EXHIBIT 10.1
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CREDIT AGREEMENT
Dated as of August 25, 2004
among
UNITED STATES LIME & MINERALS, INC.,
as the Borrower,
▇▇▇▇▇ FARGO BANK, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS............................................................ 1
Section 1.01 Defined Terms............................................................................ 1
Section 1.02 Other Interpretive Provisions............................................................ 25
Section 1.03 Accounting Terms......................................................................... 26
Section 1.04 Rounding................................................................................. 26
Section 1.05 References to Agreements and Laws........................................................ 27
Section 1.06 Times of Day............................................................................. 27
Section 1.07 Letter of Credit Amounts................................................................. 27
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS...................................................... 27
Section 2.01 Revolving Loans.......................................................................... 27
Section 2.02 Term Loans............................................................................... 27
Section 2.03 Borrowings, Conversions and Continuations of Loans....................................... 27
Section 2.04 Letters of Credit........................................................................ 29
Section 2.05 Swing Line Loans......................................................................... 37
Section 2.06 Prepayments.............................................................................. 40
Section 2.07 Termination or Reduction of Commitments.................................................. 41
Section 2.08 Repayment of Loans....................................................................... 42
Section 2.09 Interest................................................................................. 43
Section 2.10 Fees..................................................................................... 44
Section 2.11 Computation of Interest and Fees......................................................... 44
Section 2.12 Evidence of Debt......................................................................... 44
Section 2.13 Payments Generally....................................................................... 45
Section 2.14 Sharing of Payments...................................................................... 47
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY.................................................... 48
Section 3.01 Taxes.................................................................................... 48
Section 3.02 Illegality............................................................................... 50
Section 3.03 Inability to Determine Rates............................................................. 50
Section 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on LIBOR Loans............ 51
Section 3.05 Compensation For Losses.................................................................. 52
Section 3.06 Mitigation Obligations; Replacement of Lenders........................................... 53
Section 3.07 Survival................................................................................. 53
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.................................................. 54
Section 4.01 Conditions of Initial Credit Extension................................................... 54
Section 4.02 Conditions to all Credit Extensions...................................................... 56
ARTICLE V. REPRESENTATIONS AND WARRANTIES.............................................................. 57
Section 5.01 Existence, Qualification and Power; Compliance with Laws................................. 57
Section 5.02 Authorization; No Contravention.......................................................... 57
Section 5.03 Governmental Authorization; Other Consents............................................... 57
Section 5.04 Binding Effect........................................................................... 58
Section 5.05 Financial Statements; No Material Adverse Effect......................................... 58
Section 5.06 Litigation............................................................................... 58
Section 5.07 No Default............................................................................... 58
Section 5.08 Ownership of Property; Liens............................................................. 59
Section 5.09 Environmental Compliance................................................................. 59
Section 5.10 Insurance................................................................................ 59
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Section 5.11 Taxes.................................................................................... 59
Section 5.12 ERISA Compliance......................................................................... 59
Section 5.13 Subsidiaries............................................................................. 60
Section 5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act........... 60
Section 5.15 Disclosure............................................................................... 60
Section 5.16 Compliance with Laws..................................................................... 61
Section 5.17 Intellectual Property; Licenses, Etc..................................................... 61
Section 5.18 Businesses............................................................................... 61
Section 5.19 Common Enterprise........................................................................ 61
Section 5.20 Solvent.................................................................................. 62
Section 5.21 Real Estate Collateral................................................................... 62
Section 5.22 Notification of Agreement................................................................ 62
ARTICLE VI. AFFIRMATIVE COVENANTS...................................................................... 62
Section 6.01 Financial Statements..................................................................... 62
Section 6.02 Certificates; Other Information.......................................................... 63
Section 6.03 Notices.................................................................................. 64
Section 6.04 Payment of Obligations................................................................... 65
Section 6.05 Preservation of Existence, Etc........................................................... 65
Section 6.06 Maintenance of Properties................................................................ 65
Section 6.07 Maintenance of Insurance................................................................. 65
Section 6.08 Compliance with Laws..................................................................... 66
Section 6.09 Books and Records........................................................................ 66
Section 6.10 Inspection Rights........................................................................ 66
Section 6.11 Compliance with ERISA.................................................................... 66
Section 6.12 Use of Proceeds.......................................................................... 66
Section 6.13 Cash Collateral.......................................................................... 67
Section 6.14 Subsidiaries............................................................................. 67
Section 6.15 Further Assurances....................................................................... 67
ARTICLE VII. NEGATIVE COVENANTS........................................................................ 68
Section 7.01 Liens.................................................................................... 68
Section 7.02 Investments.............................................................................. 69
Section 7.03 Indebtedness............................................................................. 70
Section 7.04 Fundamental Changes...................................................................... 71
Section 7.05 Dispositions............................................................................. 71
Section 7.06 Lease Obligations........................................................................ 72
Section 7.07 Restricted Payments...................................................................... 72
Section 7.08 ERISA.................................................................................... 73
Section 7.09 Change in Nature of Business............................................................. 73
Section 7.10 Transactions with Affiliates............................................................. 73
Section 7.11 Capital Expenditures..................................................................... 73
Section 7.12 Burdensome Agreements.................................................................... 73
Section 7.13 Use of Proceeds.......................................................................... 74
Section 7.14 Financial Covenants...................................................................... 74
Section 7.15 Fiscal Year and Accounting Methods....................................................... 74
Section 7.16 Amendments, Payments and Prepayments of Subordinated Debt; Prepayment of Indebtedness.... 74
Section 7.17 Amendments to Phase II Debt; Notice...................................................... 75
Section 7.18 Real Estate Collateral................................................................... 75
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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES........................................................... 75
Section 8.01 Events of Default........................................................................ 75
Section 8.02 Remedies Upon Event of Default........................................................... 77
Section 8.03 Application of Funds..................................................................... 78
ARTICLE IX. ADMINISTRATIVE AGENT....................................................................... 79
Section 9.01 Appointment and Authority................................................................ 79
Section 9.02 Rights as a Lender....................................................................... 79
Section 9.03 Exculpatory Provisions................................................................... 79
Section 9.04 Reliance by Administrative Agent......................................................... 80
Section 9.05 Delegation of Duties..................................................................... 80
Section 9.06 Resignation of Administrative Agent...................................................... 81
Section 9.07 Non-Reliance on Administrative Agent and Other Lenders................................... 81
Section 9.08 No Other Duties, Etc..................................................................... 82
Section 9.09 Administrative Agent May File Proofs of Claim............................................ 82
Section 9.10 Collateral and Guaranty Matters.......................................................... 83
ARTICLE X. MISCELLANEOUS............................................................................... 83
Section 10.01 Amendments, Etc......................................................................... 83
Section 10.02 Notices; Effectiveness; Electronic Communication........................................ 85
Section 10.03 No Waiver; Cumulative Remedies.......................................................... 86
Section 10.04 Expenses; Indemnity; Damage Waiver...................................................... 86
Section 10.05 Payments Set Aside...................................................................... 89
Section 10.06 Successors and Assigns.................................................................. 89
Section 10.07 Treatment of Certain Information; Confidentiality....................................... 92
Section 10.08 Set-off................................................................................. 93
Section 10.09 Interest Rate Limitation................................................................ 93
Section 10.10 Counterparts; Integration; Effectiveness................................................ 94
Section 10.11 Survival of Representations and Warranties.............................................. 94
Section 10.12 Severability............................................................................ 94
Section 10.13 Replacement of Lenders.................................................................. 94
Section 10.14 Governing Law........................................................................... 95
Section 10.15 Waiver of Right to Trial by Jury........................................................ 96
Section 10.16 USA PATRIOT Act Notice.................................................................. 97
Section 10.17 Arbitration............................................................................. 97
Section 10.18 ENTIRE AGREEMENT........................................................................ 99
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SCHEDULES
2.01 Revolving Commitments and Revolving Pro Rata Shares
2.02 Term Commitments and Term Pro Rata Shares
5.06 Existing Litigation
5.13 Subsidiaries and Other Equity Investments
5.21 Claims and Royalty Payments on Real Estate Collateral
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.03(f) Existing Guarantees
7.06 Existing Leases
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Revolving Loan Notice
B Term Loan Notice
C Swing Line Loan Notice
D Revolving Loan Note
E Term Loan Note
F Swing Line Note
G Compliance Certificate
H Assignment and Assumption
I Guaranty
J Mortgage/Deed of Trust
K Security Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of August 25, 2004,
among UNITED STATES LIME & MINERALS, INC., a Texas corporation (the "Borrower"),
each lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender"), and ▇▇▇▇▇ FARGO BANK, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.
RECITALS
The Borrower has requested that the Lenders provide revolving credit and
term loan facilities, and the Lenders are willing to do so on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"AAA" has the meaning specified in Section 10.17(b).
"ALC" means Arkansas Lime Company.
"Acquisition Consideration" means the consideration given by the Borrower
or any of its Subsidiaries for a Permitted Acquisition, including but not
limited to the sum of (without duplication) (a) the fair market value of any
cash, property (including any Equity Interests) or services given, plus (b) the
amount of any Indebtedness incurred or guaranteed (to the extent the proceeds of
such Indebtedness are used to fund such Permitted Acquisition and are not
otherwise accounted for under the preceding clause (a)) or assumed in connection
with such Permitted Acquisition by the Borrower or any of its Subsidiaries.
"Act" has the meaning specified in Section 10.16.
"Adjusted Cash Flow Leverage Ratio" means, as of the date of any
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the ratio of (a) the average of Consolidated Senior Funded Indebtedness as of
the last day of the most recent four Fiscal Quarters then ended to (b)
Consolidated EBITDA for the period of four consecutive Fiscal Quarters ending on
such date.
"Administrative Agent" means ▇▇▇▇▇ Fargo, in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
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"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Commitments" means the Aggregate Revolving Commitments and the
Aggregate Term Commitments.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
Lenders.
"Aggregate Term Commitments" means the Term Commitments of all Lenders.
"Agreement" means this Credit Agreement.
"Applicable Law" means (a) in respect of any Person, all provisions of
Laws applicable to such Person, and all orders and decrees of all courts and
determinations of arbitrators applicable to such Person and (b) in respect of
contracts made or performed in the State of Texas, "Applicable Law" shall also
mean the laws of the United States of America, including, without limitation in
addition to the foregoing, 12 U.S.C Sections 85 and 86, as amended to the date
hereof and as the same may be amended at any time and from time to time
hereafter, and any other statute of the United States of America now or at any
time hereafter prescribing the maximum rates of interest on loans and extensions
of credit, and the laws of the State of Texas.
"Applicable Rate" means the following percentages per annum, based upon
the Adjusted Cash Flow Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):
Revolving LIBOR for
Pricing Commitment Loans and Base Rate
Level Adjusted Cash Flow Leverage Ratio Fee Letters of Credit for Loans
----- --------------------------------- --- ----------------- ---------
I Less than 1.00 to 1.00 0.200% 1.250% -0.500%
II Greater than or equal to 1.00 to 1.00 but less 0.250% 1.500% -0.250%
than 1.50 to 1.00
III Greater than or equal to 1.50 to 1.00 but less 0.250% 1.750% 0.000%
than 2.00 to 1.00
IV Greater than or equal to 2.00 to 1.00 but less 0.250% 2.000% 0.000%
than 2.50 to 1.00
V Greater than or equal to 2.50 to 1.00 but less 0.300% 2.250% 0.250%
than 3.00 to 1.00
VI Greater than or equal to 3.00 to 1.00 0.350% 2.500% 0.500%
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Any increase or decrease in the Applicable Rate resulting from a change in
the Adjusted Cash Flow Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate is
delivered for any Fiscal Quarter pursuant to Section 6.02(b); provided, however,
that if a Compliance Certificate is not delivered when due in accordance with
such Section 6.02(b), then Pricing Level VI shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have
been delivered and shall remain in effect until the first Business Day
immediately following the date such Compliance Certificate is actually delivered
to the Administrative Agent. Notwithstanding the foregoing, the Applicable Rate
in effect from and after the Closing Date through and including the date the
first Compliance Certificate is delivered pursuant to Section 6.02(b) after the
Closing Date shall be Pricing Level III.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b), and accepted by the Administrative
Agent, in substantially the form of Exhibit H or any other form approved by the
Administrative Agent.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the Fiscal Year ended December
31, 2003, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such Fiscal Year of the Borrower and its
Subsidiaries, including the notes thereto.
"Balance Sheet Leverage Ratio" means, as of the date of determination, for
the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Liabilities to (b) Consolidated Tangible Net Worth.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as the Prime Rate.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
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"Borrowing" means a Revolving Borrowing, a Swing Line Borrowing, or a Term
Loan Borrowing, as the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any LIBOR Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.
"Capital Expenditures" means, for any period of determination, for the
Borrower and its Subsidiaries on a consolidated basis, consolidated expenditures
during such period that are required to be included in or are reflected by the
consolidated property, plant, or equipment accounts of the Borrower or any of
its Subsidiaries, or any similar fixed asset or long term capitalized asset
accounts, on the consolidated balance sheet of the Borrower in conformity with
GAAP.
"Capital Lease" means, as of any date, any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on the balance sheet of the lessee.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations and the Swap Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings.
"Cash Equivalent Investments" means, as to any Person, (a) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (b) time deposits and certificates
of deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company having, capital and surplus in excess of
$500,000,000 and a long-term unsecured debt rating of at least "AAA" or the
equivalent thereof from Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or "Aaa" or the equivalent thereof from ▇▇▇▇▇'▇ Investors
Service, Inc. with maturities of not more than six months from the date of
acquisition by such Person, (c) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (a)
above entered into with any bank meeting the qualifications specified in clause
(b) above, (d) commercial paper issued by any Person incorporated in the United
States rated at least A-1 or the equivalent thereof by Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or at least P-1 or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in each case maturing not more
than six months after the date of acquisition by such Person and (e) investments
in money market funds substantially all of whose assets are comprised of
securities of the types described in clauses (a) through (d) above.
"Cash Flow Leverage Ratio" means, as of the date of any determination, for
the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Senior Funded
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Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive Fiscal Quarters ending on such date.
"Cash Income Taxes" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the aggregate amount of federal and state
income taxes paid by them during such period.
"Change in Law" means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means an event or series of events by which any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan), other than
Inberdon, is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group
shall be deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option right"),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 25% or more of the Voting Equity Interests of
the Borrower (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right), if such person or
group is also the beneficial owner (as so defined), directly or indirectly, of a
larger percentage of the Voting Equity Interests of the Borrower than Inberdon.
As used above, "Inberdon" means Inberdon Enterprises, Ltd., a British Columbia
corporation or its corporate successors, or its Affiliates.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Collateral" means any collateral in which a Lien is granted by any Person
to the Administrative Agent to secure the Obligations pursuant to the Collateral
Documents.
"Collateral Documents" means the Security Agreement, the Mortgages and any
document related thereto.
"Commitment" means, as to each Lender, its obligation to make Loans to the
Borrower pursuant to Section 2.01 and Section 2.02 at any one time outstanding
not to exceed the respective amounts set forth opposite such Lender's name on
Schedule 2.01 and Schedule 2.02, or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, or in any amendment hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.
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"Common Stock Purchase Warrants" means those certain warrants to purchase
an aggregate of 162,000 shares of the Borrower's common stock pursuant to the
Note and Warrant Purchase Agreement.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit G, with such changes, or in such other form, as agreed to by the
Administrative Agent.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income for such period, (b) Interest Expense deducted in
determining such Consolidated Net Income, (c) income tax expenses deducted in
determining such Consolidated Net Income, (d) the amount of depreciation,
depletion and amortization expense deducted in determining such Consolidated Net
Income, and (e) extraordinary losses computed and calculated in accordance with
GAAP reducing such Consolidated Net Income, minus; (i) income tax credits
included in calculating such Consolidated Net Income and (ii) extraordinary
gains computed and calculated in accordance with GAAP increasing such
Consolidated Net Income.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all Interest
Expense paid in cash during such period by the Borrower and its Subsidiaries in
connection with borrowed money (including capitalized interest) that is treated
as interest in accordance with GAAP, and (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP.
"Consolidated Liabilities" means, for any period of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of current
liabilities and long-term liabilities minus Subordinated Debt.
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries for that period.
"Consolidated Senior Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds (other than surety bonds, performance bonds
or similar surety obligations to the extent permitted under Section 7.03(f)),
debentures, notes, loan agreements or other similar instruments, but excluding
any Subordinated Debt, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit, (d) all obligations in respect of
the deferred purchase price of property or services (other than accrued expenses
and accounts payable in the ordinary course of business), (e) Attributable
Indebtedness in respect of Capital Leases and Synthetic Lease Obligations, (f)
without duplication, all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which the Borrower or a Subsidiary is a general partner or joint venturer (other
than a joint
6
venturer that is only a limited partner), unless such Indebtedness is expressly
made non-recourse to the Borrower or such Subsidiary.
"Consolidated Tangible Net Worth" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, Shareholders'
Equity (net of treasury shares) of the Borrower and its Subsidiaries on that
date minus the Intangible Assets of the Borrower and its Subsidiaries on that
date plus Subordinated Debt.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Extension" means each of the following: (a) a Revolving Borrowing,
(b) a Swing Line Loan, (c) a Term Loan Borrowing, and (d) an L/C Credit
Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate per annum equal to (i) the Base Rate
plus (ii) the Applicable Rate, if any and if positive, applicable to Base Rate
Loans plus (iii) 3% per annum; provided, however, that with respect to a LIBOR
Loan, the Default Rate shall be an interest rate per annum equal to (y) the
interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus (z) 3% per annum, and (b) when used with respect to Letter of Credit Fees,
an interest rate per annum equal to the (i) the Applicable Rate plus (ii) 3% per
annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale,
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assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith.
"Dispute" has the meaning specified in Section 10.17(a).
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, the L/C Issuer and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, final and enforceable rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions governing pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of
the warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.
"Equity Issuance" means the issuance or other disposition by a Person of
any of its Equity Interests or other securities, or rights, warrants or options
to purchase or acquire any Equity Interests or securities.
"ERISA" means the Employee Retirement Income Security Act of 1974.
8
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Event of Default" has the meaning specified in Section 8.01.
"Excess Cash Flow" means, for the Borrower and its Subsidiaries on a
consolidated basis for any Fiscal Year, an amount equal to (a) Consolidated
EBITDA for such period, minus (b) the sum of (without duplication) (i) Cash
Income Taxes for such period, plus (ii) $3,500,000.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 3.01(a).
"Existing Credit Agreements" means that certain Credit Agreement dated as
of April 22, 1999, by and among the Borrower, Texas Lime Company, ALC, National
City Bank, as successor administrative agent to Wachovia Bank, National
Association (formerly known as First Union National Bank), and a syndicate of
lenders, as amended or modified, and that certain
9
Loan and Security Agreement dated as of March 3, 2003, by and among the
Borrower, Texas Lime Company, ALC, and National City Bank, as amended or
modified.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to ▇▇▇▇▇ Fargo on such
day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement, dated the date of this Agreement,
between the Borrower and the Administrative Agent.
"Fiscal Quarter(s)" means the three-calendar-month periods ending on March
31, June 30, September 30, and December 31 of each calendar year.
"Fiscal Year" means the twelve-calendar-month period beginning January 1
of each year and ending December 31 of each year.
"Fiscal Year-End" means, for any Fiscal Year of the Borrower the last day
of such Fiscal Year.
"Fixed Charge Coverage Ratio" means, as of the last day of a Fiscal
Quarter that is the applicable date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) Excess Cash Flow for the
period of four Fiscal Quarters ended on such date of determination to (b) the
sum of (i) Consolidated Interest Charges for the period of four Fiscal Quarters
ended on such date of determination, (ii) scheduled principal payments on
Consolidated Senior Funded Indebtedness (including Attributable Indebtedness but
excluding principal payments due and payable on the Revolving Maturity Date or
the Term Maturity Date) during the period of four Fiscal Quarters following such
date of determination, and (iii) an amount equal to five percent (5%) of the
Total Revolving Outstandings as of such date.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means each Subsidiary of the Borrower which is
organized under the laws of a jurisdiction other than the United States of
America or any state or commonwealth thereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
10
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Guarantee" means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term "Guarantee" as a verb has a
corresponding meaning.
"Guarantors" means, collectively, each Domestic Subsidiary.
"Guaranty" means any Guaranty executed by one or more of the Guarantors in
favor of the Administrative Agent, substantially in the form of Exhibit I.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum
11
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under Applicable Law, any Lender is then permitted to
charge on the Obligations. If the maximum rate of interest which, under
Applicable Law, any Lender is permitted to charge on the Obligations shall
change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the
effective time of each change in the Highest Lawful Rate without notice to the
Borrower. For purposes of determining the Highest Lawful Rate under Applicable
Law, the indicated rate ceiling shall be the lesser of (a)(i) the "weekly
ceiling", as that expression is defined in Section 303.003 of the Texas Finance
Code, as amended, or (ii) if available in accordance with the terms thereof and
at the Administrative Agent's option after notice to the Borrower and otherwise
in accordance with the terms of Section 303.103 of the Texas Finance Code, as
amended, the "annualized ceiling" and (b)(i) if the amount outstanding under
this Agreement is less than $250,000, twenty-four percent (24%), or (ii) if the
amount under this Agreement is equal to or greater than $250,000, twenty-eight
percent (28%) per annum.
"Honor Date" has the meaning specified in Section 2.04(c)(i).
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than accrued expenses and accounts
payable in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) Attributable Indebtedness in respect of Capital Leases and
Synthetic Lease Obligations;
(g) any "withdrawal liability" of such Person as such term is
defined under Part I of Subtitle E of Title IV of ERISA; and
12
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer (other than a joint venturer that is
only a limited partner), unless such Indebtedness is expressly made non-recourse
to such Person. The amount of any net obligation under any Swap Contract on any
measurement date shall be deemed to be the Swap Termination Value thereof as of
such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information" has the meaning specified in Section 10.07.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
"Interest Expense" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, all expenses treated as interest in
accordance with GAAP.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Revolving Maturity Date or Term Maturity Date, as applicable; provided, however,
that if any Interest Period for a LIBOR Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Revolving Maturity Date or Term Maturity
Date, as applicable.
"Interest Period" means, as to each LIBOR Loan, the period commencing on
the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR
Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in its Revolving Loan Notice or Term Loan Notice, as
the case may be; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Revolving Maturity
Date or Term Maturity Date, as applicable.
13
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment, but with adjustment for amounts received in respect of such
Investments (whether as principal, interest, dividends or otherwise).
"IP Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect on the date of
issuance).
"Issuer Documents" means, with respect to any Letter of Credit, the Letter
of Credit Application, and any document, agreement and instrument entered into
by the L/C Issuer and the Borrower or any Subsidiary or in favor of the L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Revolving Pro Rata
Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means ▇▇▇▇▇ Fargo in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
14
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any standby letter of credit issued hereunder.
Letters of Credit shall be issued in Dollars.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is 10 days prior to
the Revolving Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.04(h).
"Letter of Credit Sublimit" means an amount equal to $2,500,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"LIBOR" means for any Interest Period with respect to any LIBOR Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
15
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) offered to the Administrative Agent at approximately
11:00 a.m. London time (or as soon thereafter as practicable) two Business
Days prior to the first day of the Interest Period for such Loan by
leading banks in the London interbank market for Dollar deposits having a
term comparable to such Interest Period and in an amount comparable to the
principal amount of the LIBOR Loan to be made by the Lenders for such
Interest Period.
"LIBOR Loan" means a Loan that bears interest at a rate based on LIBOR.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a collateral or security arrangement of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, and any financing lease
having substantially the same economic effect as any of the foregoing).
"Litigation" means any proceeding, claim, lawsuit, and arbitration and/or
investigation by or before any Governmental Authority or arbitrator, including,
without limitation, proceedings, claims, and lawsuits, and/or such
investigations conducted by or before any Governmental Authority or arbitrator
or pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, tax or other Law, or under or pursuant to any
contract, agreement or other instrument.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan, a Term Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Notes, the Fee Letter, each
Guaranty, each Request for Credit Extension, each Compliance Certificate, each
Collateral Document, and any other agreement executed, delivered or performable
by any Loan Party in connection herewith or as security for the Obligations.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent) or condition (financial or otherwise) of the Borrower or
the Borrower and its Subsidiaries taken as a whole; (b) an impairment of the
ability of any Loan Party to perform its payment or other material obligations
under any Loan Document to which it is a party; (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Loan
Party of any Loan Document to which it is a party; or (d) a material adverse
effect upon any Lien granted in any material portion of any Collateral.
"Mortgages" means mortgages or deeds of trust, as appropriate, executed by
Borrower or the applicable Subsidiary, as the case may be, substantially in the
form of Exhibit J with such changes as are necessary to conform or comply with
requirements of law in various jurisdictions, granting a first priority lien to
Administrative Agent for the ratable benefit of Lenders on all real property
owned by Borrower and each Subsidiary domiciled in the United States.
16
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means, with respect to a Disposition, Equity Issuance
or any issuance of Indebtedness by any Person, the cash proceeds received by
such Person in connection with such transaction (including any cash received in
respect of non-cash proceeds, but only and as when received) after deducting
therefrom the aggregate, without duplication, of the following amounts to the
extent properly attributable to such transaction or to any asset that may be the
subject thereof: (i) reasonable fees and commissions (including without
limitation brokerage commissions, legal fees, finder's fees, financial advisory
fees, fees for solvency opinions, accounting fees, underwriting fees, investment
banking fees, survey, title insurance, appraisals, notaries and other similar
commissions and fees and expenses), paid, payable or reimbursed by such Person;
(ii) filing, recording or registration fees or charges or similar fees or
charges paid by such Person; (iii) taxes paid or payable by such Person or any
shareholder, partner or member of such Person to governmental taxing authorities
as a result of such sale or other disposition or issuance (after taking into
account any available tax credits or deductions or any tax sharing arrangements
to the extent actually utilized); and (iv) the amount paid or payable in respect
of the outstanding principal amount of, premium or penalty, if any, and interest
on any Indebtedness (other than the Obligations) that is secured by a Lien on
the asset in question, if any, to the extent required to be paid.
"Note and Warrant Purchase Agreement" means that certain Note and Warrant
Purchase Agreement dated as of August 5, 2003, by and among the Borrower and the
purchasers party thereto.
"Notes" means collectively, the Revolving Loan Notes, the Swing Line Note,
and the Term Loan Notes.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, under any treasury
management arrangements with any Lender, or under Swap Contracts to which a
Lender or its Affiliate is a party, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
"Operating Lease" means any lease (other than a Capital Lease) of real or
personal property.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect
17
to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Taxes" means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.
"Outstanding Amount" means (i) with respect to Revolving Loans, Swing Line
Loans and Term Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
Revolving Loans, Swing Line Loans and Term Loans, as the case may be, occurring
on such date; and (ii) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Acquisition" means the acquisition of all of the Equity
Interests or (in one transaction or a series of transactions) the assets of
another Person that constitute a business unit, provided (i) the Acquisition
Consideration required to accomplish such acquisitions does not exceed (x)
$40,000,000 in the aggregate during the term of this Agreement and (y)
$5,000,000 in the aggregate in any Fiscal Year of the Borrower, provided,
however, that if the Total Revolving Outstandings do not exceed $20,000,000
after giving effect to an acquisition, the Acquisition Consideration during any
Fiscal Year may be greater than $5,000,000, but in no event in excess of that
permitted in clause (x) above, (ii) immediately before and after giving effect
to such proposed acquisition, no Default shall have occurred and be continuing,
(iii) if such acquisition results in a Domestic Subsidiary, (A) such Subsidiary
shall execute a Guaranty, a Security Agreement, and if applicable, Mortgages,
together with any related collateral documents reasonably required by the
Administrative Agent, (B) 100% of such Subsidiary's Equity Interests shall be
pledged to secure the Obligations and (C) the Administrative Agent, on behalf of
the Lenders, shall have received such board resolutions, officer's certificates,
opinions of counsel
18
and Organization Documents with respect to such Subsidiary as the Administrative
Agent shall reasonably request in connection with the actions described in
clauses (A) and (B) above, and (iv) if such acquisition results in a Foreign
Subsidiary, (A) 65% of such Subsidiary's Equity Interests shall be pledged to
secure the Obligations and (B) the Administrative Agent, on behalf of the
Lenders, shall have received such board resolutions, officer's certificates,
opinions of counsel and Organization Documents with respect to such Subsidiary
as the Administrative Agent shall reasonably request in connection with the
actions described in clause (A) above.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Phase II Debt" means the Indebtedness of Borrower to fund the second
phase of ALC's construction pursuant to the Phase II Debt Documents.
"Phase II Debt Documents" means the Phase II Notes, the Common Stock
Purchase Warrants, and the related Note and Warrant Purchase Agreement and
Registration Rights Agreement.
"Phase II Notes" means those certain promissory notes that evidence the
Phase II Debt, referred to as Sub-Notes in the Borrower's financial statements.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Prime Rate" means the rate of interest from time to time announced
publicly by ▇▇▇▇▇ Fargo, in San Francisco, California, as its prime rate. Such
rate is set by ▇▇▇▇▇ Fargo as a general reference rate of interest, taking into
account such factors as ▇▇▇▇▇ Fargo may deem appropriate, it being understood
that many of ▇▇▇▇▇ Fargo's commercial or other loans are priced in relation to
such rate, that it is not necessarily the lowest or best rate actually charged
to any customer and that ▇▇▇▇▇ Fargo may make various commercial or other loans
at rates of interest having no relationship to such rate. In addition, such rate
is evidenced by the recording thereof after its announcement in such internal
publication or publications as ▇▇▇▇▇ Fargo may designate, and each change in the
Prime Rate will be effective on the day the change is announced within ▇▇▇▇▇
Fargo.
"Pro Rata Share" means either a Revolving Pro Rata Share or a Term Pro
Rata Share, as the context requires.
"Register" has the meaning specified in Section 10.06(c).
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated as of August 5, 2003, by and among the Borrower and the
investors party thereto.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
19
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Revolving
Borrowing or a conversion or continuation of Revolving Loans, a Revolving Loan
Notice, (b) with respect to the Term Borrowing or a conversion or continuation
of Term Loans, a Term Loan Notice, (c) with respect to an L/C Credit Extension,
a Letter of Credit Application, and (d) with respect to a Swing Line Loan, a
Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
at least 51% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, Lenders holding in the aggregate
at least 51% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitments of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders; provided, further, in no
event shall Required Lenders include less than those Lenders who collectively
hold more than 51% of the Aggregate Revolving Commitments.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest
or on account of any return of capital to the Borrower's stockholders, partners
or members (or the equivalent Person thereof).
"Revolving Availability Period" means the period from and including the
Closing Date to the earliest of (a) the Revolving Maturity Date, (b) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.07, and
(c) the date of termination of the commitment of each Lender to make Revolving
Loans and of the obligation of the of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 8.02.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of LIBOR Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01.
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations,
20
and (c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 2.01 or in any Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement (collectively,
the "Aggregate Revolving Commitment").
"Revolving Commitment Fee" has the meaning specified in Section 2.10(a).
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit D.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b) a
conversion of Revolving Loans from one Type to the other, or (c) a continuation
of Revolving Loans, pursuant to Section 2.03(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"Revolving Maturity Date" means (a) August 25, 2007, or (b) such earlier
date as the (i) the Obligations become due and payable pursuant to this
Agreement (whether by acceleration, prepayment in full, scheduled reduction or
otherwise) or (ii) there shall exist an Event of Default under Section 8.01(f)
of this Agreement.
"Revolving Pro Rata Share" means, with respect to each Lender at any time,
a fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Revolving Commitment of such Lender
at such time and the denominator of which is the amount of the Aggregate
Revolving Commitments at such time; provided that if the commitment of each
Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02, then the
Revolving Pro Rata Share of each Lender shall be determined based on the
Revolving Pro Rata Share of such Lender immediately prior to such termination
and after giving effect to any subsequent assignments made pursuant to the terms
hereof. The initial Revolving Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Agreement" means any Security Agreement executed by one or more
of the Loan Parties, substantially in the form of Exhibit K.
"Shareholders' Equity" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of such date determined in accordance with GAAP.
"Solvent" means, with respect to any Person, as of any date of
determination, that the fair value of the assets of such Person (at fair
valuation) is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person
as
21
of such date, that the present fair saleable value of the assets of such Person
will, as of such date, be greater than the amount that will be required to pay
the probable liability of such Person on its debts as such debts become absolute
and matured, and that, as of such date, such Person will be able to pay all
liabilities of such Person as such liabilities mature and such Person does not
have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person.
"Subordinated Debt" means any unsecured Indebtedness of the Borrower (and
unsecured Guaranties thereof by Subsidiaries of the Borrower) that matures no
earlier than six months after the Term Maturity Date, and meets the requirements
of (a), (b) or (c) below:
(a) such Indebtedness (i) is expressly subordinated to the Obligations on
terms that are substantially the same as, or provide greater subordination
restrictions on the subordinated Indebtedness than those governing the Phase II
Debt and that specifically include a provision that payments on such
Indebtedness shall be prohibited if a Default exists and (ii) is governed by an
agreement where the covenants and events of default are substantially the same
as (or less restrictive on the Borrower and its Subsidiaries than) the covenants
and events of default governing the Phase II Debt, except, in the case of either
(i) or (ii), such alternative terms of subordination or such substantially
different, more restrictive or additional covenants and events of default as the
Administrative Agent reasonably determines are then customary market terms for
such type of subordinated Indebtedness (such determination not to be
unreasonably withheld or delayed).
(b) such Indebtedness (i) is issued in a public offering under a
registration statement or is issued to accredited institutions pursuant to Rule
144A or Regulation S of the Securities Exchange Commission with a covenant to
exchange such notes for substantially identical notes offered under a
registration statement and (ii) is governed by an indenture where the covenants,
events of default and terms of subordination are on then customary market terms
for similar offerings for other companies with similar credit ratings; or
(c) such Indebtedness is issued under an agreement where the covenants,
events of default and terms of subordination are on then customary market terms
for such type of subordinated Indebtedness as reasonably determined by the
Administrative Agent (such determination not to be unreasonably withheld or
delayed).
At the date of this Agreement, the only Subordinated Debt is the Phase II Debt,
the current principal balance of which is approximately $7,000,000.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
Voting Equity Interests (other than securities or interests having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person
(excluding any inactive Subsidiaries of the Borrower with assets of de minimis
value until such time as such Subsidiary
22
becomes active or acquires assets). Unless otherwise specified, all references
herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Obligations" means any and all obligations owed by the Borrower to
any Lender or any Affiliate of a Lender in respect of a Swap Contract.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in subsection (a), the amount(s) determined as
the ▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.05.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.05.
"Swing Line Lender" means ▇▇▇▇▇ Fargo in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
"Swing Line Note" means a promissory note made by the Borrower in favor of
the Swing Line Lender, evidencing Swing Line Loans made by such Swing Line
Lender, substantially in the form of Exhibit F.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.05(b), which, if in writing, shall be substantially in the form of
Exhibit C.
23
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$3,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment). It is expressly understood that
the monetary obligations under any Operating Leases of the Borrower and its
Subsidiaries existing as of the Closing Date shall not be considered Synthetic
Lease Obligations.
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Term Commitment" means, as to each Lender, its obligation to make a Term
Loan to the Borrower pursuant to Section 2.02, in aggregate principal amount not
to exceed the amount set forth opposite such Lender's name on Schedule 2.02
(collectively, the "Aggregate Term Commitments").
"Term Loan" has the meaning specified in Section 2.02.
"Term Loan Borrowing" means a borrowing by the Borrower consisting of Term
Loans of the same Type and having the same Interest Period made by each of the
Lenders pursuant to Section 2.02.
"Term Loan Note" means a promissory note made by the Borrower in favor of
a Lender evidencing Term Loans made by such Lender, substantially in the form of
Exhibit E.
"Term Loan Notice" means a notice of (a) a Term Loan Borrowing, (b) a
conversion of Term Loans from one Type to the other, or (c) a continuation of
Term Loans as the same Type, pursuant to Section 2.03(a), which, if in writing,
shall be substantially in the form of Exhibit B.
"Term Maturity Date" means (a) August 25, 2009, or (b) such earlier date
as (i) the Obligations become due and payable pursuant to this Agreement
(whether by acceleration, prepayment in full, scheduled reduction or otherwise)
or (ii) there shall exist an Event of Default under Section 8.01(f) of this
Agreement.
"Term Pro Rata Share" means, with respect to each Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Term Commitment of such Lender at
such time and the denominator of which is the amount of the Aggregate Term
Commitments at such time; provided that if the commitment of each Lender to make
Term Loans have been terminated pursuant to Section 8.02, then the Term Pro Rata
Share of each Lender shall be a fraction (expressed as a percentage, carried out
to the ninth decimal place), the numerator of which is the Outstanding Amount of
Term Loans owed to such Lender and the denominator of which is the Outstanding
Amount of Term Loans owed to all Lenders. The initial Term Pro Rata Share of
each Lender is set forth opposite the
24
name of such Lender on Schedule 2.02 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and L/C Obligations.
"Total Revolving Outstandings" means the aggregate Outstanding Amount of
all Revolving Loans and all L/C Obligations.
"Type" means, with respect to a Revolving Loan or a Term Loan, its
character as a Base Rate Loan or a LIBOR Loan.
"UCC" means the Uniform Commercial Code of Texas or, where applicable to
specific Collateral, any other relevant state.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.04(c)(i).
"Voting Equity Interests" of any Person means Equity Interests of any
class or classes having ordinary voting power for the election of at least a
majority of the members of the board of directors, managing general partners or
the equivalent governing body of such Person, irrespective of whether, at the
time, Equity Interests of any other class or classes or such entity shall have
or might have voting power by reason of the happening of any contingency.
"Warrant Shares" shall have the meaning given to such term in the Note and
Warrant Purchase Agreement.
"▇▇▇▇▇ Fargo " means ▇▇▇▇▇ Fargo Bank, N.A. and its successors.
SECTION 1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein or in any other Loan
25
Document), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein,"
"hereof" and "hereunder" and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
to, the Loan Document in which such references appear, (v) any reference
to any law shall include all statutory and regulatory provisions
consolidating, amending replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified,
refer to such law or regulation as amended, modified or supplemented from
time to time, and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts
and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
SECTION 1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to
be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and
either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in
GAAP.
SECTION 1.04 ROUNDING. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number.
26
SECTION 1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions and rulings consolidating, amending, replacing,
supplementing or interpreting such Law.
SECTION 1.06 TIMES OF DAY. Unless otherwise specified, all references
herein to times of day shall be references to Central time (daylight or
standard, as applicable).
SECTION 1.07 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed
to be the maximum stated amount of such Letter of Credit after giving effect to
all such increases, whether or not such maximum stated amount is in effect at
such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01 REVOLVING LOANS. Subject to the terms and conditions set
forth herein, each Lender with a Revolving Commitment severally agrees to make
loans (each such loan, a "Revolving Loan") to the Borrower from time to time, on
any Business Day during the Revolving Availability Period, in an aggregate
amount not to exceed at any time outstanding the amount of such Lender's
Revolving Commitment; provided, however, that after giving effect to any
Revolving Borrowing, (i) the Total Revolving Outstandings and the Outstanding
Amount of all Swing Line Loans shall not exceed the Aggregate Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender's Revolving Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender's Revolving Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Revolving Commitment. Within the limits of each Lender's Revolving Commitment,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.06, and reborrow under this
Section 2.01. Revolving Loans may be Base Rate Loans and/or LIBOR Loans, as
further provided herein.
SECTION 2.02 TERM LOANS. Subject to the terms and conditions set forth
herein, each Lender with a Term Commitment severally agrees to make a Term Loan
on the Closing Date in the amount of its Term Commitment. Term Loans may not be
repaid and then reborrowed.
SECTION 2.03 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of LIBOR Loans shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice
27
must be received by the Administrative Agent not later than 11:00 a.m. (i)
three Business Days prior to the requested date of any Borrowing of or
conversion to or continuation of LIBOR Loans, and (ii) on the requested
date of any Borrowing of Base Rate Loans. Each telephonic notice by the
Borrower pursuant to this Section 2.03(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Revolving Loan Notice or
Term Loan Notice, as applicable, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of LIBOR Loans shall be in a principal amount of $1,000,000
or a whole multiple of $500,000 in excess thereof. Except as provided in
Sections 2.04(c) and 2.05(c), each Borrowing (other than a Swing Line
Loan) of or conversion to Base Rate Loans shall be in a principal amount
of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Revolving Loan Notice or Term Loan Notice, as applicable (whether
telephonic or written), shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other,
or a continuation of LIBOR Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (v) if applicable, the duration of
the Interest Period with respect thereto. If the Borrower fails to specify
a Type of Loan in a Revolving Loan Notice or Term Loan Notice, as
applicable, or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable LIBOR Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of LIBOR Loans in
any such Revolving Loan Notice or Term Loan Notice, as applicable, but
fails to specify an Interest Period, it will be deemed to have specified
an Interest Period of one month.
(b) Following receipt of a Revolving Loan Notice or Term Loan
Notice, as applicable, the Administrative Agent shall promptly notify each
Lender of the amount of its Revolving Pro Rata Share or Term Pro Rata
Share of the applicable Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection. In the case of a Revolving
Borrowing or the Term Borrowing, each Lender shall make the amount of its
Loan available to the Administrative Agent in immediately available funds
at the Administrative Agent's Office not later than 1:00 p.m. on the
Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrower on the books of ▇▇▇▇▇ Fargo with
the amount of such funds or (ii) wire transfer of such funds, in each case
in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the Borrower; provided, however, that if, on
the date the Revolving Loan Notice with respect to such Borrowing is given
by the Borrower, there are Swing Line Loans or L/C Borrowings outstanding,
then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C
28
Borrowings, second, to the payment in full of any such Swing Line Loans,
and third, to the Borrower as provided above.
(c) Except as otherwise provided herein, a LIBOR Loan may be
continued or converted only on the last day of an Interest Period for such
LIBOR Loan. During the existence of a Default, no Loans may be requested
as, converted to or continued as LIBOR Loans without the consent of the
Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Interest Period for
LIBOR Loans upon determination of such interest rate. The determination of
LIBOR by the Administrative Agent shall be conclusive in the absence of
manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any
change in the Prime Rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same
Type, there shall not be more than six Interest Periods in effect with
respect to Revolving Loans and six with respect to Term Loans.
SECTION 2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, (1) from time to time on any
Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower or its Subsidiaries, and to amend or extend
Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the Letter of
Credit; and (B) the Lenders with Revolving Commitments severally
agree to participate in Letters of Credit issued for the account of
the Borrower; provided that the L/C Issuer shall not be obligated to
make any L/C Credit Extension with respect to any Letter of Credit,
and no Lender shall be obligated to participate in any Letter of
Credit if as of the date of such L/C Credit Extension, (x) the Total
Revolving Outstandings would exceed the Aggregate Revolving
Commitments, (y) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender's Revolving Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Lender's
Revolving Pro Rata Share of the Outstanding Amount of all Swing Line
Loans would exceed such Lender's Revolving Commitment, or (z) the
Outstanding Amount of the L/C Obligations would exceed the Letter of
Credit Sublimit. Each request by the Borrower for the issuance or
amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so
requested complies with the conditions set forth in the proviso to
the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions
29
hereof, the Borrower's ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and
reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the L/C Issuer from issuing such Letter of Credit,
or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer
shall prohibit, or request that the L/C Issuer refrain from,
the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost
or expense which was not applicable on the Closing Date and
which the L/C Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the issuance of such Letter of Credit would violate
any Laws or one or more policies of the L/C Issuer;
(C) such Letter of Credit contains any provision for
automatic reinstatement of any stated amount after any drawing
thereunder; or
(D) a default of any Lender's obligation to fund under
Section 2.04(c) exists or any Lender is at such time a
Defaulting Lender hereunder, unless the L/C Issuer has entered
into a satisfactory arrangement with the Borrower or such
Lender to eliminate the L/C Issuer's risk with respect to such
Lender.
(iii) The L/C Issuer shall not issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date; or
(B) such Letter of Credit is to be denominated in a
currency other than Dollars.
(iv) The L/C Issuer shall not amend any Letter of Credit if
the L/C Issuer would not be permitted at such time to issue such
Letter of Credit in its amended form under the terms hereof.
30
(v) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under
the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by
the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative Agent" as
used in Article IX included the L/C Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect
to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the L/C
Issuer (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business
Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case
of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of
the requested Letter of Credit (which shall be a Business Day); (B)
the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F)
the full text of any certificate to be presented by such beneficiary
in case of any drawing thereunder; and (G) such other matters as the
L/C Issuer may require. In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the L/C Issuer (A)
the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer
may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the
Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the L/C Issuer has received
written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of
issuance or amendment of
31
the applicable Letter of Credit, that one or more applicable
conditions contained in Article IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the
account of the Borrower or the applicable Subsidiary or enter into
the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit,
each Lender with a Revolving Commitment shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a risk participation in such Letter of Credit in an
amount equal to the product of such Lender's Revolving Pro Rata
Share times the amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the L/C Issuer will also
deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent
thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an "Honor
Date"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by
such time, the Administrative Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed drawing
(the "Unreimbursed Amount"), and the amount of such Lender's
Revolving Pro Rata Share thereof. In such event, the Borrower shall
be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.03 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Aggregate
Revolving Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Revolving Loan Notice). Any notice
given by the L/C Issuer or the Administrative Agent pursuant to this
Section 2.04(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect
of such notice.
(ii) Each Lender with a Revolving Commitment (including the
Lender acting as L/C Issuer) shall upon any notice pursuant to
Section 2.04(c)(i) make funds available to the Administrative Agent
for the account of the L/C Issuer at the Administrative Agent's
Office in an amount equal to its Revolving Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the
32
provisions of Section 2.04(c)(iii), each such Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the
Borrower in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Revolving Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for
any other reason, the Borrower shall be deemed to have incurred from
the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each such Lender's
payment to the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.04.
(iv) Until each such Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 2.04(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect
of such Lender's Revolving Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer.
(v) Each such Lender's obligation to make Revolving Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.04(c), shall be
absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default (notwithstanding
anything in Section 4.02 to the contrary), or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Revolving Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the
Borrower of a Revolving Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(ii), the L/C Issuer shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation. A
certificate of the L/C Issuer submitted to any Lender (through the
Administrative Agent)
33
with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's
L/C Advance in respect of such payment in accordance with Section
2.04(c), if the Administrative Agent receives for the account of the
L/C Issuer any payment in respect of the related Unreimbursed Amount
or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute
to such Lender its Revolving Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's L/C Advance was outstanding) in the
same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned under any of the circumstances described in
Section 10.05 (including pursuant to any settlement entered into by
the L/C Issuer in its discretion), each such Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Revolving
Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of
the Lenders under this clause shall survive the payment in full of
the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and
to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the Borrower may have at any time
against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or
34
any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including
any arising in connection with any proceeding under any Debtor
Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower or any other Loan Party.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender with a Revolving Commitment and
the Borrower agree that, in paying any drawing under a Letter of Credit,
the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required
by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be
liable to any such Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or
the Required Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit
Application. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any of the respective
correspondents, participants or assignees of the L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.04(e); provided, however, that anything in such
clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the L/C Issuer's willful
35
misconduct or gross negligence or the L/C Issuer's willful failure to pay
under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of
the foregoing, the L/C Issuer may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C
Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason.
(g) Applicability of ISP. Unless otherwise expressly agreed by the
L/C Issuer and the Borrower when a Letter of Credit is issued, the rules
of the ISP shall apply to each Letter of Credit.
(h) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Revolving Pro Rata Share a letter of credit fee (the "Letter of Credit
Fee") for each Letter of Credit equal to the Applicable Rate times the
daily maximum amount available to be drawn under such Letter of Credit.
Such letter of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable upon the
issuance of such Letter of Credit, on each anniversary of such Letter of
Credit thereof, on the Letter of Credit Expiration Date and thereafter, if
applicable, on demand. If there is any change in the Applicable Rate
during any quarter, the daily maximum amount of each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all
Letter of Credit Fees shall accrue at the Default Rate.
(i) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuer. In addition to the foregoing, the Borrower shall pay directly
to the L/C Issuer for its own account the customary fronting, issuance,
presentation, amendment, transfer, negotiation and other processing fees,
and other standard costs and charges, of the L/C Issuer in accordance with
the L/C Issuer's then current standard fee policy relating to letters of
credit as from time to time in effect. Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.
(j) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Documents, the terms
hereof shall control.
(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that
a Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall
be obligated to reimburse the L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Borrower hereby acknowledges
that the issuance of Letters of Credit for the account of Subsidiaries
inures to the benefit of the Borrower, and that the Borrower's business
derives substantial benefits from the businesses of such Subsidiaries.
36
SECTION 2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of
the other Lenders set forth in this Section 2.05, to make loans (each such
loan, a "Swing Line Loan") to the Borrower from time to time on any
Business Day during the Revolving Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Revolving Pro Rata Share of the Outstanding Amount of
Revolving Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender's Revolving Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i)
the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender's Revolving Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Revolving
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender's Revolving Commitment, and provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject
to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.05, prepay under Section 2.06, and reborrow under this
Section 2.05. Each Swing Line Loan shall be a Base Rate Loan. Immediately
upon the making of a Swing Line Loan, each Lender with a Revolving
Commitment shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in
such Swing Line Loan in an amount equal to the product of such Lender's
Revolving Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. The Swing Line Lender may, in its sole
discretion and without conferring with the Lenders, make Swing Line Loans
by entry of credits to the Borrower's operating account or accounts with
the Swing Line Lender to cover checks, other items and ACH debits that the
Borrower has drawn, made or authorized against such account or accounts
and shall notify the Administrative Agent of any overdrafts being advanced
as Swing Line Loans. The Borrower irrevocably requests and authorizes the
Swing Line Lender to make from time to time such Swing Line Loans by
appropriate entry of credits sufficient to cover checks, other items and
ACHs then presented. The Borrower acknowledges and agrees that the making
of such Swing Line Loans is subject to the provisions of this Agreement
other than the giving of notice as set forth below. Except as provided
earlier in this Section 2.05(b), each Swing Line Borrowing shall be made
upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 12:00 noon on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum of $250,000, and
(ii) the requested borrowing date, which shall be a Business Day. Each
such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing
37
Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative
Agent has also received such Swing Line Loan Notice and, if not, the Swing
Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 12:00 noon on the date
of the proposed Swing Line Borrowing (A) directing the Swing Line Lender
not to make such Swing Line Loan as a result of the limitations set forth
in the proviso to the first sentence of Section 2.05(a), or (B) that one
or more of the applicable conditions specified in Article IV is not then
satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 2:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available
funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender with a Revolving Commitment make a Base
Rate Loan in an amount equal to such Lender's Revolving Pro Rata
Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be
deemed to be a Revolving Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.03, without regard to
the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Revolving Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with
a copy of the applicable Loan Notice promptly after delivering such
notice to the Administrative Agent. Each such Lender shall make an
amount equal to its Revolving Pro Rata Share of the amount specified
in such Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender
at the Administrative Agent's Office not later than 1:00 p.m. on the
day specified in such Loan Notice, whereupon, subject to Section
2.05(c)(ii), each such Lender that so makes funds available shall be
deemed to have made a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Borrowing in accordance with Section
2.05(c)(i), the request for Base Rate Loans submitted by the Swing
Line Lender as set forth herein shall be deemed to be a request by
the Swing Line Lender that each of the Lenders with a Revolving
Commitment fund its risk participation in the relevant Swing Line
Loan and each such Lender's payment to the Administrative Agent for
the account of the Swing Line Lender pursuant to Section 2.05(c)(i)
shall be deemed payment in respect of such participation.
38
(iii) If any such Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.05(c) by the time specified in Section
2.05(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the
Federal Funds Rate from time to time in effect. A certificate of the
Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.
(iv) Each such Lender's obligation to make Revolving Loans or
to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.05(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default (notwithstanding anything in Section 4.02
to the contrary), or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing. No such funding of
risk participations shall relieve or otherwise impair the obligation
of the Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Revolving Pro Rata
Share of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's risk participation was funded) in the same funds as those
received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion),
each Lender shall pay to the Swing Line Lender its Revolving Pro
Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the
request of the Swing Line Lender. The obligations of the Lenders
under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
39
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing
Line Loans. Until each Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.05 to refinance such Lender's
Revolving Pro Rata Share of any Swing Line Loan, interest in respect of
such Pro Rata Share shall be solely for the account of the Swing Line
Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
SECTION 2.06 PREPAYMENTS.
(a) Positive collected balances in the Borrower's operating accounts
at ▇▇▇▇▇ Fargo at the end of each Business Day will reduce any Base Rate
Loans that are Revolving Loans. In addition, the Borrower may, upon notice
to the Administrative Agent, at any time or from time to time voluntarily
prepay Revolving Loans or Term Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of LIBOR Loans and (B) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of LIBOR Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof; and (iii) any prepayment of Base Rate Loans (other than
Swing Line Loans) shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the
entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid and whether such Loan is a Revolving Loan or a Term Loan. The
Administrative Agent will promptly notify each Lender of its receipt of
each such notice, and of the amount of such Lender's Pro Rata Share of
such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of
a Base Rate Loan or LIBOR Loan shall be accompanied by all accrued
interest thereon, and as applicable, together with any additional amounts
required pursuant to Section 3.05. Each such prepayment shall be applied
to the Revolving Loans or the Term Loans, as the case may be, of the
Lenders in accordance with their respective Pro Rata Shares of such Loan.
Any voluntary prepayments of the Term Loans shall be applied in inverse
order of maturity.
(b) The Borrower may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or
penalty; provided that such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 12:00 noon on the date
of the prepayment. Each such notice shall specify the date and amount of
such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.
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(c) If for any reason the Total Revolving Outstandings at any time
exceed the Aggregate Revolving Commitments then in effect, the Borrower
shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.06(c) unless after the
prepayment in full of the Revolving Loans and Swing Line Loans the Total
Revolving Outstandings exceed the Aggregate Revolving Commitments then in
effect.
(d) Concurrently with the receipt of Net Cash Proceeds from the
Disposition by the Borrower or any of its Subsidiaries pursuant to Section
7.05(g), the Borrower shall prepay the Loans in an aggregate principal
amount equal to 100% of such Net Cash Proceeds to the extent that such
amount exceeds $5,000,000 in the aggregate for all Dispositions that have
occurred during any Fiscal Year. Each such mandatory prepayment shall be
made and applied as provided in Section 2.06(f).
(e) Concurrently with the receipt of Net Cash Proceeds from any
Equity Issuance of the Borrower or any of its Subsidiaries, the Borrower
shall prepay the Loans in an aggregate amount equal to 50% of such Net
Cash Proceeds. Each such mandatory prepayment shall be made and applied as
provided in Section 2.06(f).
(f) Any mandatory prepayment of Term Loans pursuant to Section
2.06(d) or (e), shall (i) include and be applied to interest to the date
of such prepayment on the principal amount prepaid and include any
additional amounts required pursuant to Section 3.05, (ii) not be subject
to any notice and minimum payment provisions and (iii) be applied to the
Term Loan in inverse order of maturity, which payments shall be in
addition to the unpaid scheduled installment payments of the Term Loans,
and if the Term Loans have been repaid, in full, then to the Revolving
Loans (without a corresponding reduction in the Aggregate Revolving
Commitments), and if no Revolving Loans are then outstanding, to Cash
Collateralize outstanding Letters of Credit and any Swap Obligations.
SECTION 2.07 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or from time to time permanently reduce the Aggregate Revolving
Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Aggregate
Revolving Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Revolving Outstandings and Outstanding Amount
of Swing Line Loans would exceed the Aggregate Revolving Commitments, and (iv)
if, after giving effect to any reduction of the Aggregate Revolving Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the Aggregate Revolving Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly
notify the Lenders of any such notice of termination or reduction of the
Aggregate Revolving Commitments. Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender
according to its Revolving Pro Rata Share. All Revolving Commitment Fees accrued
41
until the effective date of any termination of the Aggregate Revolving
Commitments shall be paid on the effective date of such termination.
SECTION 2.08 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Revolving
Maturity Date the aggregate principal amount of Revolving Loans
outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date demand is made by Swing Line Lender for repayment of
such Loan and (ii) the Revolving Maturity Date.
(c) To the extent not otherwise required to be paid earlier as
provided herein, the Borrower shall repay the principal of the Term Loans
on each payment date and on the Term Maturity Date in such amounts as set
forth next to each such date set forth below (subject to reduction after
taking into account any prepayment of the Term Loans pursuant to Section
2.06):
Payment Date Installment Amount
------------ ------------------
September 30, 2004 $200,000
December 31, 2004 $625,000
March 31, 2005 $625,000
June 30, 2005 $625,000
September 30, 2005 $625,000
December 31, 2005 $625,000
March 31, 2006 $625,000
June 30, 2006 $625,000
September 30, 2006 $625,000
December 31, 2006 $625,000
March 31, 2007 $625,000
June 30, 2007 $625,000
September 30, 2007 $625,000
December 31, 2007 $625,000
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March 31, 2008 $625,000
June 30, 2008 $625,000
September 30, 2008 $625,000
December 31, 2008 $625,000
March 31, 2009 $625,000
June 30, 2009 $625,000
Term Maturity Date remaining amount of the
Term Loans then outstanding
SECTION 2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
LIBOR Loan shall bear interest on the outstanding principal amount thereof
for each Interest Period at a rate per annum equal to the lesser of (y)
the Highest Lawful Rate or (z) LIBOR for such Interest Period plus the
Applicable Rate for LIBOR Loans; (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the lesser of (y) the Highest
Lawful Rate or (z) the Base Rate plus the Applicable Rate for Base Rate
Loans; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the lesser of (y) the Highest Lawful Rate or (z)
the Base Rate plus the Applicable Rate for Base Rate Loans.
(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to
the lesser of (y) the Default Rate and (z) the Highest Lawful Rate, to the
fullest extent permitted by Applicable Laws.
(ii) If any amount (other than principal of any Loan) payable
by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the lesser
of (y) the Default Rate and (z) the Highest Lawful Rate, to the
fullest extent permitted by Applicable Laws.
(iii) Upon the request of the Required Lenders, while any
Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the lesser
of (y) the Default Rate and (z) the Highest Lawful Rate, to the
fullest extent permitted by Applicable Laws.
43
(iv) Accrued and unpaid interest on past due amounts
(including interest on past due interest) shall be due and payable
upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as
may be specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.
SECTION 2.10 FEES. In addition to certain fees described in subsections
(h) and (i) of Section 2.04:
(a) The Borrower shall pay to the Administrative Agent for the
account of each Lender with a Revolving Commitment in accordance with its
Revolving Pro Rata Share, a commitment fee (the "Revolving Commitment
Fee") equal to the Applicable Rate times the actual daily amount by which
the Aggregate Revolving Commitments exceed the sum of (i) the Outstanding
Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations. The Revolving Commitment Fee shall accrue at all times during
the Revolving Availability Period, including at any time during which one
or more of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after
the Closing Date, and on the Revolving Maturity Date. The Revolving
Commitment Fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in
effect.
(b) The Borrower shall pay to the Administrative Agent for its own
account fees in the amounts and at the times specified in the Fee Letter.
Such fees shall be fully earned when paid and shall not be refundable for
any reason whatsoever.
SECTION 2.11 COMPUTATION OF INTEREST AND FEES. All computations of
interest for Base Rate Loans when the Base Rate is determined by the Prime Rate
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.13(a), bear
interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in
44
the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect
to the Obligations. In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest
error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Revolving Loan Note, Term Loan Note and/or a Swing
Line Note, as applicable, which shall evidence such Lender's Loans in
addition to such accounts or records. Each Lender may attach schedules to
its Notes and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of Credit
and Swing Line Loans. In the event of any conflict between the accounts
and records maintained by the Administrative Agent and the accounts and
records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest
error.
SECTION 2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at the
Administrative Agent's Office in Dollars and in immediately available
funds not later than 12:00 noon on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its
applicable Pro Rata Share (or other applicable share as provided herein)
of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent
after 12:00 noon shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day,
and such extension of time shall be reflected in computing interest or
fees, as the case may be. Notwithstanding the foregoing, the
Administrative Agent is hereby authorized to effect terms of payments due
under this Agreement and the Notes by debiting the Borrower's account(s)
with the Administrative Agent. This authorization shall not affect the
obligation of the Borrower to pay such sums when due, without notice, if
there are insufficient funds in such account to make such payment in full
on the due date thereof, or if the Administrative Agent fails to debit the
account(s).
45
(b) (i) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with Section 2.03 and
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation and (B) in the case
of a payment to be made by the Borrower, the interest rate applicable to
Base Rate Loans. If the Borrower and such Lender shall pay such interest
to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of
such interest paid by the Borrower for such period. If such Lender pays
its share of the applicable Borrowing to the Administrative Agent, then
the amount so paid shall constitute such Lender's Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent. Unless the Borrower or any
Lender has notified the Administrative Agent, prior to the date any
payment is required to be made by it to the Administrative Agent
hereunder, that the Borrower or such Lender, as the case may be, will not
make such payment, the Administrative Agent may assume that the Borrower
or such Lender, as the case may be, has timely made such payment and may
(but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent
that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(ii) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the L/C Issuer, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
46
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to
the Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such
Lender, without interest.
(d) The obligations of the Lenders hereunder to make Revolving
Loans, to fund participations in Letters of Credit and Swing Line Loans
and to make payments pursuant to Section 10.04(c) are several and not
joint. The failure of any Lender to make any Revolving Loan, to fund any
such participation or to make any payment under Section 10.04(c) on any
date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Revolving
Loan, to purchase its participation or to make its payment under Section
10.04(c).
(e) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the
funds for any Loan in any particular place or manner.
SECTION 2.14 SHARING OF PAYMENTS. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it, or the participations
in L/C Obligations or in Swing Line Loans held by it resulting in such Lender's
receiving payment of a proportion of the aggregate amount of such Loans or
participations and accrued interest thereon greater than its Pro Rata Share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the applicable Loans and subparticipations
in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and other amounts
owing them, provided that:
(a) if any such participations or subparticipations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(b) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or subparticipations in L/C
47
Obligations or Swing Line Loans to any assignee or participant, other than
to the Borrower or any Subsidiary thereof (as to which the provisions of
this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01 TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or
Other Taxes, provided that if the Borrower shall be required by applicable
law to deduct any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent,
Lender or L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall timely
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Without limiting the provisions of subsection (a) above, the
Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the L/C Issuer, within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) paid by the Administrative Agent, such Lender
or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate
as to the amount of such payment or liability delivered to the Borrower by
a Lender or the L/C Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a Lender or
the L/C Issuer, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such
48
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any
other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law
or reasonably requested by the Borrower or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of
the exemption for portfolio interest under section 881(c) of the
Code, (x) a certificate to the effect that such Foreign Lender is
not (A) a "bank" within the meaning of section 881(c)(3)(A) of the
Code, (B) a "10 percent shareholder" of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a "controlled
foreign corporation" described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form
W-8BEN, or
(iv) any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Borrower to determine the withholding or deduction required to be
made.
(f) If the Administrative Agent, any Lender or the L/C Issuer
determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid
49
additional amounts pursuant to this Section, it shall pay to the Borrower
an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay
the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay
such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C
Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any
other Person.
SECTION 3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund LIBOR
Loans, or to determine or charge interest rates based upon LIBOR or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market (in each case, such Law, assertion or imposition being made or
adopted after the date such Lender became a party to this Agreement), then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue LIBOR Loans or to convert Base
Rate Loans to LIBOR Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such LIBOR Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any
such prepayment or conversion, the Borrower shall also pay accrued interest on
the amount so prepaid or converted.
SECTION 3.03 INABILITY TO DETERMINE RATES. If the Required Lenders
determine that for any reason in connection with any request for a LIBOR Loan or
a conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank Eurodollar market for the applicable
amount and Interest Period of such LIBOR Loan, (b) adequate and reasonable means
do not exist for determining LIBOR for any requested Interest Period with
respect to a proposed LIBOR Loan, or (c) LIBOR for any requested Interest Period
with respect to a proposed LIBOR Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender. Thereafter, the obligation of
the Lenders to make or maintain LIBOR Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of LIBOR Loans or, failing
that, will be deemed to have converted such request into a request for a
Revolving Borrowing of Base Rate Loans in the amount specified therein.
50
SECTION 3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON LIBOR LOANS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.04(e) or the L/C Issuer;
(ii) subject any Lender or the L/C Issuer to any tax of any
kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any LIBOR Loan
made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such
Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London
interbank market any other condition, cost or expense affecting this
Agreement or LIBOR Loans made by such Lender or any Letter of Credit
or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C Issuer
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrower will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the L/C Issuer determines that any Change in
Law affecting such Lender or the L/C Issuer or any Lending Office of such
Lender or such Lender's or the L/C Issuer's holding company, if any,
regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the L/C Issuer's capital or on the
capital of such Lender's or the L/C Issuer's holding company, if any, as a
consequence of this Agreement, the Revolving Commitments of such Lender or
the Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by the L/C Issuer, to a level
below that which such Lender or the L/C Issuer or such Lender's or the L/C
Issuer's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the L/C Issuer's policies and
the policies of such Lender's or the L/C Issuer's holding company with
respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will
51
compensate such Lender or the L/C Issuer or such Lender's or the L/C
Issuer's holding company for any such reduction suffered.
(c) A certificate of a Lender or the L/C Issuer setting forth the
amount or amounts necessary to compensate such Lender or the L/C Issuer or
its holding company, as the case may be, as specified in subsection (a) or
(b) of this Section and delivered to the Borrower shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional interest on
the unpaid principal amount of each LIBOR Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which
shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least 10 days' prior
notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 10 days prior
to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.
(e) Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section
shall not constitute a waiver of such Lender's or the L/C Issuer's right
to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such
Lender or the L/C Issuer, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of
such Lender's or the L/C Issuer's intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).
SECTION 3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a
copy to the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
52
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower; or
(c) any assignment of a LIBOR Loan on a day other than the last day
of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each LIBOR Loan
made by it at LIBOR for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such LIBOR Loan was in fact so funded.
SECTION 3.06 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender gives a notice pursuant to Section 3.02, then such
Lender shall use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 3.01 or 3.04, as the case may be, in the future, or eliminate the
need for the notice pursuant to Section 3.02, as applicable, and (ii) in
each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.01, or if any Lender gives notice under Section 3.02 which remains in
effect, the Borrower may replace such Lender in accordance with Section
10.13.
SECTION 3.07 SURVIVAL. All of the Borrower's obligations under this
Article III shall survive termination of the Aggregate Commitments and repayment
of all other Obligations hereunder.
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ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
SECTION 4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent in form and substance
satisfactory to the Administrative Agent:
(a) The Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each dated the Closing Date (or, in the
case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the
Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, each Guaranty,
and the Security Agreements, together with related UCC-1 financing
statements, intellectual property filings and stock certificates for
100% of all Equity Interests of each Domestic Subsidiary and for 65%
of all Equity Interests of any Foreign Subsidiary and stock powers,
sufficient in number for distribution to the Administrative Agent,
each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of
each Lender, each in a principal amount equal to such Lender's
Revolving Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of
the Swing Line Lender in the principal amount of the Swing Line
Sublimit;
(iv) Term Loan Notes executed by the Borrower in favor of each
Lender, each in a principal amount equal to such Lender's Term
Commitment;
(v) With respect to each material parcel of real estate
(existing quarries and land held for future mining) owned by
Borrower or any Guarantor, a Mortgage executed by Borrower or the
applicable Guarantor, and any other party indicated on such Mortgage
as a party for whom execution thereof is provided;
(vi) With respect to each parcel of real estate secured by a
Mortgage, updated title reports;
(vii) With respect to each parcel of real estate secured by a
Mortgage and for which the Administrative Agent so requests, copies
of any existing Mortgagee Policy of Title Insurance covering the
property subject to the Mortgage;
(viii) With respect to each parcel of owned real estate
secured by a Mortgage, to the extent available any existing survey;
54
(ix) An opinion or report, acceptable to the Administrative
Agent in its sole discretion, from an independent geological
consulting firm or a qualified engineering specialist confirming the
limestone reserve calculations in those certain reports for Texas
Lime Company and ALC, dated December 1997 and March 1999,
respectively, prepared for the Borrower by TerraCon, Inc.;
(x) The Administrative Agent shall have completed a site
inspection and review of all existing title policies and new title
reports, of all real property containing limestone deposits intended
for use in the manufacturing process, which shall be satisfactory to
Administrative Agent in its sole discretion;
(xi) Certificates showing the existence of all insurance
policies required by Section 6.07, naming the Administrative Agent
as loss payee and additional insured;
(xii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party;
(xiii) such documents and certifications as the Administrative
Agent may require to evidence that each Loan Party is duly organized
or formed, and that each Loan Party is validly existing, in good
standing and qualified to engage in business in each jurisdiction
where its ownership, lease or operation of properties or the conduct
of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(xiv) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to
the Loan Parties, addressed to the Administrative Agent and each
Lender, as to such matters concerning the Loan Parties and the Loan
Documents as the Required Lenders may request;
(xv) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance
by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses
and approvals shall be in full force and effect, or (B) stating that
no such consents, licenses or approvals are so required;
(xvi) a certificate signed by a Responsible Officer of the
Borrower certifying that the conditions specified in Sections
4.02(a) and (b) have been satisfied, and that there has been no
event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect;
55
(xvii) evidence that the Existing Credit Agreements have been
or concurrently with the Closing Date is being terminated and all
obligations under the Existing Credit Agreements have been or
concurrently with the Closing Date are being paid or satisfied in
full; and
(xviii) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent, the L/C Issuer,
the Swing Line Lender or the Required Lenders reasonably may
require.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall
have paid all Attorney Costs of the Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute its reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final
settling of accounts between the Borrower and the Administrative Agent).
(d) There shall have occurred no material adverse change in the
operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole since June 30, 2004.
(e) The Closing Date shall have occurred on or before August 31,
2004.
Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Revolving Loan
Notice requesting only a conversion of Revolving Loans to the other Type, or a
continuation of LIBOR Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and each
other Loan Party contained in Article V or any other Loan Document, or
which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all
material respects on and as of the date of such Credit Extension, except
to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of
such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section
6.01.
56
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer or
the Swing Line Lender shall have received a Request for Credit Extension
in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of LIBOR Loans)
submitted by the Borrower shall be deemed to be a representation and warranty
that the conditions specified in Sections 4.02(a) and (b) have been satisfied on
and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
SECTION 5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each Loan Party (a) is a corporation, partnership or limited liability company
duly organized or formed, validly existing and in good standing (to the extent
applicable) under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under (i) any
Contractual Obligation to which such Person is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law. Each
Loan Party and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i) of this Section, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person not already obtained is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document, except for filings and recording with respect to the
57
collateral covered under the Security Documents to be made, or otherwise
delivered to the Administrative Agent for filing and/or recordation, as of the
Closing Date.
SECTION 5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, subject as to enforcement to any
Debtor Relief Laws and to general equitable principles.
SECTION 5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present in all
material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for
the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and
Indebtedness.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries dated June 30, 2004, and the related consolidated statements
of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as
of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate,
that has had or could reasonably be expected to have a Material Adverse
Effect.
SECTION 5.06 LITIGATION. Except as set forth on Schedule 5.06, there is no
Litigation pending or, to the knowledge of the Borrower, threatened, at law, in
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) either
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is
58
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.
SECTION 5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each
Subsidiary has good and valid title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than
Liens permitted by Section 7.01.
SECTION 5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that such Environmental Laws and claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.10 INSURANCE. The properties and businesses of the Borrower and
its Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Borrower, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies of similar size
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates.
SECTION 5.11 TAXES. The Borrower and its Subsidiaries have filed all
Federal tax returns and all other material tax returns and reports required to
be filed, and have paid all Federal and all other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP.
There is no proposed tax assessment against the Borrower or any Subsidiary that
would, if made, have a Material Adverse Effect.
SECTION 5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws.
Each Plan that is intended to qualify under Section 401(a) of the Code is
so qualified, and nothing has occurred which would prevent, or cause the
loss of, such qualification. The Borrower and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
material threatened claims, actions or lawsuits, or material action by any
Governmental Authority, with respect to any Plan that could reasonably be
expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary
59
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) Except where the occurrence or existence could not, individually
or in the aggregate, be reasonably expected to have a Material Adverse
Effect, (i) no ERISA Event has occurred or is reasonably expected to
occur, (ii) no Pension Plan has any Unfunded Pension Liability, (iii)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA), (iv) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan, and (v) neither the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
SECTION 5.13 SUBSIDIARIES. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13, and as of the Closing Date, all of the outstanding Equity Interests in
such Subsidiaries have been validly issued, are fully paid and nonassessable and
are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13
free and clear of all Liens. As of the Closing Date, the Borrower has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part(b) of Schedule 5.13. All of the outstanding Equity Interests
in the Borrower have been validly issued and are fully paid and nonassessable.
SECTION 5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or
as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the
FRB), or extending credit for the purpose of purchasing or carrying margin
stock.
(b) None of the Borrower, any Person Controlling the Borrower, or
any Subsidiary (i) is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, or (ii) is or is required to
be registered as an "investment company" under the Investment Company Act
of 1940.
SECTION 5.15 DISCLOSURE. The Borrower has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other written information furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by
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other information so furnished), when taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading in any material respect; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time, it being acknowledged that such financial information as
it relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount.
SECTION 5.16 COMPLIANCE WITH LAWS. Each of the Borrower and each
Subsidiary is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person except as could not reasonably be
expected to have a Material Adverse Effect. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person except as could not reasonably be expected to have a Material
Adverse Effect. No claim or Litigation regarding any of the foregoing is pending
or, to the best knowledge of the Borrower, threatened, which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
SECTION 5.18 BUSINESSES. As of the Closing Date, the Borrower is presently
engaged directly or through wholly-owned Subsidiaries in the business of the
extraction of high quality limestone from its quarries and the processing for
sale and sale of pulverized limestone, quicklime hydrated lime, and other
related products.
SECTION 5.19 COMMON ENTERPRISE. The Borrower and its Subsidiaries are
engaged in the businesses set forth in Section 5.18 as of the Closing Date.
These operations require financing on a basis such that the credit supplied can
be made available from time to time to the Borrower and various of its
Subsidiaries, as required for the continued successful operation of the Borrower
and its Subsidiaries as a whole. The Borrower has requested the Lender to make
credit available hereunder primarily for the purposes set forth in Section 6.12
and generally for the purposes of financing the operations of the Borrower and
its Subsidiaries. The Borrower and each of its Subsidiaries expects to derive
benefit (and the Board of Directors (or other similar governing body) of the
Borrower and each of its Subsidiaries has determined that such Subsidiary may
reasonably be expected to derive benefit), directly or indirectly, from a
portion of the credit extended by the Lenders hereunder, both in its separate
capacity and as a member of the group of companies, since the successful
operation and condition of the Borrower and each
61
of its Subsidiaries is dependent on the continued successful performance of the
functions of the group as a whole. The Borrower acknowledges that, but for the
agreement by each of the Guarantors to execute and deliver the Guaranty, the
Administrative Agent and the Lenders would not have made available the credit
facilities established hereby on the terms set forth herein.
SECTION 5.20 SOLVENT. The Borrower is, and the Borrower and its
Subsidiaries are on a consolidated basis, Solvent.
SECTION 5.21 REAL ESTATE COLLATERAL. Except as disclosed in Schedule 5.21,
as the same may have been supplemented, to the best of the Borrower's knowledge
after due inquiry, (i) as of the date hereof, no Loan Party has received any
claim for, or paid any, royalties, fees or other payments for the extraction of
oil, gas, or other hydrocarbons, limestone, gravel, crushed rock, sand or other
minerals of any kind or character over, under or produced from any Collateral,
and (ii) none of the mineral rights reserved or conveyed to third parties listed
on Schedule 5.21, has interfered in any material respect with the operations of
any Loan Party's business.
SECTION 5.22 NOTIFICATION OF AGREEMENT. The Borrower has sufficiently
notified all holders of the Phase II Debt of the effectiveness of this Agreement
and the other Loan Documents so that the Administrative Agent is entitled to
receive all notices of default under the Phase II Debt Documents.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder (other than indemnity obligations that survive the
termination of this Agreement for which no notice of a claim has been received
by the Borrower), shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to:
SECTION 6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and
each Lender, in form and detail reasonably satisfactory to the Administrative
Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each Fiscal Year of the Borrower, a consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries as at the end of such
Fiscal Year, a consolidated and consolidating statement of income or
operations, and the related consolidated shareholders' equity and cash
flows for such fiscal year, setting forth in the case of each consolidated
statement in comparative form the figures for the previous Fiscal Year,
all in reasonable detail and prepared in accordance with GAAP, audited
(excluding the consolidating balance sheet and consolidating statement of
income or operations, which shall be certified by the chief financial
officer of the Borrower) and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing,
which report and opinion shall be prepared in accordance with generally
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accepted auditing standards and shall not be subject to any qualifications
or exceptions as to the scope of such audit nor to any qualifications or
exceptions not reasonably acceptable to the Required Lenders;
(b) as soon as available, but in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such Fiscal Quarter, and the related
consolidated statements of income or operations and cash flows for such
Fiscal Quarter and for the portion of the Borrower's Fiscal Year then
ended, setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter of the previous Fiscal Year and the
corresponding portion of the previous Fiscal Year, all in reasonable
detail and certified by a Responsible Officer of the Borrower as fairly
presenting the financial condition, results of operations and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes; and
(c) as soon as practicable and in any event prior to the beginning
of each Fiscal Year, a business plan of the Borrower and its Subsidiaries
for the ensuing four fiscal quarters, and a condensed financial plan for
the succeeding four quarters, such plans to be prepared in accordance with
sound financial and managerial practices and to include, on a quarterly
basis, the following: a quarterly operating and capital budget, a
projected income statement, statement of cash flows and balance sheet and
a report containing management's discussion and analysis of such
projections, accompanied by a certificate from the principal financial and
accounting officer of each of the Borrowers to the effect that, to the
best of such officer's knowledge, such projections are good faith
estimates of the financial condition and operations of such Borrower and
its Subsidiaries for such eight quarter period.
As to any information contained in materials furnished pursuant to Section
6.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
SECTION 6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the
Administrative Agent and each Lender, in form and detail reasonably satisfactory
to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
(b) promptly after any request by the Administrative Agent or any
Lender, copies of any management letters or recommendations submitted to
all members of the board of directors (or all members of the audit
committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or
any Subsidiary, or any audit of any of them;
63
(c) within thirty days of the Closing Date, on a commercially
reasonable efforts basis, a confirmation and acknowledgment from the
holders of the Phase II Debt of the effectiveness of this Agreement and
the other Loan Documents, which shall include an acknowledgment by such
holders to provide notice to Administrative Agent as provided in the Phase
II Debt Documents;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which the
Borrower may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required
to be delivered to the Administrative Agent pursuant hereto;
(e) promptly, and in any event within five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Loan Party or any
Subsidiary thereof;
(f) at any time or from time to time upon reasonable request by the
Administrative Agent, to promptly, to the extent it can be accomplished
with the exercise of commercially reasonable efforts, a favorable opinion
of counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to such matters relating to each parcel of real property
outside the State of Texas and other matters concerning the Loan Parties
and the Loan Documents as the Administrative Agent may request; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent, at the request of any Lender, may from time to time reasonably
request.
SECTION 6.03 NOTICES. Promptly notify the Administrative Agent (and, in
any event, within five (5) Business Days) after any Responsible Officer of the
Borrower knows or has reason to know:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect, including (i) any material breach
or non-performance of, or any material default under, a material
Contractual Obligation of the Borrower or any Subsidiary; (ii) any
dispute, Litigation, or suspension between the Borrower or any Subsidiary
and any Governmental Authority that has resulted or could reasonably be
expected to result in a Material Adverse Effect; or (iii) the commencement
of, or any material development in, any Litigation affecting the Borrower
or any Subsidiary, including pursuant to any applicable Environmental
Laws, that has resulted or could reasonably be expected to result in a
Material Adverse Effect;
64
(c) of the occurrence of any ERISA Event; and
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details known to the
Borrower of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
SECTION 6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its material obligations and liabilities, including
(a) all material tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary;
(b) all lawful claims which are material and, if unpaid, would by law become a
Lien upon its property; and (c) all material Indebtedness, as and when due and
payable, but subject to any applicable grace and/or cure periods and further
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
SECTION 6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain
all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect or
adversely affect or impair any Collateral or in a transaction permitted by
Section 7.04 or 7.05; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
SECTION 6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
SECTION 6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
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SECTION 6.08 COMPLIANCE WITH LAWS. Comply in all material respects with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or a
bona fide dispute exists with respect thereto; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which entries full, true and correct in all material respects and
otherwise in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be, and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
SECTION 6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists and while the
same is continuing the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice and without limit as to number. Notwithstanding
anything to the contrary in this Section 6.10, none of the Borrower or any of
its Subsidiaries will be required to disclose, permit the inspection,
examination or making of extracts, or discussion of, any document, information
or other matter that the Borrower has been advised in writing that (i) in
respect of which such disclosure is then prohibited by law or any agreement
binding on the Borrower or any of its Subsidiaries or (ii) is subject to
attorney-client or similar privilege or constitutes attorney work product,
provided that, such limitation does not relieve the Borrower of its obligations
under Sections 6.02(a)-(f) and 6.03 of this Agreement.
SECTION 6.11 COMPLIANCE WITH ERISA. Do, and cause each of its ERISA
Affiliates to do, each of the following unless failure to do so could not be
reasonably expected to have a Material Adverse Effect: (a) maintain each Plan in
compliance in all material respects with the applicable provisions of ERISA, the
Code and other Federal or state law; (b) cause each Plan which is qualified
under Section 401(a) of the Code to maintain such qualification; unless the
failure to maintain such qualification would not violate the applicable
provisions of ERISA, the Code and other Federal or state law and (c) make all
required contributions to any Plan subject to Section 412 of the Code.
SECTION 6.12 USE OF PROCEEDS. Use the proceeds of the Credit Extensions to
repay all obligations in respect of the Existing Credit Agreements and for
working capital and other general corporate purposes not in contravention of any
Law or of any Loan Document.
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SECTION 6.13 CASH COLLATERAL. Upon the request of the Administrative
Agent, (i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any
reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Upon the
request of the Administrative Agent, any Swap Obligations that remain
outstanding as of the Revolving Maturity Date or at such time that an Event of
Default occurs and is continuing shall be immediately Cash Collateralized and
the amount of Cash Collateral required hereunder shall be the Swap Terminal
Value on the date such Cash Collateral is requested (Sections 2.06 and 8.02(c)
set forth certain additional requirements to deliver Cash Collateral hereunder.)
The Borrower hereby grants to the Administrative Agent, for the benefit of the
L/C Issuer and the Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts
at ▇▇▇▇▇ Fargo.
SECTION 6.14 SUBSIDIARIES. Within 30 days after the time that any Person
becomes a Domestic Subsidiary as a result of the creation of such Subsidiary or
a Permitted Acquisition or otherwise, then, unless such Domestic Subsidiary is
merged into the Borrower or a Guarantor (with the Borrower or such Guarantor
being the surviving Person) prior to the expiration of such ten-day period, (a)
such Subsidiary shall execute a Guaranty of the Obligations, a Security
Agreement, and if applicable, a Mortgage, and any related collateral documents
reasonably required by the Administrative Agent, to secure the Obligations, and
(b) 100% of such Subsidiary's Equity Interest shall be pledged to secure the
Obligations, and (c) the Lenders shall receive such board resolutions, officer's
certificates, corporate and other documents and opinions of counsel as the
Administrative Agent shall reasonably request in connection with the actions
described in subsections (a) and (b) above. Within thirty days after the time
that any Person becomes a Foreign Subsidiary as a result of the creation of such
Subsidiary or a Permitted Acquisition or otherwise, (a) 65% of such Subsidiary's
Equity Interest shall be pledged to secure the Obligations and (b) the Lenders
shall receive such board resolutions, officer's certificates, corporate and
other documents and opinions of counsel as the Administrative Agent shall
reasonably request in connection with such pledge.
SECTION 6.15 FURTHER ASSURANCES. At any time or from time to time upon
reasonable request by the Administrative Agent, the Borrower shall, or shall
cause any of the Borrower's Subsidiaries to, promptly execute and deliver such
further documents and to promptly, to the extent the same can be accomplished
with the exercise of commercially reasonable efforts, do such other acts and
things as the Administrative Agent may reasonably request in order to effect
fully the validity or enforceability of this Agreement and the other Loan
Documents or to protect the priority or perfection of the Liens granted under
this Agreement and the other Loan Documents, to ensure that the Administrative
Agent and the Lenders have all of the rights, powers and privileges
bargained-for in the Loan Documents, and to provide for payment of the
Obligations in accordance with the terms of this Agreement and the other Loan
Documents. Upon the occurrence and continuance of an Event of Default, the
Borrower shall promptly notify each holder of the Phase II Notes thereof and the
commencement of a Standstill Period (as defined in the Phase II Notes), if then
applicable.
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ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder (other than indemnity obligations that survive the
termination of this Agreement for which no notice of a claim has been received
by the Borrower), shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
SECTION 7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions thereof, provided that (i) the property
covered thereby is not changed, (ii) the amount secured or benefited
thereby is not increased, (iii) the direct or any contingent obligor with
respect thereto is not changed, and (iv) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are being
contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA, not to
exceed $500,000 (or in connection with Letters of Credit issued with
respect thereto);
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds to
the extent permitted in Section 7.03(f) (other than bonds related to
judgments or litigation), performance bonds and other obligations of a
like nature incurred in the ordinary course of business (or to secure
Letters of Credit issued in connection therewith);
(g) easements, rights-of-way, servitudes, permits, reservations,
exceptions, covenants and other restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto, prevent access thereto or
materially interfere with the ordinary conduct of the business of the
applicable Person;
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(h) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts and other funds maintained with a
creditor depository institution; provided, that (i) such deposit account
is not a dedicated cash collateral account and is not subject to
restrictions against access by the Borrower or any Subsidiary in excess of
those set forth by regulations promulgated by the FRB, and (ii) such
deposit account is not intended by the Borrower or any Subsidiary to
provide collateral to the depository institution;
(i) Liens securing judgments for the payment of money in an
aggregate amount not in excess of the $2,000,000 (except to the extent
covered by independent third-party insurance as to which the insurer has
acknowledged in writing its obligation to cover), unless any such judgment
remains undischarged for a period of more than 30 consecutive days during
which execution is not effectively stayed;
(j) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and (ii) the
Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of
acquisition;
(k) to the extent allowed under Section 7.03, any Lien on any
property or asset existing prior to the acquisition thereof by the
Borrower or any Subsidiary or on any property or asset of any Person that
becomes a Subsidiary after the date hereof existing prior to the time such
Person becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply
to any other property or assets of the Borrower or any Subsidiary, and
(iii) such Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a Subsidiary,
as the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof; and
(l) the interest of a lessee or transferee of leases, rights or
interest pursuant to Section 7.05(h).
SECTION 7.02 INVESTMENTS. Make any Investments, except:
(a) Investments other than those permitted by subsections (b)
through (h) existing on the date hereof and listed on Schedule 7.02;
(b) Cash Equivalent Investments;
(c) reasonable and customary advances to officers, directors and
employees of the Borrower and Subsidiaries reasonable and customary for
travel, entertainment, relocation and analogous ordinary business
purposes;
(d) Investments of any Subsidiary in the Borrower or a Guarantor or
investments by the Borrower in any Guarantor;
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(e) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to
prevent or limit loss;
(f) Guarantees permitted by Section 7.03;
(g) Investments permitted by Section 7.04; and
(h) Investments for Permitted Acquisitions.
SECTION 7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at
the time of such refinancing, refunding, renewal or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder;
(c) Guarantees of the Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of the Borrower or any
wholly-owned Subsidiary;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated
with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person and not for purposes of speculation or
taking a "market view;" and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;
(e) Indebtedness in respect of Capital Leases and purchase money
obligations for fixed or capital assets within the limitations set forth
in Section 7.01(i); provided, however, that the aggregate amount of such
Indebtedness incurred in any Fiscal Year shall not exceed $2,500,000;
(f) Indebtedness incurred in connection with performance, bonds,
mining land reclamation bonds, other security bonds, and letters of credit
to secure workers compensation claims which do not exceed in the aggregate
face amount $1,000,000 at any one time;
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(g) Any Indebtedness of any Subsidiary owing to the Borrower or to
any other Subsidiary; and Indebtedness of the Borrower owing to a
Subsidiary; and
(h) Subordinated Debt; and
(i) any Indebtedness secured by Liens permitted under Section
7.01(k) that does not at any time exceed $5,000,000.
Notwithstanding the foregoing, (i) neither the Borrower nor any Subsidiary
shall enter into any document or instrument in connection with Indebtedness
otherwise permitted hereunder, which document or instrument contains a covenant
or pledge not to encumber or pledge its assets except in favor of the
Administrative Agent or for the benefit of the Lenders and pursuant to this
Agreement, except as permitted under Section 7.12, and (ii) neither the Borrower
nor any Subsidiary shall make any prepayments on any Subordinated Debt other
than the Phase II Debt, and in the case of the Phase II Debt, only to the extent
permitted in Section 7.17.
SECTION 7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in on transaction or in
a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (A) the Borrower, provided that
the Borrower shall be the continuing or surviving Person, or (B) any one
or more Subsidiaries, provided that when any Guarantor is merging with
another Subsidiary, the Guarantor shall be the continuing or surviving
Person; and
(b) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to the Borrower or to a
Guarantor;
(c) Make any acquisition other than a Permitted Acquisition.
SECTION 7.05 DISPOSITIONS. Make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that
(i) such property is exchanged for credit against the purchase price of
similar replacement property, (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement
property or (iii) the Board of Directors or senior management of the
Borrower or such Subsidiary has determined in good faith that the failure
to replace such property will not be detrimental to the business of the
Borrower or such Subsidiary;
(d) Dispositions of property by any Subsidiary to the Borrower or to
a Guarantor;
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(e) Dispositions permitted by Section 7.04;
(f) Dispositions of other assets of the Borrower or any Subsidiary
of the Borrower provided the value of assets so disposed of in any one
Fiscal Year does not exceed $5,000,000; and
(g) so long as there exists no Default immediately before and after
giving effect to any such transaction, Dispositions not otherwise
permitted in clauses (a) through (f) above, the Net Cash Proceeds of which
are applied in accordance with Section 2.06(d);
(h) leases of and other transfers of rights or interests in oil, gas
and other minerals and ores (other than limestone);
provided, however, that any Disposition pursuant to clauses (a) through (g)
shall be for fair market value.
SECTION 7.06 LEASE OBLIGATIONS. Create or suffer to exist any obligations
for the payment of rent for any property under lease or agreement to lease,
except:
(a) leases in existence on the date hereof and listed on Schedule
7.06, and any renewal, extension or refinancing thereof; and
(b) operating leases (other than those constituting Synthetic Lease
Obligations) entered into or assumed by the Borrower or any Subsidiary
after the date hereof in the ordinary course of business.
SECTION 7.07 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except that:
(a) each Subsidiary may make Restricted Payments to the Borrower and
to Guarantors (and, in the case of a Restricted Payment by a
non-wholly-owned Subsidiary, to the Borrower and any Guarantor and to each
other owner of Equity Interest of such Subsidiary on a pro rata basis
based on their relative ownership interests);
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or
other common Equity Interests of such Person; and
(c) the Borrower and each Subsidiary may purchase, redeem or
otherwise acquire shares of its common stock or warrants or options to
acquire any such shares in exchange for, or with the proceeds received
from the substantially concurrent issue of, new shares of its common
stock; and
(d) the Borrower may declare or pay any dividends or make any other
payment or distribution on account of its capital stock during any Fiscal
Year which would (i) leave Borrower Solvent, (ii) not cause, or with
notice and/or the passage of time
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or both, result in any Default or Event of Default, and (iii) not exceed
the sum of $1,500,000.
SECTION 7.08 ERISA. At any time engage in a transaction which could be
subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), except where noncompliance could not be reasonably expected to have a
Material Adverse Effect.
SECTION 7.09 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof, any business substantially
related or incidental thereto, any other extractive business or any other
business involving similar product processing.
SECTION 7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of the Borrower (other than a Subsidiary), other
than arm's-length transactions with Affiliates that are otherwise permitted
hereunder and which are on fair and reasonable terms substantially as favorable
to the Borrower or any Subsidiary as would be obtainable by the Borrower or such
Subsidiary in a comparable arm's-length transaction with a Person other than an
Affiliate; provided that the foregoing restrictions shall not apply to (a)
customary indemnifications of directors of the Borrower and its Subsidiaries,
(b) compensation and indemnification arrangements and benefit plans for officers
and employees of the Borrower or any of its Subsidiaries in the ordinary course
of business on fair and reasonable terms, and (c) transactions to the extent
permitted under Sections 7.04 or 7.07.
SECTION 7.11 CAPITAL EXPENDITURES. Make or become legally obligated to
make any Capital Expenditures, except for (a) Capital Expenditures which are a
portion of the purchase price of any Permitted Acquisition, and (b) Capital
Expenditures in the ordinary course of business not exceeding (i) $60,000,000 in
the aggregate for the Borrower and its Subsidiaries during the term of this
Agreement, and (ii) $25,000,000 for the Borrower and its Subsidiaries during any
Fiscal Year.
SECTION 7.12 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that limits the ability
(a) of any Subsidiary to make Restricted Payments to the Borrower or to
otherwise transfer property to the Borrower or (b) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided, however, the foregoing shall not apply to (i) restrictions on
the creation of Liens on property in favor of any holder of Indebtedness
permitted under Section 7.03(b) or (h), provided that such restrictions shall
not limit the ability of the Borrower and its Subsidiaries to grant Liens
required to be granted pursuant to the terms of this Agreement to secure the
Obligations, or (ii), restrictions on the transfer of, or the creation of Liens
on, property in favor of any holder of Indebtedness permitted under Section
7.03(e) or (i) solely to the extent any such restriction relates to the property
financed by or the subject of such Indebtedness, or (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of the Borrower or any of its Subsidiaries entered into in the ordinary course
of business, or (iii) customary provisions of a contract restricting assignment
of the contract containing such
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restrictions, or (iv) any customary restriction with respect to a Subsidiary
imposed pursuant to a merger agreement or an agreement entered into for the sale
or disposition of all or substantially all the capital stock or assets of such
Subsidiary pending the closing of such sale or disposition, or with respect to
assets contained in asset sale agreements limiting the transfer of such assets
pending the closing of such sale; or (c) requires the grant of a Lien to secure
an obligation of such Person if a Lien is granted to secure another obligation
of such Person.
SECTION 7.13 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the Board) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.
SECTION 7.14 FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
Ratio as of the end of any Fiscal Quarter to be less than 1.25 to 1.
(b) Cash Flow Leverage Ratio. Permit the Cash Flow Leverage Ratio as
of the end of any Fiscal Quarter set forth below to be greater than the
ratio set forth below opposite such Fiscal Quarter:
Maximum Cash Flow
Fiscal Quarters Ending Leverage Ratio
---------------------- --------------
Closing Date through September 30, 2006 3.75 to 1.00
Each Fiscal Quarter thereafter 3.50 to 1.00
(c) Balance Sheet Leverage Ratio. Permit the Balance Sheet Leverage
Ratio as of the end of any Fiscal Quarter to be greater than 1.50 to 1.00.
SECTION 7.15 FISCAL YEAR AND ACCOUNTING METHODS. Change its Fiscal Year or
its method of accounting other than (a) immaterial changes in methods, (b)
changes as required by GAAP, (c) changes required by Applicable Law and (d) a
change in its Fiscal Year approved by the Administrative Agent, which approval
will not be unreasonably conditioned, withheld or delayed.
SECTION 7.16 AMENDMENTS, PAYMENTS AND PREPAYMENTS OF SUBORDINATED DEBT;
PREPAYMENT OF Indebtedness. Amend or modify (or permit the modification or
amendment of) any of the terms or provisions of any Subordinated Debt in a
manner prejudicial, in the sole determination of the Administrative Agent, to
the interests of the Lenders, or cancel or forgive, make any voluntary or
optional payment or prepayment on, or redeem or acquire for value (including
without limitation by way of depositing with any trustee with respect thereto
money or securities before due for the purpose of paying when due) any
Subordinated Debt, other than the Phase II Debt as permitted by Section 7.17.
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SECTION 7.17 AMENDMENTS TO PHASE II DEBT; NOTICE. Without limiting Section
7.16, (i) amend or modify the put right in the Common Stock Purchase Warrants
issued to the holders of the Phase II Debt without the prior written consent of
Administrative Agent, (ii) fail to provide prompt written notice to
Administrative Agent of any amendment, restatement or other modification of any
of the Phase II Debt Documents, or (iii) fail to provide prompt written notice
to Administrative Agent of the exercise of any put right, or repurchase or
redemption of any Warrant Shares, provided that, the Borrower may (i) pay
regularly scheduled payments of interest at a rate per annum not in excess of
the rate of interest stated in the Phase II Notes and pay or prepay the
principal amount of the Phase II Notes and (ii) make payments in respect of any
exercise of any put right, or repurchase or redemption of any Warrant Shares,
but only if, in each instance, (i) no Event of Default has occurred and is
continuing under or with respect to this Agreement and the other Loan Documents
and (ii) any such payment, after giving effect thereto, would not result in the
occurrence of any such Event of Default referenced in (i) above.
SECTION 7.18 REAL ESTATE COLLATERAL. Except as otherwise approved by the
Administrative Agent, no Loan Party shall (i) pay any claim for, or enter into
any contracts to pay any, royalties, fees or other payments for the extraction
of oil, gas, or other hydrocarbons, limestone, gravel, crushed rock, sand or
other minerals of any kind or character over, under or produced from any
Collateral which would interfere in any material respect with the operations of
any Loan Party's business, or (ii) convey or reserve any mineral rights now or
hereafter to third parties in any Collateral that would interfere in any
material respect with the operations of any Loan Party's business.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any
Loan or any L/C Obligation, or (ii) within three days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any
commitment or other fee due hereunder, or (iii) within five days after the
same becomes due, any other amount payable hereunder or under any other
Loan Document; or
(b) Specific Covenants. The Borrower or any Subsidiary fails to
perform or observe any term, covenant or agreement contained in any of
Section 6.01, 6.02, 6.03, 6.07, 6.10, 6.12, 6.13, 6.14 or 6.15 or Article
VII required to be performed or observed by it; or
(c) Other Defaults. The Borrower or any Subsidiary fails to perform
or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 30 days after written
notice has been given by the Administrative Agent or any Lender to the
Borrower; or
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(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document,
or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made;
or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than $500,000, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of
such Indebtedness or the beneficiary or beneficiaries of such Guarantee
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded (and such failure or event is
not cured or waived prior to the Administrative Agent declaring a Default
under the Loan Documents); or (ii) there occurs under any Swap Contract an
Early Termination Date (as defined in such Swap Contract) resulting from
(A) any event of default under such Swap Contract as to which the Borrower
or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Borrower or any Subsidiary is an Affected Party
(as so defined) and, in either event the Swap Termination Value owed by
the Borrower or such Subsidiary is greater than $500,000 (and such failure
or event is not cured or waived); or
(f) Insolvency Proceedings, Etc. The Borrower or any Subsidiary
institutes or consents to the institution of any proceeding under any
Debtor Relief Law in which such Person is the debtor, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of
its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material
part of its property is instituted without the consent of such Person and
continues undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is
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issued or levied against all or any material part of the property of any
such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding $2,000,000 (to the extent not covered by
independent third-party insurance or surety bond as to which the insurer
or surety does not dispute coverage), or (ii) any one or more non-monetary
final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either
case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order or (B) there is a period of 20 consecutive days during
which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan
or Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $500,000, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of $500,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than as
expressly permitted hereunder or under such other Loan Documents or
satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any Loan Document; or any Loan Party
denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document
other than in accordance with its terms; or
(k) Change of Control. There occurs any Change of Control with
respect to the Borrower.
SECTION 8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of the Lenders to make Revolving Loans to
be terminated, whereupon such Revolving Commitment shall be terminated,
and/or (ii) at the request of, or may, with the consent of the Required
Lenders, declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment,
77
demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof) and any
Swap Obligations; and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
Applicable Law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations and any
Swap Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
SECTION 8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for in Section 8.02 (or after the Loans have automatically become immediately
due and payable and the L/C Obligations and any Swap Obligations have
automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the Obligations
shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause Third payable
to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings (and to the extent any such amounts
are proceeds of Collateral or payments under any Guaranty, Swap Obligations in
respect of Swap Contracts), ratably among the Lenders (and to the extent
proceeds of Collateral or payments under any Guaranty, to the Guarantied Parties
and the Secured Lenders, as defined in each Guaranty) in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
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Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
SECTION 9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C
Issuer hereby irrevocably appoints ▇▇▇▇▇ Fargo to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
SECTION 9.02 RIGHTS AS A LENDER. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
SECTION 9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein and in
the other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
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(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of
its Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02 or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
SECTION 9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or the L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or the L/C Issuer prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
SECTION 9.05 DELEGATION OF DUTIES. The Administrative Agent may perform
any and all of its duties and exercise its rights and powers hereunder or under
any other Loan Document by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions
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of this Article shall apply to any such sub-agent and to the Related Parties of
the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent
may at any time give notice of its resignation to the Lenders, the L/C Issuer
and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents (if not already discharged therefrom
as provided above in this Section). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by ▇▇▇▇▇ Fargo as Administrative Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender. Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line
Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangement satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.
SECTION 9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the
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Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
the L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
SECTION 9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, none of any Arrangers listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the L/C Issuer hereunder.
SECTION 9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.04(h) and
(i), 2.10 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or
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to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
SECTION 9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders irrevocably
authorize the Administrative Agent,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination
of all Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 10.01, if approved, authorized or
ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Loan Document to (i) any Lien on such
property that is permitted by Section 7.01(i), and (ii) any lease or
transfer on such property that is permitted by Section 7.01(l); and
(c) to release on behalf of the Administrative Agent and the Lenders
any Guarantor from its obligations under the Guaranty and under the other
Loan Documents (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit,
(ii) if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder or (iii) subject to Section 10.01, if approved,
authorized or ratified in writing, by the Lenders required for such
action.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.10.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the
written consent of each Lender;
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(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the
second proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the
definition of "Default Rate" or to waive any obligation of the Borrower to
pay interest at the Default Rate or (ii) to amend the Leverage Ratio (or
any defined term used therein) even if the effect of such amendment would
be to reduce the rate of interest on any Loan or L/C Borrowing or to
reduce any fee payable hereunder;
(e) change Section 2.14 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender;
(f) change any provision of this Section, the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(g) release any Guarantor from the Guaranty without the written
consent of each Lender, unless otherwise permitted pursuant to clause (i)
or (ii) of Section 9.10(c); or
(h) release all or substantially all of the Collateral without the
written consent of each Lender, unless otherwise permitted by Section
9.10;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
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Administrative Agent agrees that it will deliver releases or subordinations of
the Liens held by or for the benefit of Administrative Agent as permitted by
Section 9.10.
SECTION 10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent
by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to
the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such
Person on Schedule 10.02; and
(ii) if to the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such
Person on Schedule 10.02; and
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to
the Lenders and the L/C Issuer hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or
the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or
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intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause
(i) of notification that such notice or communication is available and
identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to
rely and act upon any notices (including telephonic Revolving Loan
Notices, Term Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the L/C
Issuer, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative Agent,
and each of the parties hereto hereby consents to such recording.
SECTION 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender,
the L/C Issuer or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent), in connection with the syndication
of the credit facilities provided for herein, the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C
86
Issuer), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) INDEMNIFICATION BY THE BORROWER. THE BORROWER SHALL INDEMNIFY
THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF), EACH LENDER AND THE
L/C ISSUER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH
SUCH PERSON BEING CALLED AN "INDEMNITEE") AGAINST, AND HOLD EACH
INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES
AND RELATED EXPENSES (INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY
COUNSEL FOR ANY INDEMNITEE) AND SHALL INDEMNIFY AND HOLD HARMLESS EACH
INDEMNITEE FROM ALL FEES AND TIME CHARGES AND DISBURSEMENTS FOR ATTORNEYS
WHO MAY BE EMPLOYEES OF ANY INDEMNITEE, INCURRED BY ANY INDEMNITEE OR
ASSERTED AGAINST ANY INDEMNITEE BY ANY THIRD PARTY OR BY THE BORROWER OR
ANY OTHER LOAN PARTY ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF
(I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE
PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, (II) ANY LOAN OR LETTER OF CREDIT OR THE
USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY
THE L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF
THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY
COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (III) ANY ACTUAL OR
ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY
OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY
ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS
SUBSIDIARIES, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION,
INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD
PARTY OR BY THE BORROWER OR ANY OTHER LOAN PARTY, AND REGARDLESS OF
WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN ALL CASES, WHETHER OR NOT
CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT
SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES (X) ARE
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DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF SUCH INDEMNITEE OR (Y) RESULT FROM A CLAIM BROUGHT BY THE BORROWER OR
ANY OTHER LOAN PARTY AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH
INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF
THE BORROWER OR SUCH LOAN PARTY HAS OBTAINED A FINAL AND NONAPPEALABLE
JUDGMENT IN ITS FAVOR ON SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION.
(c) Reimbursement by Lenders. To the extent that the Borrower for
any reason fails to indefeasibly pay any amount required under subsection
(a) or (b) of this Section to be paid by it to the Administrative Agent
(or any sub-agent thereof), the L/C Issuer or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the L/C Issuer or such Related Party, as
the case may be, such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent (or
any such sub-agent) or the L/C Issuer in its capacity as such, or against
any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) or L/C Issuer in connection with such
capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any
Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall (in the absence of bad faith,
gross negligence or willful misconduct) be liable for any damages arising
from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement
or the other Loan Documents or the transactions contemplated hereby or
thereby.
(e) Payments. All amounts due under this Section shall be payable
not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent and the L/C Issuer, the
replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.
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SECTION 10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the L/C Issuer or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
SECTION 10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the L/C
Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans (including for purposes of this subsection (b), participations in
L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender
or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment
is
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not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to its Revolving
Commitment and its portion of the Term Loan, except that this clause
(ii) shall not apply to rights in respect of Swing Line Loans;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent, the L/C Issuer and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500 (which fee shall not
be reimbursable by any Loan Party), and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the Administrative
Agent's Office a copy of each Assignment and Assumption delivered to it
and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and
L/C Obligations owing to, each Lender pursuant to the terms hereof from
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time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available
for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or
substantive change to the Loan Documents is pending, any Lender wishing to
consult with other Lenders in connection therewith may request and receive
from the Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower
or any of the Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders and the L/C Issuer shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.14 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than
the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure
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obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the
use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York
State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.
(h) Resignation as L/C Issuer or Swing Line Lender after Assignment.
Notwithstanding anything to the contrary contained herein, if at any time
▇▇▇▇▇ Fargo assigns all of its Commitment and Loans pursuant to subsection
(b) above, ▇▇▇▇▇ Fargo may, (i) upon 30 days' notice to the Borrower and
the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice to the
Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the Borrower
to appoint any such successor shall affect the resignation of ▇▇▇▇▇ Fargo
as L/C Issuer or Swing Line Lender, as the case may be. If ▇▇▇▇▇ Fargo
resigns as L/C Issuer, it shall retain all the rights and obligations of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.04(c)). If ▇▇▇▇▇ Fargo resigns
as Swing Line Lender, it shall retain all the rights of the Swing Line
Lender provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section
2.05(c).
SECTION 10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of
the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates' and to its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same
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as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent, any Lender,
the L/C Issuer or any of their respective Affiliates on a nonconfidential basis
from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.08 SET-OFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from
the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Lender, the L/C Issuer or their respective Affiliates may
have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
SECTION 10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the Highest Lawful Rate. If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Highest Lawful Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the
Borrower. In determining whether the interest contracted for, charged, or
received by the Administrative Agent or a Lender exceeds the Highest Lawful
Rate, such Person may, to the extent permitted by Applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects
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thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.
SECTION 10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may
be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
SECTION 10.12 SEVERABILITY. If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation
under Section 3.04, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, if any Lender gives notice under Section 3.02 which
remains in effect, if any Lender is a Defaulting Lender or if any other
circumstance exists hereunder that gives the Borrower the right to replace a
Lender as a party hereto in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.01, the consent of Required
Lenders shall have been obtained but the consent of one or more of such other
Lenders whose consent is required shall not have been obtained, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and
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obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant
to Section 3.01, such assignment will result in a reduction in such
compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
SECTION 10.14 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, the LAW OF THE STATE OF TEXAS applicable to agreements made and to
be performed entirely within such State; PROVIDED THAT THE ADMINISTRATIVE
Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
(DALLAS DIVISION), AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH TEXAS STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
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ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) The parties hereto agree that Chapter 346 (other than Section
346.004) of the Texas Finance Code (which regulates certain revolving
credit accounts and revolving tri-party accounts) shall not apply to the
Loans or the other Obligations.
(e) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS
SITTING IN DALLAS COUNTY, TEXAS OR OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF TEXAS (DALLAS DIVISION), AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE Agent AND
EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE
ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
SECTION 10.15 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
96
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
SECTION 10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
SECTION 10.17 ARBITRATION.
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration in accordance with the terms of this
Agreement. A "Dispute" shall mean any action, dispute, claim or
controversy of any kind, whether in contract or tort, statutory or common
law, legal or equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to, this Agreement, or any past,
present or future extensions of credit and other activities, transactions
or obligations of any kind related directly or indirectly to this
Agreement, including without limitation, any of the foregoing arising in
connection with the exercise of any self-help, ancillary or other remedies
pursuant to this Agreement. Any party may by summary proceedings bring an
action in court to compel arbitration of a Dispute. Any party who fails or
refuses to submit to arbitration following a lawful demand by any other
party shall bear all costs and expenses incurred by such other party in
compelling arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered
by the American Arbitration Association ("AAA") or such other
administrator as the parties shall mutually agree upon in accordance with
the AAA Commercial Arbitration Rules. All Disputes submitted to
arbitration shall be resolved in accordance with the Federal Arbitration
Act (Title 9 of the United States Code), notwithstanding any conflicting
choice of law provision in this Agreement. The arbitration shall be
conducted at a location in Dallas, Texas selected by the AAA or other
administrator. If there is any inconsistency between the terms hereof and
any such rules, the terms and procedures set forth herein shall control.
All statutes of limitation applicable to any Dispute shall apply to any
arbitration proceeding. All discovery activities shall be expressly
limited to matters directly relevant to the Dispute being arbitrated.
Judgment upon any award rendered in an arbitration may be entered in any
court having jurisdiction; provided however, that nothing contained herein
shall be deemed to be a waiver by any party that is a bank of the
protections afforded to it under 12 U.S.C. Section 91 or any similar
applicable state law.
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(c) No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or
ancillary remedies, including without limitation injunctive relief,
sequestration, attachment, garnishment or the appointment of a receiver,
from a court of competent jurisdiction before, after or during the
pendency of any arbitration or other proceeding. The exercise of any such
remedy shall not waive the right of any party to compel arbitration
hereunder.
(d) Arbitrator Qualifications and Powers Awards. Arbitrators must be
active members of the State Bar of Texas with expertise in the substantive
laws applicable to the subject matter of the Dispute. Arbitrators are
empowered to resolve Disputes by summary rulings in response to motions
filed prior to the final arbitration hearing. Arbitrators (i) shall
resolve all Disputes in accordance with the substantive law of the state
of Texas, (ii) may grant any remedy or relief that a court of the state of
Texas could order or grant within the scope hereof and such ancillary
relief as is necessary to make effective any award, and (iii) shall have
the power to award recovery of all costs and fees, to impose sanctions and
to take such other actions as they deem necessary to the same extent a
judge could pursuant to the Federal Rules of Civil Procedure, the Texas
Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000
(including damages, costs, fees and expenses). By submission to a single
arbitrator, each party expressly waives any right or claim to recover more
than $5,000,000. Any Dispute in which the amount in controversy exceeds
$5,000,000 shall be decided by majority vote of a panel of three
arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations.
(e) Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not
supported by substantial evidence or which is based on legal error, (ii)
an award shall not be binding upon the parties unless the findings of fact
are supported by substantial evidence and the conclusions of law are not
erroneous under the substantive law of the state of Texas, and (iii) the
parties shall have in addition to the grounds referred to in the Federal
Arbitration Act for vacating, modifying or correcting an award the right
to judicial review of (A) whether the findings of fact rendered by the
arbitrators are supported by substantial evidence, and (B) whether the
conclusions of law are erroneous under the substantive law of the state of
Texas. Judgment confirming an award in such a proceeding may be entered
only if a court determines the award is supported by substantial evidence
and not based on legal error under the substantive law of the state of
Texas.
(f) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceedings within 180 days of the filing of the Dispute with
the AAA. No arbitrator or
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other party to an arbitration proceeding may disclose the existence,
content or results thereof, except for disclosures of information by a
party required in the ordinary course of its business, by applicable law
or regulations, or to the extent necessary to exercise any judicial review
rights set forth herein. If more than one agreement for arbitration by or
between the parties potentially applies to a Dispute, the arbitration
provisions most directly related to this Agreement or the subject matter
of the Dispute shall control. This arbitration provision shall survive
termination, amendment or expiration of this Agreement or any relationship
between the parties.
SECTION 10.18 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
UNITED STATES LIME & MINERALS, INC.
By: _____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
▇▇▇▇▇ FARGO BANK, N.A., as
Administrative Agent
By: _____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇ III
Vice President
▇▇▇▇▇ FARGO BANK, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: _____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇ III
Vice President
Schedule 2.01