b) the Resource Conservation and
Recovery
Act, as
amended, 42 U.S.C. Section 6901 et seq., including the statutes
regulating
underground storage tanks, 42 U.S.C. 6991-6991h; (c) the Clean
Air Act,
as amended, 42 U.S.C. 7401 et seq.; and (d) the Federal Water
Pollution
Control Act, as amended, 33 U.S.C. Section 1251 et seq.,
including
the statute regulating the National Pollutant Discharge
Elimination System, 33 U.S.C. Section 1342.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
"Existing
Acquisition Sellers" means, collectively, the Persons
identified
as sellers
on Schedule 3.01(m) attached hereto.
"Existing
Acquisition Seller Debt" means, collectively, the Debt owed by
the
Company to the Existing Acquisition Sellers, respectively,
identified
on
Schedule 3.01(m) attached hereto.
"Eurodollar Advance" means an Advance which, except as otherwise
provided
in Section
2.05(f), bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance
for the
relevant
Interest Period, the applicable British Bankers' Association
LIBOR rate
for deposits in U.S. dollars as reported by any generally
recognized
financial information service as of 11:00 a.m. (London time)
two
Business Days prior to the first day of such Interest Period,
and
having a
maturity equal to such Interest Period, provided that, if no
such
British
Bankers' Association LIBOR rate is available to the Agent, the
applicable
Eurodollar Base Rate for the relevant Interest Period shall
instead be
the rate determined by the Agent to be the rate at which Bank
One or one
of its Affiliate banks offers to place deposits in U.S. dollars
with first
class banks in the interbank market at approximately 11:00 a.m.
(London
time) two Business Days prior to the first day of such Interest
Period, in
the approximate amount of Bank One's relevant Eurodollar Loan
and having
a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided
in
Section
2.05(f), bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for
the
relevant
Interest Period, the sum of (i) the quotient of (a) the
Eurodollar
Base Rate applicable to such
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Interest
Period, divided by (b) one minus the Reserve Requirement
(expressed
as a decimal) applicable to such Interest Period, plus (ii) the
Applicable
Margin.
"Event of
Default" means any of the events described in Section 7.01 of
this
Agreement.
"Federal
Funds Effective Rate" means, for any day, an interest rate per
annum
equal to the weighted average of the rates on overnight Federal
funds
transactions with members of the Federal Reserve System arranged
by
Federal
funds brokers on such day, as published for such day (or, if
such
day is not
a Business Day, for the immediately preceding Business Day) by
the
Federal Reserve Bank of New York, or, if such rate is not so
published
for any
day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such
transactions
received
by the Agent from three Federal funds brokers of recognized
standing
selected by the Agent in its sole discretion.
"Financial
Statements" includes, but is not limited to, balance sheets,
profit and
loss statements, and cash flow statements, prepared in
accordance
with GAAP.
"Fixed
Charge Coverage Ratio" means, with respect to the Credit
Parties
and their
respective Subsidiaries for any period, a ratio of (a) EBITDAR
minus the
sum of (i) the amount of income taxes which were due or paid
during
such period, (ii) the amount of dividends that were paid by VNGI
in
cash during such period; (iii) the
amount of depreciation expense deducted
in
determining the amount of Consolidated Net Income for such
period,
provided
that, for the calendar quarter ending June 30, 2003, and any
period
which includes such calendar quarter, depreciation expenses of
$383,000.00 shall be excluded from the calculation, and (iv)
Stock
Redemption
Expense paid or payable during such period; to (b) the sum of
the
following for the Credit Parties and their respective
Subsidiaries,
computed
on a consolidated basis and determined in accordance with GAAP:
(i) the
amount of interest which was due and payable in cash or was
paid
in cash
during such period, (ii) the amount of scheduled principal
payments of Debt which
were due and payable in cash during such period
(excluding
payments of the Term Loan), and (iii) Rent Expense for such
period.
"Floating
Rate" means, for any day, a rate per annum equal to (i) the
Alternate
Base Rate for such day plus (ii) the Applicable Margin, in each
case
changing when and as the Alternate Base Rate changes.
"Floating
Rate Advance" means an Advance which, except as otherwise
provided
in Section 2.05(f), bears interest at the Floating Rate.
"Floating
Rate Loan" means a Loan which, except as otherwise provided in
Section
2.05(f), bears interest at the Floating Rate.
"Fund"
means any Person (other than a natural person) that is (or will
be)
engaged in
making, purchasing, holding or otherwise investing in
commercial
loans and similar extensions of credit in the ordinary course
of its
business.
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"GAAP"
means generally accepted accounting principles in the United
States
of America
as in effect from time to time, which shall include the
official
interpretations thereof by the Financial Accounting Standards
Board,
consistently applied (from and after the date hereof) and for
the
period as
to which such accounting principles are to apply, provided that
for
purposes of calculations to determine compliance with the covenants
in
Section
5.01(g), "GAAP" shall mean generally accepted accounting
principles
in the United States of America on the Closing Date, including
official
interpretations thereof by the Financial Accounting Standards
Board,
excluding SFAS 141, 142 and 133, consistently applied for the
period
from and after June 28, 2002 and for the period to which such
accounting
principles are to apply. Except as otherwise provided in this
Agreement,
to the extent applicable, all computations and determinations
as to
accounting or financial matters and all Financial Statements to
be
delivered
pursuant to this Agreement shall be made and prepared in
accordance
with GAAP (including principles of consolidation where
appropriate), and, to the extent applicable, all accounting or
financial
terms
shall have the meanings ascribed to such terms by GAAP.
"Government Acts" has the meaning ascribed to such term in Section
2.03(g)
of this
Agreement.
"Guaranties" means, collectively, the Parent Guaranties and the
Subsidiary
Guaranties, and the term "Guaranty" means any of the
Guaranties,
individually.
"Guarantors" means, collectively, VNGDI, VNGI and any Subsidiary of
the
Company
which hereafter unconditionally guaranties the Obligations
pursuant
to Section 4.01(f), and "Guarantor" means any of the
Guarantors,
individually.
"Hazardous
Substance" means any hazardous or toxic substance regulated by
any
Environmental Laws, including but not limited to the
Comprehensive
Environmental Response, Compensation and Liability Act, the
Resource
Conservation and Recovery Act and the Toxic Substance Control Act,
or by
any
federal, state or local governmental agencies having jurisdiction
over
the
control of any such substance including but not limited to the
United
States
Environmental Protection Agency.
"Highest
Lawful Rate" means the maximum rate of interest which may be
charged
the Company by the Lenders under applicable state or federal
usury
law or
regulation or any other law or regulation, however
characterized,
limiting
the rate of interest which may be charged to corporations.
"Initial
Letters of Credit" means the letters of credit issued by Bank
One
on behalf
of the Company pursuant to the Prior Agreement or any previous
version
thereof which remain outstanding on the Closing Date.
"Intercreditor Agreements" means, collectively, intercreditor
and
subordination agreements entered into pursuant to Section
5.02(b)(7), as
the same
may be amended, modified, extended, renewed, supplemented,
replaced
and/or restated from time to time and at any time.
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"Interest
Period" means, with respect to a Eurodollar Advance, a period
of
one, two,
three or six months commencing on a Business Day selected by
the
Company
pursuant to this Agreement. Such Interest Period shall end on
the
day which
corresponds numerically to such date one, two, three or six
months
thereafter, provided, however, that if there is no such
numerically
corresponding day in such next, second, third or sixth succeeding
month,
such
Interest Period shall end on the last Business Day of such
next,
second,
third or sixth succeeding month. If an Interest Period would
otherwise
end on a day which is not a Business Day, such Interest Period
shall end
on the next succeeding Business Day, provided, however, that if
said next
succeeding Business Day falls in a new calendar month, such
Interest
Period shall end on the immediately preceding Business Day.
"Interest
Rate Agreement" means any interest rate hedging agreement,
interest
rate swap agreement, interest rate cap agreement, foreign
currency
hedging agreement or other interest rate or foreign currency
protection
agreement or arrangement designed to protect the Company
against
fluctuations in interest rates or foreign currency values. (The
amount of
the obligation under any Interest Rate Agreement shall be the
amount
determined in respect thereof as of the end of the most
recently
ended
fiscal quarter of such Person, based on the assumption that
such
Interest
Rate Agreement had terminated at the end of such fiscal
quarter,
and in
making such determination, if any agreement relating to such
Interest
Rate Agreement provides for the netting of amounts payable by
and
to such
Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in each
such
case, the
amount of such obligation shall be the net amount so
determined.)
"Lenders"
means the lending institutions listed on the signature pages of
this Agreement
and their respective successors and assigns. Unless
otherwise
specified, the term "Lenders" includes Bank One in its capacity
as Swing
Line Lender.
"Lending
Installation" means, with respect to a Lender or the Agent, the
office,
branch, subsidiary or Affiliate of such Lender listed in the
signature
pages or on a schedule or otherwise selected by such Lender or
Agent
pursuant to Section 2.05(l).
"Letters
of Credit" means all commercial and standby letters of credit
issued by
Bank One pursuant to Section 2.03 of this Agreement, but also
including
the Initial Letters of Credit. "Letter of Credit Exposure"
means, as
of the date such amount is to be determined, the sum of:
(a)
the aggregate
face amounts of all Letters of Credit that have
not expired by their terms or have not been surrendered by the
beneficiary prior to the expiration thereof (including the
face amounts of any Letters of Credit that have expired by
their terms but have not been surrendered by the beneficiary
and as to which the beneficiary asserts a right to present
and/or have honored Drafts); less any portion of such face
amounts that has been exhausted by the payment or acceptance
of Drafts thereunder or otherwise; plus
10
<PAGE>
(b) the total
dollar amount of (1) the amount of all Drafts under
Letters of Credit which have been honored by Bank One or which
Bank One has otherwise been required to pay but with respect
to which Bank One has not yet received reimbursement from the
Company, including without limitation, the principal amounts
of all outstanding Letter of Credit Loans, and (2) the amount
of all Drafts under Letters of Credit which have been
presented to Bank One but not honored by Bank One, which Bank
One (in its sole discretion) determines it may yet honor or be
required to honor or the amount of which it may otherwise be
required to pay.
"Letter of
Credit Loan" has the meaning ascribed to such term in Section
2.03(e) of
this Agreement.
"Lien"
means any mortgage, security interest, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory
or
otherwise)
or other security interest or preferential arrangement of any
kind or
nature whatsoever (including, without limitation, any
conditional
sale or
other title retention agreement, any financing or similar
statement or notice filed
under the Uniform Commercial Code as in effect
in any
jurisdiction, or any other similar recording or notice statute,
and
any lease
having substantially the same effect as the foregoing, but
excluding
any equipment operating leases and any precautionary filings
related
thereto).
"Loans"
means, collectively, the Revolving Loans, the Swing Line Loans
and
Letter of
Credit Loans and, when used in the singular form, means any of
the Loans,
as the context requires.
"Loan
Documents" means, collectively, this Agreement, the Transfer
Agreement,
the Revolving Notes, the Swing Line Note, the Company Security
Agreement,
the Company Pledge Agreement, the Parent Guaranties, the Parent
Pledge
Agreements, the Parent Security Agreements, the Subsidiary
Guaranties, the Subsidiary Security Agreements, any
Intercreditor
Agreements, the Subordination Agreement any and all
Reimbursement
Agreements, and any and all Interest Rate Agreements which have
been made
and at any
time from and after the Closing Date may be made between the
Company
and any of the Lenders, and all other instruments, agreements
and
documents
executed and delivered or to be delivered by any Person
pursuant
to or by
virtue of this Agreement, as each of the foregoing may be
amended,
modified, extended, renewed, supplemented and/or restated from
time to
time and at any time, and when used in the singular form, means
any of the Loan
Documents, as the context requires.
"Maximum
Availability" means $75,000,000.00 or such greater amount as
may
be
established pursuant to Section 2.02(g) of this Agreement. If an
Event
of Default
or an Unmatured Event of Default has occurred and is continuing
and the
Agent shall have notified the Company of the election of the
Required
Lenders to take any action specified in Section 7.02 of this
Agreement,
the Maximum Availability shall be automatically reduced to zero
(0)
dollars without any action on the part of or the giving of any
additional
notice to the Company by the Lenders or the Agent.
11
<PAGE>
"Maximum
Revolver Availability" means, as of any date such amount is to
be
determined, the Maximum Availability minus (i) the Letter of
Credit
Exposure
as of such date, and (ii) the aggregate principal balance of
the
Swing Line
Loans outstanding as of such date.
"New
Acquisition" means the acquisition by the Company from any Person
of
the assets
and goodwill of such Person which comprise a Related Business
Entity, or
of all or substantially all of the stock, partnership interest,
or other
ownership interest of any type whatsoever of such Person in a
Related
Business Entity if such Related Business Entity is merged into
the
Company
with the Company being the surviving entity, in a transaction
or
series of
transactions closed after the Closing Date, provided that (i)
Financial
Statements have been maintained for such Related Business
Entity
for such
periods preceding the acquisition as may be reasonably required
by the
Agent; and (ii) the consummation of such acquisition on a pro
forma
basis will
not cause the occurrence of an Event of Default or an Unmatured
Event of
Default, provided that, for purposes of determining
satisfaction
of the
condition stated in this clause (ii), the Ratio of Total Funded
Debt to EBITDA shall be
calculated on pro forma basis by making New
Acquisition Adjustments giving effect to the proposed acquisition
of such
Related
Business Entity, (the "Qualification Condition"). An
acquisition
which
would otherwise qualify as a "New Acquisition" shall not so
qualify
unless the
Company shall have obtained from the Agent its confirmation
that the
written submissions made to the Agent by the Company
demonstrate
that the
Qualifying Condition is fully met with respect to the proposed
acquisition. To obtain such confirmation from the Agent the Company
shall
submit to
the Agent such historical financial statements and pro forma
calculations of the Additional EBITDA Amount which will be
applicable to
the
proposed acquisition as the Agent may require.
"New
Acquisition Adjustments" has the meaning ascribed to such term in
the
definition
of "Ratio of Total Funded Debt to EBITDA" herein.
"New
Acquisition Closing Date" means the date on which a New
Acquisition
is
consummated.
"Notes"
means, collectively, the Revolving Notes and the Swing Line
Notes,
and when
used in the singular, means any of the Notes, as the context
requires.
"Obligations" means all present and future indebtedness,
obligations and
liabilities, and all renewals and extensions thereof, now or
hereafter
owed to
the Lenders or any of them or the Agent by the Company, whether
arising
under, by virtue of or pursuant to this Agreement, any of the
Notes, any
Reimbursement Agreement, any other Loan Document, or any of the
agreements
contemplated by Section 9.14 of this Agreement, together with
all costs,
expenses and reasonable attorneys' fees (including the
reasonable
allocated costs of staff counsel) incurred by each of the
Lenders
and by the Agent in the enforcement or collection thereof,
whether
such
indebtedness, obligations and liabilities are direct, indirect,
fixed,
contingent, liquidated, unliquidated, joint, several, joint and
several,
now exist or hereafter arise, or were prior to acquisition
thereof by
any Lender owed to some other Person.
12
<PAGE>
"Officer's
Certificate" means a certificate in the form included as a part
of EXHIBIT
C attached hereto signed by the President or Chief Financial
Officer of
the Company, confirming that all of the representations and
warranties
contained in Section 3.01 of this Agreement are true and
correct as
of the date of such certificate except as specified therein and
with the
further exceptions that: (i) the representation contained in
Section
3.01(d) of this Agreement shall be construed so as to refer to
the
latest
Financial Statements which have been furnished to the Lenders as
of
the date
of any such certificate, (ii) the representations contained in
Section
3.01(k) (with respect to Hazardous Substances) will be
construed
so as to
apply not only to the Credit Parties, but also to their
respective
Subsidiaries, whether now owned or hereafter acquired, (iii)
the
representation contained in Section 3.01(l) of this Agreement shall
be
deemed to
be amended to reflect the existence of any Subsidiary hereafter
formed or
acquired by the Credit Parties with the consent of the Required
Lenders,
and (iv) all other representations will be construed to have
been
amended to
conform with any changes of which the Credit Parties shall have
previously
given the Lenders' notice in writing. The Officer's Certificate
shall
further confirm that no Event of Default or Unmatured Event of
Default
shall have occurred and be continuing as of the date of the
Officer's
Certificate or shall describe any such event which shall have
occurred
and be then continuing and the steps being taken by the Credit
Parties to
correct it.
"Outstanding Credit Exposure" means as to any Lender at any time,
the sum
of (i) the
aggregate principal amount of its Revolving Loans outstanding
at such
time, plus (ii) an amount equal to its Commitment Percentage of
the Letter
of Credit Exposure at such time, plus (iii) an amount equal to
its
Commitment Percentage of the aggregate principal amount of Swing
Line
Loans
outstanding at such time.
"Parent
Guaranties" means the Amended and Restated Guaranties dated as
of
May 1,
2000, executed and delivered by each of VNGI and VNGDI in favor
of
the
Lenders, as the same has been or may be amended, modified,
extended,
renewed,
supplemented, replaced or restated from time to time, and
"Parent
Guaranty"
means either of them, as the context requires.
"Parent
Pledge Agreements" means the Amended and Restated Pledge
Agreements
dated as of May 1, 2000, executed by each of VNGI and VNGDI in
favor of
the Agent for the benefit of the Lenders and the Agent, as the
same have
been and hereafter may be amended, modified, supplemented,
replaced
and/or restated from time to time and at any time, and "Parent
Pledge
Agreement" means either of them, as the context requires.
"Parent
Security Agreements" means the Amended and Restated Security
Agreements
dated as of May 1, 2000, executed by each of VNGI and VNGDI in
favor of
the Agent for the benefit of the Lenders and the Agent, as the
same have
been and hereafter may be amended, modified, supplemented,
replaced and/or
restated from time to time and at any time, and "Parent
Security
Agreement" means either of them, as the context requires.
"Participant" has the meaning ascribed to such term in Section
10.02.
"Payment
Date" means the last day of each calendar month.
13
<PAGE>
"Permitted
Asset Sales" means all sales and other dispositions by the
Company
and its Subsidiaries of tangible assets (other than the sale of
inventory,
cylinders and other equipment in the ordinary course of
business
and other than Short-Term Real Estate Sales) permitted by the
terms of
the Loan Documents.
"Person"
shall mean an individual, a corporation, a limited or general
partnership, a limited liability company, a joint venture, a trust
or
unincorporated organization, a joint stock company or other
similar
organization, a government or any political subdivision thereof, a
court,
or any
other legal entity, whether acting in an individual, fiduciary
or
other
capacity.
"Plan"
means an employee pension benefit plan as defined in ERISA.
"Pricing
Schedule" means the Schedule attached hereto identified as
such.
"Prime
Rate" means a rate per annum equal to the prime rate of
interest
announced
from time to time by Bank One or its parent (which is not
necessarily the lowest rate charged to any customer), changing when
and as
said prime
rate changes.
"Purchaser" has the meaning ascribed to such term in Section
10.03.
"Ratio of
Total Funded Debt to EBITDA" shall mean, for any period of four
consecutive fiscal quarters, the ratio of Total Funded Debt of the
Credit
Parties
and their respective Subsidiaries at the close of that period
to
EBITDA of
the Credit Parties and their respective Subsidiaries for that
period,
computed on a consolidated basis and determined in accordance
with
GAAP. For
purposes of determining the Applicable Margin, the Applicable
Fee Rate
and the Applicable L/C Fee Rate, and for purposes of Section
5.01(g)(2)
of this Agreement, the Ratio of Total Funded Debt to EBITDA
shall be
determined on the Closing Date on the basis of the consolidated
Financial
Statements of the Credit Parties and their respective
Subsidiaries provided to the Lenders prior to the Closing Date for
the
preceding
period of four (4) quarters ending December 31, 2003, and
thereafter
shall be redetermined and adjusted from and after the Closing
Date as
provided in the Pricing Schedule, except as provided below.
Notwithstanding anything to the contrary in the Pricing Schedule,
or in
Section
5.01(g)(2), for purposes of determining the Applicable Margin,
the
Applicable
Fee Rate, the Applicable L/C Fee Rate and compliance with
Section
5.01(g)(2) of this Agreement and for purposes of determining
satisfaction of the Qualifying Condition, the Ratio of Total Funded
Debt
to EBITDA
shall be redetermined and adjusted as necessary on each New
Acquisition Closing Date (or proposed New Acquisition Closing Date)
on the
basis of
the consolidated Financial Statements of the Credit Parties and
their
respective Subsidiaries for the most recent period of four (4)
calendar
quarters that precedes the New Acquisition Closing Date
provided
to the
Lenders pursuant to the requirements of Section 5.01(b) of this
Agreement,
but giving effect on a pro forma basis to any Additional EBITDA
Amount, as
provided in the definition of "EBITDA," and to changes in Total
Funded
Debt occurring as a result of the New Acquisition consummated
on
such New
Acquisition Closing Date (a "New Acquisition Adjustment"), with
prospective
14
<PAGE>
effect
until the next adjustment is made pursuant to the Pricing
Schedule,
but no New
Acquisition Adjustment shall be effective as to any Eurodollar
Rate
elected prior to the New Acquisition Date until the expiration of
the
Interest
Period for which such Eurodollar Rate shall have been elected
by
the
Company.
"Real
Estate Leases" shall mean all non-cancellable leases of real
property
or improvements or fixtures thereon, which leases, in
conformity
with GAAP,
are not required to be capitalized.
"Regulatory Change" means at any time after the Closing Date (a)
any
change in
existing, or any introduction or adoption of new, United States
federal,
state or foreign laws, regulations, treaties or directives
(including
Regulation D of the Board of Governors of the Federal Reserve
System),
(b) any change in the interpretation of the foregoing by any
Governmental Authority charged with the administration or
interpretation
thereof,
or (c) any change in the manner in which existing guidelines of
any
federal or state governmental authority are enforced.
"Reimbursement Agreement" has the meaning ascribed to such term in
Section
2.03(a) of
this Agreement.
"Related
Business Entity" means an operating business entity, division
or
unit
engaged in one or more lines of business in which the Company
is
engaged as
of the Closing Date, being the packaging and wholesale
distribution of industrial gas and welding, propane and fire
extinguishment equipment and supplies.
"Remaining
Availability" means, at any time a determination thereof is to
be made,
that amount which results by subtracting from the Maximum
Availability at such time the Aggregate Outstanding Credit Exposure
at
such
time.
"Rent
Expense" means for any fiscal period, the total amount of rents
and
other
charges payable during such period by the Credit Parties and
their
respective
Subsidiaries under all Real Estate Leases to which they are a
lessee,
all as determined on a consolidated basis in accordance with
GAAP.
"Required
Lenders" means Lenders in the aggregate having at least 66.67%
of the
Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66.67% of
the
Aggregate
Outstanding Credit Exposure; provided that, so long as there
are
four (4)
Lenders, the "Required Lenders" shall consist of not fewer than
three
Lenders.
"Reserve
Requirement" means, with respect to an Interest Period, the
maximum
aggregate reserve requirement (including all basic,
supplemental,
marginal,
emergency and other reserves), imposed on Eurocurrency
liabilities under Regulation D of the Board of Governors of the
Federal
Reserve
System as from time to time in effect and any successor thereto
or
other
regulation or official interpretation of said Board of
Governors
relating
to reserve requirements applicable to member banks of the
Federal
Reserve
System.
15
<PAGE>
"Revolving
Loans" has the meaning ascribed to such term in Section 2.02(a)
of this
Agreement.
"Revolving
Loans Maturity Date" means the earlier of (i) the Scheduled
Revolving
Loans Maturity Date, and (ii) that date upon which payment of
any of the
Revolving Loans is accelerated in accordance with Section 7.02
of this
Agreement.
"Revolving
Notes" has the meaning ascribed to such term in Section 2.02(b)
of this
Agreement, and "Revolving Note" means any one of the Revolving
Notes.
"Sale
Value" means, with respect to any asset sold or otherwise
disposed
of as a
Permitted Asset Sale, the higher of: (i) the book value of the
asset on
the books of the Company or its Subsidiary immediately prior to
such sale
or other disposition, and (ii) the Asset Sale Payment received
with
respect to such sale or other disposition.
"Scheduled
Revolving Loans Maturity Date" means April 30, 2009, or such
later date
as may be established pursuant to the terms of Section 2.02(f)
of this
Agreement.
"Securities Commission" means the Securities and Exchange
Commission or
any other
Federal agency from time to time administering the Securities
Act of
1933, as amended.
"Short-Term Real Estate Sale" means any arms-length sale made by
the
Company
while there is no Event of Default or Unmatured Event of
Default
(including
any sale which is part of a sale-leaseback transaction) to a
Person who
is not an Affiliate of the Company or any of the Guarantors, of
real
estate (including improvements thereon) which has been owned by
the
Company
for less than one year, and the term "Short-Term Real Estate
Sales"
means all of such sales, collectively.
"Stock
Redemption Expense" means, with respect to any period, the
total
cost
incurred by VNGI in the purchase and redemption of any of its
capital
stock at
any time during such period, as such cost is determined in
accordance
with GAAP.
"Subordination Agreement" means the Amended and Restated
Subordination
Agreement
dated as of May 1, 2000, executed by the Credit Parties in
favor
of the
Agent and the Lenders, as the same has been and hereafter may
be
amended,
modified, supplemented, replaced and/or restated from time to
time and
at any time.
"Subsidiary" means, with respect to any Person, any
corporation,
partnership, joint venture or other business entity over which such
Person
exercises
control, provided that it shall be conclusively presumed that
such
Person exercises control over any such entity 51% or more of
the
equity
interest in which is owned by such Person, directly or
indirectly.
"Subsidiary Guaranties" means, collectively, the guaranties
executed and
delivered
to the Agent by any Subsidiary of the Company pursuant to the
requirements of Section 4.01(f) of this Agreement, as the same may
be
amended,
modified, extended, renewed, supplemented, replaced and/or
restated
from time to time and at any time, and the term "Subsidiary
Guaranty"
means any of the Subsidiary Guaranties.
16
<PAGE>
"Subsidiary Security Agreements" means, collectively the
security
agreements
executed and delivered to the Agent by any Subsidiary of the
Company
pursuant to the requirements of Section 4.01(f) of this
Agreement,
as the
same may be amended, modified, supplemented, replaced and/or
restated
from time to time and at any time, and the term "Subsidiary
Security
Agreement" means any of the Subsidiary Security Agreements.
"Swing
Line Borrowing Notice" is defined in Section 2.04(d).
"Swing
Line Commitment" means the obligation of the Swing Line Lender
to
make Swing
Line Loans up to a maximum principal amount of $3,000,000.00 at
any one
time outstanding.
"Swing
Line Lender" means Bank One or such other Lender which may
succeed
to its
rights and obligations as Swing Line Lender pursuant to the
terms
of this
Agreement.
"Swing
Line Loan" means a Loan made available to the Company by the
Swing
Line
Lender pursuant to Section 2.04.
"Swing
Line Note" has the meaning ascribed to such term in Section
2.04(a).
"Term Loan" means the Term Loan
extended to the Company pursuant to the
Prior
Agreement.
"Total
Funded Debt" means, with respect to the Credit Parties and
their
respective
Subsidiaries, as of the date any determination thereof is to be
made, all
interest-bearing Debt of the Credit Parties and their
respective
Subsidiaries (including all Acquisition Seller Debt or other
subordinated
interest-bearing Debt), computed on a consolidated basis and
determined in
accordance
with GAAP.
"Transfer
Agreement" has the meaning ascribed to such term in the
Recitals
to this
Agreement.
"Transferee" has the meaning ascribed to such term in Section
10.04.
"Type"
means, with respect to any Advance, its nature as a Eurodollar
Advance or
a Floating Rate Advance.
"Unmatured
Event of Default" means any event specified in Section 7.01 of
this
Agreement, which is not initially an Event of Default, but
which
would, if
uncured, become an Event of Default with the giving of notice
or
the
passage of time or both.
"Unused
Revolving Loans Commitment" has the meaning ascribed to such
term
in Section
2.02(e).
"VNGI" has
the meaning ascribed to such term in the Recitals to this
Agreement.
"VNGDI"
has the meaning ascribed to such term in the Recitals to this
Agreement.
17
<PAGE>
"Voting
Stock" means, in reference to the Company, all classes of
capital
stock of
the Company then outstanding and normally entitled (without
regard to
the occurrence of any contingency) to vote in the election of
directors
of the Company, and means, in reference to VNGDI, all classes
of
capital
stock of VNGDI then outstanding and normally entitled (without
regard to
the occurrence of any contingency) to vote in the election of
directors
of VNGDI.
ARTICLE II.
BORROWING TERMS
Section 2.01. General Statement. Subject to and in accordance
with
the terms of this Agreement, and in
reliance upon the representations,
warranties, covenants and agreements of the
Company and the other Credit Parties
made in this Agreement and the other Loan
Documents, each Lender severally
agrees to make the Loans and issue or risk
participate with respect to the
Letters of Credit as described in this
Article II.
Section 2.02. The Revolving Loans.
(a) The Commitment -- Use of Proceeds. Each of the Lenders
severally
agrees, subject to the terms and conditions
of this Agreement, to make Advances
to the Company on a revolving basis
(collectively, the "Revolving Loans") from
time to time from and after the Closing
Date until the Revolving Loans Maturity
Date, provided that (i) the aggregate
amount of all Revolving Loans of any
Lender outstanding at any time shall not
exceed its Commitment, (ii) the
aggregate principal balance of all of the
Revolving Loans outstanding at any
time shall not exceed the Maximum Revolver
Availability, and the aggregate
principal balance of all Revolving Loans of
each Lender outstanding at any time
shall not exceed such Lender's Commitment
Percentage of the Maximum Revolver
Availability.
The Revolving Loans under this Agreement are a continuation, on
amended terms, of the "Revolving Loan"
extended to the Company under the Prior
Agreement (the "Prior Revolving Loans") and
the Company affirms, acknowledges
and agrees that the aggregate outstanding
principal balance of the Prior
Revolving Loans as of the Closing Date is
$__________________, being the unpaid
principal amount of the Prior Revolving
Loans immediately prior to the execution
of this Agreement. On the Closing Date,
subject to satisfaction of the
conditions in Section 6.01, the Lenders
shall make an Advance in the sum of
$9,750,000.00, the proceeds of which shall
be used to pay in full the Term Loan.
Thereafter, Revolving Loans may be used by
the Company to fund working capital
requirements and for general corporate
purposes.
(b) Borrowing. The obligation of the Company to repay the
Revolving
Loans shall be evidenced by promissory
notes executed by the Company to each of
the Lenders in the form of EXHIBIT A
attached hereto (as the same may be
amended, modified, extended, renewed,
supplemented, replaced and/or restated
from time to time and at any time, the
"Revolving Notes"). So long as no Event
of Default or Unmatured Event of Default
shall have occurred and be continuing
and until the Revolving Loans Maturity
Date, the Company may borrow, repay
(subject to the requirements of Section
2.05(c) of this Agreement) and reborrow
18
<PAGE>
under the Revolving Notes on any Business
Day, provided that Company shall not
be entitled to receive and the Lenders
shall not be obligated to make any
Advance: (i) at any time an Event of
Default or an Unmatured Event of Default
has occurred or is continuing; (ii) if the
amount of such Advance would exceed
the amount of the Remaining Availability as
of the date of such Advance; or
(iii) if after making such Advance the
aggregate principal balance of the
Revolving Loans would exceed the Maximum
Revolver Availability.
(c) Disbursement of Funds. The Company agrees that upon demand
by
any Lender (which demand shall be
accompanied by a statement setting forth the
basis for the calculations of the amount
being claimed) the Company will
indemnify such Lender against any net loss
or expense which such Lender sustains
or incurs, as reasonably determined by such
Lender, as a result of any failure
of the Company to borrow any Advance on the
Borrowing Date specified therefor in
a Borrowing Notice or telephonic
request.
(d) Upfront Fee. On the Closing Date, the Company shall pay to
the
Agent for the account of each Lender a
commitment fee of .1% of the Aggregate
Commitment.
(e) Commitment Fee/Commitment Reduction. In addition to
interest
accruing on the Revolving Loans, the
Company shall pay to the Agent, for the pro
rata accounts of the Lenders, a commitment
fee for each partial or full calendar
quarter from and after the Closing Date
until the Revolving Loans Maturity Date
at a rate equal to the Applicable Fee Rate
per annum on the daily Unused
Revolving Loans Commitment (as hereinafter
defined) during each such quarter. As
used herein, the term "Unused Revolving
Loans Commitment" means, for each day a
determination thereof is to be made, the
positive excess, if any, which results
by subtracting from the Maximum
Availability at the close of such day the
Aggregate Outstanding Credit Exposure at
the close of such day. Commitment fees
for each calendar quarter and for the
period ending on the Revolving Loan
Maturity Date shall be due and payable
within ten (10) days following the
Agent's submission of a statement of the
amount due. Such fees may be debited by
the Agent when due to any demand deposit
account of the Company carried with the
Agent without further authority.
The Company may permanently reduce the Aggregate Commitment in
whole
or in part, ratably among the Lenders, in
integral multiples of $1,000,000, upon
at least one Business Days' written notice
to the Agent, which notice shall
specify the amount of any such reduction,
provided, however, that the amount of
the Aggregate Commitment may not be reduced
below the Aggregate Outstanding
Credit Exposure. All accrued commitment
fees shall be payable on the effective
date of any termination of the obligations
of the Lenders to make Loans
hereunder.
(f) Extension of Scheduled Revolving Loans Maturity Date. Upon
the
written request of the Company made not
earlier than ninety (90) days nor later
than sixty (60) days prior to each
anniversary of the Closing Date, and the
unanimous agreement of the Lenders (which
approval and agreement by each Lender
is at the sole discretion of each such
Lender) extend the Scheduled Revolving
Loans Maturity Date for a period of one
additional year, and upon the unanimous
agreement in writing of the Lenders to any
such one-year extension, the date to
which the Scheduled Revolving Loans
Maturity Date is then extended will become
the "Scheduled Revolving Loans Maturity
Date" for purposes of this Agreement.
19
<PAGE>
(g) Increase of Commitment and Maximum Availability. The
Company
may, at any time, request the Lenders in
writing to increase the total
Commitments of the Lenders, provided that
(i) such increase shall not cause the
aggregate Commitments to exceed One Hundred
Million Dollars ($100,000,000.00),
and (ii) no Event of Default shall have
occurred or be continuing. Any or all of
the Lenders may, but shall not be obligated
to, increase its Commitment by all
or any portion of the additional amount
requested. Immediately upon the
effectiveness of any such increase in the
Commitments, each Lender's Revolving
Loans Commitment Percentage of the total
Commitments for Revolving Loans shall
be automatically adjusted to reflect the
same. In the event the Lenders agree to
increase the Commitments by less than all
of the amount requested, the Company
may seek additional commitments in the
amount of the difference between the
requested increase and the amount of
increase in Commitments agreed to by the
Lenders, from one or more third party
financial institutions provided that such
third party financial institutions are
selected upon prior written notice to
Agent and would meet all qualifications of
a Purchaser, were it at that time to
be a Purchaser, and such third party
financial institutions shall become a party
to this Credit Agreement by an amendment in
form and substance as required by
the Agent.
Section 2.03. Letters of Credit.
(a) Letters of Credit -- General. Bank One agrees, subject to
the
terms and conditions of this Agreement, to
issue upon the application of the
Company and for the account of the Company
commercial and standby letters of
credit for the purpose of supporting
payment of all or any part of the
Acquisition Seller Debt or for any other
general business purpose of the Company
other than Credit Enhancement (each a
"Letter of Credit"), provided that:
(1) The aggregate Letter of Credit Exposure shall not at any
time exceed the lesser of (A) Twenty-Five Million Dollars
($25,000,000) or (B) the Maximum Availability at such time minus
the
aggregate principal balance of all Revolving Loans and Swing
Line
Loans outstanding at such time;
(2) No Letter of Credit shall have an expiry date later than
the earlier of (i) the fifth Business Day prior to the
Scheduled
Revolving Loans Maturity Date, and (ii) one year after its
issuance;
provided that any Letter of Credit with an expiry date one year
after the date of issuance may provide for renewals thereof for
additional one year periods if such renewals do not extend the
expiry date beyond the date that is five Business Days prior to
the
Scheduled Revolving Loans Maturity Date.
(3) The Company shall not request and Bank One shall have no
obligation to issue any Letter of Credit: (i) at any time any
Event
of Default or Unmatured Event Default shall have occurred and
be
continuing; (ii) at any time after the Revolving Loans Maturity
Date; (iii) if, after giving effect to such issuance, the
aggregate
Letter of Credit Exposure would exceed the lesser of (A)
Twenty-Five
Million Dollars ($25,000,000) or (B) the Maximum Availability
at
such time minus the then aggregate principal balance of all
Revolving Loans and Swing Line Loans outstanding at such time;
(iv)
if the face amount of such
20
<PAGE>
Letter of Credit would exceed the then outstanding Remaining
Availability; or (v) for any purpose other than those permitted
hereunder;
(4) Bank One in no event shall be obligated to issue any
Letter of Credit if the issuance of such Letter of Credit on
the
terms requested would be contrary to, or in violation of the
policies of Bank
One or any requirement of applicable law;
(5) The form of the requested Letter of Credit shall be
satisfactory to Bank One in the reasonable exercise of Bank
One's
discretion; and
(6) If
requested by Bank One, Bank One shall have received
from the Company an application and reimbursement agreement for
the
Letter of Credit in form and substance satisfactory to Bank One
in
all respects (as the same may be amended, modified, extended,
renewed, supplemented, replaced and/or restated from time to
time
and at any time, "Reimbursement Agreement"), duly executed by
an
Authorized Officer on behalf of the Company.
(b) Risk Participation. Each Lender (other than Bank One)
hereby
agrees that, immediately upon the issuance
of each Letter of Credit and as of
the Closing Date as to the Initial Letters
of Credit, such Lender shall
purchase, and shall be deemed to have
irrevocably purchased (without the
necessity of the execution or delivery by
Bank One or such Lender of any further
or additional document evidencing such
purchase) a risk participation in such
Letter of Credit and the obligations of
Bank One with respect to Drafts
thereunder (including any Letter of Credit
Loan), in an amount equal to such
Lender's Commitment Percentage.
(c) Letter of Credit Procedures. Whenever the Company desires
the
issuance of a Letter of Credit, if
requested by Bank One, the Company shall
deliver to Bank One not later than 11:30
a.m. (Chicago, Illinois time) at least
three Business Days (or such shorter period
as may be agreed to by Bank One in
any particular instance) in advance of the
proposed date of issuance a
Reimbursement Agreement duly executed by an
Authorized Officer. Each
Reimbursement Agreement shall include a
precise description of the documents and
the verbatim text of any certificate to be
presented by the proposed beneficiary
with, or as a part of any Draft; provided
that Bank One, in its sole judgment,
may require changes in the description of
any such documents and the text of
such certificates; and provided further
that, at the discretion of Bank One,
each Letter of Credit shall provide that
payment against a conforming Draft is
not required to be made thereunder prior to
the close of business on the third
Business Day following presentment of such
Draft.
(d) Draws under Letters of Credit. Upon presentation of a Draft
under any Letter of Credit by the
beneficiary thereof, Bank One shall notify the
Company and the Lenders of the receipt
thereof ("Draft Notice") not later than
one Business Day prior to the date on which
Bank One intends to honor such
Draft. The Draft Notice may be given by
telephone or telecopy. Failure to give
the Draft Notice or to give the Draft
Notice in a timely manner shall not in any
way affect or limit the payment obligation
of the Company or the obligations of
the Lenders hereunder. Upon receipt of the
Draft Notice, the Company shall make
or cause to be made an irrevocable deposit
with Bank One not later than 1:00
p.m., Chicago, Illinois time, one (1)
21
<PAGE>
Business Day prior to the day on which the
Draft is to be honored, in an amount
equal to the full amount which is to be
paid under such Draft, in good and
collected funds (the "Reimbursement
Amount"), specifying that it is depositing
such money for the sole purpose of funding
the payment of such Draft.
In determining whether to honor any Draft, Bank One shall be
responsible only to determine that the
documents and certificates required to be
delivered with such Draft under the
appropriate Letter of Credit have been
delivered and that on their faces they are
in substantial compliance with the
requirements of that Letter of Credit. In
the event of any conflict between the
terms of any Reimbursement Agreement and
the terms of this Agreement, the terms
of this Agreement shall control; and the
terms of a Reimbursement Agreement
shall not be deemed to be in conflict with
the terms of this Agreement solely by
reason of the fact that it addresses one or
more subject matters that are
addressed by this Agreement and contains
provisions that are different from
those set forth in this Agreement.
(e) Reimbursement Obligations of the Company. The Company
hereby
agrees to reimburse Bank One, on demand,
the amount paid by Bank One to settle
its obligations in respect of each Draft
under each Letter of Credit (whether
such amount is paid by virtue of Bank One's
honor of any Draft or otherwise) to
the extent that a Reimbursement Amount is
not available to Bank One for that
purpose, which reimbursement obligation
shall be immediate and automatic,
without the necessity of any further act or
the execution of any additional
document, instrument, or agreement. Any
Reimbursement Amount that is not paid in
full when due shall be deemed to be and
shall constitute a demand loan made to
the Company by Bank One on such due date in
the principal amount of the unpaid
Reimbursement Amount (each such loan being
referred to herein as a "Letter of
Credit Loan", and collectively as "Letter
of Credit Loans"), which Letter of
Credit Loans shall bear interest, until
paid in full, at a per annum rate equal
to the Floating Rate plus Three Percent
(3%) per annum. A demand for payment of
each Reimbursement Amount and Letter of
Credit Loan shall be deemed to have been
made by Bank One on the date of the
corresponding payment by Bank One to settle
its obligations under a Draft. Nothing
herein is intended to preclude the
Company from requesting an Advance to the
extent available under the Revolving
Loans to pay any Reimbursement Amount or
Letter of Credit Loan.
The obligation of the Company to reimburse Bank One in respect
of
drawings made under the Letters of Credit
shall be unconditional and irrevocable
and shall be paid strictly in accordance
with the terms of this Agreement and
the applicable Reimbursement Agreement (if
and to extent the terms of such
Reimbursement Agreement do not conflict
with this Agreement) under all
circumstances, and notwithstanding any of
the following circumstances:
(1) any lack of validity or enforceability of any Letter of
Credit;
(2) the existence of any claim, set-off, defense or other
right which the Company may have at any time against a
beneficiary
or any transferee of any Letter of Credit or (or any Persons
for
whom any such transferee may be acting), or any other Person,
whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any
underlying transaction between the Company and the beneficiary
of
any Letter of Credit);
22
<PAGE>
(3) any draft, demand, certificate or any other document
presented under any 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;
(4) payment by Bank One under any Letter of Credit against
presentation of a demand, draft or certificate or other
document
which does not comply with the terms of such Letter of Credit;
(5) any other circumstance or happening whatsoever which is
similar to any of the foregoing; or
(6) the fact that an Event of Default or Unmatured Event of
Default shall have occurred and be continuing;
provided however, that the Company shall
not be obligated to reimburse Bank One
for any wrongful payment or disbursement
made or to be made by Bank One under
any Letter of Credit as a result of acts or
omissions constituting gross
negligence or willful misconduct on the
part of Bank One. Payment of a Draft
that does not comply with the terms of the
Letter of Credit against which it is
presented shall not in any event be deemed
to be wrongful or an act or omission
constituting gross negligence or willful
misconduct on the part of Bank One if
such payment is made at the specific
written request of the Company in which the
Company waives the non-compliance of the
Draft.
Upon a written request by the Company, Bank One will undertake
to
provide to the Company copies of all
instruments and documents constituting a
Draft with the Draft Notice, and in the
event the Company has any knowledge
(however obtained) of any claim of
non-compliance with the Company's
instructions or with the terms of the
Letter of Credit, or of discrepancies or
other irregularities related solely to the
Draft on the Letter of Credit, the
Company shall immediately notify Bank One
thereof in writing, and the Company
shall be deemed to have waived any such
claim or defense against Bank One
related thereto or arising therefrom unless
such notice is given. The Company
shall be deemed to have knowledge of any
such claim that is apparent on the face
of copies of instruments and documents
constituting a Draft that are provided to
the Company pursuant to the preceding
sentence.
Unless specified to the contrary in the Reimbursement Agreement
for
a Letter of Credit, or any amendment to a
Letter of Credit, the Company agrees
that Bank One and its correspondents may
receive and accept any Draft drawn or
presented under such Letter of Credit or
other document otherwise in order,
issued or purportedly issued by an agent,
executor, trustee in bankruptcy,
receiver or other representative of the
party who is authorized under such
Letter of Credit to issue such Draft or
other document, as complying with the
terms of such Letter of Credit.
(f) Default by Company. In the event the Company fails to
deposit
the Reimbursement Amount with Bank One, or
if for any other reason the
Reimbursement Amount is not available to
settle Bank One's obligations under a
Draft, the Agent shall make a demand on the
Lenders for funding pursuant to this
section. Each Lender (other than Bank One)
shall forthwith (and in any event,
not later than 1:00 p.m., Chicago, Illinois
time, on the day the Agent
23
<PAGE>
has indicated to the Lenders as the day
such Draft is to be honored, or if such
demand is made after 10:00 a.m., Chicago,
Illinois time on the day indicated for
honor of the Draft, then not later than
1:00 p.m., Chicago, Illinois time, on
the first Business Day immediately
following the day such demand is made), make
available to the Agent at its principal
banking offices immediately available
funds in an amount equal to its Commitment
Percentage of the amount of the
Draft, which funds shall be immediately
remitted by the Agent to Bank One to be
used by it to settle its obligations under
such Draft. In addition, if for any
reason the Reimbursement Amount is
recovered in whole or in part from the Agent
or Bank One or a recovery is obtained from
the Agent or Bank One based on such
deposit, then the Agent shall make demand
on each Lender for, and each Lender
shall pay to the Agent (for the account of
Bank One if the recovery is obtained
from it) an amount equal to such Lender's
Commitment Percentage of the amount of
the recovery (provided that Bank One shall
not be required to make any such
payment in regard to an amount recovered
from it). Each payment by a Lender to
the Agent pursuant to the preceding
sentence of the amount of any Reimbursement
Amount recovered shall be deemed to be a
Letter of Credit Loan payable with
interest as provided above. If for any
reason the foregoing payments to the
Agent may not be deemed to be a Letter of
Credit Loan, each payment by a Lender
to the Agent shall be considered to be the
purchase of a participation in Bank
One's or the Agent's rights and claims
arising as a result of such recovery, if
any, in an amount equal to such Lender's
Commitment Percentage thereof.
(g) Indemnity. The Company agrees to protect, indemnify and
save
Bank One and the Lenders harmless from and
against any and all claims, demands,
liabilities, damages, losses, costs,
charges and expenses (including reasonable
attorneys' fees and allocated costs of
internal counsel) which Bank One or any
of the other Lenders may incur or be
subject to as a consequence, direct or
indirect, of (a) the issuance of the
Letters of Credit, other than as a result
of the gross negligence or willful
misconduct of Bank One, as determined by a
court of competent jurisdiction, or (b) the
failure of Bank One to honor a
drawing under any Letter of Credit as a
result of any act or omission, whether
rightful or wrongful, of any present or
future de jure or de facto government or
governmental authority (all such acts or
omissions herein called "Government
Acts").
As between the Company, on the one hand, and Bank One, on the
other,
the Company assumes all risks of the acts
and omissions of, or misuse of the
Letters of Credit by the respective
beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the
foregoing, Bank One shall not be
responsible and shall have no liability (a)
for the form, validity, sufficiency,
accuracy, genuineness or legal effect of
any document submitted by any party in
connection with the application for and
issuance of such Letters of Credit, even
if it should in fact prove to be in any or
all respects invalid, insufficient,
inaccurate, fraudulent or forged; (b) for
the validity or sufficiency of any
instrument transferring or assigning or
purporting to transfer or assign any
such 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; (c) for failure of the beneficiary
of any such Letter of Credit to
comply fully with the terms and conditions
of the agreement pursuant to which
the Letter of Credit was procured and
pursuant to which the beneficiary is
entitled to draw upon such Letter of
Credit; (d) for errors, omissions,
interruptions or delays in transmission or
delivery of any messages, by mail,
cable, telegraph, telex or otherwise,
whether or not they be in cipher; (e) for
errors in interpretation of technical
terms; (f) for any loss or delay in the
transmission or otherwise of any document
required in
24
<PAGE>
order to make a Draft under any such Letter
of Credit or of the proceeds
thereof; (g) for the misapplication by the
beneficiary of any such Letter of
Credit of the proceeds of any Draft under
such Letter of Credit; (h) for any
consequences arising from causes beyond the
control of Bank One, including,
without limitation, any Government Acts;
and (i) for any action taken or omitted
by Bank One under or in connection with the
Letters of Credit, if taken or
omitted in good faith. None of the above
shall affect, impair, or prevent the
vesting of any of Bank Ones' rights or
powers hereunder.
Following the occurrence of an Event of Default or an Unmatured
Event of Default which is continuing, the
Company agrees that any action taken
by Bank One, if taken in good faith, under
or in connection with any of the
Letters of Credit, Reimbursement Agreements
and Drafts, shall be binding on the
Company and shall not subject Bank One to
any resulting liability to the
Company. In furtherance thereof, Bank One
shall have the full right and
authority, following an Event of Default or
Unmatured Event of Default which is
continuing, to (i) clear and resolve any
questions of non-compliance of
documents, (ii) to give any instructions as
to acceptance or rejection of any
documents or goods, and (iii) to grant any
extensions of the maturity of, time
of payment for, or time of presentation of,
any drafts, acceptances, or
documents.
(h) Letter of Credit Fees. The Company shall pay to the Agent,
for
the accounts of the Lenders ratably
according to their respective Commitment
Percentages, (i) with respect to each
standby Letter of Credit, a letter of
credit fee at the Applicable L/C Fee Rate
per annum on the average daily undrawn
stated amount under each such Letter of
Credit, payable in arrears on the last
day of each calendar quarter, and (ii) with
respect to each commercial Letter of
Credit or modification thereof, such fees
as are customarily imposed by Bank One
in connection with the issuance (or
modification, as applicable) of similar
letters of credit at the time such fee is
to be imposed. Each such fee shall be
deemed fully earned and nonrefundable when
due. Upon receipt of each such fee,
the Agent, Bank One shall disburse the fee
to each Revolver Lender, including
Bank One, pro rata in accordance with each
Revolver Lender's Revolving Loans
Commitment Percentage. The Company also
shall pay to Bank One a fronting fee
equal to 0.125% of the amount of each
Letter of Credit issued on or after the
Closing Date and all standard Bank One
transaction fees with respect to any
transactions occurring on account of any
Letter of Credit, including all
standard fees for issuance, amendment,
cancellation, negotiation or transfer of
each Letter of Credit and with respect to
each Draft thereon. Fronting fees and
transaction fees shall be payable upon
completion of the transaction as to which
they are charged. All fees may be debited
by Bank One to any deposit account of
the Company carried with Bank One without
further authority, and in any event,
shall be paid by the Company within ten
(10) days following billing. All
transaction fees and the fronting fees
shall be retained by Bank One.
(i) Initial Letters of Credit. The Initial Letters of Credit
shall
be deemed to be Letters of Credit for all
purposes hereunder.
(j) Cash Collateral. The Company shall on the Revolving Loans
Maturity Date provide the Agent with Cash
Collateral in a deposit or an
investment in United States government
securities with the Agent which is
acceptable to the Agent and which is in the
name of the Company but under the
sole and exclusive dominion and control of
the Agent with respect
25
<PAGE>
to which the Company has no authority to
withdraw from, to draw upon, or
otherwise exercise any authority of any
kind, in an amount equal to the
then-outstanding Letter of Credit Exposure.
The Company hereby grants a security
interest in all of such Cash Collateral to
the Agent, for the benefit of the
Agent and the Lenders, to secure the
Obligations. If there is any Draft or other
liability of the Agent or Bank One under
any Letter of Credit, the Agent shall
apply the Cash Collateral in reimbursement
of any such Draft or other liability,
and otherwise may apply it to any of the
Obligations. The Cash Collateral
provided to the Agent pursuant to this
Section 2.03(j) shall be released to the
Company only upon full payment or
satisfaction of all Obligations, including the
reduction of all Letter of Credit Exposure
to zero. The Company agrees to
execute all agreements, documents and
instruments requested by the Agent to
further evidence the security interest
granted in the Cash Collateral pursuant
to this Section 2.03(j).
Section 2.04. Swing Line Loans.
(a) Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section
6.01, from and including the Closing
Date and prior to the Revolving Loans
Maturity Date, the Swing Line Lender
agrees, on the terms and conditions set
forth in this Agreement, to make Swing
Line Loans to the Company from time to time
in an aggregate principal amount not
to exceed the Swing Line Commitment,
provided that the Aggregate Outstanding
Credit Exposure shall not at any time
exceed the Aggregate Commitment, and
provided further that at no time shall the
Swing Line Lender's Outstanding
Credit Exposure exceed its Commitment at
such time. Subject to the terms of this
Agreement, the Company may borrow, repay
and reborrow Swing Line Loans at any
time prior to the Revolving Loans Maturity
Date. Proceeds of Swing Line Loans
may be used by the Company to fund working
capital requirements and for general
corporate purposes.
(b)
Borrowing. The obligations of the Company to repay the Swing
Line Loans shall be evidenced by a
promissory note executed by the Company to
the Swing Line Lender in the form of
EXHIBIT B attached hereto (as the same may
be amended, modified, extended, renewed,,
supplemented, replaced or restated
from time to time and at any time, the
"Swing Line Note"). The Company shall
deliver to the Agent and the Swing Line
Lender irrevocable notice (a "Swing Line
Borrowing Notice") not later than noon
(Indianapolis time) on the Borrowing Date
of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which
date shall be a Business Day), and (ii) the
aggregate amount of the requested
Swing Line Loan which shall be an amount
not less than $100,000.
(c) Making of Swing Line Loans. Promptly after receipt of a
Swing
Line Borrowing Notice, the Agent shall
notify each Lender by fax, or other
similar form of transmission, of the
requested Swing Line Loan. Not later than
2:00 p.m. (Indianapolis time) on the
applicable Borrowing Date, the Swing Line
Lender shall make available the Swing Line
Loan, in funds immediately available
in Indianapolis, to the Agent at its
address specified pursuant to Section 9.02.
The Agent will promptly make the funds so
received from the Swing Line Lender
available to the Company on the Borrowing
Date at the Agent's aforesaid address.
(d) Repayment of Swing Line Loans. Each Swing Line Loan shall
be
paid in full by the Company on or before
the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In
addition, the Swing Line Lender (i)
may at any time in its sole
26
<PAGE>
discretion with respect to any outstanding
Swing Line Loan, or (ii) shall on the
fifth (5th) Business Day after the
Borrowing Date of any Swing Line Loan,
require each Lender (including the Swing
Line Lender) to make a Revolving Loan
in the amount of such Lender's Commitment
Percentage of such Swing Line Loan
(including, without limitation, any
interest accrued and unpaid thereon), for
the purpose of repaying such Swing Line
Loan. Not later than noon (Chicago time)
on the date of any notice received pursuant
to this Section 2.04(d), each Lender
shall make available its required Revolving
Loan, in funds immediately available
in Indianapolis to the Agent at its address
specified pursuant to Section 9.02
Revolving Loans made pursuant to this
Section 2.04(d) shall initially be
Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or
converted into Eurodollar Loans in the
manner provided in Section 2.05(e) and
subject to the other conditions and
limitations set forth in this Article II.
Unless a Lender shall have notified the
Swing Line Lender, prior to its making
any Swing Line Loan, that any applicable
condition precedent set forth in
Sections 6.01 had not then been satisfied,
such Lender's obligation to make
Revolving Loans pursuant to this Section
2.04(d) to repay Swing Line Loans shall
be unconditional, continuing, irrevocable
and absolute and shall not be affected
by any circumstances, including, without
limitation, (a) any set-off,
counterclaim, recoupment, defense or other
right which such Lender may have
against the Agent, the Swing Line Lender or
any other Person, (b) the occurrence
or continuance of an Event of Default or
Unmatured Event of Default, (c) any
adverse change in the condition (financial
or otherwise) of the Company, or (d)
any other circumstances, happening or event
whatsoever. In the event that any
Lender fails to make payment to the Agent
of any amount due under this Section
2.04(d), the Agent shall be entitled to
receive, retain and apply against such
obligation the principal and interest
otherwise payable to such Lender hereunder
until the Agent receives such payment from
such Lender or such obligation is
otherwise fully satisfied. In addition to
the foregoing, if for any reason any
Lender fails to make payment to the Agent
of any amount due under this Section
2.04(d), such Lender shall be deemed, at
the option of the Agent, to have
unconditionally and irrevocably purchased
from the Swing Line Lender, without
recourse or warranty, an undivided interest
and participation in the applicable
Swing Line Loan in the amount of such
Revolving Loan, and such interest and
participation may be recovered from such
Lender together with interest thereon
at the Federal Funds Effective Rate for
each day during the period commencing on
the date of demand and ending on the date
such amount is received. On the
Revolving Loans Maturity Date, the Company
shall repay in full the outstanding
principal balance of the Swing Line
Loans.
Section 2.05. Provisions Applicable to All the Loans. The
following
provisions are applicable to all the
Loans:
(a) Types of Advances. The Advances may be Floating Rate Advances
or
Eurodollar Advances, or a combination
thereof, selected by the Company in
accordance with Sections 2.05(d) and (e),
or Swing Line Loans selected by the
Company in accordance with Section
2.04.
(b) Minimum Amount of Each Advance. Each Eurodollar Advance shall
be
in the minimum amount of $2,000,000.00 (and
in multiples of $100,000.00 if in
excess thereof), and each Floating Rate
Advance (other than a Swing Line Loan or
an Advance to repay Swing Line Loans) shall
be in the minimum amount of
$1,000,000.00 (and in multiples of
$100,000.00 if in excess thereof), provided,
however, that any Floating Rate Advance may
be in the amount of the Remaining
Availability.
27
<PAGE>
(c) Optional Principal Payments. The Company may from time to
time
pay, without penalty or premium, all
outstanding Floating Rate Advances (other
than Swing Line Loans), or, in a minimum
aggregate amount of $1,000,000, any
portion of the outstanding Floating Rate
Advances (other than Swing Line Loans)
upon notice to the Agent given not later
than 12:00 p.m. (Indianapolis time), on
the date of payment. The Company may at any
time pay, without penalty or
premium, all outstanding Swing Line Loans,
or, in a minimum amount of $100,000
and increments of $50,000 in excess
thereof, any portion of the outstanding
Swing Line Loans, upon notice to the Agent
and the Swing Line Lender given not
later than 12:00 p.m. (Indianapolis time)
on the date of payment. The Company
may from time to time pay, subject to the
payment of any funding indemnification
amounts required by Section 2.11 but
without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum
aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess
thereof, any portion of the outstanding
Eurodollar Advances upon three Business
Days' prior notice to the Agent.
(d) Method of Selecting Types and Interest Periods for New
Advances.
The Company shall select the Type of
Advance and, in the case of each Eurodollar
Advance, the Interest Period applicable
thereto from time to time. The Company
shall give the Agent irrevocable notice (a
"Borrowing Notice") not later than
12:00 p.m. (Indianapolis time) on the
Borrowing Date of each Floating Rate
Advance and three Business Days before the
Borrowing Date for each Eurodollar
Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than noon (Indianapolis time) on
each Borrowing Date, each Lender
shall make available its Revolving Loan or
Revolving Loans in funds immediately
available in Indianapolis to the Agent at
its address specified pursuant to
Section 9.02. The Agent will make the funds
so received from the Lenders
available to the Company at the Agent's
aforesaid address.
(e) Conversion and Continuation of Outstanding Advances.
Floating
Rate Advances (other than Swing Line Loans)
shall continue as Floating Rate
Advances unless and until such Floating
Rate Advances are converted into
Eurodollar Advances pursuant to this
Section 2.05 or are repaid in accordance
with Sections 2.05(c) or 2.06. Each
Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the
then applicable Interest Period
therefor, at which time such Eurodollar
Advance shall be automatically converted
into a Floating Rate Advance unless (x)
such Eurodollar Advance is or was repaid
in accordance with Sections 2.05(c) or 2.06
or (y) the Company shall have given
the Agent a Conversion/Continuation Notice
(as defined below) requesting that,
at the end of such Interest Period, such
Eurodollar Advance continue as a
Eurodollar Advance for the same or another
Interest Period. Subject to the terms
of Section 2.05(b), the Company may elect
from time to
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time to convert all or any part of a
Floating Rate Advance (other than a Swing
Line Loan) into a Eurodollar Advance. The
Company shall give the Agent
irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a
Floating Rate Advance into a Eurodollar
Advance or continuation of a Eurodollar
Advance not later than 12:00 p.m.
(Indianapolis time) at least three Business
Days prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the
Interest Perio
