EXHIBIT 10.3
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REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 25, 2002
BY AND AMONG
TRC COMPANIES, INC.,
CERTAIN SUBSIDIARIES LISTED ON THE SIGNATURE PAGE HEREOF,
EACH AS A BORROWER AND TOGETHER THE BORROWERS
THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF,
AS THE LENDERS
AND
FIRST UNION NATIONAL BANK,
AS SOLE LEAD ARRANGER AND ADMINISTRATIVE AGENT
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PREPARED BY: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION................................................. 1
1.01 DEFINITIONS.................................................................................. 1
1.02 PRINCIPLES OF CONSTRUCTION...................................................................13
SECTION 2. AMOUNT AND TERMS OF CREDIT.................................................................13
2.01 REVOLVING CREDIT.............................................................................13
2.02 REVOLVING CREDIT PAYMENT AND MATURITY; EXTENSION OF MATURITY.................................14
2.03 PROCEDURE FOR REVOLVING CREDIT LOAN BORROWINGS...............................................14
2.04 REDUCTION OF COMMITMENT......................................................................15
2.05 SWINGLINE LOANS..............................................................................15
2.06. PROCEDURES FOR SWINGLINE LOANS...............................................................16
2.07 INTEREST.....................................................................................17
2.08 CONVERSIONS AND CONTINUATIONS................................................................17
2.09 LETTERS OF CREDIT............................................................................18
2.10 LETTER OF CREDIT REQUESTS....................................................................19
2.11 LETTER OF CREDIT PARTICIPATIONS..............................................................19
2.12 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.................................................21
2.13 INDEMNIFICATION; NATURE OF AGENT'S DUTIES....................................................21
2.14 INCREASED COSTS; ILLEGALITY; CAPITAL ADEQUACY; FUNDING LOSSES................................23
2.15 COMPUTATION..................................................................................25
2.16 SECURITY.....................................................................................25
2.17 INCREASE OF THE COMMITMENTS AND MAXIMUM AVAILABLE REVOLVING CREDIT AMOUNT....................25
SECTION 3. FEES.......................................................................................26
3.01 UNUSED FEE...................................................................................26
3.02 LETTER OF CREDIT FEE.........................................................................26
3.03 LETTER OF CREDIT PROCESSING FEE..............................................................27
3.04 AGENT'S FEES.................................................................................27
3.05 AMENDMENT FEE................................................................................27
SECTION 4. PREPAYMENTS AND PAYMENTS GENERALLY.........................................................27
4.01 VOLUNTARY PREPAYMENTS........................................................................27
4.02 MANDATORY PREPAYMENTS........................................................................27
4.03 APPLICATION OF MANDATORY PREPAYMENTS.........................................................27
4.04 GENERAL PROVISIONS AS TO PAYMENTS............................................................28
4.05 NET PAYMENTS.................................................................................28
4.06 DEBITING OF ACCOUNT..........................................................................29
SECTION 5. CONDITIONS.................................................................................29
5.01 DOCUMENTS REQUIRED FOR INITIAL ADVANCE.......................................................29
5.02 REQUIREMENTS FOR ANY ADVANCE AND ISSUANCE OF LETTER OF CREDIT................................31
SECTION 6. REPRESENTATIONS AND WARRANTIES.............................................................31
6.01 ORGANIZATION; AUTHORITY......................................................................31
6.02 USE OF PROCEEDS; MARGIN REGULATION...........................................................32
6.03 SPECIFIC FINANCIAL STATEMENTS................................................................32
6.04 LITIGATION...................................................................................33
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6.05 NO MATERIALLY ADVERSE CONTRACTS, ETC.........................................................33
6.06 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.................................................33
6.07 ERISA........................................................................................33
6.08 TAX STATUS...................................................................................33
6.09 COMPLIANCE WITH STATUTES, ETC................................................................34
6.10 NO AUTHORIZATIONS OR APPROVALS...............................................................34
6.11 HOLDING COMPANY AND INVESTMENT COMPANY ACTS..................................................34
6.12 SUBSIDIARIES.................................................................................34
6.13 INTELLECTUAL PROPERTY, ETC...................................................................34
6.14 LABOR MATTERS................................................................................34
6.15 ASSETS AND PROPERTIES........................................................................35
6.16 INSURANCE....................................................................................35
6.17 TRUE AND COMPLETE DISCLOSURE.................................................................35
6.18 ABSENCE OF FINANCING STATEMENTS, ETC.........................................................35
6.19 PERFECTION OF SECURITY INTEREST..............................................................35
6.20 CERTAIN TRANSACTIONS.........................................................................36
6.21 ENVIRONMENTAL COMPLIANCE.....................................................................36
SECTION 7. AFFIRMATIVE COVENANTS......................................................................37
7.01 RECORDS AND ACCOUNTS.........................................................................38
7.02 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION...........................................38
7.03 COMPLIANCE CERTIFICATES......................................................................39
7.04 CORPORATE EXISTENCE AND CONDUCT OF BUSINESS..................................................39
7.05 MAINTENANCE OF PROPERTIES....................................................................39
7.06 INSURANCE....................................................................................39
7.07 TAXES........................................................................................40
7.08 INSPECTION OF PROPERTIES, BOOKS, AND CONTRACTS...............................................40
7.09 COMPLIANCE WITH LAWS, LICENSES AND PERMITS...................................................40
7.10 PENSION PLANS................................................................................40
7.11 FURTHER ASSURANCES...........................................................................41
7.12 NOTICE OF POTENTIAL CLAIMS OR LITIGATION.....................................................41
7.13 OTHER NOTICES................................................................................41
7.14 NEW BORROWERS................................................................................42
7.15 DEPOSIT RELATIONSHIPS........................................................................42
SECTION 8. NEGATIVE COVENANTS.........................................................................42
8.01 RESTRICTIONS ON INDEBTEDNESS.................................................................42
8.02 RESTRICTIONS ON LIENS........................................................................43
8.03 RESTRICTIONS ON INVESTMENTS..................................................................44
8.04 MERGER, CONSOLIDATION AND ACQUISITION........................................................45
8.05 SALE AND LEASEBACK...........................................................................46
8.06 SALES OF ASSETS..............................................................................46
8.07 INTEREST COVERAGE RATIO......................................................................46
8.08 LEVERAGE RATIO...............................................................................46
8.09 CURRENT ASSETS TO TOTAL LIABILITIES RATIO....................................................46
8.10 NET WORTH....................................................................................46
8.11 RESTRICTIONS ON NEGATIVE PLEDGES.............................................................47
8.12 DISTRIBUTIONS................................................................................47
8.13 EXIT STRATEGY PROJECTS.......................................................................47
8.14 USE OF PROCEEDS..............................................................................47
8.15 CHANGE FISCAL YEAR...........................................................................47
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SECTION 9. EVENTS OF DEFAULT AND REMEDIES.............................................................47
9.01 EVENTS OF DEFAULT............................................................................47
9.02 RIGHT OF SET-OFF.............................................................................50
9.03 SHARING OF PAYMENTS, ETC.....................................................................51
9.04 TURNOVER OF PROPERTY HELD BY AFFILIATE.......................................................51
9.05 REMEDIES CUMULATIVE; NO WAIVER...............................................................52
SECTION 10. THE AGENT..................................................................................52
10.01 APPOINTMENT..................................................................................52
10.02 DELEGATION OF DUTIES.........................................................................52
10.03 EXCULPATORY PROVISIONS.......................................................................52
10.04 RELIANCE BY AGENT............................................................................53
10.05 NOTICE OF DEFAULT............................................................................53
10.06 NON-RELIANCE ON AGENT AND OTHER LENDERS......................................................53
10.07 INDEMNIFICATION..............................................................................54
10.08 AGENT IN ITS INDIVIDUAL CAPACITY.............................................................54
10.09 SUCCESSOR AGENT..............................................................................54
SECTION 11. MISCELLANEOUS..............................................................................55
11.01 NOTICE, ETC..................................................................................55
11.02 COSTS AND EXPENSES...........................................................................55
11.03 PAYMENT DUE ON A DAY OTHER THAN A BUSINESS DAY...............................................56
11.04 GOVERNING LAW................................................................................56
11.05 COUNTERPARTS; INTEGRATION....................................................................56
11.06 AMENDMENT OR WAIVER..........................................................................56
11.07 SUCCESSORS AND ASSIGNS.......................................................................57
11.08 PARTICIPATIONS AND ASSIGNMENTS...............................................................57
11.09 SEVERABILITY.................................................................................58
11.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS...............................................58
11.11 CONFIDENTIALITY; PUBLICITY...................................................................58
11.12 INDEMNIFICATION..............................................................................59
11.13 INCONSISTENCIES..............................................................................59
11.14 HEADINGS.....................................................................................59
11.15 EXHIBITS AND ANNEXES.........................................................................59
11.16 JUDICIAL PROCEEDING; WAIVERS.................................................................60
11.17 JOINT AND SEVERAL LIABILITY..................................................................61
11.18 EXECUTION CERTIFICATION......................................................................61
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REVOLVING CREDIT AGREEMENT
THIS
REVOLVING CREDIT AGREEMENT is made as of this 25th day of March,
2002, by and among TRC COMPANIES, INC., a Delaware corporation ("TRC"), the
SUBSIDIARIES listed on SCHEDULE I hereto (TRC and such subsidiaries are each
referred to herein as a "BORROWER" and collectively referred to herein as the
"BORROWERS"), the LENDERS from time to time party hereto and FIRST UNION
NATIONAL BANK, as sole lead arranger and administrative agent (in such capacity
the "AGENT").
WHEREAS, the Borrowers have requested a secured revolving credit
facility in an aggregate amount not to exceed $40,000,000, and the Lenders are
willing to provide said credit facility on the terms and conditions herein set
forth;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.
1.01 DEFINITIONS . Unless the context requires otherwise, the
following terms used throughout this Agreement shall have the meanings assigned
to such terms below (such meanings to be equally applicable to both the singular
and plural number of the terms defined):
"ADMINISTRATIVE REPLY FORM" shall mean that certain Administrative
Details Reply Form furnished by the Agent to each Lender, and completed and
submitted by each Lender to the Agent from time to time.
"AFFILIATE" shall mean, as applied to any Person, any other Person
that directly or indirectly controls, is controlled by, or is under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, shall mean the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the securities or other ownership interests having voting power for the
election of directors (or other persons performing similar functions) of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AGENT" shall mean First Union National Bank, in its capacity as sole
lead arranger and administrative agent for the Lenders hereunder, and its
successors in such capacity.
"AGREEMENT" shall mean this
Revolving Credit Agreement, as the same
may be from time to time modified, amended and/or supplemented.
"APPLICABLE MARGIN" shall mean (A) with respect to Base Rate Loans, 0
basis points (0.00%), (B) with respect to LIBOR Loans, 170 basis points (1.70%)
and (C) as used to determine the unused fee pursuant to Section 3.01 hereof, 25
basis points (0.25%); SUBJECT,
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HOWEVER, to adjustment in accordance with the following pricing schedule
determined by reference to the Leverage Ratio of the Borrowers based on the
results reported on the then most recently received financial statements
delivered by the Borrowers pursuant to Section 7.02(a) and (b) hereof, as the
case may be, for the Test Period ending as of the last day of the fiscal period
reported in said statements:
APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
LEVEL IF SUCH RATIO IS: BASE RATE LOANS LIBOR LOANS UNUSED FEES
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I Less than 1.00 to minus 50 basis points plus 145 basis points plus 25 basis points (.25%)
1.00 (-0.50%) (1.45%)
II Greater than or 0 basis points (.00%) plus 170 basis points plus 25 basis points (.25%)
equal to 1.00 to (1.70%)
1.00; but less than
2.00 to 1.00
III Greater than or plus 25 basis points plus 195 basis points plus 25 basis points (.25%)
equal to 2.00 to 1.00 (.25%) (1.95%)
Adjustments, if any, to the Applicable Margin shall be made by the Agent
effective as of the tenth (10th) Business Day after receipt by the Agent and the
Lenders of the compliance certificate required pursuant to Section 7.03 hereof.
Notwithstanding the foregoing, at all times during which there exists a Default
or Event of Default, the Applicable Margin (A) with respect to Base Rate Loans
and LIBOR Loans, shall be determined by reference to 2.07(a), and (B) as used to
determine the unused fee pursuant to Section 3.01 hereof, shall be PLUS 50 basis
points (.50%).
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall have the meaning assigned
to such term in Section 11.08 hereof.
"AVAILABILITY" shall mean, at any particular time, the amount by which
the Maximum Available Revolving Credit Amount at such time exceeds the sum of
(A) Revolving Credit Obligations and (B) the Swingline Obligations, at such
time.
"BALANCE SHEET DATE" shall mean, June 30, 2001.
"BASE RATE" shall mean, as of any date of determination, the higher of
the (A) Prime Rate and the (B) Federal Funds Rate PLUS 50 basis points (0.50%).
"BASE RATE LOAN" shall mean any Loan that bears interest at a rate of
interest based upon the Base Rate.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday, or
a day on which the Agent and the Lenders are authorized or obligated by law or
executive order to be closed.
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"CAPITAL EXPENDITURES" shall mean, with respect to any Person, without
duplication and for any period, the aggregate value attributed in accordance
with GAAP, to acquisitions during such period by such Person of any asset,
tangible or intangible, or replacements or substitutions therefor or additions
thereto which such Person treated as a non-current asset on such Person's
financial statements, including, without limitation, (y) the acquisition or
construction of assets having a useful life of more than one year, and (z)
assets acquired during such period in connection with Capitalized Leases.
"CAPITALIZED LEASE" shall mean any lease with respect to which the
obligation to pay rent or other amounts constitutes Capitalized Lease
Obligations.
"CAPITALIZED LEASE OBLIGATIONS" shall mean obligations to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real and/or personal property which obligations are required to be classified
and accounted for as capital leases on a balance sheet in accordance with GAAP.
"CHANGE OF CONTROL" shall mean the acquisition by any Person, or two
or more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934) of greater
than 50% of the outstanding shares of voting stock of any Borrower.
"CLOSING DATE" shall mean the date on which all of the conditions set
forth in Section 5.01 hereof have been fulfilled.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall have the meaning assigned to such term in the
Security Agreement.
"COMMITMENT" shall mean, with respect to each Lender, the amount set
forth opposite such Lender's name on the signature pages hereof, which is such
Lender's Pro Rata Share of the Maximum Available Revolving Credit Amount that
such Lender has agreed to advance hereunder, as the same may be (i) reduced from
time to time pursuant to Section 2.04 hereof or (ii) adjusted from time to time
as a result of assignments to and from the Lenders pursuant to Section 11.08
hereof and increases in the Commitments pursuant to Section 2.17 hereof.
"COMMITMENTS" shall mean the aggregate of each Commitment of each Lender
hereunder, and shall include (without duplication) the Swingline Commitment of
the Swingline Lender.
"CONSOLIDATED" or "CONSOLIDATED" shall mean, with reference to any
term defined herein, an accounting presentation which includes TRC and each
other Borrower consolidated in accordance with GAAP, after eliminating all
intercompany items.
"CONSOLIDATED EBITDA" shall mean, for any period, the consolidated net
income (or deficit) of the Borrowers, determined in accordance with GAAP, PLUS
to the extent deducted
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in computing consolidated net income (or deficit) for such period (a) interest
expense, (b) income taxes and (c) depreciation and amortization.
"CONSOLIDATED FUNDED DEBT" shall mean, with respect to the Borrowers,
all Indebtedness, including Capitalized Lease Obligations and indebtedness in
respect of standby letters of credit to support financial obligations, incurred
through the borrowing of money or the obtaining of credit, whether or not the
same may appear on a consolidated balance sheet of the Borrowers prepared in
accordance with GAAP.
"CONSOLIDATED TOTAL INTEREST EXPENSE" shall mean, for any period, the
aggregate amount of interest required to be paid or accrued by the Borrowers
during such period on all Indebtedness of the Borrowers outstanding during all
or any part of such period, whether such interest was or is required to be
reflected as an item of expense or capitalized.
"CREDIT DOCUMENTS" shall mean this Agreement, each of the Revolving
Credit Notes, the Swingline Note, the Security Agreement, each Notice of
Borrowing, each Letter of Credit Request and all other credit accommodations,
notes, loan agreements, guaranties, security agreements, mortgages, instruments,
pledge agreements, assignments, acceptance agreements, commitments, facilities,
reimbursement agreements and any other agreements and documents, now or
hereafter existing, creating, evidencing, guarantying, securing or relating to
any or all of the Obligations, together with all amendments, supplements,
modifications, renewals, or extensions thereof.
"DEFAULT" shall mean any event, act or condition which, with notice or
the lapse of time, or both, would constitute an Event of Default.
"DEFAULT RATE" shall have the meaning assigned to such term in Section
2.07(a) hereof.
"DISTRIBUTION" shall mean the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock of any Borrower,
other than dividends payable solely in shares of common stock of a Borrower; or
the purchase, redemption, or other retirement of any shares of any class of
capital stock of any Borrower, directly or indirectly through a Subsidiary or
otherwise; the return of capital by any Borrower to its shareholders as such;
any other distribution on or in respect of any shares of any class of capital
stock of any Borrower.
"DRAWINGS" shall have the meaning assigned to such term in Section
2.1(b) hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to ERISA, as
in effect at the date of this Agreement, and to any subsequent provisions of
ERISA amendatory thereof, supplemental thereto or substituted therefor.
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"ERISA AFFILIATE" shall mean any person (as defined in Section 3(9) of
ERISA) which together with the Borrower or any of its Subsidiaries would be
deemed to be a "single employer" within the meaning of Section 414 of the Code.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 9 hereof.
"ENVIRONMENTAL LAWS" shall have the meaning assigned to such term in
Section 6.21(a) hereof.
"EXISTING CREDIT AGREEMENT" shall meant that certain Third Amended and
Restated
Revolving Credit Agreement dated as of July 10, 1998 by and among the
Borrowers and Fleet National Bank (f/k/a Bank Boston, N.A.), as the same has
been amended from time to time through the Closing Date.
"EXISTING LETTER OF CREDIT" shall have the meaning assigned to such
term in Section 2.09(b) hereof.
"EXIT STRATEGY PROJECTS" shall mean environmental clean-up projects
(including so called "▇▇▇▇▇▇▇▇▇▇ PROJECTS") in which TRC or a Subsidiary assumes
the liability of Potentially Responsible Parties ("PRPs") for the cleanup of a
Superfund or state hazardous work site, provided that PRPs have funded the cost
of such cleanup pursuant to a fixed fee arrangement, provided that the assumed
liability is covered by an environmental insurance policy issued by an insurance
company having an A or better "Best" rating.
"FACILITY" shall mean either of the three (3) facilities established
under this Agreement, I.E., the Revolving Credit Facility, the Swingline
Facility and the Letter of Credit Facility.
"FASB" shall mean the officially released written statements of the
Financial Accounting Standards Board in general usage from time to time in the
accounting profession in the United States.
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published by the Federal
Reserve Bank of New York on the Business Day next preceding such day for amounts
in immediately available funds or, if such rate is not so published for any day
for which the next preceding day is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
(3) Federal Funds brokers of recognized standing selected by the Agent.
"FUNDING LOSSES" shall have the meaning assigned to such term in
Section 2.14(c) hereof.
5
"GAAP" shall mean (i) when used in general, generally accepted
accounting principles which are (1) consistent with the principles promulgated
or adopted by the Financial Accounting Standards Board and its predecessors or
successors, in effect for the fiscal year ended on the Balance Sheet Date and
(2) such that a certified public accountant would, insofar as the use of
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied; and (ii) when used with reference to the Borrowers and/or
any of their Subsidiaries, such principles shall include (to the extent
consistent with such principles) the accounting practice of the Borrowers
reflected in their financial statements for the year ended on the Balance Sheet
Date.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, all
Indebtedness of the type referred to in clauses (i) through (ix) of the
definition of Indebtedness in this Agreement guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (ii)
to purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether or not
such property is received or such services are rendered), or (iv) otherwise to
assure a creditor against loss.
"HAZARDOUS WASTE" shall have the meaning assigned to such term in
Section 6.21(b) hereof.
"IMMATERIAL SUBSIDIARY" shall mean any Subsidiary of a Borrower, or
any Subsidiary of any such Subsidiary that does not contribute assets nor
liabilities in excess of $50,000 as reflected on any Consolidated balance sheet
of TRC prepared in accordance with GAAP.
"INDEBTEDNESS" shall mean all obligations, contingent and otherwise,
which in accordance with GAAP should be classified upon the obligor's balance
sheet as liabilities, or to which reference should be made by footnotes thereto,
including, without limitation, in any event and whether or not so classified:
(i) all debt and similar monetary obligations, whether direct or indirect; (ii)
all liabilities secured by any mortgage, pledge, security interest, lien,
charge, or other encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
and (iii) all guarantees, endorsements and other contingent obligations whether
direct or indirect in respect of Indebtedness of others, including any
obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase Indebtedness, or to assure the owner of
Indebtedness against loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make payment of the
Indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer of any letters of credit, excluding obligations under leases
classified as operating leases under GAAP.
6
"INTEREST PERIOD" shall mean with respect to any LIBOR Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
LIBOR Loan and ending one (1), two (2) or three (3) months
thereafter, as selected by the Borrowers either (a) two (2)
LIBOR Business Days before the Closing Date in the case of the
initial LIBOR Loans (if any) to be funded on that date, (b) in
its Notice of Borrowing delivered pursuant to Section 2.03(a)
hereof, in the case of Revolving Credit Loans, or (c) in
either case, in its notice of conversion delivered pursuant to
Section 2.08(a) hereof, as the case may be, given with respect
thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such LIBOR Loan and
ending one (1), two (2) or three (3) months thereafter, as
selected by the Borrowers in its notice of continuance
delivered pursuant to Section 2.08(b) hereof, with respect
thereto;
PROVIDED that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period pertaining to a LIBOR Loan would
otherwise end on a day that is not a LIBOR Business Day, such
Interest Period shall be extended to the next succeeding LIBOR
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding LIBOR Business Day; and
(ii) any Interest Period pertaining to a LIBOR Loan that begins on
the last LIBOR 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 LIBOR Business Day of a calendar month.
"INVESTMENTS" shall mean all cash expenditures made and all
liabilities incurred (contingently or otherwise) for the acquisition of stock,
all or substantially all of the assets of, or Indebtedness of, or for loans,
advances, capital contributions or transfers of property to, or in respect of
any guaranties (or other commitments as described under Indebtedness), or
obligations of, any Person. In determining the aggregate amount of Investments
outstanding at any particular time, (i) the amount of any Investment represented
by a guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (ii) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid, (iii) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (iv) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment,
7
whether as dividends, interest or otherwise, except that accrued interest
included as provided in the foregoing clause (iii) may be deducted when paid;
and (v) there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
"LENDER" shall mean each Lender listed on the signature page hereto,
each assignee which becomes a Lender pursuant to Section 11.08 hereof, and their
respective successors and assigns.
"LETTER OF CREDIT" shall mean each standby letter of credit issued
pursuant to Section 2.09 hereof.
"LETTER OF CREDIT FACILITY" shall have the meaning assigned to such
term in Section 2.09 hereof.
"LETTER OF CREDIT FEE" shall have the meaning assigned to such term in
Section 3.02 hereof.
"LETTER OF CREDIT OUTSTANDING" shall mean, at any time, the sum of,
without duplication (i) the aggregate Stated Amount of all outstanding Letters
of Credit; (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit; and (iii) the Stated Amount of all Letters of Credit
requested pursuant to Section 2.10 hereof but not yet issued.
"LETTER OF CREDIT PROCESSING FEES" shall have the meaning assigned to
such term in Section 3.03 hereof.
"LETTER OF CREDIT REQUEST" shall have the meaning assigned to such
term in Section 2.10 hereof.
"LETTER OF CREDIT SUBLIMIT" shall mean Five Million Dollars
($5,000,000); PROVIDED, HOWEVER, that in no event shall the Letter of Credit
Sublimit be at any time greater than the Maximum Available Credit Amount.
"LEVERAGE RATIO" shall mean, for any relevant Test Period, the ratio
of (a) Consolidated Funded Debt as of the end of such period to (b) Consolidated
EBITDA for such period.
"LIBOR BUSINESS DAY" shall mean any Business Day on which dealings in
the London interbank market may be carried on by commercial banks in London,
England.
"LIBOR LOAN" shall mean any Loan that bears interest at a rate of
interest based upon the LIBOR Rate.
"LIBOR MARKET INDEX RATE" shall mean, on any day, the PER ANNUM rate
for one month deposits in United States dollars in the London interbank market
as reported on the Telerate Page 3750 (of if not so reported, then as determined
by the Agent from another
8
commercially recognized source of interbank quotations) as of 11:00 a.m. (New
York time) on such day, as such rate may change from day to day.
"LIBOR MARKET INDEX RATE LOAN" shall mean any Loan that bears interest
at a rate of interest based on the LIBOR Market Index Rate.
"LIBOR RATE" shall mean, with respect to each day during each Interest
Period pertaining to a LIBOR Loan, the PER ANNUM rate (rounded to the next
higher 1/100 of 1%) for deposits in United States dollars for a period equal to
the relevant Interest Period as reported on the Telerate Page 3750 as of 11:00
a.m. (London time), on the day that is two (2) LIBOR Business Days prior to the
commencement of such Interest Period (or if not so reported, then as determined
by the Agent from another recognized source for London interbank market
quotations), adjusted for reserves by dividing that rate by 1.00 MINUS the LIBOR
Reserve.
"LIBOR RESERVE" shall mean the maximum percentage reserve requirements
(rounded to the next higher 1/100 of 1% and expressed as a decimal) of the Agent
(including, without limitation, basic, supplemental, marginal and emergency
reserves), in effect on any day during the relevant Interest Period under
Regulation D with respect to eurocurrency funding currently referred to as
"Eurocurrency liabilities" in Regulation D.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or other form of charge or preferential arrangement of any
kind (including, without limitation, any agreement to give any of the foregoing,
any conditional sale or other title retention or any lease in the nature
thereof) securing any obligation of any Person.
"LOAN" shall mean each and every Revolving Credit Loan and Swingline
Loan made by any Lender hereunder. For purposes of this Agreement, the
continuation or conversion of a Base Rate Loan or LIBOR Loan shall not
constitute the making of a new Loan.
"MAXIMUM AVAILABLE REVOLVING CREDIT AMOUNT" shall mean Thirty Two
Million Dollars ($32,000,000), less any reduction to said Maximum Revolving
Credit Amount pursuant to Section 2.04 hereof, but subject to increase in
accordance with Section 2.17 hereof.
"MULTI-EMPLOYER PLAN" shall mean a Plan which is a multi-employer plan
as defined in Section 4001(a)(3) of ERISA.
"NOTICE OF BORROWING" shall have the meaning assigned to such term in
Section 2.03(a) hereof.
"OBLIGATIONS" shall mean any and all obligations and indebtedness of
every kind and description of any Borrower owed to the Agent, the Lenders or any
Affiliate of the Agent or any Lender (including, without limitation, the
Revolving Credit Obligations, the Swingline Obligations, any interest accrued
thereon and any other amount due hereunder), whether primary or secondary,
direct or indirect, absolute or contingent, sole, joint or several, secured or
unsecured, due or to become due, contractual or tortious, arising by operation
of law or otherwise, or now or hereafter existing, whether incurred by any
Borrower, including, without
9
limitation, principal, interest and fees, including, without limitation, late
fees and expenses, including, without limitation, attorneys' fees and costs.
"OBLIGOR" shall mean each Borrower, and every other maker, endorser,
guarantor or surety of or for the Obligations.
"PAYMENT OFFICE" shall mean, as to each Lender, the payment office
identified in such Lender's Administrative Reply Form and as to the Agent, ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or such other office as any Lender or the
Agent (as the case may be) may designate in writing to the other parties hereto
from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, and any entity succeeding to any or
all of its functions under ERISA.
"PERMITTED L/C OBLIGATION" shall mean, as to any Letter of Credit,
obligations to support any obligation of a Borrower deemed acceptable to the
Agent and the Required Lenders, in their sole discretion.
"PERMITTED LIENS" shall mean those Liens permitted to exist pursuant
to Section 8.02 hereof.
"PERSON" shall mean any individual, limited liability company,
partnership, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"PLAN" shall mean any employee benefit plan which is subject to ERISA
and which covers the employees or former employees of the Borrower, any of its
Subsidiaries or an ERISA Affiliate, under which the Borrower, any of its
Subsidiaries or an ERISA Affiliate has any obligation or liability or under
which the Borrower, any of its Subsidiaries or an ERISA Affiliate has made
contributions within the preceding five years. References herein to a Plan shall
include any Multiemployer Plan.
"PRIME RATE" shall mean the PER ANNUM rate of interest established by
the Agent as its reference rate in making loans, and does not reflect the rate
of interest charged to any particular borrower or class of borrowers. The
Borrowers acknowledge that the Prime Rate is not tied to any external index or
rate of interest and that the rate of interest charged hereunder shall change
automatically and immediately as of the date of any change in the Prime Rate,
without notice to any Borrower.
"PRO RATA SHARE" shall mean, for each Lender at any time, the
percentage obtained by dividing such Lender's Commitment by the Maximum
Available Revolving Credit Amount (in each case, as adjusted from time to time
in accordance with the provisions of this Agreement).
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"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"REQUIRED LENDERS" shall mean Lenders holding more than sixty-six and
two/thirds percent (66.67%) of the aggregate of all the Commitments, or, if such
credit commitments have been terminated, the Lenders holding more than sixty-six
and two/thirds percent (66.67%) of such credit commitments immediately prior to
such termination; PROVIDED, HOWEVER, that at any time during which there are not
more than two (2) Lenders with Commitments or Obligations owing to them, both
such Lenders shall constitute the Required Lenders.
"RESPONSIBLE OFFICER" shall mean each of the officers of a Borrower
identified as an authorized officer in the certificates delivered to the Agent
and the Lenders pursuant to Section 5.01(a)(iv) hereof, and each other officer
or representative of a Borrower identified in writing by an officer listed in
said certificate as an authorized officer or authorized representative of a
Borrower or the Borrowers.
"REVOLVING CREDIT EXPIRATION DATE" shall mean March 25, 2005, as the
same may be extended for an additional one (1) year period in accordance with
Section 2.02 hereof.
"REVOLVING CREDIT FACILITY" shall have the meaning assigned to such
term in Section 2.01 hereof.
"REVOLVING CREDIT LOANS" shall have the meaning assigned to such term
in Section 2.01 hereof.
"REVOLVING CREDIT NOTES" shall have the meaning assigned to such term
in Section 2.01 hereof.
"REVOLVING CREDIT OBLIGATIONS" shall mean, at any particular time, the
sum of (A) the aggregate principal amount of the outstanding Revolving Credit
Loans and (B) the Letter of Credit Outstandings.
"REVOLVING CREDIT PERIOD" shall mean the period from and including the
Closing Date to but excluding the Revolving Credit Expiration Date or such
earlier date on which the Lenders' obligation to make Revolving Credit Loans
shall have terminated as provided herein.
"SEC" shall mean the Securities and Exchange Commission or any
governmental entity which may be substituted therefor.
"SECURITY AGREEMENT" shall mean that certain security agreement of
each of the Borrowers in favor of the Agent (for the benefit of the Lenders)
dated as of even date herewith, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
11
"SPECIFIED PREFERRED STOCK" shall mean the Series A-1 Cumulative
Convertible Preferred Stock issued by TRC pursuant to a certificate of rights
and preferences with respect thereto dated as of December 18, 2001 filed with
the Secretary of State of the State of Delaware, as well as subsequent series of
preferred stock issued pursuant to the exercise of "▇▇▇▇▇▇▇▇ Rights" as defined
in the stock purchase agreement in respect of such Series A-1 Preferred Stock.
"STATED AMOUNT" shall mean, as to any Letter of Credit, the maximum
amount available to be drawn thereunder, determined without regard to whether
any conditions to drawing could then be met.
"SUBSIDIARY" shall mean, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned or controlled by
such Person, one or more of the other Subsidiaries of such Person or any
combination thereof. The foregoing notwithstanding, any reference in the Credit
Agreement and any other Credit Document, to a "Subsidiary of a Borrower" or like
reference of similar import, shall be deemed not to include any Immaterial
Subsidiaries in any such reference.
"SWINGLINE COMMITMENT" shall mean, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
hereunder. The initial amount of the Swingline Lender's Swingline Commitment is
Five Million Dollars ($5,000,000).
"SWINGLINE FACILITY" shall have the meaning assigned to such term in
Section 2.05 hereof.
"SWINGLINE OBLIGATIONS" shall mean, at any particular time, the
aggregate principal amount of all Swingline Loans outstanding at such time.
"SWINGLINE LENDER" shall mean First Union National Bank, in its
capacity as the lender of Swingline Loans pursuant to Section 2.05 hereof.
"SWINGLINE LOAN" shall have the meaning assigned to such term in
Section 2.05 hereof.
"TELERATE PAGE 3750" shall mean the display designated as "Page 3750"
on the Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace that page
on that service for the purpose of displaying London interbank offered rates of
major banks).
"TEST PERIOD" shall mean, with respect to any applicable determination
under this Agreement, a period of twelve (12) consecutive months (taken as one
accounting period) and ending on the last day of the fiscal quarter of the
Borrowers then last ended.
"TYPE" shall mean any type of Loan determined with respect to its
interest rate option applicable thereto, i.e., a Base Rate Loan or LIBOR Loan.
12
"UNPAID DRAWING" shall have the meaning assigned to such term in
Section 2.12 hereof.
"▇▇▇▇▇ PROJECT" shall mean the Exit Strategy Project located in Wells,
Maine.
1.02 PRINCIPLES OF CONSTRUCTION.
(a) REFERENCES. All references to sections, schedules and exhibits
are to sections, schedules and exhibits in or to this Agreement unless otherwise
specified. The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement.
(b) ACCOUNTING TERMS. All accounting terms not specifically
defined herein or in any exhibit hereto shall be construed in accordance with
GAAP in conformity with those principles used in the preparation of the
financial statements referred to in Section 7.03 of this Agreement. Any non-cash
accrual accounting charges or gains arising from the adoption of FASB rulings
not yet fully adopted by the Borrowers shall not be included in the definitions
of said accounting terms, and therefore shall be excluded for the purposes of
financial covenant calculations required pursuant to Sections 8.07, 8.08, 8.09
and 8.10 hereof.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.01 REVOLVING CREDIT.
REVOLVING CREDIT FACILITY. Subject to the terms and conditions
herein set forth and in reliance upon the representations and warranties set
forth herein and in the other Credit Documents, each Lender severally agrees to
make available to the Borrowers a revolving credit facility (the "REVOLVING
CREDIT FACILITY"), pursuant to which each Lender shall make advances (each a
"REVOLVING CREDIT LOAN") to any Borrower (or all of them) from time to time
during the Revolving Credit Period, in an amount not to exceed such Lender's Pro
Rata Share of the Availability. All Revolving Credit Loans comprising the same
advance under this Agreement shall be made by the Lenders simultaneously and
proportionately to their then respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any failure by another Lender to perform
its obligations to make a Revolving Credit Loan hereunder nor shall the Credit
Commitment of any Lender be increased or decreased as a result of any such
failure. The Revolving Credit Loans outstanding under the Revolving Credit
Facility shall be evidenced by Revolving Credit Notes issued to each of the
Lenders, substantially in the form of EXHIBIT A hereto (each a "REVOLVING CREDIT
NOTE"), with blanks appropriately completed in conformity herewith. Subject to
Section 2.03(c) hereof, the Revolving Credit Loans shall from time to time be
(i) LIBOR Loans, (ii) Base Rate Loans, or (iii) a combination thereof, as
determined by the Borrowers in accordance with Sections 2.03 and 2.07 hereof,
PROVIDED that no Revolving Credit Loan shall be made as a LIBOR Loan after the
day that is one (1) month prior to the Revolving Credit Expiration Date. Subject
to the provisions of this Agreement, the Borrowers from time to time may borrow,
repay and reborrow Revolving Credit Loans made hereunder at any time during the
Revolving Credit Period.
13
2.02 REVOLVING CREDIT PAYMENT AND MATURITY; EXTENSION OF MATURITY.
Subject to the immediately succeeding sentences of this Section 2.02, the
aggregate unpaid principal amount of the Revolving Credit Loans, all accrued but
unpaid interest thereon, and any and all fees payable hereunder, shall mature
and be due and payable on the Revolving Credit Expiration Date. The Revolving
Credit Expiration Date may be extended for an additional one (1) year period
upon the written request of the Borrowers to the Agent and the Lenders made at
least six (6) months prior (but not more than nine (9) months prior) to the then
Revolving Credit Expiration Date. Such notice shall be accompanied by a
certificate of a Responsible Officer stating that no Default or Event of Default
has occurred and is then continuing and that the representations and warranties
contained herein and in the other Credit Documents are true and correct in all
material respects on such date. Neither the Agent nor any Lender shall be
obligated to grant any extensions pursuant to this Section 2.02 AND ANY SUCH
EXTENSION SHALL BE IN THE SOLE AND ABSOLUTE DISCRETION OF EACH OF THEM, but the
Agent and each Lender agrees to reply to any such request within a reasonable
period of time.
2.03 PROCEDURE FOR REVOLVING CREDIT LOAN BORROWINGS.
(a) NOTICE OF BORROWING. Whenever a Borrower desires to incur
Revolving Credit Loans, such Borrower shall deliver a notice of borrowing (or
provide telephonic notice thereof, promptly confirmed in writing) to the Agent
(i) in the case of a LIBOR Loan, no later than 11:00 a.m. (prevailing New York
Time) on the date that is at least two (2) LIBOR Business Days prior to the date
of the proposed Revolving Credit Loan and (ii) in the case of a Base Rate Loan,
no later than 10:00 a.m. (prevailing New York Time) on the date of the proposed
Loan. Each such notice of borrowing (a "NOTICE OF BORROWING") shall be
substantially in the form of EXHIBIT C hereto and shall be irrevocable and shall
specify (i) the principal amount of the proposed Revolving Credit Loan, (ii) the
amount of the Availability as of the date of the funding of the proposed
Revolving Credit Loan, (iii) the date of funding of the proposed Revolving
Credit Loan (which shall be a Business Day or a LIBOR Business Day, as
applicable), (iv) the Type of Revolving Credit Loan proposed, and (v) in the
case of a proposed Revolving Credit Loan in the form of a LIBOR Loan, the
desired Interest Period. The Agent shall promptly give each Lender written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Revolving Credit Loan, of such Lender's Pro Rata Share thereof and of the other
matters covered by the Notice of Borrowing. Without in any way limiting the
obligation of the Borrowers to confirm in writing any notice it may give
hereunder by telephone, the Agent may act prior to receipt of written
confirmation, without liability, upon the basis of such telephonic notice
believed by the Agent in good faith to be from a Responsible Officer, or from
any other person designated in writing to the Agent by a Responsible Officer as
a person entitled to give telephonic notices under this Agreement on behalf of
the Borrowers. In each such case, each Borrower hereby waives the right to
dispute the Agent's record of the terms of any such telephonic notice.
(b) DISBURSEMENT OF FUNDS. No later than 2:00 p.m. (prevailing New
York Time) on the date of each such Revolving Credit Loan, each Lender will make
available its Pro Rata Share of such Revolving Credit Loan requested to be made
on such date in immediately available funds to the Agent at its Payment Office
and the Agent shall make such funds available to the applicable Borrower by
depositing such funds into such Borrower's account at the Agent's
14
Payment Office. Unless the Agent shall have been notified by any Lender prior to
the date of any such Revolving Credit Loan that such Lender does not intend to
make available to the Agent its Pro Rata Share of such Revolving Credit Loan,
the Agent may assume that such Lender has made such amount available to the
Agent on the date of such Revolving Credit Loan and the Agent, in reliance upon
such assumption, may (in its sole discretion and without any obligation to do
so) make available to the applicable Borrower such Pro Rata Share of such
Revolving Credit Loan. If such Pro Rata Share is not in fact made available to
the Agent by such Lender and the Agent has made available the same to the
applicable Borrower, the Agent shall be entitled to recover such amount from
such Lender. If such Lender does not pay such amount forthwith upon the Agent's
demand therefor, the Agent shall promptly notify the Borrowers, and the
Borrowers shall immediately pay such amount to the Agent. The Agent shall also
be entitled to recover from such Lender or the Borrowers, as the case may be,
interest on such amount in respect of each day from the date such amount was
made available by the Agent to the applicable Borrower to the date such amount
is recovered by the Agent, at a rate PER ANNUM equal to (x) if paid by such
Lender, the Federal Funds Rate or (y) if paid by the Borrowers, the then
applicable rate of interest for the applicable Revolving Credit Loans. Nothing
in this Section 2.03(b) shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment hereunder or to prejudice any rights which
any Borrower may have against any Lender as a result of any default by such
Lender hereunder.
(c) MINIMUM ADVANCE AND TYPE LIMITATION. Each Revolving Credit
Loan requested hereunder shall be in an amount equal to $500,000 or any whole
multiple thereof in the case of a Base Rate Loan and $1,000,000 or any whole
multiple thereof in the case of a LIBOR Loan, EXCEPT that any Revolving Credit
Loan may be in the aggregate amount of the Availability. At no single time
during the Revolving Credit Period shall there be any more than six (6) LIBOR
Loans outstanding under the Revolving Credit Facility.
2.04 REDUCTION OF COMMITMENT. The Borrower shall have the right,
upon not less than three (3) Business Days' prior written notice to the Agent
(which the Agent shall promptly transmit to the Lenders), to reduce all or part
of the Maximum Available Revolving Credit Amount, such reduction to be permanent
and irrevocable upon delivery of said notice. Any partial reduction of the
Maximum Available Revolving Credit Amount shall be in a minimum amount equal to
$500,000 or any whole multiple thereof and shall reduce each Lender's Credit
Commitment proportionately in accordance with its Pro Rata Share. Such reduction
shall not constitute an amendment hereof subject to an amendment fee set forth
in Section 3.05 hereof.
2.05 SWINGLINE LOANS. Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make available to the Borrowers a
swingline facility (the "SWINGLINE FACILITY") pursuant to which the Swingline
Lender shall make advances (each a "SWINGLINE LOAN") to any Borrower from time
to time on any Business Day for the period commencing on the Closing Date and
expiring on the sixth (6th) Business Day preceding the Revolving Credit
Expiration Date, in an aggregate principal amount at any time outstanding that
will not result in (i) the Swingline Obligations exceeding the Swingline
Commitment or (ii) the sum of the total Revolving Credit Obligations PLUS the
aggregate principal amount of outstanding Swingline Loans exceeding the Maximum
Available Revolving Credit Amount; PROVIDED that the
15
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Each Swing Loan shall be a LIBOR Market Index Rate
Loan and shall be due and payable on the maturity thereof, which shall be no
later than the seventh (7th) Business Day following the funding date of such
Loan. The Swingline Loans outstanding hereunder shall be evidenced by a
Swingline Note issued to the Swingline Lender, substantially in the form of
EXHIBIT B hereto (the "SWINGLINE NOTE"), with blanks appropriately completed in
conformity herewith. Subject to the term of this Section 2.05, Swingline Loans
may be borrowed, repaid and reborrowed by the Borrowers from time to time
without premium or penalty, and shall not be subject to Funding Losses.
2.06. PROCEDURES FOR SWINGLINE LOANS.
(a) To request a Swingline Loan, the Borrowers shall notify the Agent and
the Swingline Lender by telephone (confirmed by telecopy) no later than 11:00
a.m. (New York City Time) on the day of the relevant Swingline Loan. Each such
notice shall be irrevocable and shall specify (i) the aggregate principal amount
to be borrowed, (ii) the requested date (which shall be a Business Day) and
(iii) the maturity date of the requested Swingline Loan (which shall be not
later than seven (7) Business Days subsequent to the funding of such Swingline
Loan). The Swingline Lender will make the requested amount available promptly on
that same day by means of a credit to such Borrower's account at the Agent's
Payment Office.
(b) The Swingline Lender may by written notice given to the Agent not
later than 10:00 a.m. (New York Time) on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Loans then outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which the Lenders will participate. Promptly upon receipt of
such notice, the Agent will give notice thereof to each Lender, specifying in
such notice such Lender's Pro Rata Share of such Swingline Loan or Swingline
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Agent, for the account of the Swingline
Lender, such Lender's Pro Rata Share of such Swingline Loan or Swingline Loans.
Each Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or Event of Default or
reduction or termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.03(b)
hereof with respect to Revolving Credit Loans made by such Lender (and Section
2.03(b) hereof shall apply, MUTATIS MUTANDIS, to the payment obligations of the
Lenders), and the Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Lenders. The Agent shall notify the Borrowers of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the Agent
and not to the Swingline Lender. Any amounts received by the Swingline Lender
from any Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Agent; any such
amounts received by the Agent shall be promptly remitted by the Agent to the
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear.
16
The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve any Borrower of any default in the payment thereof.
2.07 INTEREST.
(a) INTEREST RATES. Prior to an Event of Default (i) each LIBOR
Loan shall bear interest for each day during each Interest Period applicable
thereto at a PER ANNUM rate equal to the LIBOR Rate PLUS the Applicable Margin
in effect from time to time, (ii) each Base Rate Loan shall bear interest at a
PER ANNUM rate equal to the Base Rate PLUS or MINUS (as applicable) the
Applicable Margin in effect from time to time and (iii) each LIBOR Market Index
Rate Loan shall bear interest at a PER ANNUM rate equal to the LIBOR Market
Index Rate PLUS 170 basis points (1.70%). Notwithstanding any other term or
provision hereof, upon and following an Event of Default, each Loan shall bear
interest at a PER ANNUM rate equal to rate of interest then applicable to such
Loan PLUS 200 basis points (2.00%); PROVIDED, HOWEVER, that in no event shall
such rate exceed the highest rate of interest allowed by law. Each such rate is
hereinafter referred to as the "DEFAULT RATE".
(b) INTEREST ACCRUAL AND PAYMENT DATE. Interest on each Loan shall
accrue from and including the date of the advance of funds with respect to such
Loan or the first day of the relevant Interest Period to but excluding the date
of repayment thereof or the expiration of the Interest Period and shall be
payable in arrears (i) in the case of a Base Rate Loan, on the last day of each
calendar month, (ii) in the case of a LIBOR Loan on the last day of the Interest
Period with respect thereto and, with respect to any LIBOR Loan with an Interest
Period in excess of three (3) months, on the date that is three (3) months after
the incurrence thereof or conversion thereto, and (iii) in the case of a
Swingline Loan, on the maturity date of such Loan as specified in Section 2.05
hereof.
(c) AGENT'S DETERMINATION. The Agent shall determine each interest
rate applicable to the Loans hereunder. The Agent shall give prompt written
notice to the Borrowers and the Lenders of each rate of interest so determined
and, in respect of the Base Rate, and the Applicable Margins, any change or
adjustment thereof; PROVIDED, HOWEVER that the failure of the Agent to give such
notice shall in no way affect the validity or applicability of any such
determination, change or adjustment. The Agent's determinations under this
Section 2.07(c) shall be conclusive and binding, absent manifest error.
2.08 CONVERSIONS AND CONTINUATIONS.
(a) CONVERSIONS. Subject to Sections 2.03(c) and 2.05 hereof, the
Borrowers may elect from time to time to convert any Revolving Credit Loan to
any other Type of Loan by delivering to the Agent an irrevocable notice (or by
providing telephonic notice promptly confirmed in writing) of such election (A)
in the case of a conversion to a Base Rate Loan, at least one (1) Business Day
prior to the expiration of the then current Interest Period with respect to the
LIBOR Loan to be converted or (B) in the case of a conversion to a LIBOR Loan,
at least two (2) LIBOR Business Days prior to the proposed commencement of the
Interest Period of the LIBOR Loans as so converted. Any notice delivered
pursuant to this Section 2.08(a) with respect to a conversion to a LIBOR Loan
shall also specify the desired Interest Period for the
17
Loan as so converted. No Loan may be converted pursuant to this Section 2.08 (a)
(i) at any time during which an Event of Default has occurred and is continuing,
or (ii) if, after giving effect to such conversion, Section 2.03(c) hereof would
be violated. In no event shall the Borrowers be permitted to convert any Loan to
a LIBOR Loan with an Interest Period that would expire after the Revolving
Credit Expiration Date. The Agent shall give each Lender notice as promptly as
practicable of any such proposed conversion affecting any of its Loans.
(b) CONTINUANCE OF LIBOR LOAN. The Borrowers may elect to continue
any LIBOR Loan as such upon the expiration of the then current Interest Period
with respect thereto by delivering to the Agent an irrevocable notice (or by
providing telephonic notice thereof, promptly confirmed in writing) of such
election, at least two (2) LIBOR Business Days prior to the expiration of the
then current Interest Period with respect thereto. Such notice shall also
specify the desired Interest Period for the Loan so continued. No continuance
shall be permitted under this Section 2.08(b) at any time during which an Event
of Default has occurred and is continuing. In no event shall the Borrower be
permitted to continue any LIBOR Loan if such continuance would result in an
Interest Period with respect to such Loan expiring after the Revolving Credit
Maturity Date. The Agent shall give each Lender notice as promptly as
practicable of any such proposed continuance affecting any of its Loans.
(c) AUTOMATIC CONVERSION TO PRIME RATE. If the Borrowers fail to
notify the Agent of the conversion or continuance of any LIBOR Loan within the
time specified in this Section 2.08, or is otherwise not permitted to convert to
or continue any LIBOR Loan pursuant to said Section, then any such Loan shall
automatically convert to a Base Rate Loan on the last day of the then expiring
applicable Interest Period.
2.09 LETTERS OF CREDIT.
(a) ISSUANCE OF LETTERS OF CREDIT. Subject to and upon the terms
herein set forth and in reliance upon the representations and warranties herein
set forth and in the other Credit Documents, the Borrower at any time and from
time to time on or after the Closing Date and prior to the Revolving Credit
Expiration Date, may request that the Agent issue, for the account of the
Borrower and in support of any Permitted L/C Obligation, an irrevocable standby
letter of credit or letters of credit in such form as may be approved by the
Agent (the "LETTER OF CREDIT FACILITY"). Notwithstanding the foregoing (i) no
Letter of Credit shall be issued in a Stated Amount which (x) when added to the
Letter of Credit Outstandings at such time would exceed the Letter of Credit
Sublimit, or (y) when added to the sum of the aggregate principal amount of the
Obligations then outstanding would exceed the Availability; (ii) each Letter of
Credit shall, unless otherwise agreed to by the Agent and the Required Lenders,
have an expiration date occurring no later than one (1) year after the date of
issuance thereof, and in no event occurring later than the Business Day next
preceding the Revolving Credit Expiration Date; (iii) each Letter of Credit
shall be denominated in U.S. dollars; and (iv) no Letter of Credit shall be
issued by the Agent after it has received a notice in writing from the Required
Lenders or the Borrower that one or more of the conditions specified in Section
5.02 hereof are not then satisfied.
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(b) EXISTING LETTER OF CREDIT. ANNEX II hereto contains a
description of all letters of credit issued pursuant to the Existing Credit
Agreement and outstanding on the Closing Date. Each such letter of credit,
including any extension or renewal thereof (each, as amended from time to time
in accordance with the terms thereof, an "EXISTING LETTER OF CREDIT") shall
constitute a "LETTER OF CREDIT" for purposes of calculating the Availability
generally and the availability under the Letter of Credit Sublimit set forth
hereunder. The Borrowers shall not permit to occur any extensions or renewals of
any Existing Letters of Credit without the prior written consent of the Agent
and the Lenders. Furthermore, the Borrowers shall endeavor in good faith to
cause each Existing Letter of credit to be returned by the beneficiaries
thereunder for cancellation as soon as practicable, and cause a Letter of Credit
to be issued hereunder as a replacement for such Existing Letter of Credit.
(c) APPLICABILITY OF ISP98. Unless otherwise expressly agreed by
the Agent and the applicable Borrower when a Letter of Credit is issued, (i) the
rules of the "INTERNATIONAL STANDBY PRACTICES 1998" published by the Institute
of International Bank Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
2.10 LETTER OF CREDIT REQUESTS. Whenever a Borrower desires that a
Letter of Credit be issued for its account, it shall give the Agent at least
five (5) Business Days' notice (or such lesser number of days as may be agreed
to by the Agent and the Required Lenders). Each notice shall be executed by a
Borrower and shall be in the form of EXHIBIT D hereto (each a "LETTER OF CREDIT
REQUEST"). The Agent shall promptly transmit copies of each Letter of Credit
Request to each Lender. Each Letter of Credit Request shall be accompanied by a
completed and executed "LETTER OF CREDIT APPLICATION" (or an amendment to any
then effective application) in the form furnished by the Agent to the Borrowers
from time to time. The terms of each such application are incorporated herein to
the extent not inconsistent herewith.
2.11 LETTER OF CREDIT PARTICIPATIONS.
(a) PARTICIPATIONS. Immediately upon the issuance by the Agent of
any Letter of Credit, the Agent shall be deemed to have sold and transferred to
each other Lender (each such other Lender, in such capacity under this Section
2.11, a "L/C PARTICIPANT"), and each such L/C Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the Agent,
without recourse or warranty, an undivided interest and risk and income
participation (each a "L/C PARTICIPATION"), to the extent of such L/C
Participant's Pro Rata Share, in such Letter of Credit, each substitute letter
of credit, each drawing made thereunder and the obligations of the Borrower
under this Agreement with respect thereto, and any security thereof or guaranty
pertaining thereto (although the L/C Participants shall have no right to receive
any portion of any Letter of Credit Processing Fees). Upon any change in the
Commitments of the Lenders pursuant to Section 11.08 hereof, it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the L/C Participations pursuant to
this Section 2.11 to reflect the new Pro Rata Shares of the assignor and
assignee Lender.
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(b) AGENT'S OBLIGATIONS. In determining whether to pay under any
Letter of Credit, the Agent shall have no obligation relative to the L/C
Participants or the Borrower other than to confirm that any documents required
to be delivered under such Letter of Credit have been delivered and that they
appear to comply on their face with the requirements of such Letter of Credit.
Any action taken or omitted to be taken by the Agent under or in connection with
any Letter of Credit issued by it, if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for the Agent any resulting
liability.
(c) PAYMENTS UPON DRAWING. In the event that the Agent makes any
payment under any Letter of Credit issued by it and the Borrowers shall not have
reimbursed such amount in full to the Agent pursuant to Section 2.10(a), the
Agent shall promptly notify each L/C Participant of such failure, and each L/C
Participant shall promptly and unconditionally pay to the Agent the amount of
such L/C Participant's Pro Rata Share of such unreimbursed payment in
immediately available funds. If the Agent so notifies, prior to 11:00 a.m.
(prevailing New York Time) on any Business Day, any L/C Participant required to
fund a payment under a Letter of Credit, shall make available to the Agent such
L/C Participant's Pro Rata Share of the amount of such payment on such Business
Day in same day funds. If and to the extent such L/C Participant shall not have
so made its Pro Rata Share of the amount of such payment available to the Agent,
such L/C Participant agrees to pay to the Agent, forthwith on demand, such
amount, together with interest thereon for each day from such date until the
date such amount is paid to the Agent at the Federal Funds Rate. The failure of
any L/C Participant to make available to the Agent its Pro Rata Share of any
payment under any Letter of Credit shall not relieve any other L/C Participant
of its obligation hereunder to make available to the Agent its Pro Rata Share of
any payment under any Letter of Credit on the date required, as specified above,
but no L/C Participant shall be responsible for the failure of any other L/C
Participant to make available to the Agent such other L/C Participant's Pro Rata
Share of any such payment.
(d) L/C PARTICIPANTS' DUTIES ABSOLUTE. The obligations of the L/C
Participants to make payments to the Agent with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense
or any other qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which a Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be
acting), the Agent, any Lender, or other Person, whether in
connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or any other document presented under
the 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Credit Documents;
(v) the occurrence of any Default or Event of Default; or
(vi) the failure of any condition precedent set forth in Section
5.02 hereof to have been satisfied at the time of the issuance
of any Letter of Credit unless the Agent shall have received a
notice in writing to such effect from such Lender hereof prior
to the issuance of such Letter of Credit.
2.12 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.
(a) BORROWER'S OBLIGATION TO PAY DRAWINGS. The Borrowers hereby
agree to reimburse the Agent, by making payment to the Agent in immediately
available funds, for any payment or disbursement made by the Agent under any
Letter of Credit issued by it (each such amount so paid until reimbursed, an
"UNPAID DRAWING") immediately after, and in any event on the date of, notice
given by the Agent to the Borrowers of such payment (which notice the Agent
hereby agrees to give promptly after the making of any payment or disbursement
under a Letter of Credit), with interest on the amount so paid or disbursed by
the Agent, to the extent not reimbursed prior to 1:00 p.m. (prevailing New York
Time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date the Agent is reimbursed therefor, at
a rate per annum which shall be the Prime Rate as in effect from time to time
(plus an additional 200 basis points (2.00%) PER ANNUM, if not reimbursed by the
second (2nd) Business Day following any such notice of payment or disbursement),
such interest to be payable on demand.
(b) BORROWER'S OBLIGATIONS ABSOLUTE. The joint and several
obligations of the Borrowers under this Section 2.12 to reimburse the Agent with
respect to Unpaid Drawings (including, in each case, interest thereon) issued by
it shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which any
Borrower or any other Person may have or have had against the Agent or any
Lender, including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit (each a "DRAWING") to conform to the terms of
the Letter of Credit or any non-application or misapplication by the beneficiary
of the proceeds of such Drawing; PROVIDED, that no Borrower shall be obligated
to reimburse the Agent for any wrongful payment made by the Agent under a Letter
of Credit as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of the Agent.
2.13 INDEMNIFICATION; NATURE OF AGENT'S DUTIES.
(a) INDEMNIFICATION GENERALLY. Each Borrower hereby agrees to
protect, indemnify, pay and save the Agent harmless from and against any and all
claims, demands,
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liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Agent may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit or (ii) the
failure of the Agent to honor a Drawing under a Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all such actions or
omissions, herein called "GOVERNMENT ACTS").
(b) ALLOCATION OF RISK. As between each Borrower and the Agent,
each Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Agent shall not be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application for
and issuance of any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) for the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may prove to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of a Letter of Credit to comply fully with conditions required in order to draw
upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in order
to make a Drawing under a Letter of Credit or of the proceeds thereof; and (vii)
for any consequences arising from causes beyond the control of the Agent,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of any of the Agent's rights or powers
hereunder.
(c) SCOPE OF AGENT'S DUTIES. In furtherance and extension and not
in limitation of the specific provisions hereinabove set forth, any action taken
or omitted by the Agent under or in connection with any Letter of Credit or the
related drawing certificates, if taken or omitted in good faith, shall not put
the Agent under any resulting liability to any Borrower. The Agent shall not, in
any way, be liable for any failure by it or anyone else to pay any Drawing under
any Letter of Credit as a result of any Government Acts or any other cause
beyond the control of the Agent.
(d) NO LIMITATION AS TO REIMBURSEMENT. Nothing in this Section
2.13 is intended to limit the reimbursement obligation of the Borrowers
contained in Section 2.12 hereof. The obligations of the Borrowers under this
Section 2.13 shall survive the termination of this Agreement. No act or
omissions of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Agent to enforce any right, power or
benefit under this Agreement.
(e) LIMITATION OF INDEMNIFICATION. Notwithstanding anything to the
contrary contained in this Section 2.13, (i) no Borrower shall have any
obligation to indemnify the Agent in respect of any liability incurred by the
Agent arising solely out of the gross negligence or willful misconduct of the
Agent, as determined by a court of competent jurisdiction and (ii) the Borrowers
shall have a claim against the Agent and the Agent shall be liable to the
Borrowers to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by
22
the Borrowers which the Borrowers prove were caused by (x) the Agent's willful
misconduct or gross negligence in determining whether the documents presented
under a Letter of Credit complied with the terms of such Letter of Credit or (y)
the Agent's willful or grossly negligent failure to pay under a Letter of Credit
after presentation to it of a drawing certificate and any other documents
strictly complying with the terms and conditions of such Letter of Credit.
2.14 INCREASED COSTS; ILLEGALITY; CAPITAL ADEQUACY; FUNDING LOSSES.
(a) INCREASED COSTS AND ILLEGALITY. In the event that (x) in the
case of clause (i) below, the Agent, and (y) in the case of clauses (ii) and
(iii) below, any Lender, shall have determined (which determination in either
case shall, absent manifest error, be final and conclusive and binding upon all
parties hereto):
(i) on any date for determining the LIBOR Market Index Rate
or the LIBOR Rate for any Interest Period that, by
reason of any changes arising on or after the date of
this Agreement affecting the relevant capital market,
(x) adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis
provided for in the definition of LIBOR Market Index
Rate or the LIBOR Rate or (y) such means will not
adequately and fairly reflect the cost to the Lenders
of funding LIBOR Loans for the relevant Interest
Periods; or
(ii) at any time, that such Lender shall incur increased
costs or reductions in the amounts received or
receivable hereunder with respect to any LIBOR Loans
because of (x) any change since the date of this
Agreement in any applicable law, governmental rule,
regulation, guideline or order (or in the
interpretation or administration thereof and including
the introduction of any new law or governmental rule,
regulation, guideline or order) (such as, for example,
but not limited to, in the case of a LIBOR Loan, a
change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D
to the extent included in the computation of the LIBOR
Rate) and/or (y) other circumstances affecting the
relevant capital market; or
(iii) at any time, that the making or continuance of any
LIBOR Loan has become unlawful by compliance by such
Lender in good faith with any law, governmental rule,
regulation, guideline or order (or would conflict with
any such governmental rule, regulation, guideline or
order not having the force of law even though the
failure to comply therewith would not be unlawful), or
has become impracticable as a result of a contingency
occurring after the date of this Agreement which
materially and adversely affects the relevant capital
market;
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then, and in any such event, the Lender so affected (or the Agent, in the case
of clause (i) above) shall on such date give notice to the Borrowers (and the
other Lenders and/or the Agent, as the case may be) of such determination.
Thereafter (x) in the case of clause (i) above, LIBOR Loans shall no longer be
available until such time as the Agent notifies the Borrowers and the Lenders
that the circumstances giving rise to such notice by the Agent no longer exist,
and any Notice of Borrowing delivered pursuant to Section 2.03(a) hereof or
notice of conversion or continuance delivered pursuant to Section 2.08 hereof
with respect to a LIBOR Loan shall be deemed rescinded by the Borrowers, (y) in
the case of clause (ii) above, the Borrowers shall pay to such Lender, upon
written demand therefor, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
receivable hereunder (a written notice as to the additional amounts owed to such
Lender, showing in reasonable detail the basis for the calculation thereof,
submitted to the Borrowers by such Lender shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) and (z) in the case of
clause (iii) above, LIBOR Loans shall no longer be available until such time as
such Lender notifies the Borrowers that the circumstances giving rise to such
notice no longer exist, any Notice of Borrowing delivered pursuant to Section
2.03(a) hereof or notice of conversion or continuance delivered pursuant to
Section 2.08 hereof with respect to LIBOR Loans shall be deemed rescinded by the
Borrowers, and any LIBOR Loans that are then outstanding shall be automatically
converted to Base Rate Loans; PROVIDED, HOWEVER that if such Lender, in its sole
discretion, determines that such circumstances can only be alleviated by
repayment of such Loans, then, within thirty (30) days, the Borrowers shall
repay in full such Loans, together with accrued but unpaid interest thereon.
(b) CAPITAL ADEQUACY. If after the date hereof, the adoption of
any applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by a Lender or its
parent with any request or directive made or adopted after the date hereof
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's or its parent's capital or assets
as a consequence of such Lender's commitments or obligations hereunder to a
level below that which such Lender or its parent could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's or its parent's policies with respect to capital adequacy), then
from time to time, upon demand, the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or its parent for
such reduction. Such Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 2.14, will give prompt written
notice thereof to the Borrowers, which notice shall set forth in reasonable
detail the basis of the calculation of such additional amounts, although the
failure to give any such notice shall not release or diminish any of the
obligations of the Borrower to pay additional amounts pursuant to this Section
2.14 upon receipt of such notice.
(c) FUNDING LOSSES. The Borrowers shall compensate each Lender,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and costs, including,
without limitation, any loss, expense or cost
24
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its LIBOR Loans (all such losses "FUNDING
LOSSES") which such Lender may sustain: (x) if for any reason an advance or
continuance of, or conversion from or into, LIBOR Loans does not occur on a date
specified therefor in a Notice of Borrowing or notice of conversion or
continuance given pursuant to Section 2.08(a) or (b) hereof, as the case may be,
(whether or not withdrawn by a Borrower or deemed withdrawn pursuant to Section
2.14(a) hereof); (y) if any repayment (including any prepayment made pursuant to
Section 4.01 or 4.02 hereof) or conversion of any of its LIBOR Loans occurs on a
date which is not the last day of an Interest Period with respect thereto; or
(z) as a consequence of (i) any other default by the Borrowers to repay the
Loans when required by the terms of this Agreement or any Note held by such
Lender or (ii) any prepayment or conversion made pursuant to Section 2.14(a)
hereof. The amount of compensation available to any Lender pursuant to this
Section 2.14(c) hereof shall be determined based on the assumption that such
Lender has funded the entire amount of the relevant LIBOR Loan through match
funding obtained in the London interbank market, but shall be limited to an
amount not to exceed the amount of interest that would have accrued on the
relevant LIBOR Loan through the end of the relevant Interest Period.
2.15 COMPUTATION. Interest and any fees or compensation based upon
a PER ANNUM rate shall be calculated on the basis of a 360 day year for the
actual number of days elapsed.
2.16 SECURITY. The Obligations shall be secured by a perfected
first priority security interest (subject only to Permitted Liens) in and to the
Collateral, whether now owned or hereafter acquired, pursuant to the terms of
the Security Agreement.
2.17 INCREASE OF THE COMMITMENTS AND MAXIMUM AVAILABLE REVOLVING
CREDIT AMOUNT.
(a) REQUESTS FOR INCREASE GENERALLY. Provided that at the time of
request contemplated in this Section 2.17 there does not exist an Event of
Default or Default, the Borrowers may request an increase in the Maximum
Available Revolving Credit Amount and a concomitant increase of the Commitments
in an amount not less than $5,000,000 or greater than $10,000,000 in the
aggregate by written notice to the Agent and the Lenders requesting each
Lender's proportional increase, and the Lenders agree to respond to the said
request for an increase within ten (10) calendar days following receipt of same;
PROVIDED, HOWEVER, that the failure of any Lender to respond within such time
period shall not in any manner constitute an agreement by such Lender to said
increase of its Pro Rata Share of its Commitment. If all Lenders elect to
increase the Maximum Available Revolving Credit Amount and their Commitments as
proposed above, each Lender's Commitment shall increase proportionately based on
its Pro Rata Share of said increase, and this Agreement and the relevant Notes
shall be amended to reflect such increases, all at the cost and expense of the
Borrowers. If one or more Lenders decline to so increase their Commitment or do
not respond to said request within the time period set forth above, the
provisions of Section 2.17(b) hereof shall apply.
(b) ADDITIONAL INCREASE PROVISIONS. In the event that one or more
Lenders do not agree to the increase of the Maximum Available Revolving Credit
Amount and its
25
concomitant Pro Rata Share thereof pursuant to Section 2.17(a) hereof or do not
respond to Borrowers' request for an increase within the time required under
Section 2.17(a) (each a "NON-INCREASING LENDER"), then the Lenders which have
agreed to such increase within the time required under Section 2.17(a) (the
"INCREASING BANKS") may elect to increase their Commitments proportionately up
to the amounts of the Commitments that would have otherwise been assumed by the
Non-Increasing Lender. Any amount of the Commitments not assumed by the
Increasing Lenders pursuant to the immediately preceding sentence is referred to
as the "ADDITIONAL COMMITMENTS". Should there exist any Additional Commitments
not assumed by the Increasing Lenders, then the Agent and the Borrowers may
arrange to have one or more other lenders (each a "NEW INCREASING LENDER") to be
included as a Lender hereunder with respect to the Additional Commitments and
all other rights, interests and obligations of a Lender under this Agreement and
the other Credit Documents. Any such assumption shall be (1) pursuant to an
assumption agreement substantially similar to an Assignment and Assumption
Agreement, (2) subject to and in accordance with this Section 2.17, and (3)
effective on the last day of the Interest Period of any then outstanding LIBOR
Loans. Upon the effectiveness of the increase in the Commitments by the
Increasing Lenders or the New Increasing Lenders, as the case may be, pursuant
to this Section 2.17(b), (i) this Agreement and the relevant Notes shall be
amended and/or restated to reflect the reduction and/or increase of each
Lender's Pro Rata Share of the Commitments contemplated in this Section 2.17(b)
(as determined by the Agent), (ii) the Borrowers will issue new Notes to any New
Increasing Lender to evidence the Borrowers' obligations with respect to such
New Increasing Lender's Commitment, and (iii) each New Increasing Lender shall
be deemed to be a Lender for all purposes of this Agreement and the other Credit
Documents, all at the cost and expense of the Borrowers.
(c) NO AMENDMENT FEE. Any modification to this Credit Agreement or
any other Credit Document incidental to compliance with this Section 2.17 shall
not require payment of the amendment fee specified in Section 3.05 hereof.
SECTION 3. FEES.
3.01 UNUSED FEE. The Borrowers shall pay to the Agent for the
ratable account of the Lenders based on their respective Pro Rata Shares,
quarterly in arrears, an unused fee for the period from and including the
Closing Date until the Revolving Credit Expiration Date, computed at a rate
equal to the Applicable Margin (expressed as a percentage) of the average daily
amount of the Availability. Such fee shall be payable commencing on June 30,
2002 (for the period commencing on the Closing Date and ending on said June 30,
2002), and continuing quarterly on the last Business Day of each March, June,
September and December occurring thereafter.
3.02 LETTER OF CREDIT FEE. The Borrowers shall pay to the Agent for
the ratable account of the Lenders based on their respective Pro Rata Share
annually in arrears, a letter of credit fee computed at a rate equal to the
Applicable Margin for LIBOR Loans (expressed as a percentage) of the average
Stated Amount of any Letter of Credit outstanding during the relevant
calculation period. Such fee shall be payable commencing on the Closing Date
(for the period commencing on the Closing Date and ending on March 25, 2003),
and continuing annually on each anniversary of the Closing Date occurring
thereafter.
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3.03 LETTER OF CREDIT PROCESSING FEE. The Borrowers shall pay to
the Agent for its sole account, upon each issuance of, drawing under, and/or
amendment of, a Letter of Credit, such amounts as shall at the time of such
issuance, drawing or amendment be the administrative charge which the Agent
customarily charges for such issuances of, drawings under or amendments of,
letters of credit issued by it ("LETTER OF CREDIT PROCESSING FEES").
3.04 AGENT'S FEES. In consideration of the services to be rendered
by the Agent hereunder, the Borrowers shall pay the Agent the agency fees set
forth in a separate fee letter furnished by the Agent to the Borrowers dated
February 8, 2002.
3.05 AMENDMENT FEE. Upon execution and delivery of any
amendment to this Agreement or any other Credit Document pursuant to Section
11.06 hereof, the Borrowers shall pay to the Agent for the ratable account of
the Lenders based on their respective Pro Rata Shares, an amendment fee of not
less than $15,000.
SECTION 4. PREPAYMENTS AND PAYMENTS GENERALLY.
4.01 VOLUNTARY PREPAYMENTS. The Borrowers may prepay any Loan, in
whole or in part, without premium or penalty (except as provided in Section
2.14(c) hereof with respect to LIBOR Loans) upon at least three (3) Business
Days' irrevocable notice to each Lender (or one (1) Business Day's irrevocable
notice in the case of a prepayment of a Base Rate Loan), specifying (i) the date
and the amount of the prepayment (which shall be a Business Day) and (ii)
whether such prepayment is in respect of LIBOR Loans, Base Rate Loans or a
combination thereof; PROVIDED, that any such prepayment shall include all
accrued but unpaid interest in respect of the Loans being prepaid. The principal
portion of any partial prepayment shall be in an amount equal to $500,000 or any
whole multiple.
4.02 MANDATORY PREPAYMENTS. Immediately upon the sum of (A) the
Revolving Credit Obligations and (B) the Swingline Obligations exceeding the
Maximum Available Credit Amount, the Borrowers shall make, or cause to be made,
a mandatory prepayment of the Revolving Credit Obligations and/or the Swingline
Obligations in an amount equal to such excess, together with accrued but unpaid
interest thereon. Without limiting the foregoing, immediately upon the Letter of
Credit Outstandings exceeding the Letter of Credit Sublimit, the Borrower shall
make, or cause to be made, payment to the Agent in the amount of such excess to
be held as cash collateral (on terms and conditions established by the Agent and
reasonably acceptable to the Borrowers) to secure such Letter of Credit
Outstandings in excess of the Letter of Credit Sublimit. Provided that no
Default or Event of Default has occurred and is then continuing, such cash
collateral shall be released by the Agent (on behalf of the Lenders) if and when
the Letter of Credit Outstandings have been reduced to an amount equal to or
less than the Letter of Credit Sublimit then in effect.
4.03 APPLICATION OF MANDATORY PREPAYMENTS. Any prepayment received
pursuant to Section 4.02 hereof shall be applied FIRST to reduce the Swingline
Obligations (if any) and SECOND to reduce the Revolving Credit Obligations, and
within this clause second, FIRST to reduce amounts owing in respect of any Base
Rate Loans and SECOND to reduce amounts owing
27
in respect of any LIBOR Loans (PROVIDED that, if there is more than one
outstanding LIBOR Loan, then amounts owing in respect of the LIBOR Loans with
the Interest Period ending on the date that is the least number of days from the
date of such prepayment shall be reduced first before reduction of amounts owing
in respect of other LIBOR Loans). Within the order of priority set forth above,
the amount of any prepayment received hereunder shall be applied to the Loans
FIRST to reduce amounts owing in respect of accrued but unpaid interest on the
Loans being prepaid and SECOND to reduce amounts owing in respect of outstanding
principal of such loans. If by operation of the provisions set forth above or
any other reason, payment of principal in respect of a LIBOR Loan is received
(from any source) on a date other than the last day of the Interest Period
pertaining to such Loan, including, without limitation, due to acceleration of
said amount following the occurrence of an Event of Default, then the Borrowers
shall pay to each Lender an additional amount equal to the applicable Funding
Losses. Such Funding Losses shall be payable on demand by such affected Lender.
4.04 GENERAL PROVISIONS AS TO PAYMENTS. The Borrowers shall make
each payment of principal of, and interest on, the Loans and of fees due
hereunder, not later than 2:00 p.m. (prevailing New York Time) on the date when
due, in immediately available funds to the Agent at its Payment Office. Provided
that the Agent receives such payments by such time, the Agent will distribute to
each Lender on the same day its Pro Rata Share of each such payment received by
the Agent.
4.05 NET PAYMENTS. All payments made by any Borrower hereunder
shall be made without setoff or counterclaim. All such payments shall be made
free and clear of and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature, now or hereafter imposed by any jurisdiction or by any
department, agency, state or other political subdivision or taxing authority
thereof or therein (but excluding any tax imposed on or measured by the net
income of a Lender pursuant to the laws of the jurisdiction in which the
principal office or Payment Office of such Lender is located or under the laws
of any political subdivision or taxing authority of any such jurisdiction in
which the principal office or Payment Office of such Lender is located) and all
interest, penalties, or similar liabilities with respect thereto (collectively,
"TAXES"). If any Taxes are so levied or imposed, each Borrower agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every net payment of amounts due hereunder, after withholding or deduction
for or on account of any Taxes, will not be less than the amounts provided for
herein. The Borrowers shall furnish to the Agent, within thirty (30) days after
the date the payment of any Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by the Borrowers. Each Borrower
shall indemnify and hold harmless each Lender and reimburse each Lender upon the
written request of such Lender setting forth the basis for requesting such
amount, for the amount of any Taxes so levied or imposed and paid by such
Lender.
In addition, each Borrower agrees to pay and indemnify and hold
harmless each Lender from and against any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made by the Borrowers or the Agent hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Credit Document.
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4.06 DEBITING OF ACCOUNT. If so requested by the Agent, each
Borrower shall maintain a demand deposit account (a "DDA ACCOUNT") at the
Payment Office of the Agent, and the Agent may, and each Borrower hereby
authorizes the Agent to, debit any such DDA Account or such other account and/or
certificate of deposit maintained by each Borrower with the Agent for the amount
of any payment, as and when such payment becomes due hereunder, whether such
payment is for accrued interest, principal or expense or otherwise, even if
debiting any such account or certificate of deposit results in a loss or
reduction of interest to each Borrower or the imposition of a penalty applicable
to the early withdrawal of time deposits. Such authorization shall not affect
the Obligation of each Borrower to pay when due all amounts payable hereunder,
whether or not there are sufficient funds in any accounts of any Borrower. The
foregoing rights of the Agent to debit any DDA Account shall be in addition to,
and not in limitation of, any rights of set-off which the Agent or any Lender
may have hereunder or under any Credit Document. Nothing in this Section 4.06 or
otherwise in this Agreement shall be interpreted to obligate the Agent to so
debit, or set-off against, any account of any Borrower maintained with the Agent
to satisfy any of the Obligations of each Borrower, such right to so debit
and/or set-off to be exercised by the Agent in its sole and absolute discretion.
SECTION 5. CONDITIONS.
5.01 DOCUMENTS REQUIRED FOR INITIAL ADVANCE. The obligation of each
Lender to make the initial advances under the Revolving Credit Facility
requested on the Closing Date is subject to the satisfaction of all of the
following conditions precedent:
(a) CERTAIN DOCUMENTS. The Agent shall have received on or before
the Closing Date all of the following, each in form and substance satisfactory
to each of the Lenders and in such quantities as the Agent shall reasonably
request:
(i) the following Credit Documents, each duly executed and
delivered by the parties thereto:
(A) this Agreement;
(B) a Revolving Credit Note for each Lender;
(C) a Swingline Note for the Swingline Lender; and
(D) the Security Agreement.
(ii) a Notice of Borrowing requesting the initial advance hereunder
in an amount at least sufficient to pay in full the loans
outstanding under the Existing Credit Agreement;
(iii) pre-closing UCC, lien search report and tax lien and judgment
search reports with respect to each Borrower, in all
appropriate jurisdictions, in each case indicating no Liens
other than Permitted Liens;
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(iv) an incumbency certificate of an appropriate officer of each
Borrower certifying, as of the Closing Date, the names, titles
and true signatures of the officers certified to execute the
Credit Documents, and the names, titles and true signatures of
such officers of such Borrower authorized to deliver Notices
of Borrowing and Letter of Credit Requests on behalf of such
Borrower;
(v) a favorable
New Jersey and Delaware law opinion of counsel to
the Borrowers addressed to the Agent and the Lenders in the
form furnished by the Agent;
(vi) a secretary's certificate for each Borrower to which are
attached certified copies of organizational documents of each
Borrower, together with appropriate resolutions authorizing
the transactions herein contemplated;
(vii) a certificate from the chief financial officer of TRC dated
the Closing Date to the effect that as of such date (i) no
Default or Event of Default has occurred or is continuing,
(ii) since the Balance Sheet Date, there has been no material
adverse change in the business, financial condition or
operations of any Borrower and (iii) each of the
representations and warranties of any Borrower contained in
this Agreement are true in all material respects;
(viii) good standing certificates issued by the appropriate official
of the state in which each Borrower is incorporated or
otherwise formed; and
(ix) such other documents as the Lenders may reasonably require,
including, without limitation, other agreements, instruments,
or indentures to which any Obligor is a party, including,
without limitation, financing statements, proofs, opinions,
guaranties and other written assurances.
(b) EXISTING CREDIT AGREEMENT. The Agent shall have received
evidence satisfactory to it that (i) all amounts outstanding under the Existing
Credit Agreement have been paid in full (or shall be paid in full upon the
funding of the initial advances hereunder), (ii) all commitments under the
Existing Credit Agreement have been irrevocably terminated, and (iii) all Liens
securing any of the Indebtedness arising under the Existing Credit Agreement
have been terminated (or are authorized to be terminated by the Borrowers or the
Agent upon the payment contemplated in clause (1) above) and are of no further
force and effect.
(c) SPECIFIED PREFERRED STOCK. The Agent and the Lenders shall
have received and approved the terms of the Specified Preferred Stock and each
and every agreement related thereto.
(d) FEES AND EXPENSES. The Borrowers shall have paid (or otherwise
satisfied as determined by the Agent and the Lenders) to the Agent and/or the
Lenders, as the
30
case may be, all fees and expenses hereunder that are due and payable on or
prior to the Closing Date, including, without limitation, fees and expenses
incurred by the Agent and Lenders related to the preparation, negotiation and
closing of the transaction contemplated herein that have been requested by such
parties pursuant to invoices submitted to the Borrower on or prior to the
Closing Date.
(e) ADMINISTRATIVE REPLY FORM. Each Lender shall have furnished to
the Agent such Lender's Administrative Reply Form, with all necessary items
completed and accompanied by all required attachments.
5.02 REQUIREMENTS FOR ANY ADVANCE AND ISSUANCE OF LETTER OF CREDIT.
The obligation of the Lenders to make any Revolving Credit Loans or Swingline
Loans and the obligation of the Agent to issue any Letter of Credit, in each
case subsequent to the Closing Date, is subject to satisfaction of the following
conditions:
(i) the representations and warranties contained in Section 6
hereof are true and correct on and as of the date of funding
of each such Loan or date of issuance of such Letter of
Credit, as the case may be;
(ii) no Default or Event of Default has occurred and is continuing;
(iii) there has been no material adverse change in the Borrower's or
any other Obligor's condition, financial or otherwise, since
the Closing Date; and
(iv) all of the Credit Documents remain in full force and effect.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement, each
Borrower represents and warrants with respect to itself and, to the extent
applicable, each of its Subsidiaries, and agrees that each such representation
and warranty shall be deemed to be restated at the time of funding of each Loan
and at the time of issuance of each Letter of Credit, that:
6.01 ORGANIZATION; AUTHORITY. Each Borrower is duly organized,
validly existing and in good standing under the laws of the state of its
organization, is duly qualified and is in good standing under the laws of each
jurisdiction in which it is required to be qualified because of the business it
conducts or the property it owns, and has the necessary power and authority to
enter into and perform its obligations under the Credit Documents. The execution
and performance of the Credit Documents have been duly authorized by all
necessary and appropriate proceedings on the part of each Borrower, and, upon
their execution and delivery, they will be valid, binding, and enforceable in
accordance with their terms; the execution and performance of the Credit
Documents will not violate any orders, laws or regulations applicable to any
such Borrower, any of their respective organizational documents, or any
instruments, indentures or agreements (including any provisions pertaining to
subordinated debt) to which they are a party or by which any such Borrower or
any of their respective properties are bound;
31
and all consents, approvals, licenses, franchises, patents, trademarks and other
general intangibles required in connection with this Agreement, the other Credit
Documents or the operation of any such Borrower's business have been obtained
and are in full force and effect. Each Subsidiary of each Borrower is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization and is duly qualified and is in good standing
under the laws of each jurisdiction in which it is required to be qualified
because of the business it conducts or the property it owns.
6.02 USE OF PROCEEDS; MARGIN REGULATION. The proceeds of the
Revolving Credit Loans shall be used only for the following purposes: (i) to
repay all amounts outstanding under the Existing Credit Agreement, (ii) to
finance the consideration payable in connection with acquisitions permitted
pursuant to Section 8.04 hereof; or (iii) in connection with the Borrower's
other working capital needs. The Letters of Credit shall be used solely to
support Permitted L/C Obligations. No Borrower is engaged in the business of
extending credit for the purpose of buying or carrying "margin stock" (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System). Neither the making of any Loan, the issuance of any Letter of
Credit, nor the use of the proceeds thereof, will violate or be inconsistent
with the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
6.03 SPECIFIC FINANCIAL STATEMENTS.
(a) There has been furnished to the Agent and each Lender a
consolidated balance sheet of the Borrowers and their Subsidiaries dated the
Balance Sheet Date, and a consolidated statement of operations for the fiscal
year then ended, certified by the Borrowers' independent certified public
accountants. Such balance sheet and statement of operations have been prepared
in accordance with GAAP and fairly present the financial condition of the
Borrowers as at the close of business on the date thereof and the results of
operations for the period then ended. There are no contingent liabilities of the
Borrowers or any of their Subsidiaries as of such date involving material
amounts, known to the officers of any of the Borrowers not disclosed in said
balance sheet and the related notes thereto.
(b) The Borrowers (both before and after giving effect to the
transactions contemplated by this Agreement) are solvent, have assets having a
fair value in excess of the amount required to pay their probable liabilities on
their existing debts as they become absolute and matured, and have, and will
have, access to adequate capital for the conduct of their business and the
ability to pay their debts from time to time incurred in connection therewith as
such debts mature.
(c) Since the Balance Sheet Date, there have occurred no material
adverse changes in the financial condition or business of the Borrowers and
their Subsidiaries as shown on or reflected in the consolidated balance sheet of
the Borrowers and their Subsidiaries as at the Balance Sheet Date, or the
consolidated statement of operations for the fiscal year then ended other than
changes in the ordinary course of business which have not had any material
adverse effect on the business or financial condition of the Borrowers or their
Subsidiaries considered as a whole. Since the Balance Sheet Date, there has not
been any Distribution by any of the Borrowers.
32
6.04 LITIGATION. Except as set forth on ANNEX I hereto, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against any of the Borrowers or any of their Subsidiaries before any
court, tribunal or administrative agency or board which, if adversely
determined, might, either in any case or in the aggregate, materially adversely
affect the properties, assets, financial condition or business of the Borrowers
and their Subsidiaries, considered as a whole, or materially impair the right of
the Borrowers and their Subsidiaries, considered as a whole, to carry on
business substantially as now conducted, or result in any substantial liability
not adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheets of the Borrowers, or which
question the validity of any of the Credit Documents, or any action taken or to
be taken pursuant hereto or thereto.
6.05 NO MATERIALLY ADVERSE CONTRACTS, ETC. None of the Borrowers
nor any of their Subsidiaries is subject to any charter, partnership agreement,
operating agreement, or corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which in the judgment of the Borrowers'
officers has or is expected in the future to have a materially adverse effect on
the business, assets or financial condition of the Borrowers and their
Subsidiaries as a whole. None of the Borrowers nor any of their Subsidiaries is
a party to any contract or agreement which in the reasonable judgment of the
Borrowers' officers has or is expected to have any materially adverse effect on
the business of the Borrowers and their Subsidiaries as a whole, except as
otherwise reflected in adequate reserves.
6.06 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrowers nor any of their Subsidiaries is in violation of any provision of
their charter documents or bylaws or any agreement or instrument by which any of
them may be subject or by which any of them or any of their properties may be
bound or any decree, order, judgment, or any statute, license, rule or
regulation, in a manner which could result in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or business of any of the Borrowers or any of their Subsidiaries considered as a
whole.
6.07 ERISA. Each Plan is in substantial compliance with ERISA and
the applicable provisions of the Code and there does not exist with respect to
any such Plan an "accumulated funding deficiency" (as such term is defined in
ERISA). No material liability to the PBGC has been incurred by any Borrower with
respect to any such Plan and no "REPORTABLE EVENT" under ERISA has occurred.
None of the Borrowers nor any of their Subsidiaries has actual or anticipated
liability under Section 4971 of the Code (relating to tax on failure to meet the
minimum funding standard of Section 412 of the Code) with respect to any
Multiemployer Plan. No proceedings have been instituted to terminate any Plan
and no condition exists which presents a material risk to any Borrower or any of
their Subsidiaries of incurring a liability to or on account of any Plan
pursuant to the provisions of ERISA or the applicable provisions of the Code.
6.08 TAX STATUS. The Borrowers and their Subsidiaries have made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them are subject
(unless and only to the extent that such Borrower or
33
such Subsidiary has set aside on its books provisions reasonably adequate for
the payment of all unpaid and unreported taxes); and have paid all taxes and
other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith; and have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Borrowers and their Subsidiaries know
of no basis for any such claim.
6.09 COMPLIANCE WITH STATUTES, ETC. Each of the Borrowers and their
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including, without limitation, applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), EXCEPT such noncompliances as would not, in the aggregate, have a
material adverse effect on the business, operations, property, assets or
financial condition of the Borrowers or their Subsidiaries taken as a whole.
6.10 NO AUTHORIZATIONS OR APPROVALS. No authorization or approval
or other action by, and no notice to, or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and performance
by any Borrower of this Agreement and the other Credit Documents OTHER than such
authorizations that have been obtain prior to the Closing Date and continue to
be in full force and effect.
6.11 HOLDING COMPANY AND INVESTMENT COMPANY ACTS. None of the
Borrowers nor any of their Subsidiaries is a "holding company", or an
"affiliate" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935; nor are any of them a "registered
investment company", or an "affiliated company" or a "principal underwriter" of
a "registered investment company", as such terms are defined in the Investment
Act of 1940, as amended.
6.12 SUBSIDIARIES. SCHEDULE I hereto lists each Subsidiary of each
Borrower (and the direct or indirect ownership interest of such Borrower
therein), in each case existing on the Closing Date. None of the Borrowers nor
any of their Subsidiaries has any interests in any Person other than as set
forth in said Schedule I. No such Subsidiary has any Subsidiaries.
6.13 INTELLECTUAL PROPERTY, ETC. Each of the Borrowers and each of
their Subsidiaries have obtained all material patents, trademarks, servicemarks,
trade names, copyrights, technology, processes, licenses and other rights
("INTELLECTUAL PROPERTY"), free from any burdensome restrictions, that are
necessary for the operation of their respective businesses as presently
conducted and as proposed to be conducted. No claim has been asserted or
threatened questioning the use of such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim.
6.14 LABOR MATTERS. Except as disclosed on ANNEX I, none of the
Borrowers nor any of their Subsidiaries is a party to a labor contract. There
are no strikes,
34
lockouts or other disputes relating to any collective bargaining or similar
agreement to which a Borrower or any of its Subsidiaries is a party.
6.15 ASSETS AND PROPERTIES. Each of the Borrowers and each of their
Subsidiaries have good and marketable title to all of their respective assets
and properties (tangible and intangible) and all such assets and properties are
free and clear of all Liens (except Permitted Liens). Substantially all of the
assets and properties owned by, leased to or used by each Borrower or its
Subsidiaries are in adequate operating condition and repair, ordinary wear and
tear excepted, are free and clear of any known defects EXCEPT such defects as do
not substantially increase with the continued use thereof in the conduct of
normal operation, and such assets are able to serve the function for which they
are currently being used, EXCEPT in each case where the failure of such asset or
property to meet such requirements would not have or is not expected to have a
material adverse effect on the operations of the Borrowers or their
Subsidiaries, taken as a whole.
6.16 INSURANCE. ANNEX I hereto lists all material insurance
contracts and binders of each Borrower and its Subsidiaries which are currently
in full force and effect. Such contracts and binders provide coverages which are
usual and customary in the business of such Borrower and its Subsidiaries as to
amount and scope. If requested by the Agent, each such insurance contract and
binder shall contain standard lender's endorsement and loss payee endorsements
in favor of the Agent, on behalf of the Lenders, and be subject to cancellation
or reduction in coverage only upon thirty (30) days' prior written notice
thereof to the Agent.
6.17 TRUE AND COMPLETE DISCLOSURE. All factual information (taken
as a whole) heretofore or contemporaneously furnished by any Borrower to the
Agent or any of the Lenders for the purposes of or in connection with this
Agreement or any transactions contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Persons in writing to any Lender will be, true and accurate in all material
respects on the date as of which such information is dated or certified and does
not omit to state any fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided.
6.18 ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, which purports to cover,
affect or give notice of any present or possible future lien on, or security
interest in, any assets or property of any of the Borrowers or any of their
Subsidiaries or rights thereunder.
6.19 PERFECTION OF SECURITY INTEREST. All filings, assignments,
pledges and deposits of documents or instruments required to be made by the
Borrowers hereunder have been made and all other actions have been taken
required to be taken by the Borrowers hereunder to establish and perfect the
Agent's security interest in the Collateral for the ratable benefit of the
Lenders. The Collateral and the Agent's rights with respect to the Collateral
are not subject to any setoff, claims, withholdings or other defenses. The
Borrowers are the owners of the
35
Collateral free from any lien, security interest, encumbrance and any other
claim or demand, except for Permitted Liens.
6.20 CERTAIN TRANSACTIONS. Except as may be disclosed in the
Borrowers' proxy statements, none of the officers, directors, or employees of
the Borrowers nor their Subsidiaries is presently a party to any transaction
with any other Borrower or Subsidiary (other than for services as employees,
officers and directors), including, without limitation, any contract, agreement
or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of any of the Borrowers, any corporation, partnership, trust or other
entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner.
6.21 ENVIRONMENTAL COMPLIANCE. The Borrowers have taken all
necessary steps to investigate the past and present condition and usage of their
and their Subsidiaries' properties and the operations conducted thereon and,
based upon such diligent investigation, have determined that,
(a) ANNEX I hereto fully and fairly describe each of the Exit
Strategy Projects in which a Borrower is currently engaged.
(b) Except as set forth on ANNEX I hereto or otherwise in
connection with an Exit Strategy Project permitted pursuant to Section 8.13
hereof, none of the Borrowers, their Subsidiaries or any operator of their
properties is in violation, or alleged violation, of any judgment, decree,
order, law, license, rule or regulation pertaining to environmental matters,
including without limitation, those arising under the Resource Conservation and
Recovery Act ("RCRA"), the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any state or local statute,
regulation, ordinance, order or decree relating to health, safety or the
environment (hereinafter "ENVIRONMENTAL LAWS"), which violation would have a
material adverse effect on the environment or the business, assets or financial
condition of the Borrowers on a consolidated basis.
(c) Except as set forth on ANNEX I hereto or otherwise in
connection with an Exit Strategy Project permitted pursuant to Section 8.13
hereof, neither the Borrowers nor their Subsidiaries has received notice from
any third party including, without limitation: any federal, state or local
governmental authority, (i) that any one of them has been identified by the
United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any hazardous
waste, as defined by 42 U.S.C. Section 6903(5), any hazardous substances as
defined by 42 U.S.C. Section 9601(14), any pollutant or contaminant as defined
by 42 U.S.C. Section 9601(33) and any toxic substance, oil or hazardous
materials or other chemicals or substances regulated by any Environmental Laws
("HAZARDOUS SUBSTANCES") which any one of them has generated, transported or
disposed of has been found at any site at which a federal, state or local agency
or other third party has conducted or has ordered that any
36
Borrower or any of their Subsidiaries conduct a remedial investigation, removal
or other response action pursuant to any Environmental Law; or (iii) that it is
or shall be a named party to any claim, action, cause of action, complaint,
legal or administrative proceeding arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances.
(d) Except as set forth on ANNEX I hereto or otherwise in
connection with an Exit Strategy Project permitted pursuant to Section 8.13
hereof: (i) no portion of any Borrower's or any of their Subsidiaries'
properties has been used by any Borrower or any Subsidiaries of any Borrower for
the handling, processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on such
properties; (ii) in the course of any activities conducted by any of the
Borrowers, their Subsidiaries or operators of their properties, no Hazardous
Substances have been generated or are being used on such properties except in
accordance with applicable Environmental Laws; (iii) there have been no
unpermitted releases (i.e. any past or present releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping) or threatened releases of Hazardous Substances on, upon,
into or from the properties of any of the Borrowers or any of their
Subsidiaries, which releases would have a material adverse effect on the value
of such properties or adjacent properties or the environment; and (iv) in
addition, any Hazardous Substances that have been generated on the properties of
the Borrowers or any of their Subsidiaries, have been transported offsite only
by carriers having an identification number issued by the EPA, treated or
disposed of only by treatment or disposal facilities maintaining valid permits
as required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of the Borrowers' knowledge, operating
in compliance with such permits and applicable Environmental Laws.
(e) Except as set forth on ANNEX I hereto or otherwise in
connection with an Exit Strategy Project permitted pursuant to Section 8.13
hereof, none of the properties of the Borrowers or any of their Subsidiaries are
or shall be subject to any applicable environmental clean up responsibility law
or environmental restrictive transfer law or regulation, by virtue of the
transactions set forth herein and contemplated hereby.
(f) Except as set forth on ANNEX I hereto or otherwise in
connection with an Exit Strategy Project permitted pursuant to Section 8.13
hereof, the Borrowers further represent that they have provided the Agent with
true and complete copies of all documents, reports, site assessments, data,
communication and other materials in any of their possession or to which they
have access, which contain information with respect to potential environmental
liabilities of the Borrowers or their Subsidiaries related to compliance with
Environmental Laws.
SECTION 7. AFFIRMATIVE COVENANTS.
For so long as there are any outstanding Obligations hereunder, or the
Lenders shall have any obligation hereunder, the Borrowers agree as follows:
37
7.01 RECORDS AND ACCOUNTS. Each of the Borrowers will keep, and
will cause each of its Subsidiaries to keep, true and accurate records and books
of account in which full, true and correct entries will be made in accordance
with GAAP and with the requirements of all regulatory authorities and maintain
adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, all other contingencies, and all other proper
reserves.
7.02 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrowers will deliver to the Agent and each Lender:
(a) as soon as practicable, but, in any event not later than
ninety (90) days after the end of each fiscal year of the Borrowers, the
consolidated balance sheet of the Borrowers as at the end of such year,
statements of cash flows, and the related consolidated statement of operations,
each setting forth in comparative form the figures for the previous fiscal year,
all such consolidated statements to be in reasonable detail, prepared in
accordance with GAAP, and certified without qualification by Price Waterhouse
LLP or by other independent nationally recognized certified public accountants,
together with a written statement from such accountants to the effect that they
have read a copy of this Agreement, and that, in making the examination
necessary to said certification, they have obtained no knowledge of any Default
or Event of Default, or, if such accountants shall have obtained knowledge of
any then existing Default or Event of Default they shall disclose in such
statement any such Default or Event of Default; provided, that such accountants
shall not be liable to the Agent or any Lender for failure to obtain knowledge
of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than fifty
(50) days after the end of each fiscal quarter of each fiscal year of the
Borrowers, copies of the unaudited consolidated and consolidating balance sheet
and statement of operations of the Borrowers as at the end of such quarter,
subject to year end audit adjustments, and consolidated statement of cash flows,
all in reasonable detail and prepared in accordance with GAAP, together with a
certification by the principal financial or accounting officer of TRC that such
financial statements have been prepared in accordance with GAAP and fairly
present the financial condition of the Borrowers as at the close of business on
the date thereof and the results of operations for the period then ended;
(c) within twenty (20) days after the end of each calendar month,
an accounts receivable aging summary report in a form reasonably acceptable to
the Agent;
(d) no later than April 15th and October 15th of each fiscal year
of the Borrowers, the annual forecasts or projections of the Borrowers for the
current fiscal year (including the projected consolidated and consolidating
balance sheets for the end of such fiscal year);
(e) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature filed with the SEC (including, without
limitation, TRC's form 10-K, form 10-Q and each form 8-K (or , in each case, any
comparable successor form promulgated by the SEC)) or sent to the stockholders
of each Borrower; and
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(f) such other material information regarding the business,
operations and prospects of the Borrowers (financial or otherwise) as the Agent
or any Lender may reasonably request.
7.03 COMPLIANCE CERTIFICATES. Furnish to the Agent and the Lenders,
together with each set of financial statements described in clauses (a) and (b)
of Section 7.03 hereof, a compliance certificate, substantially in the form of
EXHIBIT E hereto, signed by TRC's chief financial officer, certifying that: (i)
the financial statements delivered with such certificate are true and correct,
and conform in all respects to the requirements of Section 7.03(a) or 7.03(b)
hereof, as the case may be, (ii) all representations and warranties set forth in
this Agreement and in any other Credit Document are true and correct as of the
date thereof in all material respects; (iii) none of the covenants in this
Agreement or in any other Credit Document has been breached; (iv) no Default or
Event of Default under this Agreement or under any other Credit Document has
occurred and is continuing; and (v) the computation of the financial covenants
set forth in Sections 8.07, 8.08, 8.09 and 8.10 hereof, together with the
calculation of each significant component thereof necessary to determine
compliance with such covenants, and its determination of the Applicable Margins
based on such computations.
7.04 EXISTENCE AND CONDUCT OF BUSINESS. Each Borrower and its
Subsidiaries will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights and franchises; effect and
maintain its foreign qualifications, licensing, domestication or authorization
except as terminated by its board of directors (or similar governing body) in
the exercise of its reasonable judgment; use its best efforts to comply with all
applicable laws; and shall not become obligated under any contract or binding
arrangement which, at the time it was entered into would materially adversely
impair the financial condition of the Borrowers, on a consolidated basis. Each
Borrower will, and will cause each of its Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses.
7.05 MAINTENANCE OF PROPERTIES. Each Borrower will cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of such Borrower
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 7.05 or in Section 7.04 hereof shall prevent any
Borrower from discontinuing the operation and maintenance of any of its
properties or those of its Subsidiaries if such discontinuance is, in the
reasonable judgment of such Borrower, desirable in the conduct of its or their
business and which do not in the aggregate materially adversely affect the
business of the Borrowers and their Subsidiaries on a consolidated basis.
7.06 INSURANCE. The Borrowers will maintain, and cause their
Subsidiaries to maintain, with financially sound and reputable insurance
companies, funds or underwriters insurance of the kinds, covering the risks and
in the relative proportionate amounts usually
39
carried by reasonable and prudent companies conducting businesses similar to
that of the Borrowers, including, to the extent it is commercially available,
feasible, and reasonably priced environmental impairment insurance.
7.07 TAXES. Each Borrower will and will cause each of its
Subsidiaries to duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges (other than taxes, assessments and other governmental
charges imposed by foreign jurisdictions which in the aggregate are not material
to the business or assets of any Borrower on an individual basis or of the
Borrowers and their Subsidiaries on a consolidated basis) imposed upon it and
its real properties, sales and activities, or any part thereof, or upon the
income or profits therefrom, as well as all claims for labor, materials, or
supplies, which if unpaid might by law become a lien or charge upon any of its
property; PROVIDED, HOWEVER, that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if such Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided, further, that such Borrower and such Subsidiary will pay
all such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien which may have attached as
security therefor.
7.08 INSPECTION OF PROPERTIES, BOOKS, AND CONTRACTS. The Borrowers
shall permit the Agent or any Lender or any of their designated representatives,
to visit and inspect any of the properties of the Borrowers or any of their
Subsidiaries, to examine the books of account of the Borrowers and their
Subsidiaries and contracts under which any of the Borrowers performs services
(and to make copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Borrowers and their Subsidiaries with, and to be
advised as to the same by, their officers, all at such reasonable times and
intervals as the Agent or a Lender may reasonably request.
7.09 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND PERMITS. Each
Borrower will and will cause each of its Subsidiaries to comply with (i) the
provisions of its charter documents and by-laws and all agreements and
instruments by which it or any of its properties may be bound; and (ii) all
applicable laws and regulations (including Environmental Laws), decrees, orders
and judgments ("APPLICABLE LAWS") except where noncompliance with such
Applicable Laws would not have a material adverse effect in the aggregate on the
financial condition, properties or business of any Borrower or any Subsidiary.
If at any time while any of the Obligations are outstanding or the Agent or any
Lender has any obligation to make Loans or to issue Letters of Credit hereunder,
any authorization, consent, approval, permit or license from any officer, agency
or instrumentality of any government shall become necessary or required in order
that any Borrower may fulfill any of its obligations hereunder, such Borrower
will immediately take or cause to be taken all reasonable steps within the power
of such Borrower to obtain such authorization, consent, approval, permit or
license and furnish the Agent and each Lender with evidence thereof.
7.10 PENSION PLANS. Each Borrower and each Subsidiary shall:
(a) fund each Plan as required by Section 412 of the Code of 1954;
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(b) furnish to the Agent and each Lender a copy of any actuarial
statement related to any plan required to be submitted under Section 103(d) of
ERISA, no later than the date on which such statement is submitted to the
Department of Labor or the Internal Revenue Service;
(c) furnish to the Agent and each Lender forthwith, a copy of (i)
any notice of a Plan termination sent to the PBGC under Section 4041(a) of ERISA
or (ii) any notice, report or demand sent or received by a pension plan under
Sections 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA; and
(d) furnish to the Agent and each Lender a copy of any request for
waiver from the funding standards or extension of the amortization periods
required by Section 412 of the Code no later than the date on which the request
is submitted to the Department of Labor or the Internal Revenue Service, as the
case may be.
7.11 FURTHER ASSURANCES. The Borrowers will cooperate with the
Agent and each Lender and execute such further instruments and documents as the
shall reasonably request to carry out to the satisfaction of the Agent and the
Lenders the transactions contemplated by this Agreement.
7.12 NOTICE OF POTENTIAL CLAIMS OR LITIGATION. Each of the
Borrowers shall deliver to the Agent and each Lender, within thirty (30) days of
receipt thereof, written notice of any pending action, claim, complaint, or any
other notice of dispute or potential litigation (including without limitation
any alleged violation of any Environmental Law), wherein the potential liability
is unspecified or in excess of $1,000,000, together with a copy of each such
notice received by any Borrower or its Subsidiary.
7.13 OTHER NOTICES.
(a) The Borrowers will promptly notify the Agent and each Lender
in writing of (i) the change in status of any inactive Subsidiary listed on
SCHEDULE I hereto, or (ii) the occurrence of any Default or Event of Default. If
any person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under this
Agreement or any other note, evidence of indebtedness, indenture or other
obligation as to which any Borrower or any of their Subsidiaries is a party or
obligor, whether as principal or surety, the Borrowers shall forthwith give
written notice thereof to the Agent and each Lender, describing the notice of
action and the nature of the claimed default.
(b) The Borrowers will promptly notify the Agent and each Lender
in writing of (i) any contract or other agreement pertaining to an Exit Strategy
Project (with a copy of such contract attached); (ii) any contract or agreement
having a value or liability to a Borrower in excess of $5,000,000; and (iii) any
"so called" ▇▇▇▇▇▇▇▇▇▇ projects (i.e., the purchase of contaminated real estate
by a Borrower and remediation thereof for resale). In connection with such
notice, the Borrowers shall provide the Agent and each Lender with information
on such matters as may be reasonably requested by the Agent or any Lender from
time to time.
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7.14 NEW BORROWERS. Any newly-created Subsidiaries (other than
Immaterial Subsidiaries) of any Borrower shall become a Borrower hereunder by
signing the Notes (or allonges thereto), entering into a joinder to this
Agreement with the other parties hereto providing that such Subsidiary shall
become a Borrower hereunder, entering into a joinder to the Security Agreement
to become a party hereto, and providing such other documentation as the Agent or
any Lender may reasonably request including, without limitation, documentation
with respect to conditions noted in 5.01(a) hereof. In such event, the Agent is
hereby authorized by the parties to amend SCHEDULE I hereto to include such
Subsidiary as a Borrower hereunder. If at any time the Required Lenders
determine that an Immaterial Subsidiary no longer qualifies as such based on the
criteria set forth in the definition of Immaterial Subsidiary set forth herein,
then such former Immaterial Subsidiary shall be deemed to be a Subsidiary for
all purposes hereunder and under the Credit Documents and the Borrower shall
cause any such Subsidiary to comply with this Section 7.14. The foregoing
notwithstanding, the modifications to the Credit Documents incidental to
compliance with this Section 7.14 shall not be subject to the amendment fee
specified in Section 3.05 hereof.
7.15 DEPOSIT RELATIONSHIPS. Each Borrower shall maintain its
primary operating, depositary and cash management accounts with the Agent.
SECTION 8. NEGATIVE COVENANTS.
For so long as any Obligations are outstanding, or the Lenders shall
have any obligation hereunder, the Borrowers agree as follows:
8.01 RESTRICTIONS ON INDEBTEDNESS. The Borrowers will not, and will
not permit any Subsidiary to, create, incur, assume, guarantee or be or remain
liable, contingently or otherwise, with respect to any Indebtedness OTHER than:
(a) Indebtedness to the Agent or any Lender arising under this
Agreement or the other Credit Documents;
(b) Existing Indebtedness as listed on ANNEX I hereto, on the
terms and conditions in effect as of the date hereof;
(c) Current liabilities of the Borrowers incurred in the ordinary
course of business not incurred through (i) the borrowing of money, or (ii) the
obtaining of credit except for credit on an open account basis customarily
extended and in fact extended in connection with normal purchases of goods and
services;
(d) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of Section 7.07 hereof and Indebtedness secured by liens of
carriers, warehousemen, mechanics and materialmen permitted by Section 8.02(e)
hereof;
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(e) Indebtedness in respect of judgments or awards which have been
in force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which such Borrower shall at
the time in good faith be prosecuting an appeal or proceedings for review and in
respect of which a stay of execution shall have been obtained pending such
appeal or review and in respect of which the Borrowers have maintained adequate
reserves; and Indebtedness in respect of a final judgment against any Borrower
which is undischarged, unsatisfied and unstayed and which, with other
outstanding final judgments, undischarged against the Borrowers does not exceed
$1,000,000 in aggregate amount; and
(f) Other Indebtedness, not to exceed $5,000,000 in the aggregate,
incurred after the date hereof (including existing Indebtedness of any
Subsidiaries of the Borrowers acquired after the date hereof), through the
borrowing of money or the obtaining of credit, incurred in connection with the
lease or acquisition of property or fixed assets useful or intended to be used
in carrying on the business of the Borrowers and their Subsidiaries.
8.02 RESTRICTIONS ON LIENS. No Borrower will, nor will any Borrower
permit any Subsidiary to, create or incur or suffer to be created or incurred or
to exist any Lien upon any of its property or assets of any character (other
than upon any margin stock, as defined in Regulation U of the Board of Governors
of the Federal Reserve System, owned by any Borrower or any Subsidiary arising
in connection with Investments permitted pursuant to clauses (h) and (i) of
Section 8.03 hereof), whether now owned or hereafter acquired, or upon the
income or profits therefrom; or transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; or acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; or suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it which if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; or sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles or chattel paper,
with or without recourse, EXCEPT:
(a) To the extent permitted under Section 8.01(f) hereof, Liens
securing the Indebtedness incurred in connection with the acquisition of
property or assets useful or intended to be used in carrying on the business of
the Borrowers or the acquiring Subsidiary, PROVIDED that such Liens shall
encumber only the property or assets so acquired and do not exceed the fair
market value thereof;
(b) Liens to secure taxes, assessments and other government
charges or claims for labor, material or supplies in respect of obligations not
overdue;
(c) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(d) Liens in respect of judgments or awards, the Indebtedness with
respect to which is permitted by Section 8.01(e) hereof;
43
(e) Liens of carriers, warehousemen, mechanics and materialmen,
and other like liens, in existence less than one hundred and twenty (120) days
from the date of creation thereof in respect of obligations not overdue;
(f) Encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which any Borrower or any Subsidiary is a party, and other minor liens or
encumbrances none of which in the reasonable opinion of the respective Borrower
or Borrowers interferes materially with the use of the property affected in the
ordinary conduct of the business of such Borrower and its Subsidiaries, which
defects do not individually or in the aggregate have a material adverse effect
on the business of such Borrower individually or of the Borrowers and their
Subsidiaries on a consolidated basis; and
(g) Liens securing the Obligations.
8.03 RESTRICTIONS ON INVESTMENTS. No Borrower will, nor will any
Borrower permit any Subsidiary to, make or permit to exist or to remain
outstanding any Investment EXCEPT the following:
(a) Marketable direct or guaranteed obligations of the United
States of America which mature within one (1) year from the date of purchase by
the Borrowers;
(b) Demand deposits, certificates of deposit, bankers'
acceptances, time deposits and variable rate demand obligations of any Lender or
any other commercial bank organized under the laws of the United States (or any
State thereof) having total assets in excess of $1,000,000,000 United States
Dollars;
(c) Securities commonly known as "COMMERCIAL PAPER" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof which at the time of purchase have been rated and
the ratings for which are less than "P-1" if rated by ▇▇▇▇▇'▇ Investors
Services, Inc. and less than "A-1" if rated by Standard and Poor's Ratings
Group, provided that such investments shall not exceed $2,000,000;
(d) Debt securities of corporations organized and existing under
the laws of the United States of America or any United States governmental
entities under which full payment of principal and interest is assured by a
letter of credit issued by commercial banks organized under the laws of the
United States (or any State thereof) so long as such bank has total assets in
excess of $1,000,000,000 in United States Dollars and which at the time of
purchase such debt is rated and the ratings for which are not less than "P-1" if
rated by ▇▇▇▇▇'▇ Investors Services, Inc. and not less than "A-1" if rated by
Standard and Poor's Ratings Group;
(e) (i) Securities commonly known as "MUNICIPAL SECURITIES" issued
by a municipality organized and existing under the laws of any State of the
United States of America which at the time of purchase have been rated and the
ratings for which are not less than "P-1" if rated by ▇▇▇▇▇'▇ Investors
Services, Inc., and not less than "A-1" if rated by Standard and Poor's
44
Ratings Group, and (ii) securities known as the ▇▇▇▇ Nuveen & Co. MuniPreferred
series of tax-exempt mutual funds, all of which funds have a triple-A rating by
Standard and Poor's Ratings Group and ▇▇▇▇▇'▇ Investor Services, Inc.;
(f) Trade payables, accrued payroll and vacation, and taxes
payable, all accrued in the ordinary course of business;
(g) Present and future Investments by the Borrowers in any Person
which is a Borrower listed on SCHEDULE 1 hereto;
(h) Other Investments in addition to the existing Investments
permitted in clause (i) below; PROVIDED that such other Investments shall not
exceed $4,000,000 (such amount determined on the basis of cost) at any one time
outstanding;
(i) Existing Investments listed on ANNEX I hereto; and
(j) Short term money market investments in money market loans or
portions of such loans sold by the Agent or any Lender; and
(k) Investment in acquisition permitted pursuant to Section 8.04
hereof referred to in clause (i) below.
8.04 MERGER, CONSOLIDATION, AND ACQUISITION. No Borrower will
become a party to any merger, consolidation, or acquisition EXCEPT (a) for the
merger or consolidation of a Borrower with another Borrower or (b) where (i)
such Borrower is the surviving corporation of a merger; (ii) such merger,
consolidation, or acquisition is of a Person in the environmental consulting,
engineering or related field; (iii) the Agent and each Lender has been provided
with a certificate demonstrating that the Borrowers are in current compliance
with and, after giving effect to the proposed acquisition (including any
borrowings made or to be made in connection therewith), will continue to be in
compliance with, all of the covenants in this Section 8; (iv) all of the assets
to be acquired shall be owned by an existing or newly created Subsidiary of TRC
that is a Borrower, or, in the case of a stock acquisition, the acquired company
shall become or shall be merge with a wholly-owned Subsidiary of TRC that is a
Borrower, and each newly created Subsidiary shall grant to the Agent (for the
benefit of the Lenders) a security interest in its assets that are of the same
type and character as the Collateral to secure its Obligations and shall
otherwise comply with the provisions of Section 7.14 hereof; (v) the required
majority of the board of directors (or comparable governing body) of the target
company incumbent at the time such acquisition, merger or consolidation is
proposed has acquiesced either voluntarily or by order of a court of competent
jurisdiction, or the transaction is otherwise deemed in the reasonable judgment
of the Required Lenders to be a "friendly" acquisition; (vi) the total
consideration for such merger, consolidation or acquisition (including cash and
assumed Indebtedness) shall not exceed $8,000,000 for any single merger,
consolidation or acquisition and an aggregate amount of $20,000,000 for all such
mergers, consolidations or acquisitions consummated in any period of twelve (12)
consecutive months without the prior written consent of the Required Lenders;
(vii) the Borrowers shall have delivered to the Agent and each Lender in form
and substance satisfactory to the Required Lenders, information on the
transaction to be
45
completed, including, without limitation, PRO FORMA covenant compliance
calculations, historical financial statements and due diligence summaries; and
PROVIDED FURTHER that both immediately before and after any such merger,
consolidation or acquisition, no Defaults or Events of Default shall have
occurred or be continuing; and (viii) there shall be no such merger,
consolidation or acquisition of any Person organized under the law of any
jurisdiction outside of the United States.
8.05 SALE AND LEASEBACK. None of the Borrowers will enter into any
arrangement, directly or indirectly, whereby any Borrower or any Subsidiary
shall sell or transfer any property owned by it in order then or thereafter to
lease such property or lease other property which any Borrower or any Subsidiary
intends to use for substantially the same purpose as the property being sold or
transferred.
8.06 SALES OF ASSETS. None of the Borrowers will, and no Borrower
will permit any Subsidiary to, sell or otherwise dispose of any of their
respective assets consisting of securities (other than any margin stock, as
defined in Regulation U of the Board of Governors of the Federal Reserve System,
held by any Borrower or any Subsidiary), real property or personal property,
including without limitation all or any part of any of any Borrower's operating
divisions (excluding sales of assets in the ordinary course of the business),
without the prior written approval of the Required Lenders, with the following
exceptions: (i) any Borrower may sell obsolete or worn-out property not used or
useful in its business and (ii) so long as no Default or Event of Default has
occurred and is continuing, the Borrowers may sell or otherwise dispose of
assets provided that the aggregate net book value (at the time of disposition
thereof and after giving effect to the contemplated disposition) of all such
assets shall not exceed [$1,000,000] during any fiscal year.
8.07 INTEREST COVERAGE RATIO. The Borrowers will not permit the
ratio of Consolidated EBITDA MINUS Capital Expenditures to Consolidated Total
Interest Expense to be less than 4.5:1 for any Test Period.
8.08 LEVERAGE RATIO. The Borrowers will not permit the Leverage
Ratio to be greater than 2.25:1 for any Test Period.
8.09 CURRENT ASSETS TO TOTAL LIABILITIES RATIO. The Borrowers will
not permit the ratio of Consolidated Current Assets to Consolidated Total
Liabilities to be less than 1.00 to 1.00 at all times prior to December 29,
2002, and 1.15 to 1.00, at all times thereafter, measured quarterly.
8.10 NET WORTH. The Borrowers will not permit Consolidated Net
Worth at any time to be less than (a) $105,000,000 PLUS (b) the sum of (i) 75%
of quarterly positive net income on a cumulative basis commencing with results
reported with respect to the fiscal quarter ending December 31, 2001 and (ii)
100% of the value of all property received by the Borrowers in exchange for the
issuance of new equity securities (or the sale of treasury shares) of any of the
Borrowers issued subsequent to December 31, 2001, measured quarterly.
46
8.11 RESTRICTIONS ON NEGATIVE PLEDGES. The Borrower will not enter
into any agreement (excluding this Credit Agreement and the other Credit
Documents) prohibiting the creation or assumption of any lien upon its
properties, revenues or assets, whether now owned or hereafter acquired.
8.12 DISTRIBUTIONS. None of the Borrowers will make any
Distributions on or in respect of its capital (including, without limitation,
the Specified Preferred Stock) of any nature whatsoever, OTHER than (i)
dividends payable solely in shares of common stock, (ii) cash dividends in
respect of the Specified Preferred Stock at the specified coupon rate so long as
any such cash dividend is approved in writing by the Required Lenders prior to
the distribution thereof and (iii) Distributions in the form of repurchases of
shares of its common stock so long as immediately prior, and after giving effect
to, any such repurchase, the Borrowers have demonstrated to the satisfaction of
the Required Lenders that the Borrowers shall remain in compliance with the
financial covenants set forth in Sections 8.07, 8.08, 8.09 and 8.10 on a PRO
FORMA basis.
8.13 EXIT STRATEGY PROJECTS. The Borrowers will not undertake, or
commit to undertake, any Exit Strategy Project unless (a) the Borrowers have
provided to the Agent and each Lender a written summary of the scope of such
Exit Strategy Project in form and substance satisfactory to the Required
Lenders, including a summary of the reimbursement mechanics and insurance for
such project, (b) the Borrowers have provided evidence satisfactory to the
Required Lenders that the risks to the Borrowers associated with such Exit
Strategy project are similar to and in any event do not exceed the risks
associated with the ▇▇▇▇▇ Project, (c) the Borrowers have provided the Agent and
each Lender with a schedule of all reserves taken against all Exit Strategy
Project contracts and agreement and an explanation for such reserves as well as
the Borrowers' expected resolution thereof, and (d) upon execution of such Exit
Strategy Project contract or agreement, the Borrowers will furnish to the Agent
and each Lender a copy of such Exit Strategy contract or agreement and the
associated insurance policies.
8.14 USE OF PROCEEDS. None of the Borrowers will use the proceeds
of the Loans, or the Letters of Credit for any purpose other than the purposes
set forth in Section 6.02 hereof.
8.15 CHANGE FISCAL YEAR. None of the Borrowers will change or
otherwise permit its fiscal year to end on any day other than June 30th.
8.16 REGARDING THE SPECIFIED PREFERRED STOCK. None of the Borrowers
will permit the redemption or call of the Specified Preferred Stock for cash at
any time prior to the Revolving Credit Expiration Date.
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.
9.01 EVENTS OF DEFAULT. Upon the occurrence of any of the following
events (each an EVENT OF DEFAULT):
47
(i) PAYMENT DEFAULT. The Borrowers shall (a) default in the
payment when due of any principal of the Loans or Unpaid
Drawings or (b) default in the payment of interest on the
Loans or any other amounts owing hereunder, under the Notes or
under any other Credit Document, and such default shall
continue for a period of five (5) or more days;
(ii) NEGATIVE COVENANT BREACH. Any Borrower (or any of its
Subsidiaries) shall default in the due performance or
observance by it of any term, covenant or agreement contained
in Section 8 hereof;
(iii) OTHER COVENANT BREACHES. Any Borrower (or any of its
Subsidiaries) shall default in the due performance or
observance of any term, covenant or agreement (other than
those referred to in clauses (i) and (ii) above) contained in
this Agreement, the Notes or any other Credit Document, and
such default shall continue unremedied for a period of at
least forty-five (45) days after the earlier to occur of (a)
the date any Borrower obtains actual knowledge of such default
or (b) the date notice of such default is given to the
Borrowers by the Agent;
(iv) DEFAULT UNDER OTHER AGREEMENTS. (a) Any Borrower or (any of
its Subsidiaries) shall default in any payment with respect to
any Indebtedness in an aggregate amount greater than
$1,000,000 beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was
created or default in the observance or performance of any
agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to
whether any notice or lapse of time is required), any such
Indebtedness to become due prior to its stated maturity or (b)
any such Indebtedness shall be declared to be due and payable,
or required to be prepaid as a mandatory prepayment, prior to
the stated maturity thereof;
(v) VOLUNTARY BANKRUPTCY. Any Borrower (or any of its
Subsidiaries) commences any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under the United
States Bankruptcy Code or under any similar foreign, federal,
state, or local statute, or any dissolution or liquidation
proceeding, or makes a general assignment for the benefit of
creditors, or takes any action for the purpose of effecting
any of the foregoing;
(vi) INVOLUNTARY BANKRUPTCY. Any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under the United
States Bankruptcy Code or under similar foreign, federal,
state or local statute, or
48
any dissolution or liquidation proceeding, is involuntarily
commenced against or in respect of any Borrower (or any of its
Subsidiaries) or an order for relief is entered in any such
proceeding and is not dismissed within sixty (60) days;
(vii) APPOINTMENT OF RECEIVER. The appointment, or the filing of a
petition seeking the appointment, of a custodian, receiver,
trustee, or liquidator for any Borrower (or any of its
Subsidiaries) or any of their respective properties or the
taking of possession of any part of such property at the
instance of any governmental authority;
(viii) INSOLVENCY. Any Borrower (or any of its Subsidiaries) becomes
insolvent (however defined), is generally not paying its debts
as they become due, or has suspended transaction of its usual
business;
(ix) REORGANIZATION. The dissolution, merger, consolidation, or
reorganization of any Borrower or any of its Subsidiary (other
than as expressly permitted under Section 7.05 or Section 8.04
hereof);
(x) ACTION IN FURTHERANCE OF CERTAIN DEFAULTS. Any Borrower (or
any of its Subsidiaries) has taken any corporate action for
the purpose of effecting any of the events described in
clauses (v), (vii) or (ix) above;
(xi) MATERIAL MISSTATEMENT. Any statement, representation or
warranty made by any Borrower in or pursuant to this Agreement
or any other Credit Document or to induce the Lenders to enter
into this Agreement or to enter into the transactions referred
to in this Agreement shall prove to be untrue or misleading in
any material respect;
(xii) ENTRY OF JUDGMENT. The entry or issuance of judgments, orders,
decrees or fines against any Borrower (or any of its
Subsidiaries) which, in the aggregate, involve liabilities in
excess of the sum of $1,000,000 (the discharge of which is not
the obligation of any insurance company) and any such
judgments or orders involving liabilities in excess of said
sum shall have continued unbonded or unsatisfied and without
stay of execution or agreement between the parties thereon for
a period of thirty (30) days after the entry or issuance of
such judgment, OTHER than judgments, orders or decrees
voluntarily entered into by a Borrower in connection with the
undertaking of an Exit Strategy Project permitted pursuant to
Section 8.13 hereof; or
(xiii) CHANGE OF CONTROL. The occurrence of a Change of Control or
any Borrower shall have become bound to any contract or
agreement or shall have commenced any corporate proceedings in
furtherance of a Change of Control, OTHER than a Change of
Control of an Immaterial Subsidiary as a
49
result of the sale of equity interests in such Immaterial
Subsidiary within the limits set forth in Section 8.06 hereof;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing the Agent shall, upon the written request of the
Required Lenders, by written notice to the Borrowers, take any or all of the
following actions, without prejudice to the rights of the Agent or any Lender to
enforce its claim against any Borrower, except as otherwise specifically
provided for in this Agreement (PROVIDED that, if an Event of Default specified
in clause (v), (vi), (vii) or (viii) above shall occur with respect to any
Borrower, the result which would occur upon the giving of written notice by the
Agent as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare all of the Commitments
terminated, whereupon the Commitment of each Lender shall forthwith terminate
immediately and any fees theretofore accrued shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of and
any accrued interest in respect of all Obligations to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower; (iii)
terminate any Letter of Credit which may be terminated in accordance with its
terms; and (iv) direct the Borrowers to pay (and each Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default as
specified in clause (v) (vi), (vii) or (viii) above, it will pay) to the Agent
such additional amounts of cash to be held as cash collateral for the
reimbursement obligations of the Borrowers for Drawings that may subsequently
occur under any Letter of Credit then outstanding, equal to the Stated Amount of
all such Letters of Credit.
Notwithstanding anything contained in the foregoing paragraph, if at
any time within sixty (60) days after an acceleration of the Loans pursuant to
the preceding paragraph, the Borrowers shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in the Credit Documents) and all Events
of Default (other than non-payment of the principal of and accrued interest on
the Loans, in each case which is due and payable solely by virtue of
acceleration) shall be remedied or waived to the satisfaction of the Required
Lenders, then the Required Lenders, by written notice to the Borrowers, shall
rescind and annul the acceleration and its consequences; but such action shall
not affect any subsequent Event of Default or impair any right consequent
thereon. The provisions of this paragraph are intended merely to bind the
Lenders to a decision which may be made at the election of the Lenders and are
not intended to benefit any Borrower and do not grant any. Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if the
conditions set forth herein are met. Without limiting the generality of the
remedies available to the Lenders pursuant to the Credit Documents or by law
following an Event of Default, the rate of interest on the principal portion of
the Obligations shall be increased to a rate equal to the Default Rate.
9.02 RIGHT OF SET-OFF. If any of the Obligations shall be due and
payable or any one or more Events of Default shall have occurred, whether or not
any Lender shall have made demand under any Credit Document and regardless of
the adequacy of any collateral or other form of security for the Obligations or
other means of obtaining repayment of the Obligations, each Lender shall have
the right, without notice to any Borrower or any other Obligor, and is
50
specifically authorized hereby to set-off against and apply to the then unpaid
balance of the Obligations any items or funds of any Borrower and/or any Obligor
held by each Lender or any Affiliate of such Lender, any and all deposits
(whether general or special, time or demand, matured or unmatured) or any other
property of any Borrower and/or any Obligor, including, without limitation,
securities and/or certificates of deposit, now or hereafter maintained by any
Borrower and/or any Obligor for its or their own account with any Lender or any
Affiliate thereof, and any other indebtedness at any time held or owing by the
Lender or any Affiliate to or for the credit or the account of any Borrower
and/or any Obligor, even if effecting such set-off results in a loss or
reduction of interest or the imposition of a penalty applicable to the early
withdrawal of time deposits. For such purpose, each Lender shall have, and each
Borrower hereby grants to each Lender, a first Lien on and security interest in
such deposits, property, funds and accounts and the proceeds thereof.
9.03 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans made by it in excess of its Pro
Rata Share of payments on account of the Loans obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them, PROVIDED, HOWEVER, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's Pro Rata Share
according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 9.03
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation. The foregoing shall in no way obligate any Lender to seek payment
in respect of the Obligations of such Borrower hereunder through such Lender's
right of set-off or otherwise at any time, or in any particular order relative
to such other rights or remedies such Lender may possess, in a manner that
prejudices or impairs (as determined in such Lender's sole discretion) any other
right or remedy such Lender may possess to enforce claims against any Borrower
in respect of Obligations of the Borrowers hereunder or such other Obligations
of any Borrower owed to such Lender.
9.04 TURNOVER OF PROPERTY HELD BY AFFILIATE. Each Borrower further
authorizes each Affiliate of any Lender, upon and following the occurrence of an
Event of Default, at the request of the Lender so affiliated, and without notice
to such Borrower, to turn over to such Lender any property of such Borrower,
including, without limitation, funds and securities, held by such Affiliate for
such Borrower's account and to debit, for the benefit of such Lender, any
deposit account maintained by such Borrower with such Affiliate (even if such
deposit account is not then due or there results a loss or reduction of interest
or the imposition of a penalty in accordance with law applicable to the early
withdrawal of time deposits), in the
51
amount requested by such Lender up to the amount of the Obligations, and to pay
or transfer such amount or property to such Lender for application to the
Obligations.
9.05 REMEDIES CUMULATIVE; NO WAIVER. The rights, powers and
remedies of the Agent and the Lenders provided in this Agreement and any of the
other Credit Documents are cumulative and not exclusive of any right, power or
remedy provided by law or equity. No failure or delay on the part of the Agent
or any of the Lenders in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise preclude
any other or further exercise thereof, or the exercise of any other right, power
or remedy.
SECTION 10. THE AGENT.
10.01 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints First Union National Bank as the Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes First Union National
Bank, as the Agent for such Lender, to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such duties
as are expressly delegated to the Agent by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against the Agent.
10.02 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys in-fact selected by it with reasonable care.
10.03 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Credit Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Borrower or any officer
thereof contained in this Agreement or any other Credit Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the Notes or any other Credit
Document or for any failure of any Borrower to perform its obligations hereunder
or thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the property, books or records of the Borrowers.
52
10.04 RELIANCE BY AGENT. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, or any other form of written,
electronic or telephonic message, statement, order or other document, or
conversation or communication believed by it in good faith to be genuine and
correct and to have been signed, sent, made or transmitted by a Responsible
Officer and upon advice and statements of legal counsel (including, without
limitation, counsel to any Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the Notes and the other
Credit Documents in accordance with a request of the Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes. Without limiting the
generality of the foregoing, no Lender shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refraining from acting
hereunder or under any other Credit Documents in accordance with the
instructions of the Lenders.
10.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default unless the Agent
has received notice from a Lender or any Borrower referring to this Agreement,
describing such Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give notice thereof to the Lenders. The Agent shall take such action with
respect to such Event of Default as shall be reasonably directed by the Lenders;
PROVIDED that unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default as it shall deem
advisable in the best interests of the Lenders.
10.06 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent taken, including any review of
the affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the Agent that it
has, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of each Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of each
53
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of each Borrower which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
10.07 INDEMNIFICATION. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
Pro Rata Shares from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement, any of the other Credit Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Agent under or in connection with any of
the foregoing; PROVIDED that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Agent's gross negligence or willful misconduct. If, however, the Agent shall
have been reimbursed by the Borrowers in respect of any amounts previously paid
to the Agent by the Lenders pursuant to this Section 10.07, then the Agent shall
pay to the Lenders their Pro Rata Shares of such duplicative reimbursement. The
agreements in this subsection shall survive the payment of the Notes and all
other amounts payable hereunder.
10.08 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Borrower as though the Agent were not the Agent hereunder and
under the other Credit Documents. With respect to its Loans made or renewed by
it and any Note issued to it, the Agent shall have the same rights and powers
under this Agreement and the other Credit Documents as any Lender and may
exercise the same as though it were not the Agent, and the terms LENDER and
LENDERS shall include the Agent in its individual capacity.
10.09 SUCCESSOR AGENT. The Agent may resign as Agent upon thirty
(30) days' notice to the Lenders. If the Agent shall resign as Agent under this
Agreement, then the Lenders shall appoint from among the Lenders a successor
agent for the Lenders, which successor agent shall be approved by the Borrower.
If a successor Agent shall not have been so appointed within said thirty (30)
day period, the Agent shall appoint from among the Lenders a successor agent for
the Lenders. Any such successor agent shall succeed to the rights, powers and
duties of the Agent, and the term AGENT shall mean such successor agent
effective upon its appointment, and the former Agent's rights, powers and duties
as Agent shall be terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement or any holders
of the Notes. After any retiring Agent's resignation as Agent, the provisions of
this Section 10 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Agent under this Agreement.
54
SECTION 11. MISCELLANEOUS.
11.01 NOTICE, ETC. All notices and other communications provided for
under this Agreement and under the other Loan Documents to which the Borrower is
a party shall be in writing (including facsimile transmission) and mailed or
transmitted or delivered as follows:
If to the Borrowers (or any of them) at: TRC Companies, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent at: First Union National Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Credit Products Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender at: In accordance with its Administrative Reply Form
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties complying as to delivery with the terms
of this Section 9.02. Except as is otherwise provided in this Agreement, all
such notices and communications shall be effective when deposited in the mails
or upon receipt of confirmation in the case of a facsimile, addressed as
aforesaid, except that notices to the Agent and the Lenders pursuant to the
provisions of Section 2 hereof shall not be effective until received by the
Agent and the Lenders.
Any notice required to be delivered to a Borrower, shall be deemed
given to each Borrower when so given to any Borrower in accordance with the
delivery instructions stated above. Any notice given by a Borrower hereunder
shall be deemed given by each Borrower, and the Agent and the Lenders are
entitled to rely on said notice of any Borrower as if communicated by, and
received from, each Borrower.
11.02 COSTS AND EXPENSES. Whether or not the transactions
contemplated by the Credit Documents are fully consummated, the Borrowers shall
promptly pay (or reimburse, as the Agent and/or any of the Lenders, as the case
may be, may elect) all costs and expenses which the Agent or the Lenders have
incurred or may hereafter incur in connection with the negotiation, preparation,
reproduction, interpretation, perfection, monitoring, administration and
enforcement of the Credit Documents, the collection of all amounts due under the
Credit Documents, and all amendments, modifications, consents or waivers, if
any, to the Credit Documents. Such costs and expenses shall include, without
limitation, the fees and disbursements of counsel to the Agent and/or any of the
Lenders, the costs of appraisals, costs of environmental studies, searches of
public records, costs of filing and recording documents with public offices,
internal and/or external audit and/or examination fees and costs, stamp, excise
and other taxes and costs and expenses incurred by the Agent or any of the
Lenders, and the fees of
55
the accountants, consultants or other professionals engaged by the Agent or the
Lenders in connection with the transactions contemplated in this Agreement and
the other Credit Documents. Without limiting the generality of the foregoing,
the Borrower shall reimburse the Agent for the costs and expenses of counsel to
the Agent, for services rendered in consideration with the preparation and
negotiation of the Credit Documents and matters related thereto. Such
reimbursement shall be payable on the Closing Date. The Borrower's reimbursement
obligations under this paragraph shall survive any termination of the Credit
Documents.
11.03 PAYMENT DUE ON A DAY OTHER THAN A BUSINESS DAY. If any payment
due or action to be taken under this Agreement or any other Credit Document
falls due or is required to be taken on a day that is not a Business Day, such
payment or action shall be made or taken on the next succeeding Business Day and
such extended time shall be included in the computation of interest.
11.04 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the substantive laws of the State of
New Jersey without
reference to conflict of laws principles.
11.05 COUNTERPARTS; INTEGRATION. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were on the same instrument. This
Agreement and the other Credit Documents constitute the sole agreement of the
parties with respect to the subject matter hereof and thereof and supersede all
oral negotiations and prior writings with respect to the subject matter hereof
and thereof.
11.06 AMENDMENT OR WAIVER. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Required Lenders; PROVIDED, that no such change,
waiver, discharge or termination shall, without the consent of each Lender, (i)
extend the final maturity of any Loan or Note, or any portion thereof, or reduce
the rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates)
thereon or fees payable hereunder or reduce the principal amount thereof, or
increase the Commitment of any Lender over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Commitment shall not constitute a change in the terms
of the Credit Commitment of any Lender), (ii) release all or substantially all
of collateral at such time securing the Obligations (except as expressly
provided in such instruments pertaining to such collateral), (iii) the release
of any guaranty at any time supporting the Obligations, (iv) amend, modify or
waive any provision of this Section, or Section 2.12, 2.13, 4.05, 9.01, 9.02,
9.03, 11.02, 11.08 or 11.11; (v) reduce any percentage specified in, or
otherwise modify, the definition of Required Lenders; (vi) alter or amend any
provision hereof expressly requiring the consent, satisfaction or acceptance of
all of the Lenders; or (vii) consent to the assignment or transfer by any
Borrower of any of its rights and obligations under this Agreement. No provision
of Section 10 hereof may be amended without the consent of the Agent. The
provisions of Sections 2.09, 2.10, 2.11, 2.12 and 2.13 shall not be amended or
modified in any way that adversely affects the Agent with respect to its
obligation to issue Letters of Credit, without the Agent's consent.
56
11.07 SUCCESSORS AND ASSIGNS. This Agreement (i) shall be binding
upon each Borrower, the Agent and the Lenders and their successors and permitted
assigns, and (ii) shall inure to the benefit of each Borrower, the Agent and the
Lenders and their respective successors and permitted assigns; PROVIDED,
HOWEVER, that no Borrower may assign its rights hereunder or any interest herein
without the prior written consent of the Lenders, and any such assignment or
attempted assignment by the Borrower shall be void and of no effect with respect
to the Lenders.
11.08 PARTICIPATIONS AND ASSIGNMENTS. Each Borrower hereby
acknowledges and agrees that each Lender may at any time: (I) grant
participations in all or any portion of its rights and obligations hereunder
(including, without limitation, its obligation to make advances hereunder in
accordance with its Commitment) or under its Revolving Credit Note
(collectively, "PARTICIPATIONS") to any other lending office or to any other
bank, lending institution or other entity which has the requisite sophistication
to evaluate the merits and risks of investments in Participations (each a
"PARTICIPANT"); PROVIDED, HOWEVER, that: (i) all amounts payable by the
Borrowers hereunder shall be determined as if such Lender had not granted such
Participation, and (ii) such Lender (A) shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provisions of this Agreement; and (B) shall not in any event be relieved
from its obligations to make advances hereunder in accordance with its
Commitment; PROVIDED, HOWEVER, that such Lender may agree with the Participant
that such Lender will not agree to any modification, amendment or waiver of this
Agreement without the consent of the Participant if such amendment, modification
or waiver would reduce the principal of or rate of interest on the Obligations
so participated or postpone the date fixed for any payment of principal of or
interest on such Obligations; and (II) assign up to one hundred percent (100%)
of its rights and obligations hereunder (including, without limitation, its
obligation to make advances hereunder in accordance with its Commitment) or
under its Revolving Credit Note; PROVIDED, HOWEVER, that, except with respect to
assignments between and among Lenders which are parties to this Agreement (as to
which the conditions in clauses (i) through (iii) below shall not be applicable)
prior to such assignment: (i) it has obtained the prior written consent of the
Agent (which consent shall not be unreasonably withheld) and has delivered to
the Agent and the Borrowers a duly completed and executed assignment and
assumption agreement in the form attached hereto as EXHIBIT F (as "ASSIGNMENT
AND ASSUMPTION AGREEMENT"); (ii) the amount assigned shall be an amount equal to
$5,000,000 or multiples of $1,000,000 in excess thereof; and (iii) such Lender
has paid to the Agent a transfer fee of $3,500. Notwithstanding anything in this
Section 11.08 to the contrary, each Lender may sell or assign, in whole or in
part, any or all of its interest in the Obligations (without the consent of any
Person or any other restriction) to (i) any Affiliate of such Lender, (ii) any
Federal Reserve Bank in connection with a pledge of said interest as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System, and (iii) any Person at any time after an Event of Default. The
holder of any sale, assignment or Participation permitted pursuant to this
Section 11.08, if the applicable agreement between the relevant Lender and such
holder so provides, (i) shall be entitled to all of the rights, obligations and
benefits of a Lender hereunder and (ii) shall be deemed to hold and may exercise
the rights of set-off or banker's lien with respect to any and all obligations
of such holder to the Borrower, in each case as fully as though the Borrowers
were directly indebted to such holder. Each Borrower authorizes each Lender to
57
provide information concerning such Borrower to any prospective purchaser,
assignee or participant. The information provided may include, but is not
limited to, amounts, terms, balances, payment history, and any financial or
other information about such Borrower. Each Borrower agrees to indemnify,
defend, and release any Lender that has so disclosed such information, and hold
such Lender harmless, at such Borrower's cost and expense, from and against any
and all lawsuits, claims, actions, proceedings, or suits against such Lender
arising out of or relating to such Lender's reporting or disclosure of such
information.
11.09 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder. In lieu of any illegal or unenforceable provision in this Agreement,
there shall be added automatically as a part of this Agreement a legal and
enforceable provision as similar in terms to such illegal or unenforceable
provision as may be possible.
11.10 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Each Borrower
irrevocably appoints each and every Responsible Officer (or higher ranking
officer) of the Borrower as its attorneys upon whom may be served, by regular or
certified mail at the address of TRC set forth in this Agreement, any notice,
process or pleading in any action or proceeding against it arising out of or in
connection with this Agreement or any of the other Credit Documents. Each
Borrower hereby consents that any action or proceeding against it may be
commenced and maintained in any court within the State of
New Jersey or in the
United States District Court for the District of
New Jersey by service of
process on any such officer. Each Borrower further agrees that such courts of
the State of
New Jersey and the United States District Court for the District of
New Jersey shall have jurisdiction with respect to the subject matter hereof and
the person of such Borrower and all collateral for the Obligations.
Notwithstanding the foregoing, each Borrower agrees that any action brought by a
Borrower (or all of them) shall be commenced and maintained only in a court in
the federal judicial district or county in which the Agent has its principal
place of business in
New Jersey.
11.11 CONFIDENTIALITY; PUBLICITY. The Agent and each Lender shall
hold, and shall cause its Participants and prospective Participants, if any, to
agree to hold, all non-public information obtained pursuant to the requirements
of any Credit Document which has been identified as such by the Borrowers in
accordance with its customary procedure for handling confidential information of
such nature and in accordance with safe and sound banking practices and in any
event may make disclosure reasonably required by any BONA FIDE assignee,
transferee or participant or as legally required or reasonably requested by any
governmental agency or representative thereof or pursuant to legal process. The
foregoing notwithstanding, the Borrowers acknowledge and agree that First Union
National Bank and the other Lenders may share with their respective Affiliates
(including, without limitation, First Union Securities, Inc.) any information
relating to the Facility and the Borrowers, but any such sharing of the
information shall be solely for purposes reasonably related to the transaction
contemplated herein. The Borrowers further acknowledge and agree to the
disclosure by First Union National Bank and the other Lenders of information
relating to the Facility to GOLD SHEETS and other
58
similar bank trade publications, with such information to consist of deal terms
and other information customarily found in such publications.
11.12 INDEMNIFICATION.
(a) Each Borrower agrees to indemnify the Agent and each Lender,
their respective Affiliates and each of their respective directors, officers,
agents and employees (each an Indemnitee) and hold each Indemnitee harmless from
and against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of this Agreement, the other Credit Documents or any actual or
proposed use of proceeds of Loans hereunder; PROVIDED that no Indemnitee shall
have the right to be indemnified hereunder (i) for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction or (ii) in the case where the dispute from which such claim for
indemnity arose has been adjudicated in a final non-appealable court order or
decision in a manner contradictory to such Indemnitee's claim.
(b) If, after receipt of any payment of all or any part of the
Obligations, any Lender is compelled or agrees, for settlement purposes, to
surrender such payment to any person or entity for any reason (including,
without limitation, a determination that such payment is void or voidable as a
preference or fraudulent conveyance, an impermissible set-off, or a diversion of
trust funds), then this Agreement and the other Credit Documents shall continue
in full force and effect, and the Borrower shall be liable for, and shall
indemnify, defend and hold harmless such Lender with respect to, the full amount
so surrendered.
(c) The provisions of this subsection shall survive the
termination of this Agreement and the other Credit Documents and shall be and
remain effective notwithstanding the payment of the Obligations, the release of
any security interest, lien or encumbrance securing the Obligations or any other
action which the Lenders may have taken in reliance upon their receipt of such
payment. Any action by the Lenders shall be deemed to have been conditioned upon
any payment of the Obligations having become final and irrevocable.
11.13 INCONSISTENCIES. The Credit Documents are intended to be
consistent. However, in the event of any inconsistencies between this Agreement
and any of the other Credit Documents, the terms of this Agreement shall govern,
but such inconsistency shall not otherwise affect the validity or enforceability
of such inconsistent Credit Document.
11.14 HEADINGS. The headings of sections and paragraphs and table of
contents have been included herein for convenience only and shall not be
considered in interpreting this Agreement.
11.15 EXHIBITS AND ANNEXES. The Exhibits and Annexes attached hereto
and the provisions thereof, are incorporated herein.
59
11.16 JUDICIAL PROCEEDING; WAIVERS.
(i) EACH PARTY TO THIS AGREEMENT AGREES THAT ANY SUIT, ACTION OR
PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR
INSTITUTED BY ANY PARTY HERETO OR ANY SUCCESSOR OR ASSIGN OF
ANY PARTY, ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OF THE
OTHER CREDIT DOCUMENTS OR THE DEALINGS OF THE PARTIES WITH
RESPECT HERETO, OR THERETO, SHALL BE TRIED ONLY BY A COURT AND
NOT BY A JURY. IN THE EVENT THAT THE FOREGOING WAIVER OF JURY
TRIAL BY THE BORROWER IS DETERMINED TO BE INVALID OR
UNENFORCEABLE AS A MATTER OF LAW, EACH BORROWER, THE AGENT AND
THE LENDERS AGREE THAT THE PROVISIONS OF ANNEX III TO THIS
AGREEMENT SHALL GOVERN AS TO THE MATTERS SET FORTH THEREIN.
(ii) EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION
OR PROCEEDING. FURTHER, EACH PARTY WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
(iii) EACH BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A
SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND THAT THE
LENDERS WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVERS
SET FORTH IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT.
60
11.17 JOINT AND SEVERAL LIABILITY. For the avoidance of doubt, each
Borrower hereby acknowledges that obligations of each Borrower hereunder are
joint and several entitling the Agent and the Lenders to enforce said
obligations against any Borrower or all of the Borrowers in the sole and
absolute discretion of the Agent or the Lenders, as the case may be. The
obligation of each Borrower hereunder, and under each other Credit Document, are
primary and independent obligations of such Borrower, and not the obligations of
a surety, guarantor, or endorsement or accommodation party. Notwithstanding the
foregoing, any claims, defenses, rights or procedure requirements that would
inure to the benefit of any Borrower as a surety, guarantor, or endorsement or
accommodation party with respect to the enforcement of such obligations are, to
the fullest extent permissible under applicable law, expressly waived and
released by each Borrower.
11.18 EXECUTION CERTIFICATION. Each Borrower hereby certifies that
this Agreement, each of the Notes and each of the other Loan Documents to which
it is a party were executed by each Borrower and delivered to the Agent in the
State of
New Jersey.
61
IN WITNESS WHEREOF, the Borrowers have caused this Agreement to be
duly executed and delivered by its officers duly authorized as of the date first
above written.
THE BORROWERS:
TRC COMPANIES, INC. TRC ENVIRONMENTAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Senior Vice ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President &
President & Chief Financial Officer Treasurer
TRC ENGINEERS, INC. TRC ENVIRONMENTAL SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Assistant Treasurer
& Treasurer
TRC MARIAH ASSOCIATES INC. TRC ▇▇▇▇▇▇ ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
& Treasurer
TRC ▇▇▇▇▇ GEOSCIENCE, INC. VECTRE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Assistant Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
HUNTER ASSOCIATES TEXAS, LTD. ▇▇▇▇▇▇ ASSOCIATES
By Hunter Associates, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
OMNI ENVIRONMENTAL IMBSEN & ASSOCIATES
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Assistant Treasurer
62
ENGINEERED AUTOMATION ECON CAPITAL, LP
SYSTEMS, INCORPORATED By TRC Companies, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
TRC ENERGYSOLVE LLC GBF HOLDINGS LLC
By TRC Companies, Inc., its Managing Member By TRC Companies, Inc., its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
PBWO HOLDINGS, LLC CO-ENERGY GROUP LLC
By TRC Companies, Inc., its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Assistant Treasurer
HUNTER ASSOCIATES, INC. METUCHEN REALTY ACQUISITION, LLC
By TRC Companies, Inc., its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------- ----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
E/PRO ENGINEERING AND ▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, INC.
ENVIRONMENTAL CONSULTING LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
NEW CENTURY ENGINEERING SITE-▇▇▇▇▇▇▇▇ ENGINEERS, INC.
SUPPORT SERVICES, LLC (
New Jersey)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------- --------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
63
SITE CONSTRUCTION SERVICES INC. SITE-▇▇▇▇▇▇▇▇ ENGINEERS, INC.
(New York)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------- -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
SITE-▇▇▇▇▇▇▇▇ ENGINEERS, INC.
(Virginia)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Treasurer
THE AGENT:
FIRST UNION NATIONAL BANK,
AS AGENT
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
THE LENDERS:
COMMITMENTS: FIRST UNION NATIONAL BANK, INDIVIDUALLY
$32,000,000
(includes a $5,000,000 Swingline Commitment)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
AGGREGATE COMMITMENT: $32,000,000
64