Exhibit D
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AMENDED AND RESTATED CREDIT AGREEMENT
among
DARLING INTERNATIONAL INC.,
as the Borrower,
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent,
and
the other lenders named herein
May 10, 2002
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TABLE OF CONTENTS
ARTICLE 1 Definitions ............................................ 1
Section 1.1 Definitions ............................................ 1
Section 1.2 Other Definitional Provisions .......................... 12
Section 1.3 Accounting Terms and Determinations .................... 12
Section 1.4 Time of Day ............................................ 12
ARTICLE 2 Revolving Credit Facility .............................. 13
Section 2.1 Revolving Commitments .................................. 13
Section 2.2 Notes .................................................. 13
Section 2.3 Repayment of Revolving Loans ........................... 13
Section 2.4 Use of Proceeds ........................................ 13
Section 2.5 Fees ................................................... 13
(a) Revolving Commitment Fees .............................. 13
(b) Other Fees ............................................. 13
Section 2.6 Reduction or Termination of Revolving Commitments ...... 13
(a) Mandatory Prepayment Reduction ......................... 13
(b) Voluntary Reductions ................................... 13
(c) Effect of Reduction .................................... 14
Section 2.7 Letters of Credit ...................................... 14
(a) Commitment to Issue .................................... 14
(b) Letter of Credit Request Procedure ..................... 14
(c) Letter of Credit Fees .................................. 14
(d) Funding of Drawings .................................... 15
(e) Reimbursements ......................................... 15
(f) Reimbursement Obligations Absolute ..................... 15
(g) Issuer Responsibility .................................. 15
Section 2.8 Swingline Loans ........................................ 16
(a) Swingline Commitment ................................... 16
(b) Swingline Note ......................................... 16
(c) Repayment of Swingline Loans; Funding of Participation . 16
(d) Use of Proceeds ........................................ 17
(e) Reduction or Termination of Swingline Commitment ....... 17
ARTICLE 3 Term Loan .............................................. 17
Section 3.1 Notes .................................................. 17
Section 3.2 Repayment of Term Loans ................................ 17
ARTICLE 4 Interest and Fees ...................................... 17
Section 4.1 Interest Rate .......................................... 17
Section 4.2 Payment Dates .......................................... 18
Section 4.3 Default Interest ....................................... 18
Section 4.4 Conversion of Libor Accounts ........................... 18
Section 4.5 Computations ........................................... 18
ARTICLE 5 Administrative Matters ................................. 18
Section 5.1 Borrowing Procedure .................................... 18
Section 5.2 Minimum Amounts ........................................ 19
Section 5.3 Certain Notices ........................................ 19
Section 5.4 Prepayments ............................................ 19
(a) Voluntary Prepayments .................................. 19
(b) Mandatory Prepayments .................................. 20
(i) Asset Dispositions and Income Tax Refunds ........ 20
(ii) Excess Cash Flow ................................. 21
(iii) Over Advance ..................................... 21
ii
(iv) Control of Cash and Application to Obligations .... 21
(v) Breakfunding Costs ................................ 22
Section 5.5 Method of Payment ...................................... 22
Section 5.6 Pro Rata Treatment; Distribution of Proceeds
of Collateral and Collection on the Guaranty ........... 23
Section 5.7 Sharing of Payments .................................... 24
Section 5.8 Non-Receipt of Funds by the Agent ...................... 24
Section 5.9 Withholding Taxes ...................................... 25
Section 5.10 Withholding Tax Exemption .............................. 25
Section 5.11 Participation Obligations Absolute; Failure to
Fund Participation ..................................... 25
ARTICLE 6 Yield Protection and Illegality ........................ 26
Section 6.1 Additional Costs ....................................... 26
Section 6.2 Illegality ............................................. 27
Section 6.3 Compensation ........................................... 27
Section 6.4 Capital Adequacy ....................................... 27
Section 6.5 Replacement of a Bank .................................. 28
ARTICLE 7 Conditions Precedent ................................... 28
Section 7.1 Effectiveness of Agreement ............................. 28
(a) Closing Documents ...................................... 28
(b) Attorneys' Fees and Expenses ........................... 29
(c) No Material Adverse Effect ............................. 29
(d) Other Conditions ....................................... 29
Section 7.2 Loans and Letters of Credit ............................ 29
ARTICLE 8 Representations and Warranties ......................... 30
Section 8.1 Corporate Existence .................................... 30
Section 8.2 Financial Statements ................................... 30
Section 8.3 Corporate Action; No Breach ............................ 30
Section 8.4 Operation of Business .................................. 30
Section 8.5 Litigation and Judgments ............................... 30
Section 8.6 Rights in Properties; Liens; Nonproductive Assets ...... 31
Section 8.7 Enforceability ......................................... 31
Section 8.8 Approvals .............................................. 31
Section 8.9 Debt ................................................... 31
Section 8.10 Taxes .................................................. 31
Section 8.11 Margin Securities ...................................... 31
Section 8.12 ERISA .................................................. 31
Section 8.13 Disclosure ............................................. 32
Section 8.14 Subsidiaries ........................................... 32
Section 8.15 Agreements ............................................. 32
Section 8.16 Compliance with Laws ................................... 32
Section 8.17 Investment Company Act ................................. 32
Section 8.18 Public Utility Holding Company Act ..................... 32
Section 8.19 Environmental Matters .................................. 32
Section 8.20 Solvency ............................................... 33
ARTICLE 9 Positive Covenants ..................................... 33
Section 9.1 Reporting Requirements ................................. 33
Section 9.2 Maintenance of Existence; Conduct of Business .......... 36
Section 9.3 Maintenance of Properties .............................. 36
Section 9.4 Taxes and Claims ....................................... 36
Section 9.5 Insurance; Casualty and Condemnation Proceeds .......... 36
Section 9.6 Inspection Rights ...................................... 36
Section 9.7 Keeping Books and Records .............................. 36
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Section 9.8 Compliance with Laws; Environmental Laws ............... 36
Section 9.9 Compliance with Agreements ............................. 37
Section 9.10 Further Assurances; Post Closing Items; Exceptions to
Perfection and other Collateral Matters ................ 37
(a) Further Assurance ...................................... 37
(b) Reserved ............................................... 38
(c) Deposit Accounts ....................................... 38
(d) Creation, Perfection and Protection of Liens on
Real Property .......................................... 38
(e) Insignificant Subsidiaries ............................. 39
Section 9.11 ERISA .................................................. 40
Section 9.12 Packers and Stockyards Act Compliance .................. 40
Section 9.13 Payments of Adjusted Existing Accrued Interest ......... 40
ARTICLE 10 Negative Covenants ..................................... 40
Section 10.1 Debt ................................................... 40
Section 10.2 Limitation on Liens and Restrictions on Subsidiaries ... 41
Section 10.3 Mergers, Etc ........................................... 42
Section 10.4 Restricted Junior Payments ............................. 42
Section 10.5 Investments ............................................ 42
Section 10.6 Limitation on Issuance of Capital Stock ................ 43
Section 10.7 Transactions With Affiliates ........................... 43
Section 10.8 Disposition of Assets .................................. 43
Section 10.9 Sale and Leaseback ..................................... 45
Section 10.10 Lines of Business ...................................... 45
Section 10.11 Hedging ................................................ 45
ARTICLE 11 Financial Covenants .................................... 46
Section 11.1 Adjusted EBITDA ........................................ 46
Section 11.2 Debt Coverage .......................................... 46
Section 11.3 Capital Expenditure Limits ............................. 46
ARTICLE 12 Default ................................................ 47
Section 12.1 Events of Default ...................................... 47
Section 12.2 Remedies ............................................... 49
Section 12.3 Cash Collateral ........................................ 50
Section 12.4 Performance by the Agent; .............................. 50
Section 12.5 Set-off ................................................ 50
Section 12.6 Continuing Event of Default ............................ 50
ARTICLE 13 The Agent .............................................. 50
Section 13.1 Appointment, Powers and Immunities ..................... 50
Section 13.2 Rights of the Agent as a Bank .......................... 51
Section 13.3 Defaults ............................................... 51
Section 13.4 Indemnification ........................................ 51
Section 13.5 Independent Credit Decisions ........................... 52
Section 13.6 Several Commitments .................................... 52
Section 13.7 Successor Agent ........................................ 52
Section 13.8 Agent Fee .............................................. 52
Section 13.9 Deposit Accounts held at Agent ......................... 52
Section 13.10 Approved Bank Affiliates Rights ........................ 53
ARTICLE 14 Miscellaneous .......................................... 53
Section 14.1 Expenses ............................................... 53
Section 14.2 Indemnification ........................................ 53
Section 14.3 Limitation of Liability ................................ 54
Section 14.4 No Duty ................................................ 54
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Section 14.5 No Fiduciary Relationship .............................. 54
Section 14.6 Equitable Relief ....................................... 54
Section 14.7 No Waiver; Cumulative Remedies ......................... 54
Section 14.8 Successors and Assigns ................................. 54
Section 14.9 Survival ............................................... 57
Section 14.10 Entire Agreement; Amended and Restatement; Release ..... 57
Section 14.11 Amendments ............................................. 57
Section 14.12 Maximum Interest Rate .................................. 58
Section 14.13 Notices ................................................ 58
Section 14.14 Governing Law .......................................... 58
Section 14.15 Counterparts ........................................... 59
Section 14.16 Severability ........................................... 59
Section 14.17 Headings ............................................... 59
Section 14.18 Non-Application of Chapter 346 of Texas Finance Code ... 59
Section 14.19 Construction ........................................... 59
Section 14.20 Independence of Covenants .............................. 59
Section 14.21 Waiver of Jury Trial ................................... 59
Section 14.22 Confidentiality ........................................ 59
Section 14.23 Waiver of Existing Defaults ............................ 59
Section 14.24 Conflict with Loan Documents ........................... 60
v
INDEX TO EXHIBITS
Exhibit Description of Exhibit
------- ----------------------
"A" Revolving Note
"B" Swingline Note
"C" Term Note
"D" Guaranty
"E" Borrower/Subsidiary Security Agreement
"F" Assignment and Acceptance
"G" Compliance Certificate
INDEX TO SCHEDULES
Schedule Description of Schedule
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1.1(a) Excluded Real Property
8.5 Litigation
8.6 Title Exceptions
8.10 Pending Investigations by Taxing Authorities
8.14 List of Subsidiaries
8.19 Environmental Matters
9.10(a) Vehicle Titles; Abandon Foreign Registrations
10.1 Existing Debt
10.2 Existing Liens
10.5 Existing Investments
10.8 Nonproductive Assets
14.8 Ineligible Assignees
vi
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement"), dated as of
May 10, 2002 is among DARLING INTERNATIONAL INC., a corporation duly organized
and validly existing under the laws of the State of Delaware (the "Borrower"),
each of the banks or other lenders which is or which may from time to time
become a signatory hereto or any successor or assignee thereof (individually, a
"Bank" and, collectively, the "Banks"), and CREDIT LYONNAIS NEW YORK BRANCH,
individually as a Bank and as agent for itself, the other Banks and the other
Secured Parties (in its capacity as agent, together with its successors in such
capacity, the "Agent").
R E C I T A L S:
A. The Borrower, the Agent and the Banks are parties to that certain
Amended and Restated Credit Agreement dated as of January 22, 1999 (as the same
has been amended and otherwise modified, the "Original Agreement").
B. Events of Default occurred under the Original Agreement as described
in that certain Agreement dated as of June 29, 2001, among the Borrower, the
Banks and the Agent (as modified and amended, the "Forbearance Agreement").
Pursuant to the terms and conditions of that certain Recapitalization Agreement
dated as of March 15, 2002, among the Borrower, the Banks and the Agent (as
modified or amended, the "Recapitalization Agreement"), the Borrower and the
Obligated Parties have requested, among other things, that the Banks (i) waive
the Existing Defaults (as defined in the Forbearance Agreement), (ii) exchange a
portion of the obligations and indebtedness owed by the Borrower to the Banks
under the Original Agreement for certain capital stock of the Borrower, and
(iii) amend and restate the Original Agreement with respect to the remaining
obligations and indebtedness of the Borrower to the Banks under the Original
Agreement and add certain new commitments from certain of the Banks and/or other
lenders to provide additional revolving credit to the Borrower.
C. The Banks are willing to so waive the Existing Defaults and
amend and restate the Original Agreement upon the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. As used in this Agreement, the following
terms have the following meanings:
"Acceleration Event" has the meaning specified in subsection
5.4(b)(iv).
"Account" means either a Base Rate Account or a Libor Account.
"Additional Costs" has the meaning specified in Section 6.1.
"Adjusted EBITDA" has the meaning specified in Section 11.1.
"Adjusted Existing Accrued Interest" shall mean an amount calculated as
accrued and unpaid interest from (i) February 1, 2002 until and including April
23, 2002 on $69,000,000 in principal of Loans made under the Original Agreement,
and (ii) from April 24, 2002 until the Closing Date on $61,762,643 in principal
of Loans made under the Original Agreement, in each case calculated as if such
Loans were Base Rate Accounts under this Agreement.
"Adjusted Working Capital" means, for any day a determination thereof
is to be made, the difference of (a) the Borrower's current assets less all cash
and cash equivalents, minus (b) the Borrower's current liabilities plus, to the
extent not otherwise included as current liabilities, the outstanding
principal amount of Revolving Loans and all Letter of Credit Liabilities,
determined on a consolidated basis in conformity with GAAP.
1
"Affiliate" means, as to any Person, any other Person (a) that directly
or indirectly, through one or more intermediaries, controls or is controlled by,
or is under common control with, such Person, (b) that directly or indirectly
beneficially owns or holds five percent (5%) or more of any class of voting
stock of such Person, or (c) five percent (5%) or more of the voting stock of
which is directly or indirectly beneficially owned or held by the Person in
question. The term "control" means the possession, directly or indirectly, of
the power to direct or cause direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Agent" has the meaning set forth in the introductory paragraph of this
Agreement.
"Agreement" means this Amended and Restated Credit Agreement as the
same may be amended, supplemented or otherwise modified from time to time.
"Applicable Lending Office" means for each Bank and each type of
Account, the lending office of such Bank (or of an Affiliate of such Bank)
designated for such Account below its name on the signature pages hereof or such
other office of such Bank (or of an Affiliate of such Bank) as such Bank may
from time to time specify to the Borrower and the Agent as the office by which
its Loans subject to Accounts of such type are to be made and maintained.
"Approved Bank Affiliates" means, with respect to each Bank listed
below and only for so long as such Bank remains a "Bank" hereunder, the Person
or Persons identified below opposite the name of such Bank:
Bank Affiliate
---- ---------
1. ▇▇▇▇▇ Fargo Bank (Texas), National ▇▇▇▇▇ Fargo Bank, National Association
Association Regulas West, LLC
2. Bank One, N.A. NBD Bank
Banc One Leasing Corporation
3. Credit Lyonnais New York Branch Credit Lyonnais, London Branch
"Assignee" has the meaning set forth in subsection 14.8(b).
"Assigning Bank" has the meaning set forth in subsection 14.8(b).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Bank and its Assignee and, if required, accepted by the Agent pursuant
to Section 14.8(b), in substantially the form of Exhibit F.
"Available Cash" has the meaning set forth in subsection 5.4(b)(iv).
"Bank" has the meaning set forth in the introductory paragraph of this
Agreement.
"Bankruptcy Code" has the meaning set forth in subsection 12.1(e).
"Base Rate" means, at any time, the rate of interest per annum then
most recently established by the Agent as its base rate, which rate may not be
the lowest rate of interest charged by the Agent to its borrowers. Each change
in any interest rate provided for herein based upon the Base Rate resulting from
a change in the Base Rate shall take effect without notice to the Borrower at
the time of such change in the Base Rate.
"Base Rate Account" means a portion of a Loan that bears interest at a
rate based upon the Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph of
this Agreement.
2
"Borrower Security Agreement" means the amended and restated security
agreement between the Borrower and the Agent, for the benefit of the Secured
Parties, in substantially the form of Exhibit E, as the same may be amended or
otherwise modified.
"Business Day" means (a) any day excluding Saturday, Sunday, and any
day which either is a legal holiday under the laws of the States of New York or
Texas or is a day on which banking institutions located in either such State are
closed, and (b) with respect to all payments, Conversions, and notices in
connection with Loans subject to Libor Accounts, any day which is a Business Day
described in clause (a) above and which is also a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" means, for any period and any Person, all
expenditures of such Person which are classified as capital expenditures on the
consolidated statement of cash flows of such Person in accordance with GAAP,
including, without limitation, all such expenditures so classified as "recurring
capital expenditures" and all such expenditures associated with Capital Lease
Obligations.
"Capital Lease Obligations" means, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property, which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP. For purposes of this Agreement, the amount of
such Capital Lease Obligations shall be the capitalized amount thereof,
determined in accordance with GAAP.
"Class" when used in reference to any Bank, refers to whether such Bank
has a Revolving Commitment, a Term Commitment or a Swingline Commitment.
"Classified Subsidiary" has the meaning set forth in the definition of
Insignificant Subsidiary.
"Closing Date" means May 10, 2002.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated and rulings issued thereunder.
"Collateral" means the property in which Liens have been granted to the
Agent for the benefit of the Secured Parties pursuant to the Loan Documents (as
the same may have been amended, supplemented or otherwise modified from time to
time) executed in connection with the Original Agreement, the Borrower Security
Agreement, the Subsidiary Security Agreement, any Mortgage, or any other
agreement, document, or instrument executed by the Borrower or a Subsidiary in
accordance with Section 9.10, whether such Liens are now existing or hereafter
arise.
"Commercially Reasonable Efforts" means, with respect to the obligation
to obtain from a third party any of the documentation required by Section 9.10,
that the Borrower or applicable Obligated Party shall have expended, in good
faith and within the time period required by Section 9.10, all reasonable
efforts to obtain the applicable document, or an acceptable substitute, from
such third party.
"Commitments" means, as to each Bank, such Bank's Revolving Commitment,
Term Commitment, and, if such Bank is the Agent, the Swingline Commitment.
"Compliance Certificate" means a certificate in substantially the form
of Exhibit G properly completed and executed by the chief financial officer or
treasurer of the Borrower.
"Concentration Account" means a deposit account established at the
Agent by the Borrower and controlled by the Agent for the benefit of the Secured
Parties in which all funds received through the Lockbox Accounts shall be
deposited.
"Contingent Primary Obligations" means, at any time, all identifiable
and quantifiable contingent and unliquidated obligations, indebtedness, and
liabilities of the Borrower to any Secured Party arising from, pursuant to, or
in connection with the Loan Documents, the SWAP Documents and the Deposit and
Cash Management Services,
3
whether direct, indirect, related, unrelated, joint, several, or joint and
several, including without limitation, the Reimbursement Obligations and the
potential liability of the Borrower under any SWAP Documents.
"Contract Rate" has the meaning specified in subsection 14.12(a).
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 4.4 or Article 6 of a Libor Account into a Base Rate Account
or a Base Rate Account into a Libor Account.
"Credit Lyonnais Accounts" has the meaning set forth in Section 13.9.
"Debt" means as to any Person at any time (without duplication): (a)
all obligations of such Person for borrowed money (it being understood that any
such obligations for borrowed money of the Borrower arising under this Agreement
and the other Loan Documents shall not be modified by the application of
Standard No. 15 of the Financial Accounting Standards Board or any other
accounting rule or convention affecting how such obligations are to be accounted
for on the balance sheet of the Borrower); (b) all obligations of such Person
evidenced by bonds, notes, debentures, or other similar instruments (other than
the Preferred Stock); (c) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable of such
Person arising in the ordinary course of business that are not past due by more
than ninety (90) days); (d) all Capital Lease Obligations of such Person; (e)
all Debt or other obligations of others Guaranteed by such Person; (f) all
obligations secured by a Lien existing on property owned by such Person, whether
or not the obligations secured thereby have been assumed by such Person or are
non-recourse to the credit of such Person; (g) all reimbursement obligations of
such Person (whether contingent or otherwise) in respect of letters of credit,
bankers' acceptances, surety or other bonds, and similar instruments; (h) all
liabilities of such Person in respect of unfunded vested benefits under any
Plan; and (i) all obligations of such Person arising in connection with
noncompete, consulting, and similar agreements which are classified as
liabilities on a balance sheet in accordance with GAAP. In determining the
Dollar amount of Debt of a Person for any purpose of this Agreement, the Dollar
amount of any Debt of the type described in clause (f) which has not been
assumed by such Person and which is non-recourse to the credit of such Person,
shall be equal to the lesser of the amount of the Debt so secured or the fair
market value of the applicable property.
"Default" means an Event of Default or the occurrence of an event or
condition which with notice or lapse of time or both would become an Event of
Default. The compliance with the financial covenants set forth in Sections 11.1
and 11.2 is tested as of the end of a Fiscal Quarter (the "Test Date") for a
trailing period of time specified therein (the "Test Period"). As of any date
after one Test Date but prior to the next Test Date, the financial performance
of the Borrower and the Subsidiaries for the period from the beginning of the
then current Test Period to any date prior to such next Test Date shall not be
an event or condition which with notice or lapse of time or both would become an
Event of Default for purposes of this definition of Default; provided the
foregoing provisions shall not prevent: (i) the characterization of a change in
the financial performance of the Borrower and the Subsidiaries as a "material
adverse change" for purposes of Section 8.2, if in fact such change is material
and adverse within the meaning of Section 8.2; (ii) the characterization of a
change in the financial performance of the Borrower and the Subsidiaries as
having a "Material Adverse Effect" for any purpose of this Agreement, if in fact
such change has or would have a "Material Adverse Effect"; or (iii) the
occurrence of an Event of Default for failure to comply with such financial
covenants on and at any time after such next Test Date as calculated for the
related Test Period.
"Default Rate" means a rate per annum equal to the Base Rate plus four
percent (4.0%).
"Deposit and Cash Management Services" means the deposit and/or cash
management products and services provided by a Secured Party in connection with
the maintenance of the Lockbox Accounts, the Concentration Account or any of the
other deposit or other accounts described on Schedule 3.2 to the Borrower
Security Agreement and the Subsidiary Security Agreement.
"Deposit and Cash Management Services Obligations" means all the
obligations of the Borrower to a Bank or an Approved Bank Affiliate (a) to pay
the fees charged for the Deposit and Cash Management Services and (b) to
reimburse such Bank or Approved Bank Affiliate for any credit extended on
uncollected funds in an amount not to exceed such uncollected funds or the
amount of any item (including checks and automated clearing house credits)
credited to an account but which is subsequently returned unpaid or returned for
any other reason.
4
"Designated Information" has the meaning specified in Section 14.22.
"Designated Leased Property" has the meaning specified in subsection
9.10(d)(iii).
"Dollars" and "$" mean lawful money of the United States of America.
"EBITDA" means, for any period and any Person, the total of the
following each calculated without duplication for such Person on a consolidated
basis for such period: (a) Net Income; plus (b) any provision for (or less any
benefit from) income or franchise taxes included in determining Net Income; plus
(c) Net Interest Expense deducted in determining Net Income; plus (d)
amortization and depreciation expense deducted in determining Net Income.
"Eligible Assignee" has the meaning specified in Section 14.8(b).
"Environmental Laws" means any and all federal, state, and local laws,
regulations, and requirements pertaining to health, safety, or the environment,
as such laws, regulations, and requirements may be amended or supplemented from
time to time.
"Environmental Liabilities" means, as to any Person, all liabilities,
obligations, responsibilities, Remedial Actions, losses, damages, punitive
damages, consequential damages, treble damages, costs, and expenses, (including,
without limitation, all fees, disbursements, and expenses of counsel, expert and
consulting fees, and costs of investigation and feasibility studies), fines,
penalties, sanctions, and interest incurred as a result of any claim or demand,
by any Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute, including, without limitation, any
Environmental Law, permit, order, or agreement with any Governmental Authority
or other Person, arising from environmental, health, or safety conditions or the
Release or threatened Release of a Hazardous Material into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published interpretations
thereunder.
"ERISA Affiliate" means any corporation or trade or business, which is
a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower or is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower.
"Event of Default" has the meaning specified in Section 12.1.
"Excess Cash Flow" has the meaning specified in subsection 5.4(b)(ii).
"Existing Defaults" has the meaning specified in the Recitals to this
Agreement.
"Existing Letters of Credit" means the letters of credit issued by the
Agent under the Original Agreement, which remain outstanding on the Closing
Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) equal to the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if such rate is not so published on such next
succeeding Business Day, the Federal Funds Rate for any day shall be the average
rate charged to the Agent on such day on such transactions as determined by the
Agent.
"Fee Owned Designated Property" means each parcel of real property
owned by Borrower or a Significant Subsidiary in fee other than those parcels
described on Schedule 1.1 (a).
5
"Fiscal Quarters" means the four (4) periods falling in each Fiscal
Year, each such period being thirteen (13) or fourteen (14) weeks in duration,
as applicable, with the first such period in any Fiscal Year beginning on the
first day of such Fiscal Year and the last such period in any Fiscal Year ending
on the last Saturday closest to December 31.
"Fiscal Year" means the fifty-two (52) or fifty-three (53) week period,
as the case may be, beginning on the date, which is one day after the date of
the end of the similar preceding period and ending on the Saturday closest to
December 31.
"Forbearance Agreement" has the meaning specified in the Recitals to
this Agreement.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, as set forth in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board and/or their respective successors and
which are applicable in the circumstances as of the date in question. Accounting
principles are applied on a "consistent basis" when the accounting principles
applied in a current period are comparable in all material respects to those
accounting principles applied in a preceding period.
"Governmental Authority" means any nation or government, any state or
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of or pertaining to
government.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities, or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect the obligee against loss in respect thereof (in whole or in part);
provided that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guaranty" means the guaranty of a Significant Subsidiary in favor the
Secured Parties, in substantially the form of Exhibit D, as the same may be
amended or otherwise modified from time to time.
"Hazardous Material" means any substance, product, waste, pollutant,
material, chemical, contaminant, constituent, or other material, which is
regulated by, or forms the basis of liability under, any Environmental Law.
"Hedging Agreement" means any present or future, whether master or
single, agreement, document, or instrument providing for -- or constituting an
agreement to enter into -- an interest-rate, basis, credit default, or commodity
swap; forward-rate arrangement; commodity option; equity or equity-index swap or
option; bond or interest-rate option; forward-foreign-exchange arrangement;
rate-cap, -collar, or -floor arrangement; currency- or cross-currency-swap
arrangement; swaption; currency-option; or any similar arrangement.
"Insignificant Subsidiary" means Insurance Company of Colorado, Inc.,
and any other Subsidiary (other than any Subsidiary that has executed and
delivered a Guaranty) whose (a) net worth (calculated in accordance with GAAP)
at the time of determination does not exceed Seven Hundred Fifty Thousand
Dollars ($750,000), or (b) total assets (determined in accordance with GAAP)
does not exceed an amount equal to five percent (5%) of the total assets of the
Borrower and the Subsidiaries determined on a consolidated basis in accordance
with GAAP (a subsidiary that meets either of the foregoing requirements in this
definition is referred to as a "Classified Subsidiary"); provided, however, no
Classified Subsidiary shall be deemed an Insignificant Subsidiary if at the time
of determination (a) the aggregate net worth (calculated in accordance with
GAAP) of all Subsidiaries that are then Classified Subsidiaries exceeds Seven
Hundred Fifty Thousand Dollars ($750,000). or (b) the aggregate total assets
(determined in accordance with GAAP) of all Subsidiaries that are then
Classified Subsidiaries exceeds an amount equal to five percent (5%) of the
total assets of the Borrower and the Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"Interest Period" is determined under Section 4.1.
6
"Landlord Consent" has the meaning specified in subsection
9.10(d)(iii).
"Leased Equipment" means any equipment of the Borrower or a Significant
Subsidiary in which an Approved Bank Affiliate has either a first priority
perfected security interest or ownership interest under the terms of an
operating or capital lease entered into with the Borrower or a Significant
Subsidiary.
"Lending Party" has the meaning specified in Section 14.22.
"Letter of Credit Liabilities" means, at any time, the aggregate
maximum amount available to be drawn under all outstanding Letters of Credit,
including, without limitation, the Existing Letters of Credit (in each case,
determined without regard to whether any conditions to drawing could then be
met) and all unreimbursed drawings under Letters of Credit, including, without
limitation, the Existing Letters of Credit.
"Letters of Credit" has the meaning specified in subsection 2.7(a).
"Libor Account" means a portion of a Loan that bears interest at a rate
based upon the Libor Rate.
"Libor Rate" means, for any Libor Account and for the relevant Interest
Period, the annual interest rate (rounded upward, if necessary, to the nearest
1/16 of 1%) equal to the quotient obtained by dividing (a) the rate displayed on
page 3750 on the Teleratesystem Incorporated Service (or such other page as may
replace such page on such service) at approximately 11:00 a.m. London time two
(2) Business Days before the first day of that Interest Period in an amount
comparable to that Libor Account and having a maturity approximately equal to
that Interest Period, by (b) one minus the Reserve Requirement (expressed as a
decimal) applicable to the relevant Interest Period.
"Lien" means any lien, mortgage, security interest, tax lien, financing
statement, pledge, charge, hypothecation, assignment, preference, priority, or
other encumbrance of any kind or nature whatsoever (including, without
limitation, any conditional sale or title retention agreement), whether arising
by contract, operation of law, or otherwise.
"Loans" means Revolving Loans, Swingline Loans, and/or Term Loans.
"Loan Documents" means this Agreement, the Notes, the Borrower Security
Agreement, each Guaranty, the Subsidiary Security Agreement, the Mortgages, and
all other promissory notes, security agreements, deeds of trust, mortgages,
assignments, guaranties, letters of credit, and other instruments, agreements,
and other documentation executed and delivered pursuant to or in connection with
this Agreement or the Original Agreement, as such instruments, agreements, and
other documentation may be amended or otherwise modified but excluding any
operating or capital lease and any other documentation evidencing or governing a
Secondary Obligation.
"Lockbox Accounts" shall mean the lockbox accounts established from
time to time pursuant to the Lockbox Agreements in which all funds received
pursuant to the Lockbox Agreements shall be deposited.
"Lockbox Agreements" shall mean any lockbox or other agreement entered
into by the Borrower or a Significant Subsidiary with the Agent or any Bank
pursuant to which a lockbox and deposit account shall be established for the
Borrower or a Significant Subsidiary into which payments on the Borrower's or
such Significant Subsidiary's accounts or other Collateral shall be sent and
deposited, each in form and substance satisfactory to the Agent, as the same may
be amended or otherwise modified.
"Material Adverse Effect" means (a) a material adverse effect on the
business, condition (financial or otherwise), operations, prospects, or
properties of the Borrower and the Subsidiaries taken as a whole, or (b) a
material adverse effect on the validity, perfection, priority, or ability of the
Agent to enforce the Agent's Lien on the Collateral or of the ability of the
Agent or any Bank to enforce a material provision of the Loan Documents. In
determining whether any individual event could reasonably be expected to result
in a Material Adverse Effect, notwithstanding that such event does not itself
have such effect, a Material Adverse Effect shall be deemed to have occurred if
the cumulative effect of such event and all other then existing events could
reasonably be expected to result in a Material Adverse Effect.
"Maximum Rate" means, at any time and with respect to any Bank, the
maximum rate of nonusurious interest under applicable law that such Bank may
charge the Borrower. The Maximum Rate shall be calculated in a manner that
7
takes into account any and all fees, payments, and other charges contracted for,
charged, or received in connection with the Loan Documents that constitute
interest under applicable law. Each change in any interest rate provided for
herein based upon the Maximum Rate resulting from a change in the Maximum Rate
shall take effect without notice to the Borrower at the time of such change in
the Maximum Rate. For purposes of determining the Maximum Rate under Texas law,
the applicable rate ceiling shall be the "weekly ceiling" described in, and
computed in accordance with, Article 5069, Vernon's Texas Civil Statutes.
"Mortgage Amendment" has the meaning specified in subsection
9.10(d)(i).
"Mortgages" means each mortgage, deed of trust, leasehold mortgage,
leasehold deed of trust or other agreement executed by the Borrower or any
Obligated Party which creates a Lien on such Person's interests in real property
in favor of the Agent for the benefit of the Secured Parties as required
pursuant to the terms of Section 9.10, each of which shall be in form and
substance reasonably satisfactory to the Agent.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Borrower or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Cash Proceeds" has the meaning specified in subsection 5.4(b)(i).
"Net Income" means, for any period and any Person, such Person's
consolidated net income (or loss) determined in conformity with GAAP (it being
understood that such net income in conformity with GAAP is prior to any
adjustment for dividends and accretion relating to the Preferred Stock), but
excluding: (a) the income of any other Person (other than its subsidiaries) in
which such Person or any of it subsidiaries has an ownership interest, unless
received by such Person or its subsidiary in a cash distribution; (b) any
after-tax gains or losses attributable to asset dispositions; and (c) to the
extent not included in clauses (a) and (b) above, any after-tax extraordinary or
non-cash, gains or credits or extraordinary, or non-cash losses or charges.
"Net Interest Expense" means, for any period and any Person, the
remainder of the following for such Person calculated on a consolidated basis
for such period in accordance with GAAP: (a) interest expense, minus (b)
interest income.
"Net Out Flows" has the meaning specified in Section 10.8.
"Notes" means the Revolving Notes, the Swingline Note, and the Term
Notes.
"Notice of Default" has the meaning specified in Section 13.3.
"Obligated Party" means the Significant Subsidiaries or any other
Person (exclusive of the Borrower) who is or becomes party to any agreement that
guarantees or secures payment and performance of the Obligations or any part
thereof.
"Obligations" means the Primary Obligations and the Secondary
Obligations.
Offsetting Purchase" has the meaning specified in subsection
10.8(f)(ii).
"Original Agreement" has the meaning specified in the Recitals to this
Agreement.
"Outstanding Revolving Credit" means, at any time of determination, the
sum of (a) the aggregate amount of Revolving Loans then outstanding, plus (b)
the aggregate amount of Letter of Credit Liabilities (or when calculated with
respect to a Revolving Bank, including the Agent as a Revolving Bank, such
Revolving Bank's participation or other interest in such Letter of Credit
Liabilities), plus (c) the aggregate amount of Swingline Loans (or when
calculated with respect to a Revolving Bank, including the Agent as a Revolving
Bank, such Revolving Bank's participation or other interest in such Swingline
Loans) then outstanding.
"Payor" has the meaning specified in Section 5.8.
8
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA.
"Perfection Event" has the meaning specified in subsection 9.10(a)(ii).
"Person" means any individual, corporation, business trust,
association, company, partnership, joint venture, Governmental Authority, or
other entity.
"Plan" means any employee benefit plan established or maintained by the
Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Preferred Stock" means the Series A Preferred Stock of the Borrower
issued to the Banks pursuant to the terms of the Recapitalization Agreement.
"Primary Obligations" means all obligations, indebtedness, and
liabilities of the Borrower to the Agent, the Banks, the Approved Bank
Affiliates or any of them arising from, pursuant to, or in connection with the
Loan Documents and the SWAP Documents and all the Deposit and Cash Management
Services Obligations, in each case whether now existing or hereafter arising,
whether direct, indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, including without
limitation, the obligations of the Borrower to repay the Loans, the
Reimbursement Obligations, interest on the Loans and the Reimbursement
Obligations, and all fees, costs and expenses (including, without limitation,
reasonable attorney's fees) provided for in the Loan Documents, SWAP Documents
or in connection with the documentation governing the Deposit and Cash
Management Services.
"Principal Office" means the principal office of the Agent, located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Prohibited Transaction" means any transaction set forth in Section 406
or Section 407 of ERISA or Section 4975(c)(1) of the Code for which there does
not exist a statutory or administrative exemption.
"Quarterly Payment Date" means the last day of the third (3rd) full
calendar month occurring after the Closing Date and the last day of each third
(3rd) calendar month occurring thereafter.
"Raw Material Supplier" has the meaning specified in subsection
10.1(g).
"Recapitalization Agreement" has the meaning specified in the Recitals
to this Agreement.
"Register" has the meaning specified in subsection 14.8(c).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Bank, any change after
the date of this Agreement in United States federal, state, or foreign laws or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretations, directives, or requests applying
to a class of banks including such Bank of or under any United States federal or
state, or any foreign, laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Agent for any demand for payment or drawing under a Letter of
Credit, including, without limitation, any Existing Letter of Credit.
"Release" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, disbursement, leaching, or
migration of Hazardous Materials into the indoor or outdoor environment or into
or out of property owned by such Person, including, without limitation, the
movement of Hazardous Materials through or in the air, soil, surface water,
ground water, or property in violation of Environmental Laws.
9
"Remedial Action" means all actions required to (a) cleanup, remove,
treat, or otherwise address Hazardous Materials in the indoor or outdoor
environment, (b) prevent the Release or threat of Release or minimize the
further Release of Hazardous Materials so that they do not migrate or endanger
or threaten to endanger public health or welfare or the indoor or outdoor
environment, or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Replacement Candidate" has the meaning specified in Section 6.5.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Required Banks" means the Required Revolving Banks and the Required
Term Banks.
"Required Payment" has the meaning specified in Section 5.8.
"Required Revolving Banks" means at least three (3) Revolving Banks
having in the aggregate either a direct or, in the case of Swingline Loans and
Letter of Credit Liabilities, participation interest in the following,
calculated without duplication: (a) more than fifty percent (50%) of the
Revolving Commitments or (b) if the Revolving Commitments have terminated, more
than fifty percent (50%) of the sum of (i) the outstanding principal amount of
the Revolving Loans and the Swingline Loans and (ii) the participations in
outstanding Letter of Credit Liabilities, including, without limitation, Letter
of Credit Liabilities related to the Existing Letters of Credit; provided,
however, that if there are less than three (3) Revolving Banks at the time of
determination, "Required Revolving Banks" shall mean all of the Revolving Banks;
and provided, further, that all Banks which are either Affiliates of each other
or are investment funds or similar entities managed by a Bank or an Affiliate of
a Bank shall be deemed to constitute a single "Bank" for the purpose of
determining the number of Banks hereunder.
"Required Term Banks" means at least three (3) Term Banks having in the
aggregate more than fifty percent (50%) of the outstanding principal amount of
the Term Loan.; provided, however, that if there are less than three (3) Term
Banks at the time of determination, "Required Term Banks" shall mean all of the
Term Banks; and provided, further, that all Banks which are either Affiliates of
each other or are investment funds or similar entities managed by a Bank or an
Affiliate of a Bank shall be deemed to constitute a single "Bank" for the
purpose of determining the number of Banks hereunder.
"Reserve Requirement" means, for any Libor Account and for the relevant
Interest Period, the total reserve requirements (including all basic,
supplemental, emergency, special, marginal, and other reserves required by
applicable law) applicable to eurocurrency fundings or liabilities as of the
first day of that Interest Period.
"Revolving Bank" means any Bank which has a Revolving Commitment (or if
the Revolving Commitments have terminated, any Bank which is owed any portion of
the Outstanding Revolving Credit).
"Revolving Commitment" means, as to each Bank, the obligation, if any
of such Bank to make advances of funds and purchase participation interests in
(or with respect to the Agent as a Bank, hold other interests in) Letters of
Credit and Swingline Loans in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount set forth opposite the name of
such Bank on the signature pages hereto under the heading "Revolving
Commitment," as the same may be reduced or terminated pursuant to Section 2.6,
Section 12.2, or Section 14.8 or, if applicable, in such Bank's most recent
Assignment and Acceptance executed after the Closing Date. As of the Closing
Date, the aggregate amount of the Revolving Commitments of all Revolving Banks
equals Seventeen Million Three Hundred Thirty Seven Thousand Three Hundred and
Fifty Seven Dollars ($17,337,357).
"Revolving Commitment Percentage" means, as to any Revolving Bank, the
percentage equivalent of a fraction (a) the numerator of which is the amount of
the Revolving Commitment of such Revolving Bank and (b) the denominator of which
is the aggregate amount of the Revolving Commitments of all Revolving Banks.
"Revolving Loans" means, as to any Revolving Bank, the advances made by
such Revolving Bank pursuant to Section 2.1.
10
"Revolving Notes" means the promissory notes provided for by Section
2.2 and all amendments or other modifications thereof.
"Route Purchaser" has the meaning specified in subsection 10.8(f).
"Route Sale" has the meaning specified in subsection 10.8(f).
"S&P" means Standard and Poor's Ratings Service, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereof, which is a nationally
recognized statistical rating organization.
"Secondary Obligations" means all obligations, indebtedness, and
liabilities of the Borrower to any Secured Party arising from, pursuant to, or
in connection with any operating or capital lease (including without limitation,
that certain Master Lease dated February 17, 1998 between the Borrower and NBD
Bank, as amended or otherwise modified), whether such obligations, indebtedness
and liabilities are now existing or hereafter arising, whether direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several,
or joint and several and all fees, costs and expenses (including, without
limitation, reasonable attorneys' fees) provided for in connection therewith.
"Secured Parties" means the Agent, the Banks and the Approved Bank
Affiliates.
"Significant Subsidiary" means any Subsidiary that is organized under
the laws of a state located in the United States of America and is not an
Insignificant Subsidiary.
"Subsidiary" means any corporation (or other entity) of which at least
a majority of the outstanding shares of stock (or other ownership interests)
having by the terms thereof ordinary voting power to elect a majority of the
board of directors (or similar governing body) of such corporation (or other
entity) (irrespective of whether or not at the time stock (or other ownership
interests) of any other class or classes of such corporation (or other entity)
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by the
Borrower or one or more of the Subsidiaries or by the Borrower and one or more
of the Subsidiaries.
"Subsidiary Security Agreement" means the amended and restated
security agreement between the Significant Subsidiaries and the Agent, for the
benefit of the Secured Parties, in substantially the form of Exhibit E, as the
same may be amended or otherwise modified.
"SWAP Documents" means all documents and agreements evidencing any
Hedging Agreement between Borrower or any Significant Subsidiary and any Bank or
its Affiliates and which is otherwise permitted under the terms of this
Agreement, including, without limitation, the following International SWAP
Dealers Association, Inc., Master Agreements entered into with the Borrower, all
schedules thereto and all confirmations delivered thereunder, as the same may be
amended or otherwise modified:
================================================================================
Secured Party Date
------------- ----
================================================================================
1. ▇▇▇▇▇ Fargo Bank, National Association June 6, 1997
--------------------------------------------------------------------------------
2. Credit Lyonnais New York Branch June 6, 1997
================================================================================
"Swingline Commitment" means the obligation of the Agent to make
advances pursuant to subsection 2.8(a) in an aggregate principal amount at any
one time outstanding up to but not exceeding Three Million Five Hundred Thousand
and No/100 Dollars ($3,500,000), as such amount may be reduced pursuant to
subsection 2.8(e) or Section 12.2.
"Swingline Loans" means the advances made by the Agent pursuant to
subsection 2.8(a).
"Swingline Maturity" has the meaning specified in subsection 2.8(c).
11
"Swingline Note" means the promissory note provided for by subsection
2.8(b) and all amendments and other modifications thereto.
"Term Bank" means any Bank, which has made or has committed to make a
Term Loan.
"Term Commitment" means, as to each Bank, the obligation, if any, of
such Bank to convert a portion of its outstanding advances under the Original
Agreement to its Term Loan in accordance with the terms and provisions of this
Agreement.
"Term Loan" means, as to any Bank, advances made by such Bank to the
Borrower under the Original Agreement, which are being renewed, modified and
extended as term loans hereunder on the Closing Date, equal to such Bank's Term
Loan Percentage of $61,012,643. The principal amount of each Bank's Term Loan
outstanding as of the Closing Date is set forth opposite the name of such Bank
on the signature pages hereto under the heading "Term Loan". As of the Closing
Date, the aggregate outstanding principal amount of the Term Loans of all Banks
equals Sixty One Million Twelve Thousand Six Hundred Forty Three Dollars
($61,012,643).
"Term Loan Percentage" means, as to any Term Bank, the percentage
equivalent of a fraction of (a) the numerator of which is the amount of the
outstanding Term Loan of such Term Bank, and (b) the denominator of which is the
aggregate amount of the outstanding Term Loans of all Term Banks.
"Term Notes" means the promissory notes provided for by Section 3.1
and all amendments and other modifications thereto.
"Termination Date" means May 10, 2007, or such earlier date on which
the Commitments terminate as provided in this Agreement.
"UCC" means the Uniform Commercial Code as in effect in the State of
Texas; provided that, when applicable as determined in accordance with the
Borrower Security Agreement, "UCC" shall have the meaning provided for in the
proviso to the definition of UCC set forth in the Borrower Security Agreement.
Section 1.2 Other Definitional Provisions. All definitions contained
in this Agreement are equally applicable to the singular and plural forms of the
terms defined. The words "hereof", "herein", and "hereunder" and words of
similar import referring to this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement. Unless otherwise
specified, all Article and Section references pertain to this Agreement. Terms
used herein that are defined in the UCC, unless otherwise defined herein, shall
have the meanings specified in the UCC.
Section 1.3 Accounting Terms and Determinations. Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Agent and the Banks hereunder
shall be prepared, in accordance with GAAP, on a basis consistent with those
used in the preparation of the financial statements referred to in Section 8.2.
All calculations made for the purposes of determining compliance with the
provisions of this Agreement shall be made by application of GAAP, on a basis
consistent with those used in the preparation of the financial statements
referred to in Section 8.2. To enable the ready and consistent determination of
compliance by the Borrower with its obligations under this Agreement, the
Borrower will not change the manner in which either the last day of its Fiscal
Year or the last days of the first three Fiscal Quarters of its Fiscal Years is
calculated. In the event any changes in accounting principles required by GAAP
or recommended by the Borrower's certified public accountants and implemented by
the Borrower occur and such changes result in a change in the method of the
calculation of financial covenants, standards, or terms under this Agreement,
then the Borrower, the Agent, and the Banks agree to enter into negotiations in
order to amend such provisions of this Agreement so as to equitably reflect such
changes with the desired result that the criteria for evaluating such covenants,
standards, or terms shall be the same after such changes as if such changes had
not been made. Until such time as such an amendment shall have been executed and
delivered by the Agent, the Borrower, and the Banks, all financial covenants,
standards, and terms in this Agreement shall continue to be calculated or
construed as if such changes had not occurred.
Section 1.4 Time of Day. Unless otherwise indicated, all references in
this Agreement to times of day shall be references to New York, New York time.
12
ARTICLE 2
Revolving Credit Facility
Section 2.1 Revolving Commitments. Subject to the terms and conditions
of this Agreement, each Revolving Bank severally agrees to make one or more
advances to the Borrower from time to time from and including the first Business
Day to occur after the Closing Date to but excluding the Termination Date in an
aggregate principal amount at any time outstanding up to but not exceeding the
amount of such Revolving Bank's Revolving Commitment as then in effect;
provided, however, (a) the Outstanding Revolving Credit applicable to a
Revolving Bank (including the Agent as a Revolving Bank) shall not at any time
exceed such Revolving Bank's Revolving Commitment, and (b) the Outstanding
Revolving Credit shall not at any time exceed the aggregate Revolving
Commitments. Subject to the foregoing limitations, and the other terms and
provisions of this Agreement, the Borrower may borrow, prepay, and reborrow
hereunder the amount of the Revolving Commitments.
Section 2.2 Notes. The Revolving Loans made by a Revolving Bank shall
be evidenced by a single promissory note of the Borrower in substantially the
form of Exhibit A, payable to the order of such Revolving Bank in a principal
amount equal to its Revolving Commitment as in effect on the Closing Date or, if
applicable, on the date of the most recent Assignment and Acceptance executed by
such Revolving Bank after the Closing Date, and otherwise duly completed.
Section 2.3 Repayment of Revolving Loans. Without limiting the effect
of Section 2.6, the Borrower shall pay to the Agent for the account of the
Revolving Banks the outstanding principal amount of all of the Revolving Loans
on the Termination Date.
Section 2.4 Use of Proceeds. The proceeds of Revolving Loans shall be
used by the Borrower (a) for working capital in the ordinary course of business,
including, without limitation, the satisfaction of Reimbursement Obligations in
accordance with subsection 2.7(e), and to repay Swingline Loans and (b) for
other general corporate purposes, including, without limitation, financing
Capital Expenditures.
Section 2.5 Fees.
----
(a) Revolving Commitment Fees. The Borrower agrees to pay to
the Agent for the account of each Revolving Bank (i) a commitment fee
on the daily average unused amount of such Revolving Bank's Revolving
Commitment for the period from and including the Closing Date to the
Termination Date, at a rate equal to one-half of one percent (0.50%)
per annum, and (ii) a facility fee equal to one and one-half percent
(1.50%) per annum of the daily average amount of such Revolving Bank's
Revolving Commitment. For the purpose of calculating the commitment fee
hereunder, the Revolving Commitments shall be deemed utilized by all
outstanding Revolving Loans and all Letter of Credit Liabilities but
shall not, for purposes of this Section 2.5 only, be deemed utilized by
any Swingline Loans. Accrued commitment fees and facility fees under
this Section 2.5 shall be payable in arrears on each Quarterly Payment
Date and on the Termination Date.
(b) Other Fees. The Borrower shall pay to the Agent and such
Affiliates of the Agent as it may designate, the fees and other amounts
described in the letter agreement (as it may be renewed, extended or
modified) dated as of March 14, 2002, between Borrower and the Agent.
Such fees are solely for the account of the Agent and its Affiliates
except that the Agent may unilaterally agree in writing with any Bank
in respect of the sharing of such fees.
Section 2.6 Reduction or Termination of Revolving Commitments.
-------------------------------------------------
(a) Mandatory Prepayment Reduction. The aggregate amount of
the Revolving Commitments shall be automatically reduced by the amount of any
prepayment made on the Revolving Loans with Net Cash Proceeds under the terms of
subsection 5.4(b)(i).
(b) Voluntary Reductions. The Borrower shall have the right
to terminate or reduce in part the unused portion of the Revolving Commitments
at any time and from time to time, provided that: (i) the
13
Borrower shall give notice of each such termination or reduction as
provided in Section 5.3; (ii) each partial reduction shall be in an
aggregate amount at least equal to Five Hundred Thousand Dollars
($500,000); (iii) the Revolving Commitments may not be reduced to an
amount less than the sum of the Swingline Commitment plus the Letter of
Credit Liabilities then outstanding; and (iv) the Revolving Commitments
may not be reduced to an amount less than $10,000,000, unless the Term
Loans have been (or contemporaneously therewith will be) repaid in
full.
(c) Effect of Reduction. The Revolving Commitments may not be
reinstated after they have been terminated or reduced.
Section 2.7 Letters of Credit.
(a) Commitment to Issue. The Borrower may utilize the
Revolving Commitments by requesting that the Agent issue, and the
Agent, subject to the terms and conditions of this Agreement, shall
issue standby or documentary letters of credit for the Borrower's or
one of the Subsidiaries' account (such letters of credit, including,
without limitation, the Existing Letters of Credit, being hereinafter
referred to collectively as the "Letters of Credit"); provided,
however, (i) the Outstanding Revolving Credit shall not at any time
exceed the aggregate Revolving Commitments, and (ii) the Outstanding
Revolving Credit applicable to a Revolving Bank shall not at any time
exceed such Revolving Bank's Revolving Commitment. Upon the date of
issue of a Letter of Credit, the Agent shall be deemed, without further
action by any party hereto, to have sold to each other Revolving Bank,
and each other Revolving Bank shall be deemed, without further action
by any party hereto, to have purchased from the Agent a participation
to the extent of such Revolving Bank's Revolving Commitment Percentage
in such Letter of Credit and the related Letter of Credit Liabilities.
On and after the Closing Date, the Existing Letters of Credit shall be
and be deemed to be "Letters of Credit" issued hereunder and each
Revolving Bank shall be deemed to have purchased a participation in an
amount equal to such Revolving Bank's Revolving Commitment Percentage
of the Existing Letters of Credit.
(b) Letter of Credit Request Procedure. The Borrower shall
give the Agent at least five (5) Business Days irrevocable prior notice
(effective upon receipt) specifying the date of each Letter of Credit
to be issued and the nature of the transactions to be supported
thereby. Upon receipt of such notice the Agent shall promptly notify
each other Revolving Bank of the contents thereof and of such Revolving
Bank's Commitment Percentage of the amount of the proposed Letter of
Credit. The Agent shall provide any Revolving Bank a copy of each
Letter of Credit issued hereunder upon such Revolving Bank's request.
Each Letter of Credit shall have an expiration date that does not
extend beyond a date which is thirty (30) days prior to the Termination
Date, shall be payable in Dollars, must support a transaction entered
into in the ordinary course of the Borrower's or a Subsidiary's
business, must be satisfactory in form and substance to the Agent, and
shall be issued pursuant to such documentation as the Agent may
require, including, without limitation, the Agent's standard form
letter of credit request and reimbursement agreement; provided that, in
the event of any conflict between the terms of such agreement and the
other Loan Documents, the terms of the other Loan Documents shall
control. Subject to the other terms and conditions herein, each standby
Letter of Credit shall have an expiration date that does not extend
beyond one (1) year, provided that any standby Letter of Credit may
contain provisions whereby its expiration date is automatically
extended for additional periods of one (1) year on any current or
thereafter established expiration date unless the Agent provides notice
to the beneficiary of the Letter of Credit that it will not be so
extended. Each such standby Letter of Credit must permit the Agent to
give such notice of nonextension at any time up to the date, which is
no greater than ninety (90) days prior to the applicable expiration
date.
(c) Letter of Credit Fees. The Borrower will pay to the Agent
for the account of each Revolving Bank an irrevocable letter of credit
fee on such Bank's Revolving Commitment Percentage of the maximum
amount available for drawings under each Letter of Credit from time to
time, such letter of credit fee (i) to be paid in arrears on each
Quarterly Payment Date until and including the next Quarterly Payment
Date to occur after the date of expiration or termination thereof, and
(ii) to be calculated for the period such Letter of Credit is
outstanding at a rate equal to three percent (3.00%) per annum. After
receiving any payment of any letter of credit fees under this clause
(c), the Agent will promptly pay to each Bank the letter of credit fees
then due such Bank. With respect to each Letter of Credit, the Borrower
will also pay to the Agent for its account only the fees and expenses
described in subsection 14.1(b), to the extent applicable, and, on each
Quarterly Payment
14
Date after the Closing Date, a fronting fee calculated at the rate of
one eighth of one percent (0.125%) per annum on the maximum amount
available to be drawn under such Letter of Credit.
(d) Funding of Drawings. Upon receipt from the beneficiary of
any Letter of Credit of any demand for payment or other drawing under
such Letter of Credit, the Agent shall promptly notify the Borrower and
each Revolving Bank as to the amount to be paid as a result of such
demand or drawing and the respective payment date. Not later than 11:00
a.m. on the applicable payment date (or 11:00 a.m. on the next Business
Day after notice of such drawing is given, if later), each Revolving
Bank will make available to the Agent, at the Principal Office, in
immediately available funds, an amount equal to such Revolving Bank's
Revolving Commitment Percentage of the amount to be paid as a result of
such demand or drawing even if the conditions to a Loan under Article 7
have not been satisfied.
(e) Reimbursements. The Borrower shall be irrevocably and
unconditionally obligated to immediately reimburse the Agent for any
amounts paid by the Agent upon any demand for payment or drawing under
any Letter of Credit (regardless of whether such Letter of Credit is
issued for the account of the Borrower or one of the Subsidiaries),
without presentment, demand, protest, or other formalities of any kind.
All payments on the Reimbursement Obligations shall be made to the
Agent at the Principal Office for the account of the Agent in Dollars
and in immediately available funds, without set-off, deduction, or
counterclaim not later than 3:00 pm. on the date of the corresponding
payment under the Letter of Credit by the Agent. Subject to the other
terms and conditions of this Agreement, such reimbursement may be made
by the Borrower requesting a Revolving Loan in accordance with Section
5.1, the proceeds of which shall be credited against the Borrower's
Reimbursement Obligations. The Agent will pay to each Revolving Bank
such Revolving Bank's Revolving Commitment Percentage of all amounts
received from the Borrower for application in payment, in whole or in
part, to the Reimbursement Obligation in respect of any Letter of
Credit, but only to the extent such Revolving Bank has made payment to
the Agent in respect of such Letter of Credit pursuant to clause (d) of
this Section 2.7.
(f) Reimbursement Obligations Absolute. The Reimbursement
Obligations of the Borrower under this Agreement shall be absolute,
unconditional, and irrevocable, and shall be performed strictly in
accordance with the terms of the Loan Documents under all circumstances
whatsoever and the Borrower hereby waives any defense to the payment of
the Reimbursement Obligations based on any circumstance whatsoever,
including, without limitation, in either case, the following
circumstances: (i) any lack of validity or enforceability of any Letter
of Credit or any other Loan Document; (ii) any amendment or waiver of
or any consent to departure from any Loan Document; (iii) the existence
of any claim, set-off, counterclaim, defense, or other rights which the
Borrower, any Obligated Party, or any other Person may have at any time
against any beneficiary of any Letter of Credit, the Agent, any Bank,
or any other Person, whether in connection with any Loan Document or
any unrelated transaction; (iv) any statement, draft, or other
documentation 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 whatsoever;
(v) payment by the Agent under any Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; or (vi) any other circumstance
whatsoever, whether or not similar to any of the foregoing; provided
that Reimbursement Obligations with respect to a Letter of Credit may
be subject to avoidance by the Borrower to the extent of actual damages
suffered by the Borrower if the Borrower proves in a final
nonappealable judgment that it was so damaged and that such damage
arose directly from the Agent's willful misconduct or gross negligence
in determining whether the documentation presented under the letter of
credit in question complied with the terms thereof, and the Agent
agrees to reimburse the Revolving Banks which have funded their
participation interest in any such Letter of Credit, pursuant to
subsection 2.7(d), their respective Revolving Commitment Percentage of
any amount of such Reimbursement Obligations so avoided.
(g) Issuer Responsibility. The Borrower assumes all risks of
the acts or omissions of any beneficiary of any Letter of Credit with
respect to its use of such Letter of Credit. Neither the Agent, any
Bank, nor any of their respective officers or directors shall have any
responsibility or liability to the Borrower or any other Person for:
(a) the failure of any draft to bear any reference or adequate
reference to any Letter of Credit, or the failure of any documents to
accompany any draft at negotiation, or the failure of any Person to
surrender or to take up any Letter of Credit or to send documents apart
from drafts as required by the terms of any Letter of Credit, or the
failure of any Person to note the amount of any instrument on any
Letter of Credit, each of
15
which requirements, if contained in any Letter of Credit itself, it is
agreed may be waived by the Agent; (b) errors, omissions,
interruptions, or delays in transmission or delivery of any messages;
(c) the validity, sufficiency, or genuineness of any draft or other
document, or any endorsement(s) thereon, even if any such draft,
document or endorsement should in fact prove to be in any and all
respects invalid, insufficient, fraudulent, or forged or any statement
therein is untrue or inaccurate in any respect; (d) the payment by the
Agent to the beneficiary of any Letter of Credit against presentation
of any draft or other document that does not comply with the terms of
the Letter of Credit; or (e) any other circumstance whatsoever in
making or failing to make any payment under a Letter of Credit. The
Borrower shall have a claim against the Agent, and the Agent shall be
liable to the Borrower, to the extent of any direct, but not indirect,
consequential or punitive, damages suffered by the Borrower which the
Borrower proves in a final nonappealable judgment were caused by (i)
the Agent's willful misconduct or gross negligence in determining
whether documents presented under any Letter of Credit complied with
the terms thereof or (ii) the Agent's willful failure to pay under any
Letter of Credit after presentation to it of documentation strictly
complying with the terms and conditions of such Letter of Credit. The
Agent may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any
notice or information to the contrary.
Section 2.8 Swingline Loans.
(a) Swingline Commitment. Subject to the terms and conditions
of this Agreement, the Agent agrees to make one or more advances to the
Borrower from time to time, from and including the Closing Date to but
excluding the Termination Date, in an aggregate principal amount at any
time outstanding up to but not exceeding the Swingline Commitment;
provided, however, (i) the Outstanding Revolving Credit shall never
exceed the aggregate Revolving Commitments and (ii) the Outstanding
Revolving Credit applicable to a Revolving Bank (including the Agent as
a Revolving Bank) shall never exceed such Revolving Bank's Revolving
Commitment. Subject to the foregoing limitations, and the other terms
and provisions of this Agreement, the Borrower may borrow, prepay, and
reborrow hereunder the amount of the Swingline Commitment as Base Rate
Accounts thereunder. On the date a Swingline Loan is made by the Agent
under this subsection 2.8(a), the Agent shall be deemed without further
action by any party hereto, to have sold to each Revolving Bank, and
each Revolving Bank shall be deemed, without further action by any
party hereto, to have purchased from the Agent a participation to the
extent of such Revolving Bank's Revolving Commitment Percentage in the
Swingline Loan so made, such participation to be funded in accordance
with clause (c) of this Section 2.8.
(b) Swingline Note. The Swingline Loans made by the Agent
shall be evidenced by a single promissory note of the Borrower in
substantially the form of Exhibit B, payable to the order of the Agent
in a principal amount equal to the Swingline Commitment as in effect on
the Closing Date and otherwise duly completed.
(c) Repayment of Swingline Loans; Funding of Participation.
The Borrower shall pay to the Agent for its own account the outstanding
principal amount of each Swingline Loan on the earlier of (i) the
Termination Date or (ii) the date which is thirty (30) days after the
Swingline Loan is made (the earlier of such date with respect to a
Swingline Loan herein the "Swingline Maturity"). Subject to the other
terms and conditions of this Agreement, the Borrower may repay a
Swingline Loan on its Swingline Maturity or at any time prior thereto
by requesting a Revolving Loan in accordance with Section 5.1 with the
proceeds thereof payable to the Agent for its own account. The Agent,
at any time in its sole and absolute discretion and whether or not a
Swingline Maturity shall have occurred, may require that each Revolving
Bank fund its participation in the then outstanding principal amount of
all Swingline Loans by giving each Revolving Bank notice thereof.
Additionally, if the Borrower shall not have repaid a Swingline Loan by
1:00 p.m. on the corresponding Swingline Maturity, the Agent will
notify each Revolving Bank of the aggregate principal amount of the
Swingline Loan, which has not been repaid. Upon the giving of any
notice by the Agent under either of the preceding two sentences, each
Revolving Bank shall make available to the Agent, at the Principal
Office, in immediately available funds, an amount equal to its
Revolving Commitment Percentage of the aggregate principal amount of
the Swingline Loan or Swingline Loans subject to such notice by not
later than 3:00 p.m. on the date such notice is received if such notice
is received by 1:00 p.m. or by 11:00 a.m. on the next Business Day, if
such notice is received after 1:00 p.m., whether or not the conditions
to a Loan under Article 7 are satisfied.
16
(d) Use of Proceeds. The proceeds of Swingline Loans shall be
used by the Borrower for the same purposes as Revolving Loans as
described in Section 2.4.
(e) Reduction or Termination of Swingline Commitment. The
Borrower shall have the right to terminate or reduce in part the unused
portion of the Swingline Commitment at any time and from time to time,
provided that: (i) the Borrower shall give notice of each such
termination or reduction as provided in Section 5.3; and (ii) each
partial reduction shall be in an aggregate amount at least equal to One
Hundred Thousand Dollars ($100,000). The Swingline Commitment may not
be reinstated after it has been terminated or reduced.
ARTICLE 3
Term Loan
Section 3.1 Notes. The Term Loan made by a Term Bank shall be evidenced
by a single promissory note of the Borrower in substantially the form of Exhibit
C, payable to the order of such Term Bank in a principal amount equal to its
Term Loan as outstanding on the Closing Date or, if applicable, on the date of
the most recent Assignment and Acceptance executed by such Term Bank after the
Closing Date, and otherwise duly completed.
Section 3.2 Repayment of Term Loans. The Borrower shall pay to the
Agent for the account of the Term Banks the outstanding principal amount of all
the Term Loans in quarterly installments due and payable on each Quarterly
Payment Date set forth below:
-------------------------------------------------------------
Quarterly Payment Date Principal Amount
-------------------------------------------------------------
On each of the first eight Quarterly $300,000
Payment Dates to occur after the
Closing Date
-------------------------------------------------------------
On each Quarterly Payment Date $1,200,000
thereafter to and including the
Quarterly Payment Date occurring
immediately prior to the Termination
Date
-------------------------------------------------------------
The Borrower shall pay to the Agent for the account of the Term Banks all
remaining principal outstanding under the Term Loans on the Termination Date.
ARTICLE 4
Interest and Fees
Section 4.1 Interest Rate. The Borrower shall pay to the Agent, for the
account of each Bank, interest on the unpaid principal amount of each Loan made
by such Bank for the period commencing on the Closing Date or if later, the date
of such Loan but excluding the date such Loan is due, at a fluctuating rate per
annum equal to (a) during the period that such Loan or portions thereof are
subject to Base Rate Accounts, the sum of the Base Rate plus two percent (2.00%)
and (b) during the period that such Loans or portions thereof are subject to
Libor Accounts (i.e., during the Interest Period applicable thereto) and with
respect to each such Libor Account, the sum of the Libor Rate applicable to such
Libor Account plus five percent (5.00%) or (c) with respect to all Loans, during
any period of time when an Event of Default exists and the Agent has notified
the Borrower that the Default Rate is in effect (which the Agent shall do (i)
with respect to the Revolving Loans, at the direction of the Required Revolving
Banks and (ii) with respect to the Term Loans, at the direction of the Required
Term Banks), the Default Rate. When Borrower requests any Libor Account,
Borrower may elect the applicable interest period (each an "Interest Period"),
which may be, at Borrower's option, one, two or three months for such Libor
Account, subject to the following conditions: (a) the initial Interest Period
for a Libor Account commences on the applicable borrowing date or Conversion
date, and each subsequent
17
Interest Period applicable to any borrowing commences on the day when the next
preceding applicable Interest Period expires; (b) if any Interest Period for a
Libor Account begins on a day for which no numerically corresponding Business
Day in the calendar month at the end of the Interest Period exists, then the
Interest Period ends on the last Business Day of that calendar month; (c) if
Borrower is required to pay any of a Libor Account before the end of its
Interest Period in order to comply with the payment provisions of the Loan
Documents, Borrower shall also pay any related costs and expenses required under
Section 6.3; and (d) no more than five (5) Interest Periods may be in effect at
one time.
Section 4.2 Payment Dates. Accrued interest on the Loans shall be due
and payable as follows: (a) in the case of all Loans (including those subject to
Base Rate Accounts and Libor Accounts), on each Quarterly Payment Date; (b) in
addition to accrued interest paid in accordance with the foregoing clause (a)
and with respect to Loans subject to Libor Accounts, on the last day of the
Interest Period with respect thereto; and (c) on the Termination Date.
Section 4.3 Default Interest. Notwithstanding the foregoing, the
Borrower will pay to the Agent for the account of the party entitled thereto
interest at the Default Rate (to the fullest extent permitted by law) on any
amount payable by the Borrower under any Loan Document to or for the account of
the Agent or any Bank that is not paid in full when due (whether at stated
maturity, by acceleration, or otherwise), for the period from and including the
due date thereof to but excluding the date the same is paid in full. Interest
payable at the Default Rate with respect to past due amounts shall be payable
from time to time on demand.
Section 4.4 Conversion of Accounts. Subject to the dollar limits of
Section 5.2 and provided that the Borrower may not convert to or select a new
Interest Period for a Libor Account at any time when a Default exists, Borrower
may (a) convert a Libor Account on the last day of the applicable Interest
Period to a Base Rate Account, (b) convert a Base Rate Account (other than Base
Rate Accounts consisting of Swingline Loans) at any time to a Libor Account, and
(c) elect a new Interest Period for a Libor Account on the last day of the
applicable Interest Period. Any such election may be made by telephonic request
to Agent no later than 10:00 a.m. on the third Business Day before the
conversion date or the last day of the Interest Period, as the case may be (for
conversion to a Libor Account or election of a new Interest Period), and no
later than 10:00 a.m. on the last day of the Interest Period (for conversion to
a Base Rate Account). Borrower shall provide written notice of any such
conversion, in reasonable detail, to Agent no later than two (2) days after the
date of the conversion or election. Absent Borrower's telephonic request for
conversion or election of a new Interest Period or if a Default exists, then, a
Libor Account shall be deemed converted to a Base Rate Account effective when
the applicable Interest Period expires.
Section 4.5 Computations. Interest and fees payable by the Borrower
hereunder and under the other Loan Documents shall be computed as follows: (a)
with respect to Libor Accounts on the basis of a year of 360 days and the actual
number of days elapsed (including the first day but excluding the last day)
occurring in the period for which payable unless such calculation would result
in a usurious rate under applicable law, in which case interest shall be
calculated on the basis of a year of 365 or 366 days, as the case may be and (b)
with respect to Base Rate Accounts, interest calculated at the Default Rate and
all fees payable hereunder, on the basis of a year of 365 or 366 days, as the
case may be and the actual number of days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
ARTICLE 5
Administrative Matters
Section 5.1 Borrowing Procedure. The Borrower shall give the Agent, and
the Agent will give the Revolving Banks, notice of each borrowing under the
Revolving Commitments in accordance with Section 5.3 specifying the proposed
borrowing date (consistent with the requirements for prior notice as set forth
in Section 5.3), the amount thereof, whether such proposed Loan will be a Libor
Account or a Base Rate Account, and if a Libor Account, the Interest Period
therefor. Not later than 1:00 p.m. on the date specified for each borrowing
under the Revolving Commitments each Revolving Bank will make available the
amount of the Loan to be made by it on such date to the Agent, at the Principal
Office, in immediately available funds, for the account of the Borrower. The
amount so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Borrower by (a) depositing the same, in
immediately available funds, in an account of the Borrower (designated by the
Borrower) maintained with the Agent at the Principal Office or (b) wire
transferring such funds to a Person or Persons designated by the Borrower in
writing. Not later than 3:00 p.m. on the date specified for each borrowing under
the Swingline
18
Commitment, the Agent will make available the amount of the Swingline Loan to be
made by it on such date to the Borrower by (i) depositing the same, in
immediately available funds, in an account of the Borrower (designated by the
Borrower) maintained with the Agent at the Principal Office or (ii) wire
transferring such funds to a Person or Persons designated by the Borrower in
writing.
Section 5.2 Minimum Amounts. Except for prepayments pursuant to Article
6 and mandatory prepayments required by Section 5.4, each borrowing under a
Revolving Loan or a Swingline Loan and each prepayment of principal of a Loan
shall be in an amount at least equal to the amount set forth below for the
applicable Loan or any larger amounts in the increments set forth below:
============================================================
Revolving Loan Swingline Loan Term Loan
------------------------------------------------------------
$500,000 $50,000 $500,000
------------------------------------------------------------
Increments
------------------------------------------------------------
$100,000 $50,000 $100,000
============================================================
Section 5.3 Certain Notices. Notices by the Borrower to the Agent of
terminations or reductions of Commitments and of borrowings and prepayments of
Loans shall be irrevocable and shall be effective only if received by the Agent
not later than 1:00 p.m. (a) on the Business Day of the borrowing of a Swingline
Loan, (b) on the Business Day of any repayment of Swingline Loans or Revolving
Loans, or (c) on the Business Day prior to the date of the relevant termination,
reduction, borrowing, or other prepayment specified below:
================================================================================
Notice Number of Business Days Prior
--------------------------------------------------------------------------------
Termination or reduction of Commitments 3
--------------------------------------------------------------------------------
Borrowing of Revolving Loans (other than 1
Swingline Loans) subject to Base Rate
Accounts and prepayment of Term Loans
--------------------------------------------------------------------------------
Borrowing, prepayment or repayment of
Loans subject to Libor Accounts 3
================================================================================
Any notices of the type described in this Section 5.3 which are received by the
Agent after 1:00 p.m. on a Business Day shall be deemed to be received and shall
be effective on the next Business Day. Each such notice of termination or
reduction shall specify the applicable Commitments to be affected and the amount
of the Commitments to be terminated or reduced. Each such notice of borrowing,
or prepayment shall (a) specify the Loans to be borrowed or prepaid; (b) the
amount (subject to Section 5.2) to be borrowed or prepaid; and (c) the date of
borrowing or prepayment (which shall be a Business Day). The Agent shall notify
the Banks of the contents of each such notice on the date of its receipt of the
same or, if received on or after 1:00 p.m. on a Business Day, on the next
Business Day. No notice of prepayment is necessary for prepayments required
under subsection 5.4(b) and Article 6.
Section 5.4 Prepayments.
(a) Voluntary Prepayments. Subject to Section 5.2 and the
provisions of this Section 5.4, the Borrower may, at any time and from
time to time without premium or penalty upon prior notice to the Agent
as specified in Section 5.3, prepay or repay any Loan in full or in
part. Any optional prepayment of the Term Loan shall be accompanied
with accrued interest on the amount prepaid to the date of prepayment
and any partial prepayments thereof shall be applied to the principal
installments due under the Term Loan in the inverse order of maturity.
Loans subject to a Libor Account may be voluntarily prepaid or repaid
only on the last day of the Interest Period applicable thereto unless
(i) the Borrower pays to the Agent for the account of the applicable
Banks any amounts due under Section 6.3 as a result of such prepayment
or repayment or (ii) after giving effect to such prepayment or
repayment the aggregate principal amount of the Libor Accounts
applicable
19
to the Loan being prepaid or repaid having Interest Periods that end
after such payment date shall be equal to or less than the principal
amount of such Loan after such prepayment or repayment.
(b) Mandatory Prepayments.
(i) Asset Dispositions and Income Tax Refunds.
(A) Required Prepayment. The Borrower shall make a
prepayment of the Loans in the amount of the Net Cash
Proceeds received from the following:
(1) any disposition of assets pursuant to the
permissions set forth in subsections 10.8(e), (f),
(g), or (h); or
(2) any disposition of an asset pursuant to the
permissions set forth in subsection 10.8(b) if the Net
Cash Proceeds from such disposition equal or exceed
Fifty Thousand Dollars ($50,000); or
(3) any income tax refund received by Borrower
(other than any such refund reflected as being
due to Borrower on any return and which is
elected to be applied to the following year's
estimated tax liability payments of the
Borrower and it Subsidiaries, if any).
The Net Cash Proceeds from any asset disposition of the
type described in the foregoing clauses (1) or (2) shall
be delivered by the Borrower to the Agent, within two (2)
Business Days after the receipt thereof. The Net Cash
Proceeds from any income tax refund shall be delivered by
the Borrower to the Agent, within two (2) Business Days
after the receipt thereof.
(B) Application of Net Cash Proceeds. Any Net Cash
Proceeds so delivered under this subsection 5.4(b)(i) to
the Agent shall be applied as follows: (1) first, to the
installments of the Term Loans in inverse order of
maturity thereof until the Term Loans have been paid in
full; (2) second, to the Swingline Loans until paid in
full; (3) third, to the Revolving Loans until paid in
full, (4) fourth, to unpaid accrued interest on the
Primary Obligations; (5) fifth, to any due and unpaid
Primary Obligation; and (6) sixth, as collateral (and held
by the Agent as such) in an interest bearing account over
which the Agent shall have the sole right of withdrawal)
for the Obligations. The amount of such proceeds so held
as collateral shall (x) not exceed an amount equal to One
Hundred Five percent (105%) of the sum of the maximum
anticipated amount of such Contingent Primary Obligations
plus the maximum anticipated amount of all Secondary
Obligations and (y) shall be applied to the Obligations as
proceeds of Collateral as set forth in subsection 5.6(b).
No holder of any Secondary Obligation shall have any right
to such collateral until (x) all Primary Obligations are
paid in full and (y) all Contingent Primary Obligations
are terminated, cash secured by an amount not to exceed
One Hundred Five Percent (105%) of the amount thereof or
otherwise satisfied. If no Event of Default exists and any
proceeds remain after the applications described above,
the remaining amount of such proceeds shall be delivered
to the Borrower.
(C) Definition of Net Cash Proceeds; Application of
Estimated Taxes. The phrase "Net Cash Proceeds" means (1),
with respect to a tax refund, the cash amount thereof net
of the direct and reasonable costs of obtaining such
refund incurred in good faith (including any accountant's
or attorney's fees and other professional fees
attributable thereto irrespective of when incurred or
paid, other than any such professional fees incurred in
connection with the preparation of tax returns in the
ordinary course of business) and (2), with respect to
asset dispositions, the cash proceeds received therefrom
by the Borrower or any Subsidiary (including, without
limitation, payments under notes or other debt securities
received in connection with any disposition of assets and
any proceeds received from any
20
escrow or holdback, in each case, as and when actually
received) net of, without duplication, (x) the direct and
reasonable costs of such disposition incurred in good
faith (including in such costs any estimated federal
capital gains taxes; title insurance premiums; survey
costs; costs of environmental reports and assessments;
purchase price adjustments; filing fees; any transfer or
documentary taxes; brokerage fees; attorney's fees; and
other professional fees attributable thereto) and (y)
amounts applied to repayment of Debt (other than the
Obligations) secured by a Lien prior to the Lien of the
Agent on the asset or property disposed. The cash proceeds
received from an asset disposition subject to this
subsection 5.4(b)(i) in an amount equal to the estimated
amount of any federal capital gains taxes attributable
thereto shall be applied as a prepayment of the
outstanding Revolving Loans without reducing the Revolving
Commitment.
(ii) Excess Cash Flow.
(A) Required Prepayment. On or before the date which
is one hundred fifteen (115) days after each Fiscal Year
of the Borrower (or the date when Borrower delivers the
annual financial statements for such Fiscal Year pursuant
to Section 9.1(a) if sooner), commencing with Fiscal Year
2002, the Borrower shall make a prepayment of the Term
Loans in an amount equal to the following percentages of
the Borrower's Excess Cash Flow calculated for the most
recently ended Fiscal Year: (1) twenty-five percent (25%)
for Fiscal Year 2002, (2) thirty-five percent (35%) for
Fiscal Year 2003, and (3) fifty percent (50.0%) for each
Fiscal Year thereafter.
(B) Application. The amount of any prepayment
required by this subsection 5.4(b)(ii) shall be applied to
the installments of the Term Loans, in the inverse order
of maturity, until the Term Loans have been paid in full.
(C) Definition of Excess Cash Flow. The phrase
"Excess Cash Flow" means, for any period, the sume of the
following calculated for the Borrower and the Subsidiaries
on a consolidated basis: (1) the Borrower's EBITDA for
such period; minus (2) cash taxes, if any, actually paid
during such period; (3) minus the increase in Adjusted
Working Capital for such period; or plus the decrease in
Adjusted Working Capital for such period, as applicable;
minus (4) Capital Expenditures incurred up to a maximum
amount of $10,800,000 for Fiscal Year 2002 (increasing by
five percent (5.0%) per year for each Fiscal Year
thereafter) and which are otherwise permitted under this
Agreement; minus (5) all scheduled principal and interest
payments on the Loans, scheduled payments on Capital
Lease Obligations to the extent permitted under this
Agreement, and all payments under non-compete and
consulting contracts, to the extent such agreements are
reflected on the consolidated balance sheet of the
Borrower and are otherwise permitted under the terms of
this Agreement.
(iii) OverAdvance. If on any date the Outstanding
Revolving Credit exceeds the aggregate amount of the Revolving
Commitments, the Borrower shall pay the Agent for the account of
the applicable Revolving Banks on such date the amount of the
excess, with such amount so paid to be applied to reduce the
Swingline Loans and once the Swingline Loans are paid in full,
the Revolving Loans. If the Outstanding Revolving Credit exceeds
the aggregate amount of the Revolving Commitments after giving
effect to such application, the remaining amount of the payments
so received shall be held as collateral by the Agent to secure
the outstanding Letter of Credit Liabilities and other
Obligations.
(iv) Control of Cash and Application to Obligations. The
Borrower and the Significant Subsidiaries have instructed all
customers and other Persons making payment on accounts and other
Collateral to make all payments thereon to a post office box or
boxes established in accordance with the Lockbox Agreements or by
wire transfer to the Concentration Account or one of the Lockbox
Accounts. The collected funds on deposit in the Borrower's and
each Significant Subsidiary's Lockbox Accounts shall be paid to
the Agent on a daily basis by automated clearing house debit for
credit to
21
the Concentration Account or by wire transfer. The funds
deposited in the Concentration Account (over which the Borrower
shall have no control) or wire transferred to Agent from the
Lockbox Accounts (the "Available Cash") shall be applied by the
Agent for the benefit of the Secured Parties as follows:
(A) if no Acceleration Event exists, as
follows: (1) first, as a payment of the outstanding
principal amount of the Swingline Loans until paid in
full; (2) second, to the outstanding principal amount
of the Revolving Loans until paid in full; (3) third,
to any accrued and unpaid interest then due on the
Loans until paid in full; (4) fourth, to the
installments due on the Term Loans (in the inverse
order of maturity if more than one such installment
is then due) until such installments are paid in
full; (5) fifth, to the repayment of any other
Obligations which are due and outstanding, and if
after the foregoing applications, Available Cash
remains available to be disbursed and (x) if no Event
of Default exists, the Agent shall deposit such
remaining amount to an account of the Borrower or
transfer such funds as the Borrower shall direct; or
(y) if an Event of Default exists and no Acceleration
Event exists, such remaining amount shall be held by
the Agent in an interest bearing account over which
the Agent shall have the sole right of withdrawal as
collateral for the Obligations until the Obligations
have been cash secured by an amount not less than One
Hundred Five Percent (105%) of the amount thereof and
then any portion of the remaining amount still
available shall be deposited in an account of the
Borrower or transferred as the Borrower shall direct.
(B) if an Acceleration Event exists, the
Available Cash shall be applied by the Agent for the
benefit of the Secured Parties to the Obligations in
accordance with subsection 5.6(b).
The term "Acceleration Event" means the acceleration of the
maturity of the Loans or the occurrence of an Event of Default
of the type described in subsections 12.1(e) or (f).
(v) Breakfunding Costs. Any prepayment required by this
subsection 5.4(b) shall be accompanied by any amount due under
Section 6.3.
Section 5.5 Method of Payment. Except as otherwise expressly provided
herein, all payments of principal, interest, and other amounts to be made by the
Borrower or any Obligated Party under the Loan Documents shall be made to the
Agent at the Principal Office for the account of each applicable Bank's
Applicable Lending Office in Dollars and in immediately available funds, without
set-off, deduction, or counterclaim, not later than 1:00 p.m. on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day). The Borrower and each Obligated Party shall, at the time of making each
such payment, specify to the Agent the sums payable under the Loan Documents to
which such payment is to be applied (and in the event that the Borrower fails to
so specify and such payment can not otherwise be identified as a payment
required under subsection 5.4(b), or if an Event of Default has occurred and is
continuing, the Agent may apply such payment and any proceeds of any Collateral
to the Obligations in such order and manner as it may elect in its sole
discretion, subject to Section 5.6); provided that any voluntary prepayment of
the Term Loans under Section 5.4(a) made within ten (10) Business Days prior to
a scheduled payment date under the Term Loans shall be deemed a "payment" rather
than a "prepayment" to the extent necessary to discharge the next due
installment. Each payment received by the Agent under any Loan Document for the
account of a Secured Party shall be paid to such Secured Party by 3:00 p.m. on
the date the payment is deemed made to the Agent in immediately available funds,
for the account of such Secured Party's Applicable Lending Office, if any.
Whenever any payment under any Loan Document shall be stated to be due on a day
that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of the payment of interest and commitment fee, as the case may be,
except for any payment on a Libor Account, in which case if the next succeeding
Business Day is in the next calendar month, then such payment shall be made on
the next preceding Business Day.
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Section 5.6 Pro Rata Treatment; Distribution of Proceeds of Collateral
and Collection on the Guaranty.
(a) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Loan (other than the Swingline Loan) shall be
made by the Banks, each payment of fees under Section 2.5, and letter
of credit fees under subsection 2.7(c) shall be made for the account of
the Revolving Banks, and each termination or reduction of the Revolving
Commitments shall be applied to the Revolving Commitments of the
Revolving Banks, pro rata according to their respective Revolving
Commitment Percentages; (ii) each payment and prepayment of principal
of or interest on Loans or Reimbursement Obligations by the Borrower
(including payments made under subsection 5.4(b)) shall be made to the
Agent for the account of the Agent or the Banks holding such Loans or
Reimbursement Obligations (or participation interests therein) pro rata
in accordance with the respective unpaid principal amounts of such
Loans or participation interests held by the Agent or such Banks
(provided that only the Agent shall be entitled to principal and
interest on the Swingline Loan unless the other Banks have funded their
participations therein in accordance with subsection 2.8(c)); and (iii)
the Revolving Banks (other than the Agent) shall purchase from the
Agent participations in the Letters of Credit (including, without
limitation, the Existing Letters of Credit) and Swingline Loans to the
extent of their respective Revolving Commitment Percentages.
(b) Proceeds of Collateral and Collections under the Guaranty.
When an Acceleration Event exists, all Available Cash, all other
proceeds received by Agent from the Agent's sale or other liquidation
of the Collateral, and all proceeds from collections under the Guaranty
as a result of the enforcement of the terms thereof by the Agent shall
first be applied as payment of the accrued and unpaid fees of the Agent
hereunder and then to all other unpaid or unreimbursed Obligations
(including reasonable attorneys' fees and expenses) owing to the Agent
in its capacity as Agent only and then any remaining amount of such
proceeds shall be distributed:
(i) first, to the Secured Parties, pro rata in
accordance with the respective unpaid amounts of the Primary
Obligations (including in such Primary Obligations for
purposes of this calculation, all of the Contingent Primary
Obligations and any Primary Obligations arising under Swap
Documents to the extent permitted under this Agreement), other
than any such Primary Obligations owed on the Term Loans or to
any Bank or Approved Bank Affiliate arising under any Swap
Document relating to Hedging Agreements entered into prior to
the date hereof, until all such Primary Obligations are paid
in full and all such Contingent Primary Obligations are
terminated, cash secured by an amount not to exceed One
Hundred Five Percent (105%) of the amount thereof or otherwise
satisfied; provided that each Bank's pro rata portion of such
proceeds applicable to such Contingent Primary Obligations
shall be held by the Agent as collateral in an interest
bearing account over which the Borrower shall have no right of
withdrawal; and provided, further, that the portion of such
Primary Obligations distributed pursuant to this clause (i)
consisting of Deposit and Cash Management Services Obligations
arising under clause (b) of the definition thereof shall not
exceed an amount equal to $5,000,000 per Bank or Approved Bank
Affiliate, as applicable;
(ii) second, to the Secured Parties, pro rata in
accordance with the respective unpaid amounts of the Primary
Obligations (including in such Primary Obligations for
purposes of this calculation, all of the Contingent Primary
Obligations ) owed on the Term Loans, to any Bank or Approved
Bank Affiliate arising under any Swap Document relating to
Hedging Agreements entered into prior to the date hereof, and
to any remaining Deposit and Cash Management Services
Obligations, pro rata, until all such Primary Obligations are
paid in full and all such contingent Primary Obligations are
terminated, cash secured by an amount not to exceed One
Hundred Five percent (105%) of the amount thereof or otherwise
satisfied; provided that each Bank's pro rata portion of such
proceeds applicable to such Contingent Primary Obligations
shall be held by the Agent as collateral in an interest
bearing account over which the Borrower shall have no right of
withdrawal; and
23
(iii) third, to the Secured Parties, pro rata in
accordance with the respective unpaid amounts of the Secondary
Obligations.
After all the Primary Obligations are paid in full and all Contingent
Primary Obligations have terminated or are otherwise satisfied, all
remaining portions of the proceeds of Collateral then held by the Agent
as collateral for the Contingent Primary Obligations shall be
distributed to the Secured Parties, pro rata in accordance with the
respective unpaid amounts of the Secondary Obligations. Notwithstanding
the forgoing, if the Agent shall ever receive proceeds from the
disposition of any of the Leased Equipment prior to the payment and
satisfaction in full of all the Secondary Obligations secured thereby
or otherwise relating thereto, the Agent shall pay the amount of the
proceeds so received to the Bank or Approved Bank Affiliate entitled
thereto. If all the Secondary Obligations secured by or arising in
connection with a piece of Leased Equipment are paid and satisfied in
full, then each Bank and each Approved Bank Affiliate who receives any
proceeds from such Leased Equipment (other than through the Agent)
shall deliver the proceeds so received to the Agent for distribution in
accordance with clauses (i), (ii) and (iii) of this subsection 5.6(b).
After all the Obligations (including without limitation, all contingent
Obligations) have been paid and satisfied in full, all Commitments
terminated and all other obligations of any Secured Party to the
Borrower or any Obligated Party otherwise satisfied, any proceeds of
Collateral shall be delivered to the Person entitled thereto as
determined by applicable law or applicable court order.
(c) Noncash Proceeds. Notwithstanding anything contained
herein to the contrary, if the Agent shall ever acquire any Collateral
through foreclosure or by a conveyance in lieu of foreclosure or by
retaining any of the Collateral in satisfaction of all or part of the
Obligations or if any proceeds of Collateral received by the Agent to
be distributed and shared pursuant to this Section 5.6 are in a form
other than immediately available funds, the Agent shall not be required
to remit any share thereof under the terms hereof and the Secured
Parties shall only be entitled to their undivided interests in the
Collateral or noncash proceeds as determined by subsection 5.6(b). The
Secured Parties shall receive the applicable portions (in accordance
with the forgoing clause (b)) of any immediately available funds
consisting of proceeds from such Collateral or proceeds of such noncash
proceeds so acquired only if and when received by the Agent in
connection with the subsequent disposition thereof. While any
Collateral or other property to be shared pursuant to this Section 5.6
is held by the Agent pursuant to this clause (c), the Agent shall hold
such Collateral or other property for the benefit of the Secured
Parties and all matters relating to the management, operation, further
disposition or any other aspect of such Collateral or other property
shall be resolved by the agreement of the Required Banks.
(d) Return of Proceeds. If at any time payment, in whole or in
part, of any amount distributed by the Agent hereunder is rescinded or
must otherwise be restored or returned by the Agent as a preference,
fraudulent conveyance, or otherwise under any bankruptcy, insolvency,
or similar law, then each Person receiving any portion of such amount
agrees, upon demand, to return the portion of such amount it has
received to the Agent.
Section 5.7 Sharing of Payments. If a Bank, shall obtain payment of any
principal of or interest on any of the Obligations due to such Bank hereunder
directly (and not through the Agent) through the exercise of any right of
set-off, banker's lien, counterclaim or similar right, or otherwise, such Bank
shall promptly purchase from the other applicable Banks participations in the
Obligations held by the other applicable Banks in such amounts, and make such
other adjustments from time to time as shall be equitable to the end that all
applicable Banks shall share the benefit of such payment pro rata in accordance
with the unpaid principal of and interest on the Obligations then due to each of
them. To such end, all of the applicable Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if all or any portion of such excess payment is thereafter rescinded or must
otherwise be restored. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any Bank so purchasing a
participation in the Obligations held by the other Banks may exercise all rights
of set-off, banker's lien, counterclaim, or similar rights with respect to such
participation as fully as if such Bank were a direct holder of Obligations in
the amount of such participation. Nothing contained herein shall require any
Bank to exercise any such right or shall affect the right of any Bank to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of the Borrower.
Section 5.8 Non-Receipt of Funds by the Agent. Unless the Agent shall
have been notified by a Bank or the Borrower (the "Payor") prior to the date on
which such Bank is to make payment to the Agent hereunder or the
24
Borrower is to make a payment to the Agent for the account of one or more of the
Banks, 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, (a) 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 so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such period and (b) Agent shall be entitled
to offset against any and all sums to be paid to such recipient, the amount
calculated in accordance with the foregoing clause (a).
Section 5.9 Withholding Taxes. All payments by the Borrower of amounts
payable under any Loan Document shall be payable without deduction for or on
account of any present or future taxes, duties, or other charges levied or
imposed by the United States of America or by the government of any jurisdiction
outside the United States of America or by any political subdivision or taxing
authority of or in any of the foregoing through withholding or deduction with
respect to any such payments (but excluding any tax imposed on or measured by
the net income or profit of a Bank pursuant to the laws of the jurisdiction in
which it is organized or in which the principal office or Applicable Lending
Office of such Bank is located or any subdivision thereof or therein). If any
such taxes, duties, or other charges are so levied or imposed, the Borrower will
make additional payments in such amounts so that every net payment of amounts
payable by it under any Loan Document, after withholding or deduction for or on
account of any such present or future taxes, duties, or other charges, will not
be less than the amount provided for herein or therein, provided that the
Borrower may withhold to the extent required by law and shall have no obligation
to pay such additional amounts to any Bank to the extent that such taxes,
duties, or other charges are levied or imposed by reason of the failure or
inability of such Bank to comply with the provisions of Section 5.10. The
Borrower shall furnish promptly to the Agent for distribution to each affected
Bank, as the case may be, official receipts evidencing any such withholding or
reduction.
Section 5.10 Withholding Tax Exemption. Each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to the Borrower and the Agent two duly completed
copies of United States Internal Revenue Service Form W-8IMY (properly completed
with applicable attachments, including applicable W-9's, W-8BEN's, W-8ECI's and
W-8EXP's, in each case certifying that each beneficial owner of the payments
under any Loan Document is entitled to receive payments under such Loan Document
without deduction or withholding of any United States federal income taxes, and
withholding statements), W-8BEN or W-8ECI, or any other applicable form
reasonably acceptable to Borrower and Agent, certifying in each case that such
Bank is entitled to receive payments from the Borrower under any Loan Document
without deduction or withholding of any United States federal income taxes. Each
Bank which so delivers a Form W-8IMY (properly completed with applicable
attachments, including applicable W-9's, W-8BEN's, W-8ECI's , W-8EXP's and
withholding statements), W-8BEN or W-8ECI, or any other applicable form
reasonably acceptable to Borrower and Agent further undertakes to deliver to the
Borrower and the Agent two (2) additional copies of such form (or a successor
form) on or before the date such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Agent, in each case certifying that
such Bank is entitled to receive payments from the Borrower under any Loan
Document without deduction or withholding of any United States federal income
taxes, and in the case where such Bank has delivered a Form W-8IMY, such Bank
delivers applicable W-9's, W-8BEN's, W-8ECI's and W-8EXP's, certifying that each
beneficial owner of the payments under any Loan Document is entitled to receive
payments under such Loan Document without deduction or withholding of any United
States federal income taxes, unless an event (including, without limitation, any
change in treaty, law, interpretation, or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and applicable beneficial owners
(a "Tax Law Change") and such Bank advises the Borrower and the Agent that it is
not capable of receiving such payments without any deduction or withholding of
United States federal income tax. The Borrower agrees to pay to each Bank the
additional amounts specified in Section 5.9 if such Bank becomes subject to any
deduction or withholding (within the meaning of Section 5.9) because of any Tax
Law Change.
Section 5.11 Participation Obligations Absolute; Failure to Fund
Participation. The obligations of a Revolving Bank to fund its participation in
the Swingline Loans and Letters of Credit in accordance with the terms hereof
shall be absolute, unconditional, and irrevocable and shall be performed
strictly in accordance with the terms of
25
the Loan Documents under all circumstances whatsoever, including, without
limitation, the following circumstances: (a) any lack of validity of any Loan
Document; (b) the occurrence of any Default; (c) the existence of any claim,
set-off, counterclaim, defenses, or other rights which such Bank, the Borrower,
any Obligated Party, or any other Person may have; (d) the occurrence of any
event that has or could reasonably be expected to have a Material Adverse
Effect; (e) the failure of any condition to a Loan under Article 7 to be
satisfied; or (f) any other circumstance whatsoever, whether or not similar to
any of the foregoing; provided that, the obligations of a Revolving Bank to fund
its participation in a Swingline Loan or a Letter of Credit may be subject to
avoidance if such Bank proves in a final nonappealable judgment that it was
damaged and that such damage arose directly from the Agent's willful misconduct
or gross negligence (notwithstanding whether such misconduct or negligence is
proven by such Bank or is proven by the Borrower pursuant to Section 2.7(f)) in
determining whether (i) the conditions set forth in Article 7 to the issuance of
the Letter of Credit in question or the making of the Swingline Loan in question
were satisfied at the time of such issuance or such Loan or (ii) the
documentation presented under the Letter of Credit in question complied with the
terms thereof. If a Revolving Bank fails to fund its participation in a
Swingline Loan or a Letter of Credit as required hereby, such Revolving Bank
shall, subject to the foregoing proviso, remain obligated to pay to the Agent
the amount it failed to fund on demand together with interest thereon in respect
of the period commencing on the date such amount should have been funded until
the date the amount was actually funded to the Agent at a rate per amount equal
to the Federal Funds Rate for such period and the Agent shall be entitled to
offset against any and all sums to be paid to such Revolving Bank hereunder the
amount due the Agent under this sentence.
ARTICLE 6
Yield Protection and Illegality
-------------------------------
Section 6.1 Additional Costs.
----------------
(a) The Borrower shall pay directly to each Bank from time to
time such amounts as such Bank may determine to be necessary to
compensate it for any costs incurred by such Bank which such Bank
determines are attributable to its maintaining of any Loans subject to
Libor Accounts or Letters of Credit hereunder or its obligation to
issue or participate in any Letter of Credit, or any reduction in any
amount receivable by such Bank hereunder in respect of any such Loans
or Letters of Credit or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable
to such Bank under this Agreement or its Notes in respect of
any of such Loans (other than franchise taxes and taxes
imposed on the overall net income of such Bank or its
Applicable Lending Office for any of such Loans by the United
States of America or the jurisdiction in which such Bank has
its principal office or such Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit,
minimum capital, capital ratio, or similar requirement
relating to any extensions of credit or other assets of, or
any deposits with or other liabilities or commitments of, such
Bank (including, without limitation, any of such Loans or any
deposits referred to in the definition of "Libor Rate" in
Section 1.1 of this Agreement); or
(iii) imposes any other condition affecting this Agreement
or the Notes or any of such extensions of credit or
liabilities or commitments.
Each Bank will notify the Borrower (with a copy to the Agent) of any
event occurring after the date of this Agreement which will entitle
such Bank to compensation pursuant to this subsection 6.1(a) as
promptly as practicable after it obtains knowledge thereof and
determines to request such compensation, and will designate a different
Applicable Lending Office for the Loans affected by such event if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Bank, violate
any law, rule, or regulation or be in any way disadvantageous to such
Bank. Each Bank will furnish the Borrower with a certificate setting
forth the basis and the amount of each request of such Bank for
compensation under this subsection 6.1(a). A Bank may only request
compensation under this subsection 6.1(a) for Additional Costs incurred
(i) at any time after the date which is three (3) months prior to the
date the Bank
26
requests such compensation and (ii) at any time after it has notified
the Borrower it will request compensation under this subsection 6.1(a).
(b) Determinations and allocations by any Bank for purposes
of this Section 6.1 of the effect of any Regulatory Change on its costs
of maintaining Loans subject to a Libor Account or to issue or
participate in Letters of Credit or of maintaining Loans subject to a
Libor Account or issuing or participating in Letters of Credit or on
amounts receivable by it in respect of such Loans or Letters of
Credit, and of the additional amounts required to compensate such Bank
in respect of any Additional Costs, shall, absent manifest error, be
conclusive, provided that such determinations and allocations are made
on a reasonable basis.
Section 6.2 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to maintain Loans subject to a Libor Account hereunder, then such
Bank shall promptly notify the Borrower (with a copy to the Agent) thereof, such
Bank's obligation to maintain Loans subject to a Libor Account shall be
suspended until such time as such Bank may again maintain Loans subject to a
Libor Account and the Bank's Libor Accounts shall be automatically Converted
into Base Rate Accounts on such date as such Bank may specify to the Borrower
with a copy to the Agent. To the extent that such Bank's Libor Accounts have
been so Converted, all payments and prepayments of principal, which would
otherwise be applied to such Bank's Libor Accounts, shall be applied instead to
its Base Rate Accounts.
Section 6.3 Compensation. The Borrower shall pay to the Agent for the
account of each Bank, upon the request of such Bank, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Bank) to compensate it
for any loss, cost, or expense incurred by it as a result of:
(a) Any payment or prepayment of a Loan subject to a Libor
Account or Conversion of a Libor Account for any reason (including,
without limitation, the mandatory prepayment of the Loans pursuant to
Section 5.4(b) or the acceleration of the outstanding Loans pursuant to
subsection 12.2(a)) on a date other than the last day of an Interest
Period for the applicable Libor Account; or
(b) Any failure by the Borrower for any reason to prepay a
Loan subject to a Libor Account, on the date for such prepayment
specified in the relevant notice of prepayment under this Agreement.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or Converted
for the period from the date of such payment or Conversion to the last day of
the Interest Period for such Libor Account at the applicable rate of interest
for such Libor Account provided for herein over (ii) the interest component of
the amount such Bank would have bid in the London interbank market for Dollar
deposits of leading banks and amounts comparable to such principal amount and
with maturities comparable to such period.
Section 6.4 Capital Adequacy. If after the date hereof, any Bank
shall have determined that the adoption or implementation of any applicable law,
rule, or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any central bank or
other Governmental Authority charged with the interpretation or administration
thereof, or compliance by such Bank (or its parent) with any guideline, request,
or directive regarding capital adequacy (whether or not having the force of law)
of any central bank or other Governmental Authority has or would have the effect
of reducing the rate of return on such Bank's (or its parent's) capital as a
consequence of its obligations hereunder or the transactions contemplated hereby
to a level below that which such Bank (or its parent) could have achieved but
for such adoption, implementation, change, or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within ten
(10) Business Days after demand by such Bank (with a copy to the Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its parent) for such reduction. A certificate of such
Bank claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive, provided that
the determination thereof is made on a reasonable basis. In determining such
amount or amounts, such Bank may use any reasonable averaging and attribution
methods. With respect to each demand by a Bank under this Section 6.4, no Bank
shall have the right to demand compensation for amounts attributable to any
reduction in such Bank's rate of return occurring at any time before the date
which is three (3) months prior to the date the Bank gives such demand for
compensation to the Borrower.
27
Section 6.5 Replacement of a Bank. If a Bank (other than the Agent as a
Bank) becomes a Replacement Candidate, the Borrower shall have the right to
require such Bank to assign to an Eligible Assignee selected by the Borrower and
reasonably satisfactory to the Agent (which may be one or more of the Banks) the
Notes and participation interests in the Letter of Credit Liabilities and
Swingline Loans held by such Bank pursuant to the terms of an appropriately
completed Assignment and Acceptance in accordance with subsection 14.8(b);
provided that, neither the Agent nor any Bank shall have any obligation to the
Borrower to find any such Eligible Assignee and in order for the Borrower to
replace a Bank, the Borrower must require such replacement within three (3)
months of the date the Bank became a Replacement Candidate. Each Bank (other
than the Agent as a Bank) agrees to its replacement at the option of the
Borrower pursuant to this Section 6.5; provided that the Eligible Assignee
selected by the Borrower shall purchase such Bank's interest in the Obligations
owed herewith of the Borrower to such Bank for cash in an aggregate amount equal
to the aggregate unpaid principal thereof, all unpaid interest accrued thereon,
all unpaid commitment and letter of credit fees accrued for the account of such
Bank, any breakage costs incurred by the selling Bank because of the prepayment
of any Libor Accounts, all other fees (if any) applicable thereto and all other
amounts (including any amounts due under Section 6.1 or 6.4) then owing to such
Bank hereunder or under any other Loan Document. A Bank will become a
"Replacement Candidate" if (i) it has demanded compensation under Sections 5.9,
6.1 or 6.4, (ii) it has defaulted on any obligation under the Loan Documents or
(iii) it has become insolvent and its assets become subject to a receiver,
liquidator, trustee, custodian, or other officer having similar powers. The
rights of the Borrower under this Section 6.5 shall be in addition to any other
rights or remedies the Borrower may have at law or in equity as a result of the
events described in the definition of "Replacement Candidate".
ARTICLE 7
Conditions Precedent
Section 7.1 Effectiveness of Agreement. The obligation of each Bank to
enter into this Agreement and the effectiveness hereof are subject to the
satisfaction of the following conditions precedent:
(a) Closing Documents. The Agent shall have received on or before the
Closing Date all of the following, each dated (unless otherwise indicated) the
date hereof, in form and substance satisfactory to the Agent:
(i) Resolutions. Resolutions of the Board of Directors of the
Borrower and each Significant Subsidiary certified by its Secretary or
an Assistant Secretary which authorize its execution, delivery, and
performance of the Loan Documents to which it is or is to be a party;
(ii) Incumbency Certificate. A certificate of incumbency
certified by the Secretary or an Assistant Secretary of the Borrower
and each Significant Subsidiary certifying the name of each of its
officers (A) who is authorized to sign the Loan Documents to which it
is or is to be a party (including, without limitation, the
certificates contemplated herein) together with specimen signatures of
each such officer and (B) who will, until replaced by other officers
duly authorized for that purpose, act as its representative for the
purposes of signing documentation and giving notices and other
communications in connection with this Agreement and the transactions
contemplated hereby;
(iii) Articles of Incorporation. The articles of incorporation of
the Borrower and each Significant Subsidiary certified by the
Secretary of State of the state of its incorporation and dated a
current date;
(iv) Bylaws. The bylaws of the Borrower and each Significant
Subsidiary certified by its Secretary or an Assistant Secretary;
(v) Governmental Certificates. Certificates of the appropriate
government officials of the state of incorporation of the Borrower and
each Subsidiary as to its existence and good standing, all dated a
current date;
(vi) Notes. The Notes executed by the Borrower;
(vii) Guaranties. The Guaranty executed by the Significant
Subsidiaries;
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(viii) Personal Property Collateral Documents and Collateral.
Subject to the provisions of Section 9.10:
(A) The Borrower Security Agreement executed by the Borrower
and the Subsidiary Security Agreement executed by each of the
Significant Subsidiaries;
(B) to the extent not already delivered under the Original
Agreement, certificates representing the capital stock of the
Subsidiaries pledged pursuant to the Borrower Security Agreement
and/or the Subsidiary Security Agreement, together with undated
stock powers duly executed in blank; and
(C) executed documentation as Agent may deem necessary to
perfect its Liens, including, without limitation, (A) financing
statements under the UCC (or other applicable documentation under
the laws of any jurisdiction with respect to the perfection of
Liens) and (B) intellectual property assignments for all
intellectual property registered in the United States of America;
and
(ix) Opinion of Counsel. A favorable opinion of legal counsel to
the Borrower and the Significant Subsidiaries, as to such matters as
the Agent or the Required Banks may reasonably request;
(x) Recapitalization Agreement. The Recapitalization Agreement
and the other Transaction Documents (as defined in the
Recapitalization Agreement), which shall have been duly executed and
delivered by each of the parties thereto and the transactions
contemplated thereby shall have been consummated; and
(b) Attorneys' Fees and Expenses. All costs and expenses (including,
without limitation, attorneys' fees) referred to in Section 9.7 of the
Forbearance Agreement and in Section 14.1 of this Agreement, to the extent
incurred, shall have been paid in full by the Borrower; and
(c) No Material Adverse Effect. Other than the "Existing Defaults" (as
suchterm is defined in the Forbearance Agreement), since December 30, 2000,
there shall not have occurred any event that could reasonably be expected to
have a Material Adverse Effect; and
(d) Other Conditions. (a) No Default shall have occurred and be
continuing, (b) all of the representations and warranties contained in Article 8
and in the other Loan Documents shall be true and correct in all material
respects on and as of the Closing Date (except to the extent that such
representations and warranties relate specifically to another date), and (c) the
Agent shall have received such additional approvals, opinions, or documents as
the Agent, the Required Revolving Banks or the Required Term Banks may
reasonably request.
Section 7.2 Loans and Letters of Credit. The obligation of each
Revolving Bank to make any Revolving Loan and the obligation of the Agent to
issue any Letter of Credit or make any Swingline Loan are subject to the
following additional conditions precedent:
(a) No Default. No Default shall have occurred and be continuing, or
would result from such Revolving Loan or Letter of Credit;
(b) Representations and Warranties. All of the representations and
warranties contained in Article 8 and in the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Revolving Loan or Letter of Credit with the same force and effect as if
such representations and warranties had been made on and as of such date
except to the extent that such representations and warranties relate
specifically to another date; and
(c) Additional Documentation. The Agent shall have received such
additional approvals, opinions, or documents as the Agent, the Required
Revolving Banks or the Required Term Banks may reasonably request.
29
Each notice of borrowing by the Borrower hereunder, and each request for the
issuance of a Letter of Credit, shall constitute a representation and warranty
by the Borrower that the conditions precedent set forth in subsections 7.2(a)
and (b) have been satisfied (both as of the date of such notice and, unless the
Borrower otherwise notifies the Agent prior to the date of such borrowing or
Letter of Credit, as of the date of such borrowing or Letter of Credit).
ARTICLE 8
Representations and Warranties
To induce the Agent and the Banks to enter into this Agreement, the
Borrower represents and warrants to the Agent and the Banks that:
Section 8.1 Corporate Existence. The Borrower and each Subsidiary (a)
is a corporation or other entity (as reflected on Schedule 8.14) duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority to own
its assets and carry on its business as now being or as proposed to be
conducted, and (c) is qualified to do business in all jurisdictions in which the
nature of its business makes such qualification necessary and where failure to
so qualify would reasonably be expected to have a Material Adverse Effect. The
Borrower and each Obligated Party has the corporate power and authority to
execute, deliver, and perform their respective obligations under the Loan
Documents to which it is or may become a party.
Section 8.2 Financial Statements. The Borrower has delivered to the
Agent and the Banks audited consolidated financial statements of the Borrower
and the Subsidiaries as at and for the Fiscal Year ended on or about December
30, 2000, and unaudited consolidated financial statements of the Borrower and
the Subsidiaries for the Fiscal Quarter ended September 29, 2001. Such financial
statements, have been prepared in accordance with GAAP, and present fairly in
all material respects, on a consolidated basis, the financial condition of the
Borrower and the Subsidiaries as of the respective dates indicated therein and
the results of operations for the respective periods indicated therein. Neither
the Borrower nor any of the Subsidiaries has any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments, or
unrealized or anticipated losses from any unfavorable commitments except as
referred to or reflected in such financial statements or in the notes to such
financial statements or which have otherwise been disclosed to the Banks in
writing. There has been no material adverse change in the business, condition
(financial or otherwise), operations, prospects, or properties of the Borrower
and the Subsidiaries taken as a whole since the effective date of the most
recent financial statements referred to in this Section 8.2.
Section 8.3 Corporate Action; No Breach. The execution, delivery, and
performance by the Borrower and each Obligated Party of the Loan Documents to
which each is or may become a party and compliance with the terms and provisions
hereof and thereof have been duly authorized by all requisite action on the part
of the Borrower and each Obligated Party and do not and will not (a) violate or
conflict with, or result in a breach of (i) the articles of incorporation or
bylaws of the Borrower or any of the Subsidiaries, (ii) any applicable law,
rule, or regulation or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator other than such violations, conflicts, and
breaches which would not reasonably be expected to have a Material Adverse
Effect, or (iii) any agreement or instrument to which the Borrower or any of the
Subsidiaries is a party or by which any of them or any of their property is
bound or subject other than such violations, conflicts, and breaches which would
not reasonably be expected to have a Material Adverse Effect, or (b) constitute
a default under any such agreement or instrument, or result in the creation or
imposition of any Lien (except as provided herein) upon any of the revenues or
assets of the Borrower or any Subsidiary other than such defaults which would
not reasonably be expected to have a Material Adverse Effect.
Section 8.4 Operation of Business. The Borrower and each of the
Subsidiaries possess all licenses, permits, franchises, patents, copyrights,
trademarks, and tradenames, or rights thereto, necessary to conduct their
respective businesses substantially as now conducted and as presently proposed
to be conducted except those that the failure to so possess would not reasonably
be expected to have a Material Adverse Effect, and the Borrower and each of its
Subsidiaries are not in violation of any valid rights of others with respect to
any of the foregoing except violations that would not reasonably be expected to
have a Material Adverse Effect.
Section 8.5 Litigation and Judgments. Except as disclosed on Schedule
8.5 or in the Borrower's Form 10-Q for the Fiscal Quarter ended September 29,
2001, there is no action, suit, investigation, or proceeding before or by any
Governmental Authority or arbitrator pending, or to the knowledge of the
Borrower, threatened against or
30
affecting the Borrower or any Subsidiary, that is reasonably expected to have a
Material Adverse Effect. As of the Closing Date, there are no outstanding
judgments against the Borrower or any Subsidiary.
Section 8.6 Rights in Properties; Liens; Nonproductive Assets. Except
as set forth on Schedule 8.6, the Borrower and each Subsidiary have good title
to or valid leasehold interests in their respective properties and assets, real
and personal, including the properties, assets, and leasehold interests
reflected in the financial statements described in Section 8.2 (except as sold
or otherwise disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted by this Agreement or the
Original Agreement), and none of the properties, assets, or leasehold interests
of the Borrower or any Subsidiary is subject to any Lien, except as permitted by
Section 10.2. The properties listed on Schedule 10.8 are not utilized by the
Borrower or any Subsidiary in the ordinary course of business and do not
contribute to the cash flow or earnings of the Borrower or any Subsidiary.
Section 8.7 Enforceability. The Loan Documents to which the Borrower or
any Obligated Party is party, when delivered, shall constitute the legal, valid,
and binding obligations of the Borrower or the Obligated Party, as applicable,
enforceable against the Borrower or the applicable Obligated Party in accordance
with their respective terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of creditors'
rights and general principles of equity.
Section 8.8 Approvals. No authorization, approval, or consent of, and
no filing or registration with, any Governmental Authority or third party is or
will be necessary for the execution, delivery, or performance by the Borrower or
any Obligated Party of the Loan Documents to which each is or may become a party
or for the validity or enforceability thereof except for such authorizations,
approvals, consents, filings and registrations which (i) have been obtained or
made or (ii) are not required to be obtained pursuant to the terms of the
Recapitalization Agreement and the failure of which to obtain or make would not
reasonably be expected to have a Material Adverse Effect.
Section 8.9 Debt. The Borrower and the Subsidiaries have no Debt,
except as permitted by Section 10.1.
Section 8.10 Taxes. The Borrower and each Subsidiary have filed all
material tax returns (federal, state, and local) required to be filed, including
all income, franchise, employment, property, and sales tax returns, and have
paid all of their respective material liabilities for taxes, assessments,
governmental charges, and other levies that are due and payable other than those
being contested in good faith by appropriate proceedings diligently pursued for
which adequate reserves have been established in accordance with GAAP. Except as
reflected on Schedule 8.10, the Borrower knows of no pending investigation of
the Borrower or any Subsidiary by any taxing authority or of any pending but
unassessed tax liability of the Borrower or any Subsidiary.
Section 8.11 Margin Securities. Neither the Borrower nor any Subsidiary
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulations T, U, or X of the Board of Governors of the
Federal Reserve System), and no part of the proceeds of any Loan will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock.
Section 8.12 ERISA. The Borrower and each Subsidiary are in compliance
with all applicable provisions of ERISA except for such events of noncompliance,
which would not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary knows or has reason to know that any
Reportable Event or Prohibited Transaction has occurred and is continuing with
respect to any Plan which has not been previously disclosed to the Agent. No
notice of intent to terminate a Plan has been filed, nor has any Plan been
terminated. No circumstances exist which constitute grounds entitling the PBGC
to institute proceedings to terminate, or appoint a trustee to administer, a
Plan, nor has the PBGC instituted any such proceedings. Neither the Borrower nor
any ERISA Affiliate has completely or partially withdrawn from a Multiemployer
Plan. The Borrower and each ERISA Affiliate have met their minimum funding
requirements under ERISA with respect to all of their Plans except for those
instances of noncompliance with such requirements, which would not reasonably be
expected to have a Material Adverse Effect. The present value of all vested
benefits under each Plan do not exceed the fair market value of all Plan assets
allocable to such benefits, as determined on the most recent valuation date of
the Plan and in accordance with ERISA, by an amount that would reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any ERISA
Affiliate has incurred any liability to the PBGC under ERISA in an amount that
would reasonably be expected to have a Material Adverse Effect.
31
Section 8.13 Disclosure. All factual information (taken as a whole)
furnished by or on behalf of the Borrower in writing to the Agent or any Bank
(including, without limitation, all information contained in the Loan Documents)
for purposes of or in connection with this Agreement, the other Loan Documents,
the Recapitalization Agreement or any transaction contemplated herein or therein
is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of the Borrower to the Agent or any Bank, will be true
and accurate in all material respects on the date as of which such information
is dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such information
was provided. Without limiting the generality of the foregoing, Borrower
represents and warrants that all information contained on the Schedules hereto
is true and correct in all material respects.
Section 8.14 Subsidiaries. As of the Closing Date the Borrower has no
Subsidiaries other than those listed on Schedule 8.14 hereto. As of the Closing
Date, Schedule 8.14 sets forth the type of each Subsidiary listed thereon, the
jurisdiction of incorporation or organization of each such Subsidiary, the
percentage of the Borrower's ownership of the outstanding voting stock (or other
ownership interests) of each such Subsidiary, whether the Subsidiary is a
Significant Subsidiary, and with respect to each such Subsidiary that is a
corporation, the authorized, issued and outstanding capital stock of each such
Subsidiary. All of the outstanding capital stock of each Subsidiary listed on
Schedule 8.14 has been validly issued, is fully paid, and is nonassessable. As
of the Closing Date, there are no outstanding subscriptions, options, warrants,
calls, or rights (including preemptive rights) to acquire, and no outstanding
securities or instruments convertible into, capital stock of any Subsidiary
listed on Schedule 8.14.
Section 8.15 Agreements. Neither the Borrower nor any Subsidiary is a
party to any indenture, loan, or credit agreement, or to any lease or other
agreement or instrument, or subject to any charter or corporate restriction that
would reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary is in default in any respect in the performance,
observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument to which it is a party other than
defaults which would not reasonably be expected to have a Material Adverse
Effect.
Section 8.16 Compliance with Laws. Neither the Borrower nor any
Subsidiary is in violation of any law, rule, regulation, order, or decree of any
Governmental Authority or arbitrator other than defaults, which would not
reasonably be expected to have a Material Adverse Effect.
Section 8.17 Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 8.18 Public Utility Holding Company Act. Neither the Borrower
nor any Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
Section 8.19 Environmental Matters. Except as disclosed on Schedule
8.19 or in the Borrower's Form 10-Q for the Fiscal Quarter ended September 29,
2001, and except for those matters which would not reasonably be expected to
have a Material Adverse Effect:
(a) The Borrower, each Subsidiary, and all of their respective
properties, assets, and operations are in full compliance with all
Environmental Laws. The Borrower is not aware of, nor has the Borrower
received notice of, any past, present, or future conditions, events,
activities, practices, or incidents which may interfere with or
prevent the compliance or continued compliance of the Borrower and the
Subsidiaries with all Environmental Laws;
(b) The Borrower and each Subsidiary have obtained all permits,
licenses, and authorizations that are required under applicable
Environmental Laws, and all such permits are in good standing and the
Borrower and its Subsidiaries are in compliance with all of the terms
and conditions of such permits;
(c) No Hazardous Materials exist on, about, or within or have
been used, generated, stored, transported, disposed of on, or Released
from any of the properties or assets of the Borrower or any Subsidiary
except in compliance with Environmental Laws. The use which the
Borrower and the Subsidiaries make and
32
intend to make of their respective properties and assets will not
result in the use, generation, storage, transportation, accumulation,
disposal, or Release of any Hazardous Material on, in, or from any of
their properties or assets except in compliance with Environmental
Laws;
(d) Neither the Borrower nor any of the Subsidiaries nor any of
their respective currently or previously owned or leased properties or
operations is subject to any outstanding or, to the best of its
knowledge, threatened order from or agreement with any Governmental
Authority or other Person or subject to any judicial or administrative
proceeding with respect to (i) failure to comply with Environmental
Laws, (ii) Remedial Action, or (iii) any Environmental Liabilities
arising from a Release or threatened Release;
(e) There are no conditions or circumstances associated with the
currently or previously owned or leased properties or operations of
the Borrower or any of the Subsidiaries that could reasonably be
expected to give rise to any Environmental Liabilities;
(f) Neither the Borrower nor any of the Subsidiaries is a
treatment, storage, or disposal facility requiring a permit under the
Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901 et seq.,
regulations thereunder or any comparable provision of state law. The
Borrower and the Subsidiaries are compliance with all applicable
financial responsibility requirements of all Environmental Laws;
(g) Neither the Borrower nor any of the Subsidiaries has filed or
failed to file any notice required under applicable Environmental Law
reporting a Release; and
(h) No Lien arising under any Environmental Law has attached to
any property or revenues of the Borrower or the Subsidiaries.
Section 8.20 Solvency. As of and from and after the date of this
Agreement, the Borrower and the Subsidiaries on a consolidated basis: (a) own
and will own assets the fair saleable value of which are (i) greater than the
total amount of their liabilities (including contingent liabilities) and (ii)
greater than the amount that will be required to pay the probable liabilities of
their then existing debts as they become absolute and matured considering all
financing alternatives and potential asset sales reasonably available to them;
(b) have capital that is not unreasonably small in relation to their business as
presently conducted or any contemplated or undertaken transaction; and (c) do
not intend to incur and do not believe that they will incur debts beyond their
ability to pay such debts as they become due.
ARTICLE 9
Positive Covenants
The Borrower covenants and agrees that, as long as the Obligations or
any part thereof are outstanding or any Bank has any Commitment hereunder, the
Borrower will perform and observe the following positive covenants:
Section 9.1 Reporting Requirements. The Borrower will furnish to the
Agent and each Bank:
(a) Annual Financial Statements. As soon as available, and in any
event within one hundred fifteen (115) days after the end of each
Fiscal Year of the Borrower, beginning with the Fiscal Year ending on
the Saturday closest to December 31, 2001, (i) a copy of the annual
audit report of the Borrower and the Subsidiaries for such Fiscal Year
containing, on a consolidated basis, balance sheets and statements of
income, retained earnings, and cash flow as at the end of such Fiscal
Year and for the Fiscal Year then ended, in each case setting forth in
comparative form the figures for the preceding Fiscal Year, all in
reasonable detail and audited and certified by independent certified
public accountants of recognized standing acceptable to the Agent, to
the effect that such report has been prepared in accordance with GAAP;
(b) Monthly Financial Statements and other Reports; Delivery of
New Certificates of Title and other Collateral. As soon as available,
and in any event within forty-five (45) days after the end of each
four (4) week period during its Fiscal Year (or with respect to the
last such period in each such Fiscal Year, within ninety (90) days
after the end of such four (4) or, as the case may be, five (5) week
period), a copy of an unaudited financial report of the Borrower and
the Subsidiaries as of the end of such period and for the portion
33
of the Fiscal Year then ended containing, on a consolidated basis,
balance sheets and statements of income, retained earnings, and cash
flow, in each case setting forth in comparative form the figures for
the corresponding period of the preceding Fiscal Year, and the
corresponding period in the projections delivered pursuant to
subsection 9.1(e), all in reasonable detail certified by the chief
financial officer or treasurer of the Borrower to have been prepared
in accordance with GAAP and to fairly present in all material respects
(subject to year-end audit adjustments) the financial condition and
results of operations of the Borrower and the Subsidiaries, on a
consolidated basis, at the date and for the periods indicated therein
and to be accompanied by the following each to be in form and
substance reasonably satisfactory to the Agent:
(i) a comparison of actual cash receipts and disbursements
or the prior month to forecasted cash receipts and disbursements
as set forth on the forecast delivered for the prior month;
(ii) an update of the status of all planned asset
dispositions and a detailed listing of all asset dispositions
completed in accordance with subsection 10.8(h) during the
preceding month including the assets sold, the sales price for
such assets, and the Net Cash Proceeds received;
(iii) a detail of the selling prices received from its
product during the prior month and the selling prices for the
commodities that its products compete with over the same period;
(iv) all Capital Expenditures of the Borrower and the
Subsidiaries during the prior month;
(v) such information relating to the performance at each of
its plants that the Agent may reasonably request;
(vi) such other information as the Agent or any Bank may
reasonably require;
(vii) subject to subsection 9.10(a), any Collateral or
related documents required to be delivered in accordance with
this subsection 9.1(b) pursuant to Paragraph 6 of the Borrower
Security Agreement or Paragraph 6 of the Subsidiary Security
Agreement, including, but not limited to, all certificates of
title evidencing ownership of any equipment purchased since the
later of the Closing Date or the last date certificates of title
were delivered under this subsection 9.1(b), together with such
documentation as the Agent may reasonably request to cause the
Agent's Lien held for the benefit of the Secured Parties to be
noted thereon; and
(viii) for each reporting period under this Section 9.1(b)
(commencing with the reporting period ending on June 29, 2002, in
the case of certification under clause (A) of this Section
9.1(b)(viii)), a foreign shipment certificate executed by a
responsible officer of the Borrower demonstrating in reasonable
detail, among other things, (A) the percentage of the aggregate
amount of accounts receivable of the Borrower and its
Subsidiaries arising from the sale or disposition of inventory
subject to "Inventory Exporting" (as such term is defined in the
Borrower Security Agreement and the Subsidiary Security
Agreement) during such reporting period, measured as of the last
day of such reporting period, and (B) that the aggregate value of
the inventory subject to "Nonconforming Inventory Exporting
Arrangements" (as such term is defined in the Borrower Security
Agreement and the Subsidiary Security Agreement) has not exceeded
30% of the aggregate value of all inventory of the Borrower and
its Subsidiaries on the last day of such reporting period.
(c) Semi-Monthly Status Report; Monthly Hedging Report. On the
first Business Day of each month and on the fifteenth day (15th) of
each month (or if such day is not a Business Day, on the first
Business Day thereafter), a forecast of cash receipts, disbursements
and projected availability under the Revolving Commitment for the
eight (8) week period then beginning, such forecast to be in form and
substance reasonably satisfactory to the Agent; and on the fifteenth
(15th) day of each month (or if such day is not a Business Day, on the
first Business Day thereafter) a detailed summary of the material
terms of each Hedge Agreement to which the Borrower or any Subsidiary
is a party as of the end of the previous month, in form and substance
satisfactory to Agent, and including, without limitation, the term,
notional amounts, fixed and floating prices and payors, credit
support, and the current ▇▇▇▇-to-market value of each transaction and
accompanied by copies
34
of all transaction confirmations, modifications or other documentation
executed or delivered in connection therewith during such month;
(d) Compliance Certificate. Within sixty (60) days after the end
of each Fiscal Quarter of each Fiscal Year, or with respect to the
last Fiscal Quarter of each Fiscal Year, within ninety (90) days of
the end of such Fiscal Quarter, a Compliance Certificate;
(e) Projections and Bonus Plan. As soon as available and in any
event forty-five (45) days after the beginning of each Fiscal Year of
the Borrower, the Borrower will deliver (i) a forecasted consolidated
balance sheet and statements of income and cash flow of the Borrower
and the Subsidiaries on a Fiscal Quarter by Fiscal Quarter basis in a
format consistent with the most recent financial statements delivered
under Section 9.1(a), including the assumptions utilized in the
preparation of such projections (in narrative form) for the
forthcoming Fiscal Year and a pro-forma projection of the Borrower's
compliance with the financial covenants in this Agreement for the same
period and (ii) a copy of any bonus compensation or incentive plan
adopted for such Fiscal Year by the Borrower and the Subsidiaries for
its officers and employees;
(f) Management Letters. Promptly upon receipt thereof, a copy of
any final management letter or written report submitted to the
Borrower or any Subsidiary by independent certified public accountants
with respect to the business, condition (financial or otherwise),
operations, prospects, or properties of the Borrower or any
Subsidiary;
(g) Notice of Litigation. Promptly after the commencement
thereof, notice of all actions, suits, investigations (with respect to
investigations only, of which the Borrower has actual knowledge) and
proceedings before any Governmental Authority or arbitrator affecting
the Borrower or any Subsidiary which would reasonably be expected to
have a Material Adverse Effect;
(h) Notice of Default. As soon as possible and in any event
within five (5) Business Days after an officer of the Borrower has
knowledge of the occurrence of each Default, a written notice setting
forth the details of such Default and the action that the Borrower has
taken and proposes to take with respect thereto;
(i) ERISA Reports. If requested by the Agent, promptly after the
filing or receipt thereof, copies of all reports, including, without
limitation, annual reports, and notices which the Borrower or any
Subsidiary files with or receives from the PBGC or the U.S. Department
of Labor under ERISA; and as soon as possible and in any event within
five (5) Business Days after the Borrower or any Subsidiary knows or
has reason to know that any Reportable Event or Prohibited Transaction
has occurred with respect to any Plan or that the PBGC or the Borrower
or any Subsidiary has instituted or will institute proceedings under
Title IV of ERISA to terminate any Plan, a certificate of the chief
financial officer or treasurer of the Borrower setting forth the
details as to such Reportable Event or Prohibited Transaction or Plan
termination and the action that the Borrower proposes to take with
respect thereto;
(j) Notice of Material Adverse Effect. As soon as possible and in
any event within five (5) Business Days after an officer of the
Borrower has knowledge of the occurrence thereof, written notice of
any matter that could reasonably be expected to have a Material
Adverse Effect;
(k) Press Release; Proxy Statements, Etc. As soon as available,
one copy of each press release sent by the Borrower, one copy of each
financial statement, report, notice or proxy statement sent by the
Borrower or any Subsidiary to its stockholders generally and one copy
of each regular, periodic or special report, registration statement,
or prospectus filed by the Borrower or any Subsidiary with any
securities exchange or the Securities and Exchange Commission or any
successor agency; and
(l) General Information. Promptly, such other information
concerning the Borrower or any Subsidiary as the Agent or any Bank may
from time to time reasonably request.
35
Section 9.2 Maintenance of Existence; Conduct of Business. Except as
permitted by Section 10.3, the Borrower will, and will cause each Subsidiary to,
preserve and maintain its corporate existence and all of its leases, privileges,
licenses, permits, franchises, qualifications, and rights that are necessary in
the ordinary conduct of its business. The Borrower will, and will cause each
Subsidiary to, conduct its business in an orderly and efficient manner in
accordance with good business practices.
Section 9.3 Maintenance of Properties. The Borrower will, and will
cause each Subsidiary to, maintain, keep, and preserve all of its material
properties necessary in the conduct of its business in good working order and
condition (exclusive of ordinary wear and tear).
Section 9.4 Taxes and Claims. The Borrower will, and will cause each
Subsidiary to, pay or discharge at or before maturity or before becoming
delinquent (a) all taxes, levies, assessments, and governmental charges imposed
on it or its income or profits or any of its property which are material in
amount (either individually or in the aggregate), and (b) all lawful claims for
labor, material, and supplies, which are material in amount (either individually
or in the aggregate) and which, if unpaid, might become a Lien upon any of its
property; provided, however, that neither the Borrower nor any Subsidiary shall
be required to pay or discharge any of the foregoing which is being contested in
good faith by appropriate proceedings diligently pursued, and for which adequate
reserves have been established and no Lien (other than Liens permitted under
Section 10.2) on any property of the Borrower or any Subsidiary arise from such
failure.
Section 9.5 Insurance; Casualty and Condemnation Proceeds. The
Borrower will, and will cause each Subsidiary to, maintain insurance with
financially sound and reputable insurance companies in such amounts and covering
such risks as are usually carried by Persons engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower and
the Subsidiaries operate, provided that in any event the Borrower will maintain
and cause each Subsidiary to maintain workmen's compensation insurance, property
insurance, comprehensive general liability insurance, and products liability
insurance reasonably satisfactory to the Agent. Each general liability insurance
policy shall name the Agent as additional insured, each insurance policy
covering Collateral shall name the Agent as loss payee and all such policies
shall provide that they will not be canceled or materially changed without
thirty (30) days prior written notice to the Agent; provided, however, that any
such insurance policy may be cancelable for non-payment of applicable premiums
upon not less than ten (10) days prior written notice to the Agent. Borrower and
the Subsidiaries may retain the proceeds of any payments made under casualty
insurance policies and any proceeds of any condemnation action, if (a) no Event
of Default exists at the time such proceeds are received; (b) the Borrower or
the applicable Subsidiary utilizes or commits to utilize the proceeds to repair
or replace the property damaged or condemned, to construct a replacement
facility for the property damaged or condemned or to expand the productive
capacity of an existing facility within 180 days of receipt and, with respect to
any such commitment, does so utilize such proceeds within eighteen (18) months
of receipt; and (c) within ninety (90) days of the occurrence of the casualty
loss or condemnation action giving rise to such proceeds, the Borrower or the
applicable Subsidiary elects (by written notice to Agent) to so utilize such
proceeds, which notice shall include a reasonably detailed budget of the costs
and expenses, by month, estimated to be incurred in connection with such
restoration, repair, replacement or expansion, as applicable. In all other
cases, such proceeds shall be paid to Agent and applied to the Obligations in
accordance with subsection 5.4(b)(i)(B) (unless an Acceleration Event exists, in
which case such proceeds shall be applied in accordance with subsection 5.6(b)).
Section 9.6 Inspection Rights. At any reasonable time and from time to
time prior to a Default upon one (1) Business Day's prior notice and at any
reasonable time after the occurrence and during the continuance of a Default,
the Borrower will, and will cause each Subsidiary to, permit representatives of
the Agent and each Bank to examine, copy, and make extracts from its books and
records, to visit and inspect its properties, and to discuss its business,
operations, and financial condition with its officers, employees, and
independent certified public accountants. The Agent and each Bank will give the
Borrower the opportunity to participate in any discussions they conduct with the
Borrower's independent certified public accountants.
Section 9.7 Keeping Books and Records. The Borrower will, and will
cause each Subsidiary to, maintain proper books of record and account in which
full, true, and correct entries in conformity with GAAP shall be made of all
dealings and transactions in relation to its business and activities.
Section 9.8 Compliance with Laws; Environmental Laws.
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(a) The Borrower will, and will cause each Subsidiary to, comply with
all applicable laws (including, without limitation, all Environmental Laws),
rules, regulations, orders, and decrees of any Governmental Authority or
arbitrator other than such noncompliance which would not reasonably be expected
to have a Material Adverse Effect.
(b) Other than any noncompliance with any of the following
subsections 9.8(b)(i)-(iii) (except for noncompliance with any requirement to
provide notices to the Agent) which would not reasonably be expected to have a
Material Adverse Effect:
(i) Except in compliance with Environmental Laws, Borrower and
each Subsidiary shall keep their respective properties, assets and
operations free of Hazardous Materials and shall not, and shall not allow
any tenant, occupant, or other party to generate, manufacture, refine,
transport, treat, store, handle, dispose, transfer, produce, process or in
any manner deal with Hazardous Materials on or at their respective
properties, assets and operations. Borrower and each Subsidiary shall not
cause, suffer, allow, or permit, as a result of any intentional or
unintentional act or omission, and Borrower or each Subsidiary shall use
its best efforts not to cause, suffer, allow, or permit, as a result of any
act or omission on the part of any tenant or subtenant or occupant of their
respective properties, assets and operations, a Release or threatened
Release of any Hazardous Materials onto their respective properties, assets
and operations or onto any other property that would reasonably be likely
to result in Environmental Liabilities;
(ii) If Borrower or any subsidiary receives any written notice or
advice from any Governmental Authority or from any other person with regard
to any Environmental Liability or alleged Environmental Liability or with
regard to any Release or threatened Release of any Hazardous Material at,
on, under, or from or affecting their respective properties, assets and
operations (other than immaterial notices received in the ordinary course
of business, including, without limitation, routine correspondence
regarding permitting or permitted releases), Borrower or the Subsidiary
shall immediately notify Agent in writing; and
(iii) Borrower and/or each Subsidiary shall conduct and complete
all investigations, studies, sampling and testing which are reasonably
necessary or required, and all remedial, removal, and other actions
reasonably necessary or required to investigate, clean up, remove, and
monitor all Hazardous Materials on or affecting their respective
properties, assets or operations or originating from their respective
properties, assets or operations in accordance with and to the full extent
required by Environmental Laws and to the satisfaction of all applicable
Governmental Authorities. Notwithstanding the above, any such remedial,
removal or other action shall be conducted in such a manner as to place no
restriction on the future use of their respective properties, assets or
operations, or to place no deed restriction upon their respective
properties, assets or operations, other than restrictions limiting future
use to commercial or industrial use and prohibiting the use of groundwater,
and to require no post-response action care or monitoring. If Borrower
and/or each Subsidiary does not commence with any investigation, removal,
remedial or other action in compliance with Environmental Laws within sixty
(60) days of receipt of the initial advice or notice with regard to their
respective properties, assets or operations, Agent, within thirty (30) days
after notice to Borrower and/or each Subsidiary, may elect, in its sole
discretion and with no obligation to do so, to undertake such action. Any
monies expended by Agent in efforts to comply with any Environmental Laws
or pursuant to the preceding sentence (including the reasonable costs of
hiring consultants, undertaking sampling and testing, performing any
removal or remedial action and reasonable attorneys' fees and
disbursements) will be reimbursed by Borrower to Agent on demand, will
constitute a portion of the Primary Obligations, will bear interest from
the date incurred until paid at the Default Rate and will be secured by the
Collateral.
Section 9.9 Compliance with Agreements. The Borrower will, and will
cause each Subsidiary to, comply with all agreements, contracts, and instruments
binding on it or affecting its properties or business other than such
noncompliance which would not reasonably be expected to have a Material Adverse
Effect.
Section 9.10. Further Assurances; Post Closing Items; Exceptions to
Perfection and other Collateral Matters.
(a) Further Assurance. The Borrower will, and will cause each
Subsidiary to, execute and deliver such further documentation and take such
further action as may be reasonably requested by the Agent to carry out the
37
provisions and purposes of the Loan Documents and to create, preserve, and
perfect the Liens of the Agent for the benefit of itself and the Secured Parties
in the Collateral; provided that:
(i) until a Perfection Event occurs, neither the Borrower nor any
Subsidiary shall be required to cause the Agent's Lien to be noted on any
certificate of title evidencing the ownership in any equipment subject to
an operating or capital lease now in existence or hereafter entered into in
accordance with this Agreement; however, if a Perfection Event occurs and
continues, the Borrower shall, and shall cause the Significant
Subsidiaries, to take such action as the Agent may require to perfect and
protect the Liens of the Agent in any of such equipment or other vehicles
as the Agent may specify (the term "Perfection Event" means the acquisition
by Borrower of ownership of such equipment either pursuant to the exercise
of a purchase option, at the expiration of the applicable lease term or
otherwise); and
(ii) neither the Borrower nor any Subsidiary shall be required to
cause the Agent's Lien on intellectual property which is registered outside
the United States of America and is listed on Schedule 9.10(a) to be
recorded in any jurisdiction outside the United States of America because
the Borrower and the Subsidiaries intend on abandoning the registrations
listed on Schedule 9.10(a); however, if the Borrower or any Subsidiary
determines not to abandon a registration listed on Schedule 9.10(a), the
Borrower shall, or shall cause the applicable Significant Subsidiary, to
take such action as the Agent may require to record its Liens against such
registration.
Each Approved Bank Affiliate, by accepting the benefits of the Liens granted in
the Loan Documents: (A) consents to the Liens granted in favor of the Agent in
the Borrower's rights in and to the operating and capital leases entered into
with the Borrower and the equipment the subject thereof and (B) agrees that when
all obligations owed to it arising in connection with any such operating or
capital lease are satisfied (provided that the Borrower becomes the owner of the
equipment subject to such lease), it will deliver any certificates of title
evidencing the ownership in such equipment to the Agent, with such documentation
as the Agent may require to release the Secured Party's Lien thereon, transfer
ownership to the Borrower and record the Agent's Lien thereon. The Agent is
authorized to record its Lien on any certificate of title so received.
(b) RESERVED
(c) Deposit Accounts. In the event the Borrower or a Significant
Subsidiary is not able by the Closing Date to obtain and deliver to Agent a
deposit account control agreement, in form and substance acceptable to the
Agent, from any bank holding a deposit account (other than any Excluded Account,
as defined in the Borrower Security Agreement and the Subsidiary Security
Agreement), the Borrower or the applicable Significant Subsidiary shall no
longer use such account, and shall immediately close such account and transfer
any remaining funds therein to a deposit account for which such a control
agreement has been so obtained and delivered.
(d) Creation, Perfection and Protection of Liens on Real Property. The
Borrower agrees that it has caused and shall cause, and has caused and shall
cause the Significant Subsidiaries to:
(i) Fee Owned Designated Property Mortgages. Execute and deliver to
the Agent on or before the Closing Date, a Mortgage or a modification or
amendment (a "Mortgage Amendment") to each Mortgage executed and delivered
in connection with the Original Agreement covering each parcel of Fee Owned
Designated Property, with a metes and bounds or other description of each
such parcel attached thereto sufficient to permit the filing of such
Mortgage or Mortgage Amendment (if required under applicable law) in the
applicable real property records;
(ii) Fee Owned Designated Property Related Documents. Deliver to the
Agent on or before the Closing Date, in form and substance reasonably
satisfactory to the Agent: (A) appropriate endorsements to each mortgagee's
title insurance policy in effect with respect to any Mortgage executed and
delivered in connection with the Original Agreement issued by a title
insurer reasonably satisfactory to the Agent, reflecting that such title
insurance policies remain in full force and effect notwithstanding the
transfer and assignment of the insured Mortgage to Agent from the "Agent"
under the Original Agreement and the other modifications and amendments set
forth in the applicable Mortgage Amendment.
38
(iii) Landlord Consents. Use Commercially Reasonable Efforts to
obtain by June 30, 2002, from each landlord of each parcel of Designated
Leased Property, a consent to the grant by the Borrower of a Lien to the
Agent in the Borrower's interest in the related leasehold estate, such
consent to contain customary consents, estoppels and nondisturbance
provisions and to otherwise be in form and substance reasonably
satisfactory to the Agent (each a "Landlord Consent" and the term
"Designated Leased Property" means leasehold estates of the Borrower which
the Agent has designated to be mortgaged to the Agent for the benefit of
the Secured Parties based on the value of the leasehold estate, either in
and of itself or because of its importance to the operations of the
Borrower and the Subsidiaries);
(iv) Leasehold Properties Mortgage. For each Designated Leased
Property for which a Landlord Consent has been delivered in accordance with
the forgoing clause (iii), execute and deliver to the Agent on or before
the date which is ten (10) days after the related Landlord Consent is
delivered, a Mortgage covering each such parcel of Designated Leased
Property, with a metes and bounds or other description of each such parcel
attached thereto sufficient to permit the filing of such Mortgage in the
applicable real property records;
(v) Designated Leased Property Related Documents. Deliver to the
Agent on or before the date which is ten (10) days after the related
Landlord Consent is delivered, all of the following in form and substance
reasonably satisfactory to the Agent with respect to each parcel of
Designated Leased Property for which a Landlord Consent has been delivered
in accordance with the foregoing clause (iii):
(A) a copy and, if available, a summary of, the lease agreement;
(B) if the Agent reasonably requires, a title insurance
commitment and all documentation evidencing any exceptions to title
reflected thereon;
(C) if available or if the Agent otherwise reasonably requires,
a survey of the parcel, certified by a licensed surveyor;
(D) if required by the Agent, an environmental report for the
parcel, prepared by a third party environmental engineer reasonably
acceptable to the Agent; and
(E) if required by the Agent, a mortgagee's title insurance
policy (together with any required endorsements thereto) issued by a title
insurer satisfactory to the Agent in an amount equal to the fair market
value of the underlying leasehold estate.
If requested by the Agent or required by applicable law, the Borrower shall
deliver or cause to be delivered from time to time to the Agent a current
appraisal of each parcel of real property covered by a Mortgage that has a
material value (as determined by the Agent), such appraisals to be in form and
substance reasonably satisfactory to the Agent; provided that unless required by
applicable law or unless a Default exists, the Agent shall not be permitted to
require more than one appraisal for each such parcel of real property during any
calendar year at the Borrower's expense. If no environmental report has been
delivered with respect to a parcel of real property pursuant to clause (d)(v)(D)
of this Section 9.10 or within the twelve (12) months prior to the Closing Date
with respect to any real property covered by a Mortgage delivered hereunder or
under the Original Agreement, the Agent may at any time after the date hereof
require that the Borrower deliver to the Agent a current environmental report
applicable to such parcel of property, such environmental report to be in form
and substance reasonably satisfactory to the Agent and to be prepared by a third
party environmental engineer reasonably acceptable to the Agent. Under the
provisions of the forgoing sentence and clause (d)(v)(D) of this Section 9.10,
the Borrower shall be required to deliver only one environmental report during
any calendar year with respect to each parcel of property. With respect to any
parcel of real property of the Borrower or a Significant Subsidiary for which an
environmental report has been obtained, if the Agent has reason to believe that
the environmental condition of such parcel is, becomes or could become impaired
or the Agent has reason to believe the Borrower, any Subsidiary, the Agent or
any Bank may be subject to Environmental Liabilities as a result of, or in
connection with, such parcel, or a Default exists, then the Agent may require
from time to time the delivery of, and the Borrower shall deliver or cause to be
delivered from time to time to the Agent, an update of, or supplement to, any
existing environmental report applicable to such parcel of property, such update
or supplement to be in form and substance reasonably satisfactory to the Agent
and to be prepared by a third party environmental engineer reasonably acceptable
to the Agent. With respect to any parcel of property, without the consent of the
Secured Parties, the Agent
39
may determine not to require the Borrower or a Significant Subsidiary to ▇▇▇▇▇ ▇
▇▇▇▇ in its favor thereon if the Agent finds that the environmental condition of
such property is not satisfactory to the Agent.
(e) Insignificant Subsidiaries. If any Insignificant Subsidiary's (or
the aggregate amount of the Insignificant Subsidiaries') net worth or total
assets increases so that it and/or any other such Subsidiary becomes a
Significant Subsidiary, the Borrower shall cause each such Significant
Subsidiary to execute and deliver such documentation as the Agent may request to
cause such Significant Subsidiary to evidence, perfect, or otherwise implement
the guaranty of and security for the Obligations contemplated by the Guaranty
and the Subsidiary Security Agreement.
Section 9.11 ERISA. The Borrower will, and will cause each Subsidiary
to, comply with all minimum funding requirements and all other requirements of
ERISA, if applicable, so as not to give rise to any liability which will have a
Material Adverse Effect.
Section 9.12 Packers and Stockyards Act Compliance. If the Borrower or
any Subsidiary purchases livestock by purchase or cash sales, the Borrower shall
at its own expense take such steps to insure that any trust established under
the Packers and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, as amended (7 U.S.C. (S) 181 et seq.)
shall not arise for the benefit of all unpaid cash sellers on such livestock or
on the inventory derived therefrom.
Section 9.13 Payments of Adjusted Existing Accrued Interest. Borrower
shall pay to the Agent, for the ratable benefit of the Term Banks, in
immediately available funds, an amount equal to the Adjusted Existing Accrued
Interest on the thirtieth (30th) day after the Closing Date.
ARTICLE 10
Negative Covenants
The Borrower covenants and agrees that, as long as the Obligations or
any part thereof are outstanding or any Bank has any Commitment hereunder, the
Borrower will perform and observe the following negative covenants:
Section 10.1 Debt. The Borrower will not, and will not permit any
Subsidiary to, incur, create, assume, or permit to exist any Debt, except:
(a) Debt to the Banks pursuant to the Loan Documents;
(b) Debt described on Schedule 10.1 hereto, and any extensions,
renewals, or refinancings thereof so long as (i) the principal amount of
such Debt and the interest rate charged thereon after such renewal,
extension, or refinancing shall not exceed the principal amount of such
Debt which was outstanding and the interest rate which was in effect
immediately prior to such renewal, extension, or refinancing and (ii) such
Debt shall not be secured by any assets other than assets securing such
Debt, if any, prior to such renewal, extension, or refinancing;
(c) Intercompany Debt owed by one or more of the Subsidiaries to the
Borrower or to a Subsidiary or owed by Borrower to a Subsidiary; provided
that (i) the obligations of each obligor of such Debt shall be subordinated
in right of payment to the obligations under the Loan Documents from and
after such time as any portion of such obligations shall become due and
payable (whether at stated maturity, by acceleration or otherwise) and
shall have such other terms and provisions as the Agent may reasonably
require; (ii) the aggregate amount of such Debt outstanding at any time
which is owed by the Insignificant Subsidiaries shall not at any time
exceed One Hundred Thousand Dollars ($100,000); and (iii) the aggregate
amount of such Debt outstanding at any time which is owed by any Subsidiary
organized in a jurisdiction outside of the United States of America to the
Borrower shall not at any time exceed Five Hundred Thousand Dollars
($500,000);
(d) Debt (including Capital Lease Obligations and in addition to the
Debt described on Schedule 10.1) not to exceed Two Million Dollars
($2,000,000) in the aggregate at any time outstanding secured by purchase
money Liens permitted by Section 10.2;
40
(e) Guarantees incurred in the ordinary course of business with
respect to surety and appeal bonds, performance and return-of-money
bonds, and other similar obligations not exceeding at any time
outstanding One Million Dollars ($1,000,000) in aggregate liability;
(f) Debt arising in connection with non-compete, consulting or
other similar agreements which are classified as liabilities on its
balance sheet in accordance with GAAP entered into after the Closing
Date, but only if the aggregate annual payments to be made under such
agreements do not exceed Five Hundred Thousand Dollars ($500,000) and
only if such agreements are approved in writing by the Agent, which
approval may be given or withheld in the Agent's sole discretion;
(g) Guarantees, incurred in the ordinary course of business, of
Debt of Persons who supply the Borrower or a Subsidiary with raw
materials utilized in the Borrower's or a Subsidiary's business (a
"Raw Material Supplier"); provided that (i) the Debt of the Raw
Material Supplier is incurred to enable such Person to provide raw
materials to the Borrower or a Subsidiary and (ii) the aggregate
amount of the Debt of Raw Material Suppliers at any time outstanding
which is Guaranteed by the Borrower and the Subsidiaries shall not
exceed the sum of (A) Two Million Dollars ($2,000,000) minus (B) the
aggregate amount of the advances made to Raw Material Suppliers as
prepayments on raw material purchases by the Borrower and the
Subsidiaries pursuant to the permissions of subsection 10.5(g);
(h) contingent obligations arising under indemnity agreements to
title insurers to cause such title insurers to issue to the Agent the
title insurance policies required hereby or otherwise obtained in the
ordinary course of business; and
(i) Debt in addition to that specifically described in clauses
(a) through (h) of this Section 10.1 which in the aggregate does not
exceed One Million Dollars ($1,000,000) at any time outstanding.
Section 10.2 Limitation on Liens and Restrictions on Subsidiaries. The
Borrower will not, and will not permit any Subsidiary to, incur, create, assume,
or permit to exist any Lien upon any of its property, assets, or revenues,
whether now owned or hereafter acquired, except the following:
(a) Liens disclosed on Schedule 10.2 hereto;
(b) Liens in favor of the Agent, for the benefit of the Secured
Parties, pursuant to the Loan Documents;
(c) Encumbrances consisting of easements, zoning restrictions, or
other restrictions on the use of real property that do not
(individually or in the aggregate) materially affect the value of the
assets encumbered thereby or materially impair the ability of the
Borrower or the Subsidiaries to use such assets in their respective
businesses, and none of which is violated in any material respect by
existing or proposed structures or land use;
(d) Liens (other than Liens relating to Environmental Liabilities
or ERISA) for taxes, assessments, or other governmental charges that
are not delinquent or, if the execution thereof is stayed, which are
being contested in good faith by appropriate proceedings diligently
pursued and for which adequate reserves have been established;
(e) Liens of mechanics, materialmen, warehousemen, carriers,
landlords or other similar statutory Liens securing obligations that
are not yet due and are incurred in the ordinary course of business
or, if the execution thereof is stayed, which are being contested in
good faith by appropriate proceedings diligently pursued and for which
adequate reserves have been established;
(f) Liens resulting from good faith deposits to secure payments
of workmen's compensation or other social security programs or to
secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids or contracts (other than for payment of Debt)
entered into in the ordinary course of business;
41
(g) Liens for purchase money obligations (including Capital Lease
Obligations); provided that: (i) the purchase of the asset subject to
any such Lien is permitted under Section 11.3; (ii) the Debt secured
by any such Lien is permitted under Section 10.1; and (iii) any such
Lien encumbers only the asset so purchased;
(h) Any attachment or judgment Lien not constituting an Event of
Default;
(i) Liens arising from filing UCC financing statements regarding
leases not prohibited by this Agreement; and
(j) Liens existing on the Closing Date and disclosed in the title
insurance policies delivered to the Agent under the Original Agreement
or under subsection 9.10(d)(v) of this Agreement.
Neither the Borrower nor any Subsidiary shall enter into or assume any agreement
(other than the Loan Documents) prohibiting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired;
provided that, in connection with the creation of purchase money Liens
(including any such purchase money Liens securing Capital Lease Obligations),
the Borrower or the Subsidiary may agree that it will not permit any other Liens
to encumber the asset subject to such purchase money Lien. Except as provided
herein and except for customary consensual encumbrances and restrictions
contained in a purchase and sale agreement and imposed on the Subsidiary (or its
assets) to be sold in a transaction permitted hereby or otherwise approved by
the number of Banks required hereby, the Borrower will not and will not permit
any Subsidiaries directly or indirectly to create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any Subsidiary to: (1) pay dividends or make any other
distribution on any of such Subsidiary's capital stock owned by the Borrower or
any Subsidiary; (2) subject to subordination provisions, pay any Debt owed to
the Borrower or any other Subsidiary; (3) make loans or advances to the Borrower
or any other Subsidiary; or (4) transfer any of its property or assets to the
Borrower or any other Subsidiary.
Section 10.3 Mergers, Etc. The Borrower will not, and will not permit
any Subsidiary to, become a party to a merger or consolidation, or purchase or
otherwise acquire all or a substantial part of the business or assets of any
Person or of a division or branch of any Person or any shares or other equity
interest issued by any Person (whether or not certificated), or wind-up,
dissolve, or liquidate itself; provided that, if no Default exists or would
result therefrom and all applicable obligations under Section 9.10, the Borrower
Security Agreement and the Subsidiary Security Agreement are complied with: (i)
a Subsidiary may wind-up, dissolve, or liquidate if its assets are transferred
to the Borrower or a Significant Subsidiary, (ii) any Subsidiary may merge with
and into the Borrower if the Borrower is the surviving entity, (iii) any
Subsidiary may merge with and into any other Significant Subsidiary if the
Significant Subsidiary is the surviving entity, (iv) any Subsidiary organized
under the laws of a jurisdiction outside the United States of America may merge
with any other Subsidiary organized under the laws of a jurisdiction outside of
the United States of America, (v) any Significant Subsidiary or the Borrower may
acquire all or a substantial part of the business or assets of any Subsidiary;
and (vi) the Borrower may acquire the right to obtain from third parties the raw
materials utilized in the Borrower's business if the Agent approves of each such
acquisition, which approval may be given or withheld in Agent's sole discretion
(provided that the prior written approval of the Required Banks shall be
required for any such acquisition for a purchase price in excess of $500,000).
Section 10.4 Restricted Junior Payments. The Borrower will not and will
not permit any Subsidiary to directly or indirectly declare, order, pay, make,
or set apart any sum for (a) any dividend or other distribution, direct or
indirect, on account of any shares of any class of stock or other equity
interest of the Borrower or any Subsidiary now or hereafter outstanding, except
a dividend payable solely in shares of that class of stock or other equity
interest to the holders of that class, (b) any redemption, conversion, exchange,
retirement, sinking fund, or similar payment, purchase, or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of the Borrower or any Subsidiary now or hereafter outstanding, or (c)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options, or other rights to acquire shares of any class of stock or
other equity interest of the Borrower or any Subsidiary now or hereafter
outstanding, except that any Subsidiary may make, declare, and pay dividends and
make other distributions with respect to its common stock or other equity
interests.
Section 10.5 Investments. The Borrower will not, and will not permit
any Subsidiary to, make or permit to remain outstanding any advance, loan,
extension of credit, or capital contribution to or investment in any Person, or
42
purchase or own any stock, bonds, notes, debentures, or other securities of any
Person, or be or become a joint venturer with or partner of any Person, except:
(a) the Borrower may own stock of the Subsidiaries existing on
the Closing Date and notes payable by Subsidiaries in accordance with
the restrictions set forth in Section 10.1;
(b) readily marketable direct obligations of the United States of
America or any agency thereof with maturities of one year or less from
the date of acquisition;
(c) fully insured certificates of deposit with maturities of one
year or less from the date of acquisition issued by any commercial
bank operating in the United States of America having capital and
surplus in excess of Fifty Million Dollars ($50,000,000);
(d) commercial paper of a domestic issuer if at the time of
purchase such paper is rated in one of the two highest rating
categories of Standard and Poor's Corporation or ▇▇▇▇▇'▇ Investors
Service, Inc.;
(e) loans and advances to employees for business expenses
incurred in the ordinary course of business not to exceed One Hundred
Thousand Dollars ($100,000) in the aggregate at any time outstanding;
(f) existing investments described on Schedule 10.5 hereto and,
with respect to any investment listed on Schedule 10.5, the
reinvestment of any earnings on such investment or the proceeds
payable at the maturity thereof in the same, or same type of,
investment;
(g) advances to Raw Material Suppliers as prepayments on raw
material purchases; provided that, (i) such raw materials are acquired
and utilized by the Borrower or a Subsidiary in the ordinary course of
business and (ii) the aggregate amount of such advances at any time
outstanding shall never exceed the remainder of (A) Two Million Dollars
($2,000,000) minus (B) the aggregate principal amount of all Debt of
Raw Material Suppliers which is outstanding on the date of
determination and which is Guaranteed by the Borrower or any
Subsidiary;
(h) loans evidencing the deferred payment of the purchase price
of the assets disposed of pursuant to subsections 10.8(e), (g), and
(h);
(i) extensions of trade credit on customary terms in the ordinary
course of business;
(j) any stock, bonds, notes, debentures, or other securities of
any Person received in connection with the bankruptcy, reorganization
or similar proceeding of suppliers and customers and the settlement of
their delinquent obligations; and
(k) loans, advances, or investments in addition to those
described in clauses (a) through (j) of this Section 10.5 if the sum
of (i) the aggregate principal amount of such loans and advances
outstanding, plus (ii) the aggregate acquisition cost of the
outstanding investments plus (iii) the aggregate amount of the Net Out
Flows from all Route Sales, never exceeds Five Hundred Thousand
Dollars ($500,000).
Section 10.6 Limitation on Issuance of Capital Stock. The Borrower will
not permit any Subsidiary to, at any time issue, sell, assign, or otherwise
dispose of (a) any of its capital stock or other equity interests, (b) any
securities exchangeable for or convertible into or carrying any rights to
acquire any of its capital stock or other equity interests, or (c) any option,
warrant, or other right to acquire any of its capital stock or other equity
interests, other than in each instance any such disposition by a Subsidiary of
the Borrower to the Borrower or another Subsidiary of the Borrower.
Section 10.7 Transactions With Affiliates. The Borrower will not, and
will not permit any Subsidiary to, enter into any transaction, including,
without limitation, the purchase, sale, or exchange of property or the rendering
of any service, with any Affiliate of the Borrower or such Subsidiary, except in
the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than would be obtained in a
comparable arms-length transaction with a
43
Person not an Affiliate of the Borrower or such Subsidiary; provided that the
Borrower and the Subsidiaries shall be permitted to enter into transactions with
the Borrower and the other Subsidiaries permitted hereby.
Section 10.8 Disposition of Assets. The Borrower will not, and will
not permit any Subsidiary to, sell, lease, assign, transfer, or otherwise
dispose of any of its assets, except:
(a) dispositions of inventory in the ordinary course of business;
(b) dispositions of unnecessary, obsolete or worn out equipment
and leases, sub-leases or licenses of property in the ordinary course
of business for terms which do not exceed, or which are cancelable by
the Borrower within one year (or such other term as may be acceptable
to the Agent) and which leases, sub-leases or licenses do not
materially detract from or interfere with the use or intended use of
such property by the Borrower or such Subsidiary, as applicable;
(c) sales, leases, or other dispositions of vehicles so long as
the Borrower uses the net proceeds of such sales to acquire
replacement vehicles;
(d) sales, leases, or other dispositions of assets by any
Subsidiary to a Significant Subsidiary or to the Borrower;
(e) the sale of the assets disclosed on Schedule 10.8 at any time
that no Event of Default exists in one or more arm's length
transactions; provided that, each asset is sold for fair value, no
Default would result therefrom, and the Net Cash Proceeds of such sale
are delivered to the Agent for repayment of the Loans as required by
subsection 5.4(b)(i);
(f) the sale to third parties (each such third party or an
Affiliate of such third party, herein a "Route Purchaser") of lists of
customers who provide raw materials to the Borrower or a Subsidiary
and the containers utilized to collect and store such materials (each
a "Route Sale") if all the following conditions are satisfied with
respect to each Route Sale:
(i) No Event of Default exists as of the date of the sale or
would result therefrom, including, without limitation, any Event
of Default that might result therefrom because of the failure to
comply with Section 11.3 (i.e., the Capital Expenditure
covenant);
(ii) such sale is made in connection with a corresponding
purchase from the applicable Route Purchaser of a list of
customers who can provide raw materials to the Borrower or a
Subsidiary and a corresponding purchase of the containers
utilized to collect and store such materials (the "Offsetting
Purchase");
(iii) if the Net Cash Proceeds (calculated in accordance
with clause (2) of the definition of Net Cash Proceeds) received
from a Route Sale exceed the purchase price for the corresponding
Offsetting Purchase, then the amount of the excess shall be
delivered to the Agent for repayment of the Loans in accordance
with subsection 5.4(b)(i); provided that for purposes of this
Agreement (including for the purpose of determining the amount to
be applied to the repayment of the Loans in connection with a
Route Sale), the term "Net Cash Proceeds" shall mean only the
amount of such excess;
(iv) the sum of (A) the aggregate amount of the Net Out
Flows from all Route Sales plus (B) the aggregate principal
amount of all loans and advances outstanding under the
permissions of clause (k) of Section 10.5 plus (C) the aggregate
acquisition cost of all outstanding investments made under the
permissions of clause (k) of Section 10.5 shall never exceed Five
Hundred Thousand Dollars ($500,000) (the term "Net Out Flows"
means, with respect to a Route Sale, the amount by which the
purchase price for the corresponding Offsetting Purchase exceeds
the amount received from the Route Sale);
44
(v) the assets sold in connection with such Route Sale are
sold for fair value and the Borrower shall have provided the
Agent and each Bank with its calculation of the sales price
therefor and the value of the assets to be purchased in
connection with the corresponding Offsetting Purchase;
(vi) the proposed Route Sale and corresponding Offsetting
Purchase shall comply, in all material respects, with applicable
laws, rules and regulations and any applicable order, writ,
injunction, or decree of any Governmental Authority or
arbitrator;
(vii) the aggregate weekly amount of pounds of raw material
inage attributable to all Route Sales made under the permissions
of this clause (f) shall not exceed 10,000,000 pounds with the
weekly amount of pounds of raw material inage attributable to a
Route Sale being calculated based on the most recent week
preceding the date of sale; and
(viii) Borrower shall provide the Agent and each Bank a
certification as to the Borrower's compliance with the matters
set forth in the forgoing clauses (i) through (vii) prior to or
on the date of the closing of the proposed Route Sale;
(g) the sale of the Canadian assets of Darling International Ltd.
and the Borrower's spray drying plant and related assets located in
Norfolk, Nebraska; provided that with respect to any such sale (i) the
Net Cash Proceeds of such sale shall be delivered to the Agent for
repayment of the Loans as required in subsection 5.4(b)(i); and (ii)
the Required Banks shall have given its prior approval of the sale
price and other material terms of sale for each such asset sold, which
approval shall not be unreasonably withheld; and
(h) the sale of assets, in addition to the sales or other
dispositions listed in clauses (a) through (g) of this Section 10.8;
provided that with respect to any such sale: (i) the sale price of the
asset to be sold shall be greater than or equal to the existing fair
market value of such asset; (ii) the Net Cash Proceeds of such sale
shall be delivered to the Agent for repayment of the Loans as required
in subsection 5.4(b)(i); (iii) the Required Banks shall have given
their prior approval of the sale; (iv) the aggregate sale price for
the asset to be sold, plus the sales prices for any sale of assets in
any related transactions does not exceed One Million Dollars
($1,000,000); and (v) the aggregate amount of all sales made pursuant
to the permissions of this clause (h) during the period commencing on
the Closing Date and ending on the Termination Date, together with the
sale price for the assets to be disposed of pursuant to the sale in
question, does not exceed Five Million Dollars ($5,000,000).
Upon the sale of any property by the Borrower or a Subsidiary under the
permissions of this Section 10.8 and delivery of the proceeds therefrom in
accordance with the terms of this Agreement, the Agent shall, without the
requirement of any consent or approval of any Bank or any other Secured Party,
execute and deliver to the buyer thereof such documentation as may be necessary
to evidence the termination of the Liens of the Agent for the benefit of the
Secured Parties therein and, if the stock of a Subsidiary is sold, the release
of such Subsidiary from the obligations arising under the Loan Documents to
which it is a party.
Section 10.9 Sale and Leaseback. The Borrower will not, and will not
permit any Subsidiary to, enter into any arrangement with any Person pursuant to
which it leases from such Person real or personal property that has been or is
to be sold or transferred, directly or indirectly, by it to such Person,
provided, however, that this Section 10.9 shall not prohibit any such
arrangement otherwise permitted under this Agreement entered into in connection
with the acquisition of any capital asset within sixty (60) days of the
acquisition of such capital asset for the purpose of providing financing of such
capital asset.
Section 10.10 Lines of Business. The Borrower will not, and will not
permit any Subsidiary to, engage in any line or lines of business activity other
than the businesses in which they are engaged on the date hereof and any
businesses which utilize processes similar to those utilized by the Borrower.
Section 10.11 Hedging. Borrower will not, and Borrower will not permit
any Subsidiary to, enter into any Hedge Agreement other than (i) Hedge
Agreements entered into prior to the date hereof pursuant to any Swap Documents,
and (ii) Hedge Agreements consisting solely of interest rate-cap arrangements
for notional principal amounts
45
which in the aggregate do not exceed fifty percent (50%) of the Borrower's
outstanding Debt for borrowed money, are in form and substance acceptable to the
Agent and which are entered into pursuant to any Swap Documents or with
counterparties whose long-term, unsecured, non-credit enhanced debt rating by
S&P is at least "A" or are otherwise acceptable to the Agent and the Required
Banks.
ARTICLE 11
Financial Covenants
-------------------
The Borrower covenants and agrees that, as long as the Obligations or
any part thereof are outstanding or any Bank has any Commitment hereunder, the
Borrower will perform and observe the following financial covenants:
Section 11.1 Adjusted EBITDA. As of the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending on or about March 31, 2002, the
Borrower shall not permit its Adjusted EBITDA to be less than $25,000,000 for
the four(4) Fiscal Quarter period then ended.
The phrase "Adjusted EBITDA" means, for any period, calculated without
duplication for such period, the Borrower's EBITDA, excluding from the
calculation thereof, to the extent not already excluded in the calculation of
EBITDA or Net Income of Borrower, gains and/or losses from any disposition of
assets.
Section 11.2 Debt Coverage. As of the end of each Fiscal Quarter, the
Borrower shall not permit the ratio of (a) the sum of its consolidated Debt
arising under clauses (a), (b) and (g) of the definition thereof (including,
without limitation, the Loans) plus the Letter of Credit Liabilities, to (b) its
Adjusted EBITDA for the four (4) Fiscal Quarters then ended, to be greater than
the ratio set forth in the table below opposite the applicable Fiscal Quarter
end:
================================================================================
Fiscal Month Ratio
================================================================================
Each Fiscal Quarter of 2002 3.0 to 1.0
Each Fiscal Quarter of 2003 3.0 to 1.0
First Fiscal Quarter of 2004 2.9 to 1.0
Second Fiscal Quarter of 2004 2.9 to 1.0
Third Fiscal Quarter of 2004 2.8 to 1.0
Fourth Fiscal Quarter of 2004 2.8 to 1.0
First Fiscal Quarter of 2005 2.8 to 1.0
Second Fiscal Quarter of 2005 2.7 to 1.0
Third Fiscal Quarter of 2005 2.7 to 1.0
Fourth Fiscal Quarter of 2005 2.6 to 1.0
First Fiscal Quarter of 2006 2.6 to 1.0
Second Fiscal Quarter of 2006 2.5 to 1.0
Third Fiscal Quarter of 2006 2.5 to 1.0
Fourth Fiscal Quarter of 2006 2.4 to 1.0
Each Fiscal Quarter thereafter 2.4 to 1.0
================================================================================
46
Section 11.3 Capital Expenditure Limits. The aggregate amount of all
Capital Expenditures of the Borrower and the Subsidiaries (subject to the
exclusions set forth below) during the periods set forth below shall not exceed
the Dollar amount set out opposite the applicable period:
================================================================================
Period Dollar Amount
Fiscal Year 2002 $12,000,000
Fiscal Year 2003 $12,600,000
Fiscal Year 2004 $13,230,000
Fiscal Year 2005 $13,891,500
Fiscal Year of 2006 $14,586,075
Fiscal Year 2007 $15,315,378
================================================================================
The following Capital Expenditures shall not be counted against the
calculation of Capital Expenditures under this Section 11.3: Capital
Expenditures made with any casualty or condemnation proceeds turned over to the
Borrower by the Agent to (a) replace or repair the property damaged or
condemned, (b) construct a new facility to replace the property damaged or
condemned or (c) expand the productive capacity of an existing facility.
ARTICLE 12
Default
Section 12.1 Events of Default. Each of the following shall be deemed an
"Event of Default":
(a) The Borrower shall fail to pay (i) when due any principal payable
under any Loan Document or any part thereof; (ii) within three (3) Business
Days of the date due any interest or fees payable under the Loan Documents
or any part thereof; and (iii) within five (5) Business Days of the date
due any other Obligation or any part thereof.
(b) Any representation, warranty, or certification made or deemed
made by the Borrower or any Obligated Party (or any of their respective
officers) in any Loan Document or in any certificate, report, notice, or
financial statement furnished at any time in connection with any Loan
Document shall be false, misleading, or erroneous in any material respect
when made or deemed to have been made.
(c) The Borrower or any Significant Subsidiary shall fail to perform,
observe, or comply with any covenant, agreement, or term contained in
clauses (a), (b), (c), (d), (h), or (j) of Section 9.1 or contained in
Article 10 or Article 11 of this Agreement. The Borrower shall fail to
perform, observe or comply with any covenant, agreement, or term contained
in subparagraphs 6(e)(ii), (f), (i), (m), (o), (p), (q)(iii), q(v), q(vi) ,
q(vii), (s)(ii), (v)(vi), (v)(vii)(A), (v)(vii)(B) or (w)(iv) of the
Borrower Security Agreement. Any Significant Subsidiary shall fail to
perform, observe, or comply with any covenant, agreement, or term contained
in subparagraphs 6(e)(ii), (f), (i), (m), (o), (p), (q)(iii), q(v), q(vi),
q(vii), (s)(ii), (v)(vi), (v)(vii)(A), (v)(vii)(B) or (w)(iv) of the
Subsidiary Security Agreement.
(d) The Borrower or any Obligated Party shall fail to perform,
observe, or comply with any other covenant, agreement, or term contained in
any Loan Document (other than covenants to pay the Obligations and the
covenants described in subsection 12.1(c)) and such failure shall continue
for a period of fifteen (15) Business Days after the earlier of (i) the
date the Agent or any Bank provides the Borrower with notice thereof or
(ii) the date the Borrower should have notified the Agent thereof in
accordance with subsection 9.1(h).
(e) The Borrower, any Subsidiary, or any Obligated Party shall (i)
apply for or consent to the appointment of, or the taking of possession by,
a receiver, custodian, trustee, examiner, liquidator, or the like
47
of itself or of all or a substantial part of its property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the United States Bankruptcy Code (as now or hereafter
in effect, the "Bankruptcy Code"), (iv) institute any proceeding or file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, (vi) admit in
writing its inability to, or be generally unable to pay its debts as such
debts become due, or (vii) take any corporate action for the purpose of
effecting any of the foregoing.
(f) A proceeding or case shall be commenced, without the application,
approval or consent of the Borrower, any Subsidiary, or any Obligated
Party, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator, or the like of the
Borrower or such Subsidiary or Obligated Party or of all or any substantial
part of its property, or (iii) similar relief in respect of the Borrower or
such Subsidiary or Obligated Party under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an order,
judgment, or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of sixty (60) or
more days; or an order for relief against the Borrower, any Subsidiary, or
any Obligated Party shall be entered in an involuntary case under the
Bankruptcy Code.
(g) The Borrower, any Subsidiary, or any Obligated Party shall fail to
discharge within a period of thirty (30) days after the commencement
thereof any attachment, sequestration, forfeiture, or similar proceeding or
proceedings involving an aggregate amount in excess of Five Hundred
Thousand Dollars ($500,000) against any of its assets or properties.
(h) A final judgment or judgments for the payment of money in excess
of Five Hundred Thousand Dollars ($500,000) in the aggregate which are not
adequately covered by insurance or by a third party acceptable to the Agent
who has acknowledged responsibility for such judgment or judgments, shall
be rendered by a court or courts against the Borrower, any Subsidiary, or
any Obligated Party and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution thereof shall
not be procured, within thirty (30) days from the date of entry thereof and
the Borrower or the relevant Subsidiary or Obligated Party shall not,
within said period of thirty (30) days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and cause
the execution thereof to be stayed during such appeal.
(i) The Borrower, any Subsidiary, or any Obligated Party shall fail to
pay when due any principal of or interest on any Debt if the aggregate
principal amount of the affected Debt equals or exceeds Five Hundred
Thousand Dollars ($500,000) (other than the Obligations), or the maturity
of any such Debt shall have been accelerated, or any such Debt shall have
been required to be prepaid prior to the stated maturity thereof or any
event shall have occurred with respect to any such Debt that permits (or,
with the giving of notice or lapse of time or both, would permit) any
holder or holders of such Debt or any Person acting on behalf of such
holder or holders to accelerate the maturity thereof or require any such
prepayment.
(j) This Agreement, the Borrower Security Agreement, the Guaranty, the
Subsidiary Security Agreement, any Mortgage, or any Note shall cease to be
in full force and effect (other than, with respect to the Guaranty, as a
result of a permitted dissolution pursuant to Section 10.3 or a permitted
asset disposition pursuant to Section 10.8) or shall be declared null and
void or the validity or enforceability thereof shall be contested or
challenged by the Borrower, any Subsidiary, any Obligated Party or the
Borrower or any Obligated Party shall deny that it has any further
liability or obligation under any of the Loan Documents.
(k) Any lien or security interest created or required to be created by
the Loan Documents shall not for any reason (other than the failure of the
Borrower or a Subsidiary to comply with in subparagraphs 6(e)(ii), (f),
(i), (m), (o), (p), (q)(iii), q(v), q(vi) , q(vii), (s)(ii), (v)(vi),
(v)(vii)(A), (v)(vii)(B) or (w)(iv) of the Borrower Security Agreement or
the Subsidiary Security Agreement, such failure being an Event of Default
under subsection 12.1(c), or the release thereof in accordance with the
Loan Documents) be a valid and
48
perfected security interest in and lien upon any of the Collateral
purported to be covered thereby with the priority required by this
Agreement within ten (10) days after notice thereof has been provided to
the Borrower by the Agent or any Bank.
(l) Any of the following events shall occur or exist with respect to
the Borrower or any ERISA Affiliate: (i) any Prohibited Transaction
involving any Plan; (ii) any Reportable Event with respect to any Plan;
(iii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan; (iv) any event or
circumstance that might constitute grounds entitling the PBGC to institute
proceedings under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan, or the institution by the
PBGC of any such proceedings; or (v) complete or partial withdrawal under
Section 4201 or 4204 of ERISA from a Multiemployer Plan or the
reorganization, insolvency, or termination of any Multiemployer Plan; and
in each case above, such event or condition, together with all other events
or conditions, if any, have subjected or could in the reasonable opinion of
Agent subject the Borrower to any tax, penalty, or other liability to a
Plan, a Multiemployer Plan, the PBGC, or otherwise (or any combination
thereof) which in the aggregate exceed or could reasonably be expected to
exceed Five Hundred Thousand Dollars ($500,000).
(m) (i) Any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act other than the Banks party hereto on the Closing
Date and their respective Affiliates, individually or as a group, becomes a
"beneficial owner" (as such term is defined in Rule 13(d)-3 and Rule
13(d)-5 under the Exchange Act), directly or indirectly, of more than fifty
percent (50%) of the total voting power of all classes of capital stock
then outstanding of the Borrower entitled (without regard to the occurrence
of any contingency) to vote in elections of directors of the Borrower; or
(ii) the first day on which a majority of the members of the board of
directors of the Borrower are not Continuing Directors (defined as any
member who (A) was a member of the board at closing, (B) was nominated for
election by the Banks party hereto on the Closing Date in accordance with
the terms of the Recapitalization Agreement, or (C) was nominated or
elected by a majority of the Continuing Directors who were members at the
time of such nomination of election).
Section 12.2 Remedies. If any Event of Default shall occur and be
continuing, the Agent may (and shall if directed by either the Required
Revolving Banks or the Required Term Banks) do any one or more of the following:
(a) Acceleration. By notice to the Borrower, declare all outstanding
principal of and accrued and unpaid interest on the Notes and all other
amounts payable by the Borrower under the Loan Documents immediately due
and payable, and the same shall thereupon become immediately due and
payable, without further notice, demand, presentment, notice of dishonor,
notice of acceleration, notice of intent to accelerate, protest, or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower;
(b) Termination of Revolving Commitments. Terminate the Revolving
Commitments, including, without limitation, the obligation of the Agent to
issue Letters of Credit, without notice to the Borrower;
(c) Judgment. Reduce any claim to judgment;
(d) Foreclosure. Foreclose or otherwise enforce any Lien granted to
the Agent, for the benefit of the Secured Parties, to secure payment and
performance of the Obligations in accordance with the terms of the Loan
Documents;
(e) Rights. Exercise any and all rights and remedies afforded by the
laws of the State of Texas or any other jurisdiction, by any of the Loan
Documents, by equity, or otherwise;
provided, however, that upon the occurrence of an Event of Default under Section
12.1(e) or Section 12.1(f), the Revolving Commitments of all of the Revolving
Banks shall automatically terminate (including, without limitation, the
obligation of the Agent to issue Letters of Credit), and the outstanding
principal of and accrued and unpaid interest on the Notes and all other amounts
payable by the Borrower under the Loan Documents shall thereupon become
immediately due and payable without notice, demand, presentment, notice of
dishonor, notice of acceleration, notice of intent to accelerate, protest, or
other formalities of any kind, all of which are hereby expressly waived by the
Borrower; and provided, further, that in the event that the Agent (without the
direction of either the Required Revolving Banks or
49
the Required Term Banks) shall exercise any of the remedies under subsection
12.2(a) or (b) above, the outstanding balance of the Notes and the other amounts
payable by the Borrower under the Loan Documents and/or the Revolving
Commitments, as applicable, shall be reinstated upon the receipt by Agent of the
written consent and approval of either the Required Revolving Banks or the
Required Term Banks within ten (10) days of the exercise of such remedies by the
Agent.
Section 12.3 Cash Collateral. If an Event of Default shall have occurred
and be continuing the Borrower shall, if requested by the Agent or the Required
Revolving Banks, pledge to the Agent as security for the Obligations an amount
in immediately available funds equal to the then established Contingent Primary
Obligations, such funds to be held in an interest bearing cash collateral
account at the Agent without any right of withdrawal by the Borrower.
Section 12.4 Performance by the Agent; Advances to Cover Returned Checks
and Other Items. If the Borrower or any Obligated Party shall fail to perform
any covenant or agreement in accordance with the terms of the Loan Documents,
the Agent may, at the direction of either the Required Revolving Banks or the
Required Term Banks, perform or attempt to perform such covenant or agreement on
behalf of the Borrower. In such event, the Borrower shall, at the request of the
Agent, promptly pay any amount expended by the Agent or the Banks in connection
with such performance or attempted performance to the Agent at the Principal
Office, together with interest thereon at the Default Rate from and including
the date of such expenditure to but excluding the date such expenditure is paid
in full. Notwithstanding the foregoing, it is expressly agreed that neither the
Agent nor any Bank shall have any liability or responsibility for the
performance of any obligation of the Borrower or any Obligated Party under any
Loan Document. Under certain of the agreements the Agent has or may enter into
under subsection 9.10(c) with any party maintaining a Lockbox Account or other
deposit account, the Agent may be obligated to pay certain amounts to the
financial institution party thereto from time to time, including, without
limitation, fees owed to such financial institutions arising from their lockbox
and other deposit or cash management services and amounts sufficient to
reimburse such financial institutions for the amount of any item deposited in or
credited to the related account which is returned unpaid. In the event the Agent
is required to pay any such amounts, the Agent shall notify the Borrower and the
Borrower shall promptly pay to the Agent any amount so expended by Agent,
together with interest at the Default Rate from and including the date of such
expenditure to, but excluding the date that such expenditure is paid in full and
if Borrower fails to make such payment, Agent shall have the option of
automatically making a Swingline Loan in the amount so expended.
Section 12.5 Set-off. If an Event of Default shall have occurred and be
continuing, each Bank is hereby authorized at any time and from time to time,
without notice to the Borrower (any such notice being hereby expressly waived by
the Borrower), to set-off and apply any and all deposits (general, time, demand,
provisional, or final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under any Loan
Document, irrespective of whether or not the Agent or such Bank shall have made
any demand under such Loan Documents and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Borrower (with a copy to the
Agent) after any such set-off and application, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights and remedies of each Bank hereunder are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Bank may have.
Section 12.6 Continuing Event of Default. Any Default capable of being
remedied shall exist and therefor continue until Agent shall have been provided
evidence satisfactory to it that such Default has been remedied. Any Default not
capable of being remedied shall exist and therefor continue until waived by the
number of Banks required by Section 14.11.
ARTICLE 13
The Agent
Section 13.1 Appointment, Powers and Immunities. Each Bank hereby appoints
and authorizes (and continues the authorization and appointment under the
Original Agreement of) Credit Lyonnais New York Branch to act as its agent
hereunder and under the other Loan Documents and to act as its Approved Bank
Affiliate's agent hereunder and under the other Loan Documents (such Affiliate
by acceptance of the benefits of the Loan Documents hereby ratifying and
continuing such appointment) with such powers as are specifically delegated to
the Agent by the terms of
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the Loan Documents, together with such other powers as are reasonably incidental
thereto. Neither the Agent nor any of its Affiliate's officers, directors,
employees, attorneys, or agents shall be liable for any action taken or omitted
to be taken by any of them hereunder or otherwise in connection with any Loan
Document except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the preceding sentence, the Agent (i) may
treat each Secured Party as the party entitled to distributions hereunder until
it receives written notice of the assignment or transfer thereof signed and in
form satisfactory to the Agent, (ii) shall have no duties or responsibilities
except those expressly set forth in the Loan Documents, and shall not by reason
of any Loan Document be a trustee or fiduciary for any Secured Party, (iii)
shall not be required to initiate any litigation or collection proceedings under
any Loan Document except to the extent requested by the Required Banks, the
Required Revolving Banks or the Required Term Banks, as applicable, (iv) shall
not be responsible to any Secured Party for any recitals, statements,
representations, or warranties contained in any Loan Document, or any
certificate or other documentation referred to or provided for in, or received
by any of them under, any Loan Document, or for the value, validity,
effectiveness, enforceability, or sufficiency of any Loan Document or any other
documentation referred to or provided for therein or for any failure by any
Person to perform any of its obligations thereunder, (v) may consult with legal
counsel (including counsel for the Borrower), independent public accountants,
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants, or experts, and (vi) shall incur no liability under or in
respect of any Loan Document by acting upon any notice, consent, certificate, or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties. As to any matters not expressly provided for by any
Loan Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Required Banks, the Required Revolving Banks or the Required Term Banks, as
applicable; and such instructions of the Required Banks, the Required Revolving
Banks or the Required Term Banks, as applicable, and any action taken or failure
to act pursuant thereto shall be binding on all of the Secured Parties;
provided, however, that the Agent shall not be required to take any action which
exposes it to personal liability or which is contrary to any Loan Document or
applicable law.
Section 13.2 Rights of the Agent as a Bank. With respect to its
Commitments, the Loans made by it and the Notes issued to it, Credit Lyonnais
New York Branch (and any successor acting as the Agent) in its capacity as a
Bank hereunder shall have the same rights and powers hereunder as any other Bank
and may exercise the same as though it were not acting as the Agent, and the
term "Bank" or "Banks", or "Revolving Bank" or "Revolving Banks", or "Term Bank"
or "Term Banks", as applicable shall, unless the context otherwise indicates,
include the Agent in its individual capacity. The Agent and its Affiliates may
(without having to account therefor to any Secured Party) accept deposits from,
lend money to, act as trustee under indentures of, provide merchant banking
services to, and generally engage in any kind of banking, trust, or other
business with the Borrower, any of the Subsidiaries, any Obligated Party, and
any other Person who may do business with or own securities of the Borrower, any
Subsidiary, or any Obligated Party, all as if it were not acting as the Agent
and without any duty to account therefor to the Secured Parties.
Section 13.3 Defaults. The Agent shall not be deemed to have knowledge
or notice of the occurrence of a Default (other than the non-payment of
principal of or interest on the Loans or of commitment fees) unless the Agent
has received notice from a Bank or the Borrower specifying such Default and
stating that such notice is a "Notice of Default." In the event that the Agent
receives such a notice of the occurrence of a Default, the Agent shall give
prompt notice thereof to the Banks (and shall give each Bank prompt notice of
each such non-payment). The Agent shall (subject to Section 13.1) take such
action with respect to such Default as shall be directed by the Required Banks,
the Required Revolving Banks or the Required Term Banks, as applicable,
including, without limitation, that the Agent shall not issue, renew or extend
any Letter of Credit if so directed by the Required Revolving Banks; provided
that unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable and in the
best interest of the Banks.
Section 13.4 Indemnification. THE BANKS HEREBY AGREE TO INDEMNIFY THE
AGENT FROM AND HOLD THE AGENT HARMLESS AGAINST (TO THE EXTENT NOT REIMBURSED
UNDER SECTIONS 14.1 AND 14.2, BUT WITHOUT LIMITING THE OBLIGATIONS OF THE
BORROWER UNDER SECTIONS 14.1 AND 14.2), RATABLY IN ACCORDANCE WITH THEIR
RESPECTIVE COMMITMENT PERCENTAGES, ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES), AND DISBURSEMENTS
OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR
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ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO BE
TAKEN BY THE AGENT UNDER OR IN RESPECT OF ANY OF THE LOAN DOCUMENTS; PROVIDED,
THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF THE FOREGOING TO THE EXTENT
CAUSED BY THE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT LIMITATION
OF THE FOREGOING, IT IS THE EXPRESS INTENTION OF THE BANKS THAT THE AGENT SHALL
BE INDEMNIFIED HEREUNDER FROM AND HELD HARMLESS AGAINST ALL OF SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES,
SUITS, COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES), AND DISBURSEMENTS OF ANY KIND OR NATURE DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE AGENT.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS SECTION, EACH BANK AGREES TO
REIMBURSE THE AGENT PROMPTLY UPON DEMAND FOR ITS PRO RATA SHARE (CALCULATED ON
THE BASIS OF THE COMMITMENT PERCENTAGES) OF ANY AND ALL OUT-OF-POCKET EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) INCURRED BY THE
AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION,
MODIFICATION, AMENDMENT, OR ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL
PROCEEDINGS, OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS OR
RESPONSIBILITIES UNDER, THE LOAN DOCUMENTS, TO THE EXTENT THAT THE AGENT IS NOT
REIMBURSED FOR SUCH EXPENSES BY THE BORROWER.
Section 13.5 Independent Credit Decisions. Each Bank agrees that it
has independently and without reliance on the Agent or any other Bank, and based
on such documentation and information as it has deemed appropriate, made its own
credit analysis of the Borrower and decision to enter into any Loan Document and
that it will, independently and without reliance upon the Agent or any other
Bank, and based upon such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under any Loan Document. Except as otherwise specifically set
forth herein, the Agent shall not be required to keep itself informed as to the
performance or observance by the Borrower or any Obligated Party of any Loan
Document or to inspect the properties or books of the Borrower or any Obligated
Party. Except for notices, reports, and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other financial information concerning the
affairs, financial condition, or business of the Borrower or any Obligated Party
(or any of their Affiliates) which may come into the possession of the Agent or
any of its Affiliates.
Section 13.6 Several Commitments. The Commitments and other
obligations of the Banks under any Loan Document are several. The default by any
Bank in making a Loan in accordance with its Commitment shall not relieve the
other Banks of their obligations under any Loan Document. In the event of any
default by any Bank in making any Loan, each nondefaulting bank shall be
obligated to make its Loan but shall not be obligated to advance the amount
which the defaulting Bank was required to advance hereunder. No Bank shall be
responsible for any act or omission of any other Bank.
Section 13.7 Successor Agent. The Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such resignation,
the Required Banks will have the right to appoint a successor Agent with the
Borrower's consent, which shall not be unreasonably withheld. If no successor
Agent shall have been so appointed by the Required Banks and shall have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank or trust company
organized under the laws of the United States of America or any State thereof
and having combined capital and surplus of at least Five Hundred Million Dollars
($500,000,000). Upon the acceptance of its appointment as successor Agent, such
successor Agent shall thereupon succeed to and become vested with all rights,
powers, privileges, immunities, contractual obligations, and duties of the
resigning Agent including, without limitation, all obligations under any Letters
of Credit and Swingline Loans, and the resigning Agent shall be discharged from
its duties and obligations under the Loan Documents, including, without
limitation, its obligations under all Letters of Credit and under the Swingline
Commitment. After any Agent's resignation as the Agent, the provisions of this
Article 13 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was the Agent.
Section 13.8 Agent Fee. The Borrower agrees to pay to the Agent, for
its own account, the administrative agent fee and other fees and expenses
described in that certain letter agreement dated as of March 14, 2002), between
the Borrower and Credit Lyonnais New York Branch.
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Section 13.9 Deposit Accounts held at Agent. The Concentration Account
and any other deposit account of Borrower or a Significant Subsidiary held at
Credit Lyonnais New York Branch (all such accounts, other than the Concentration
Account, herein the "Credit Lyonnais Accounts") are maintained by Credit
Lyonnais New York Branch, in its capacity as Agent hereunder to perfect the
security interest held for the benefit of the Secured Parties therein.
Withdrawals from the Concentration Account shall only be made in accordance with
subsection 5.4(b)(iv). When no Event of Default exists, the Borrower or
applicable Significant Subsidiary is entitled to make withdrawals from and
deposits into the Credit Lyonnais Accounts. When an Event of Default exists, the
Agent shall be the only party entitled to make withdrawals from the Credit
Lyonnais Accounts. If the Agent exercises any right of setoff against any Credit
Lyonnais Account, the amount so setoff shall be applied as proceeds of
Collateral in accordance with Section 5.6; provided that the Agent shall be
entitled to charge, or setoff against, the Credit Lyonnais Accounts and retain
for its own account, any customary fees, costs, charges and expenses owed to it
in connection with the opening, operating and maintaining the Credit Lyonnais
Accounts and for the amount of any item credited to a Credit Lyonnais Account
which is subsequently returned for any reason.
Section 13.10 Approved Bank Affiliates Rights. No Approved Bank
Affiliate shall have any right to give any direction to the Agent in the
exercise of the Agent's rights and obligations under the Loan Documents nor does
an Approved Bank Affiliate have any right to consent to, or vote on, any matter
hereunder except as specifically set forth in Section 14.11. As provided in
Section 13.1, the Agent shall have no duties or responsibilities to any Approved
Bank Affiliate except those expressly set forth in the Loan Documents.
ARTICLE 14
Miscellaneous
Section 14.1 Expenses. The Borrower hereby agrees to pay on demand:
(a) all costs and expenses of the Agent arising in connection with the
preparation, negotiation, execution, and delivery of the Loan Documents and any
and all amendments or other modifications to the Loan Documents, including,
without limitation, the reasonable fees and expenses of legal counsel for the
Agent; (b) all fees, costs, and expenses of the Agent arising in connection with
any Letter of Credit or any Swingline Loan, including the Agent's customary fees
for amendments, transfers, and drawings on Letters of Credit; (c) all costs and
expenses of the Agent and the Banks in connection with any Default and the
enforcement of any Loan Document, including, without limitation, the reasonable
fees and expenses of legal counsel for the Agent and each Bank; (d) all
transfer, stamp, documentary, or other similar taxes, assessments, or charges
levied by any Governmental Authority in respect of any Loan Document; (e) all
costs, expenses, assessments, and other charges incurred in connection with any
filing, registration, recording, or perfection of any security interest or Lien
contemplated by any Loan Document; and (f) all costs, expenses, and other
charges incurred in obtaining any collateral audit or in obtaining any valuation
or appraisal of Borrower, any Subsidiary or any of the Collateral subject to the
limitations on the Borrower's obligation to pay the costs of appraisals set out
in subsection 9.10(d) and provided that if no Default exists, Borrower shall not
have an obligation to pay for more than one (1) collateral audit each calendar
year. The Banks agree, absent conflicts of interest, to employ one counsel to
represent them in connection with the matters described in clause (c); provided
(i) Agent may retain separate counsel to represent it in its capacity as Agent
and (ii) the failure of the Banks to employ one counsel, if such failure arose
out of the need to avoid conflicts of interest, shall not affect each Bank's
right to receive reimbursement under this Section 14.1.
Section 14.2 Indemnification. SUBJECT TO THE LIMITATION ON THE
REIMBURSEMENT OF EXPENSES SET FORTH IN SUBSECTION 9.10(d) AND SECTION 14.1, THE
BORROWER SHALL INDEMNIFY THE AGENT AND EACH BANK AND EACH AFFILIATE THEREOF AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS FROM, AND
HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS,
DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) TO WHICH ANY OF THEM MAY BECOME
SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (A) THE
NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF
ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN
DOCUMENTS, (C) ANY BREACH BY THE BORROWER OR ANY OBLIGATED PARTY OF ANY
REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE
LOAN DOCUMENTS, (D) THE PRESENCE, RELEASE,
53
THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL
LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF THE
BORROWER OR ANY SUBSIDIARY, (E) THE USE OR PROPOSED USE OF ANY LETTER OF CREDIT
OR ANY PAYMENT OR FAILURE TO PAY WITH RESPECT TO ANY LETTER OF CREDIT, (F) ANY
AND ALL TAXES, LEVIES, DEDUCTIONS, AND CHARGES IMPOSED ON THE AGENT OR ANY BANK
IN RESPECT OF ANY LETTER OF CREDIT, OR (G) ANY INVESTIGATION, LITIGATION, OR
OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION,
LITIGATION, OR OTHER PROCEEDING RELATING TO ANY OF THE FOREGOING; PROVIDED THAT
THE PERSON ENTITLED TO BE INDEMNIFIED UNDER THIS SECTION SHALL NOT BE
INDEMNIFIED FROM OR HELD HARMLESS AGAINST ANY LOSSES, LIABILITIES, CLAIMS,
DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, OR EXPENSES ARISING OUT OF
OR RESULTING FROM ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT LIMITING
ANY PROVISION OF ANY LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES
HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE
INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES,
CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR
RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON, INCLUDING,
BUT NOT LIMITED TO, NEGLIGENCE, STRICT LIABILITY AND ALL OTHER CLAIMS ARISING
UNDER ENVIRONMENTAL LAWS, INCLUDING THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (42 U.S.C. SECTION 9601 ET SEQ.) AND ANALOGOUS
STATE AND LOCAL STATUTES.
Section 14.3 Limitation of Liability. None of the Agent, any Bank, or
any Affiliate, officer, director, employee, attorney, or agent thereof shall
have any liability with respect to, and the Borrower and, by the execution of
the Loan Documents to which it is a party each Obligated Party, hereby waives,
releases, and agrees not to ▇▇▇ any of them upon, any claim for any special,
indirect, incidental, consequential, or punitive damages suffered or incurred by
the Borrower or any Obligated Party in connection with, arising out of, or in
any way related to any of the Loan Documents, or any of the transactions
contemplated by any of the Loan Documents.
Section 14.4 No Duty. All attorneys, accountants, appraisers, and
other professional Persons and consultants retained by the Agent or any Bank
shall have the right to act exclusively in the interest of the Agent and the
Banks and shall have no duty of disclosure, duty of loyalty, duty of care, or
other duty or obligation of any type or nature whatsoever to the Borrower or any
of the Borrower's shareholders or any other Person.
Section 14.5 No Fiduciary Relationship. The relationship between the
Borrower and the Obligated Parties on the one hand and the Agent and each Bank
on the other is solely that of debtor and creditor, and neither the Agent nor
any Bank has any fiduciary or other special relationship with the Borrower or
any Obligated Parties, and no term or condition of any of the Loan Documents
shall be construed so as to deem the relationship between the Borrower and the
Obligated Parties on the one hand and the Agent and each Bank on the other hand
to be other than that of debtor and creditor.
Section 14.6 Equitable Relief. The Borrower recognizes that in the
event the Borrower or any Obligated Party fails to pay, perform, observe, or
discharge any or all of the obligations under the Loan Documents, any remedy at
law may prove to be inadequate relief to the Agent and the Banks. The Borrower
therefore agrees that the Agent and the Banks, if the Agent or the Required
Banks so request, shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.
Section 14.7 No Waiver; Cumulative Remedies. No failure on the part of
the Agent or any Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power, or privilege under any Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power, or privilege under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies provided for in the Loan Documents are
cumulative and not exclusive of any rights and remedies provided by law.
Section 14.8 Successors and Assigns.
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(a) This Agreement shall be binding upon and inure to the benefit
of the parties hereto, the Approved Bank Affiliates and their
respective successors and assigns. The Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior
written consent of the Agent and all of the Banks. Any Bank may sell
participations to one or more banks or other institutions in or to all
or a portion of its rights and obligations under the Loan Documents
(including, without limitation, all or a portion of its Commitment,
the Loans owing to it and the Letter of Credit Liabilities and
Swingline Loans which it has made or in which it has a participating
interest); provided, however, that (i) such Bank's obligations under
the Loan Documents (including, without limitation, its Commitments)
shall remain unchanged, (ii) such Bank shall remain solely responsible
to the Borrower for the performance of such obligations, (iii) such
Bank shall remain the holder of its Notes and owner of its
participation or other interests in Letter of Credit Liabilities and
Swingline Loans for all purposes of any Loan Document, (iv) the
Borrower shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under the Loan
Documents, (v) if no Event of Default exists, any such Person
purchasing a participation must represent that it is not, and is not
acting on behalf of, any Person identified on Schedule 14.8, and (vi)
such Bank shall not sell a participation that conveys to the
participant the right to vote or give or withhold consents under any
Loan Document, other than the right to vote upon or consent to (A) any
increase of such Bank's Commitments, (B) any reduction of the
principal amount of, or interest to be paid on, the Loans or other
Obligations of such Bank, (C) any reduction of any commitment fee,
letter of credit fee, or other amount payable to such Bank under any
Loan Document, (D) any postponement of any date for the payment of any
amount payable in respect of the Loans or other Obligations of such
Bank, or (E) the release of any material Collateral or the release of
the Borrower or any Obligated Party from liability arising under the
Loan Documents (except as may otherwise result from a dissolution
permitted under Section 10.3).
(b) The Borrower and each of the Banks agree that any Bank
(the "Assigning Bank") may at any time assign to an Eligible Assignee
(or to an Affiliate of the Assigning Bank or an investment fund or
similar entity managed by such Assigning Bank or an Affiliate of such
Assigning Bank) all, or a part, of its rights and obligations under the
Loan Documents (including, without limitation, its Commitments and
Loans and participation interests) (each an "Assignee"); provided,
however, that:
(i) each such assignment shall be of a consistent, and not a
varying, percentage of either (A) all of the Assigning Bank's
rights and obligations as a Revolving Bank under the Loan
Documents, or (B) all of the Assigning Bank's rights and
obligations as a Term Bank under the Loan Documents;
(ii) except in the case of (A) an assignment of all of a
Bank's rights and obligations as either a Revolving Bank or a
Term Bank, as applicable, under the Loan Documents, or (B) an
assignment by any Bank to an Affiliate of such Bank or to an
investment fund or similar entity managed by such Bank or an
Affiliate of such Bank, the amount of the Commitments of the
Assigning Bank being assigned or if any Commitment has
terminated, the outstanding principal amount of the related
Loans, pursuant to each assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment)
shall in no event be less than (A) One Million Dollars
($1,000,000) with respect to any assignment of its Revolving
Commitment or Revolving Loans, and (B) Three Million Dollars
($3,000,000) with respect to any assignment of its Term
Commitment or Term Loans;
(iii) the parties to each such assignment shall execute and
deliver to the Agent for its acceptance (to the extent required)
and recording in the Register (as defined below), an Assignment
and Acceptance, together with the Notes subject to such
assignment, and shall deliver to the Agent a processing and
recordation fee of Three Thousand Five Hundred Dollars ($3,500)
payable by the Assigning Bank or the Assignee (and not the
Borrower); and
(iv) the Agent must consent to such assignment, which
consent shall not be unreasonably withheld or delayed and shall
be evidenced by the Agent's execution of the Assignment and
Acceptance; provided, however, the Agent's consent shall not be
required if the Assignee is (x) an Affiliate of the Assigning
Bank, or (y) an investment fund or similar entity managed by such
Assigning Bank or an Affiliate of such Assigning Bank.
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Upon such execution, delivery, acceptance, and recording, from and after
the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, or, if so specified in such Assignment and Acceptance, the date of
acceptance thereof by the Agent, (x) the assignee thereunder shall be a
party hereto as a "Bank" and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder and under
the Loan Documents and (y) the Bank that is an assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other
than its indemnity and expense reimbursement rights for the period prior to
the effective date of the assignment) and be released from its obligations
under the Loan Documents (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of a Bank's rights and obligations
under the Loan Documents, such Bank shall cease to be a party thereto). The
term "Eligible Assignee" means any Person; provided, that, any such Person
(i) must, if no Event of Default exists, represent that it is not, and is
not acting on behalf of, any Person who is a business competitor of
Borrower or any Subsidiary and is identified on Schedule 14.8 (as such
Schedule may be modified and supplemented by the Borrower from time to time
to add or delete such competitors with the prior written consent of the
Required Banks); (ii) with respect to any assignment of any Assigning
Bank's rights as a Revolving Bank, must represent that it is capable of
making revolving extensions of credit or funding risk participations in
letters of credit of the type contemplated hereby in accordance with the
terms hereon, and (iii) with respect to any assignment of any Assigning
Bank's rights as a Revolving Bank, must appear in the most recent list of
the National Association of Insurance Commissioners (NAIC) List of Approved
Banks from the Purposes and Procedures Manual of the NAIC Securities
Valuation Office or is otherwise acceptable to the Agent in its sole
discretion. No Assigning Bank making an assignment to an Assignee in good
faith shall have any liability to the Borrower, the Agent or any other
Bank, Secured Party, Obligated Party or other Person for the failure of any
of the representations made by such Assignee to be true. Notwithstanding
the foregoing, any Bank may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Bank, including, without limitation, any pledge or
assignment to secure obligations to a Federal Reserve Bank or in connection
with the securitization of a portfolio by any Bank which is an investment
fund or similar entity; provided, however, that no such pledge or
assignment shall release a Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party hereto.
(c) The Agent, acting solely for this purpose on behalf of the
Borrower, shall maintain at its Principal Office a copy of each Assignment
and Acceptance delivered to and accepted by it (to the extent required) and
a register for the recordation of the names and addresses of the Banks and
the Commitments of, and principal amount of the Loans owing to and Letter
of Credit Liabilities and Swingline Loans participated in by, each Bank
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent, and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes under the
Loan Documents. The Register shall be available for inspection by the
Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
Assigning Bank and Assignee representing that it is an Eligible Assignee,
together with any Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially
the form of Exhibit F, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register, and (iii) give
prompt written notice thereof to the Borrower. Within five (5) Business
Days after its receipt of such notice the Borrower, at its expense, shall
execute and deliver to the Agent in exchange for the surrendered Notes new
Notes to the order of such Eligible Assignee in an amount equal to the
Commitments or Loans assumed by it pursuant to such Assignment and
Acceptance and, if the Assigning Bank has retained Commitments or Loans,
Notes to the order of the Assigning Bank in an amount equal to the
Commitments and Loans retained by it hereunder (each such promissory note
shall constitute a "Note" for purposes of the Loan Documents). Such new
Notes shall be in an aggregate principal amount of the surrendered Notes,
shall be dated the effective date of such Assignment and Acceptance, and
shall otherwise be in substantially the form of the applicable Exhibit
hereto.
(e) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section, disclose
to the Assignee or participant or proposed Assignee or
56
participant, any information relating to the Borrower or the Subsidiaries
furnished to such Bank by or on behalf of the Borrower or the Subsidiaries.
Section 14.9 Survival. All representations and warranties made in any
Loan Document or in any document, statement, or certificate furnished in
connection with any Loan Document shall survive the execution and delivery of
the Loan Documents and no investigation by the Agent or any Bank or any closing
shall affect the representations and warranties or the right of the Agent or any
Bank to rely upon them. Without prejudice to the survival of any other
obligation of the Borrower hereunder, the obligations of the Borrower under
Article 6, Section 14.1, and Section 14.2 shall survive repayment of the Notes
and termination of the Commitments and the Letters of Credit.
Section 14.10 Entire Agreement; Amended and Restatement; Release. THIS
AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE
FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR
VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES THERETO. This Agreement amends and restates in its entirety the
Original Agreement. The execution of this Agreement, the Notes and the other
Loan Documents executed in connection herewith does not extinguish the
indebtedness outstanding in connection with the Original Agreement nor does it
constitute a novation with respect to such indebtedness. THE BORROWER REPRESENTS
AND WARRANTS THAT AS OF THE CLOSING DATE THERE ARE NO CLAIMS OR OFFSETS AGAINST
OR DEFENSES OR COUNTERCLAIMS TO ITS OR ANY OBLIGATED PARTIES' OBLIGATIONS UNDER
THE ORIGINAL AGREEMENT, THE SWAP DOCUMENTS, THE DOCUMENTATION RELATING TO THE
DEPOSIT AND CASH MANAGEMENT SERVICES AND ANY OPERATING OR CAPITAL LEASE ENTERED
INTO WITH A SECURED PARTY (ANY OF THE DOCUMENTS EXECUTED IN CONNECTION WITH ANY
OF THE FORGOING OR ANY OF THE LOAN DOCUMENTS COLLECTIVELY, THE "TRANSACTION
DOCUMENTS"). TO INDUCE THE BANKS AND THE AGENT TO ENTER INTO THIS AGREEMENT, THE
BORROWER AND, BY THE EXECUTION OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY,
EACH OBLIGATED PARTY WAIVES ANY AND ALL CLAIMS, OFFSETS, DEFENSES OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE HEREOF AND
HEREBY RELEASES AGENT, THE BANKS, THE OTHER SECURED PARTIES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ATTORNEYS (COLLECTIVELY
THE "RELEASED PARTIES") FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITY,
CLAIMS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED WHICH THE BORROWER OR ANY OBLIGATED PARTY EVER
HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING
PRIOR TO THE CLOSING DATE AND FROM OR IN CONNECTION WITH THE TRANSACTION
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 14.11 Amendments. No amendment or waiver of any provision of any
Loan Document to which the Borrower is a party, nor any consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall
be agreed or consented to by the Required Banks and the Borrower, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no amendment, waiver, or consent
shall, do any of the following: (a) increase any Commitment of any Bank without
the written consent of such Bank or increase the total Revolving Commitments
without the written consent of each of the Banks; (b) reduce the principal of,
or interest on, the Notes, the Reimbursement Obligations, or any fees or other
amounts payable hereunder without the written consent of each Bank affected
thereby; (c) postpone any date fixed for any payment of principal of, or
interest on, the Notes, the Reimbursement Obligations, or any fees or other
amounts payable hereunder (including, without limitation, any prepayment
required pursuant to Section 5.4) without the written consent of each Bank
affected thereby (other than any waiver of or change in the amount or timing of
any mandatory prepayment which indirectly results from any waiver, modification
or amendment of any covenant in any Loan Document which is otherwise permitted
to be agreed or consented to by the Required Banks); (d) modify, waive or amend
any provision contained in this Section 14.11 or change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes or the
Letter of Credit Liabilities or the number of Banks which shall be required for
the Banks (or Banks of any Class) or any of them to take any action under any
Loan Document without, in each case, the written
57
consent of each Bank; (e) change Section 5.6, the definition of the terms
Obligations, Primary Obligations, Secondary Obligations, or Secured Parties
without the written consent of each Bank; or (f) except as permitted by Section
10.8, release any Collateral or release the Borrower or any Obligated Party from
any liability, including, but not limited to, the release of any Obligated Party
from a Guaranty or other Loan Document without the written consent of each Bank.
Notwithstanding anything to the contrary contained in this Section, (i) no
amendment, waiver, or consent shall be made with respect to Section 2.7, Section
2.8, or Article 13 without the prior written consent of the Agent; (ii) no
amendment, waiver, or consent shall be made with respect to Section 5.6 or the
definitions of the terms Obligations, Primary Obligations, Secondary
Obligations, or Secured Parties in any manner that might adversely effect the
Approved Bank Affiliates without the prior written consent of the Approved Bank
Affiliates who hold more than fifty percent (50%) of the then outstanding
liquidated Obligations owed to all Approved Bank Affiliates; and (iii) any
waiver, amendment or modification of this Agreement which by its terms affects
the rights or duties under this Agreement of the Revolving Banks (but not the
Term Banks) or the Term Banks (but not the Revolving Banks) may be effected by
an agreement or agreements in writing entered into by Borrower and the requisite
percentage in interest of the affected Class of Banks that would be required to
consent thereto under this Section 14.11 as if such Class of Banks were the only
Class of Banks hereunder at the time.
Section 14.12 Maximum Interest Rate.
(a) No interest rate specified in any Loan Document shall at any time
exceed the Maximum Rate. If at any time the interest rate (the "Contract
Rate") for any Obligation shall exceed the Maximum Rate, thereby causing
the interest accruing on such Obligation to be limited to the Maximum Rate,
then any subsequent reduction in the Contract Rate for such Obligation
shall not reduce the rate of interest on such Obligation below the Maximum
Rate until the aggregate amount of interest accrued on such Obligation
equals the aggregate amount of interest which would have accrued on such
Obligation if the Contract Rate for such Obligation had at all times been
in effect.
(b) No provision of any Loan Document shall require the payment or
the collection of interest in excess of the maximum amount permitted by
applicable law. If any excess of interest in such respect is hereby
provided for, or shall be adjudicated to be so provided, in any Loan
Document or otherwise in connection with this loan transaction, the
provisions of this Section shall govern and prevail and neither the
Borrower nor the sureties, guarantors, successors, or assigns of the
Borrower shall be obligated to pay the excess amount of such interest or
any other excess sum paid for the use, forbearance, or detention of sums
loaned pursuant hereto. In the event any Bank ever receives, collects, or
applies as interest any such sum, such amount which would be in excess of
the maximum amount permitted by applicable law shall be applied as a
payment and reduction of the principal of the Obligations; and, if the
principal of the Obligations has been paid in full, any remaining excess
shall forthwith be paid to the Borrower. In determining whether or not the
interest paid or payable exceeds the Maximum Rate, the Borrower and each
Bank shall, to the extent permitted by applicable law, (a) characterize any
non-principal payment as an expense, fee, or premium rather than as
interest, (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the entire contemplated term of the
Obligations so that interest for the entire term does not exceed the
Maximum Rate.
Section 14.13 Notices. All notices and other communications provided for
in any Loan Document to which the Borrower or any Obligated Party is a party
shall be given or made in writing and telecopied, mailed by certified mail
return receipt requested, or delivered to the intended recipient at the "Address
for Notices" specified below its name on the signature pages hereof and, if to
an Obligated Party, at the address for notices for the Borrower; or, as to any
party at such other address as shall be designated by such party in a notice to
each other party given in accordance with this Section. Except as otherwise
provided in any Loan Document, all such communications shall be deemed to have
been duly given when transmitted by telecopy, subject to telephone confirmation
of receipt, or when personally delivered or, in the case of a mailed notice,
three (3) Business Days after being duly deposited in the mails, in each case
given or addressed as aforesaid; provided, however, notices to the Agent
pursuant to Section 2.7, Section 5.3 or Section 7.2 shall not be effective until
received by the Agent.
Section 14.14 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United States of America.
58
Section 14.15 Counterparts. This Agreement may be executed in one or more
counterparts and on telecopy counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
Section 14.16 Severability. Any provision of any Loan Document held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of any Loan Document and the effect thereof shall be
confined to the provision held to be invalid or illegal.
Section 14.17 Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 14.18 Non-Application of Chapter 346 of Texas Finance Code. The
provisions of Chapter 346 of the Texas Finance are specifically declared by the
parties hereto not to be applicable to any Loan Documents or to the transactions
contemplated thereby.
Section 14.19 Construction. The Borrower, each Obligated Party (by its
execution of the Loan Documents to which it is a party), the Agent, and each
Bank acknowledges that each of them has had the benefit of legal counsel of its
own choice and has been afforded an opportunity to review the Loan Documents
with its legal counsel and that the Loan Documents shall be construed as if
jointly drafted by the parties thereto.
Section 14.20 Independence of Covenants. All covenants under the Loan
Documents shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of a Default if such action is taken or
such condition exists.
Section 14.21 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF THE AGENT OR ANY BANK IN THE NEGOTIATION, ADMINISTRATION, OR
ENFORCEMENT THEREOF.
Section 14.22 Confidentiality. The Agent and each Bank (each a "Lending
Party") agrees to keep any Designated Information (as defined below) delivered
or made available by the Borrower to it confidential from anyone other than
Persons employed or retained by such Lending Party who are, or are expected to
be, engaged in evaluating, approving, structuring, or administering the credit
facility provided herein; provided that nothing herein shall prevent any Lending
Party from disclosing such Designated Information: (a) to any other Lending
Party, (b) to any other Person on a need to know basis if reasonably incidental
to the administration of the credit facility provided herein, (c) upon the order
of any court or administrative agency, (d) upon the request or demand of any
regulatory agency or authority, (e) which has been publicly disclosed other than
as a result of a disclosure by any Lending Party prohibited by this Agreement,
(f) in connection with any litigation to which such Lending Party or any of its
Affiliates may be a party, (g) to the extent necessary in connection with the
exercise of any remedy hereunder, (h) to such Lending Party's legal counsel and
independent auditors, (i) to the National Association of Insurance Commissioners
or any similar organization or any nationally recognized rating agency that
requires access to information about a Bank's or any of its Affiliate's
investment portfolio in connection with ratings issued with respect to such Bank
or such Affiliate, (j) to any Affiliate of such Lending Party, solely in
connection with this Agreement, and (k) subject to written provisions
substantially similar (but no less stringent) to those contained in this
Section, to any actual or proposed participant or assignee of any of its rights
and obligations under the Loan Documents in accordance with the terms
hereof. The term "Designated Information" means any information which has been
designated by the Borrower in writing as confidential.
Section 14.23 Waiver of Existing Defaults. Subject to the satisfaction
of the conditions set forth in Section 7.1, the Agent and the Banks waive the
Existing Defaults (as defined in the Forbearance Agreement) and agree not to
exercise any rights and remedies available as a result of the occurrence
thereof. The Borrower and, by the execution of the Loan Documents to which it is
a party, each Obligated Party agree that the foregoing waiver shall not
constitute and shall not be deemed a waiver of any of the obligations under the
Loan Documents, or a waiver of any rights or remedies arising as a result of the
failure to observe and perform such obligations. The failure of the Borrower or
any Obligated
59
Party to strictly comply with its obligations under the Loan Documents will
result in the occurrence of a Default in accordance with the terms hereof.
Section 14.24 Conflict with Loan Documents. In the event of any direct
conflict between the provisions of this Agreement and the provisions of any
other Loan Document, the provisions of this Agreement shall control.
[Remainder of Page Intentionally Left Blank - Signature Pages Follow]
60
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BORROWER:
DARLING INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Treasurer
----------------------------------
Address for Notices:
▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Treasurer
AGENT:
Revolving Commitment: CREDIT LYONNAIS NEW YORK BRANCH
individually as a Bank and as the Agent
$1,618,288.25
Swingline Commitment: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
$3,500,000 Title: Vice President
----------------------------------
Term Loan: Address for Notices:
$5,694,378.42 Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
Credit Lyonnais Dallas Branch
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Applicable Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[signature page to amended and restated credit agreement]
BANKS:
Revolving Commitment ARK CLO 2000-1, LIMITED
$385,274.60 By: Patriarch Partners, LLC,
its Collateral Manager
Term Loan: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
$1,355,836.52 Title: Manager
----------------------------------
Address for Notices:
Ark CLO 2000-1, Limited
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Patriarch Partners, LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Woodside Capital Management, LLC
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
Ark CLO 2000-1, Limited
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
[signature page to amended and restated credit agreement]
Revolving Commitment BANK ONE N.A.
$2,388,702.52
Term Loan:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
$8,406,186.37 -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
----------------------------------
Address for Notices:
1 Bank One Plaza
Mail Code IL 1-0631
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
1 Bank One Plaza
Mail Code IL 1-0631
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Revolving Commitment CERBERUS PARTNERS, L.P.
$3,101,767.87
By: Cerberus Associates, L.L.C.,
Term Loan: its general partner
$10,915,565.48 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Attorney in Fact
----------------------------------
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[signature page to amended and restated credit agreement]
Revolving Commitment AVENUE SPECIAL SITUATIONS FUND II, L.P.
$2,427,162.50
By: Avenue Capital Partners II, LLC,
Term Loan: its General Partner
$8,541,532.54 By: GLS Partners II, LLC, Managing
Member of General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Member
----------------------------------
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Revolving Commitment CREDIT AGRICOLE INDOSUEZ
$770,549.20
Term Loan: By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
$2,711,673.03 Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
Credit Agricole Indosuez, New York Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
Credit Agricole Indosuez, Chicago Branch
[signature page to amended and restated credit agreement]
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Revolving Commitment PPM AMERICA SPECIAL INVESTMENTS
FUND, L.P.
$3,906,148.77
Term Loan:
By: PPM America, Inc., as its
$13,746,297.11 attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Revolving Commitment PPM AMERICA SPECIAL INVESTMENTS CBO II,
L.P.
$2,472,215.07
Term Loan: By: PPM America, Inc., as its
attorney-in-fact
$8,700,078.98
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[signature page to amended and restated credit agreement]
Revolving Commitment DAPLE, S.A.
$267,248.22 By: PPM America, Inc., as its
attorney-in-fact
Term Loan:
$940,484.78 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Revolving Commitment ▇▇▇▇▇ FARGO BANK (TEXAS) NATIONAL
ASSOCIATION
$0.00
Term Loan: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
$609.76 Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
▇▇▇▇▇ Fargo Bank (Texas),
National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 4th Floor
Mail Sort T5001-047
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office:
▇▇▇▇▇ Fargo Bank (Texas),
National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 4th Floor
Mail Sort T5001-047
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[signature page to amended and restated credit agreement]
INDEX TO EXHIBITS (omitted)
---------------------------
Exhibit Description of Exhibit
------- ----------------------
"A" Revolving Note
"B" Swingline Note
"C" Term Note
"D" Guaranty
"E" Borrower/Subsidiary Security Agreement
"F" Assignment and Acceptance
"G" Compliance Certificate
INDEX TO SCHEDULES
------------------
Schedule Description of Schedule
-------- -----------------------
1.1(a) Excluded Real Property
8.5 Litigation
8.6 Title Exceptions
8.10 Pending Investigations by Taxing Authorities
8.14 List of Subsidiaries
8.19 Environmental Matters
9.10(a) Vehicle Titles; Abandon Foreign Registrations
10.1 Existing Debt
10.2 Existing Liens
10.5 Existing Investments
10.8 Nonproductive Assets
14.8 Ineligible Assignees