CREDIT AGREEMENT dated as of July 17, 2009 among NORTH AMERICAN GALVANIZING & COATINGS, INC. NORTH AMERICAN GALVANIZING COMPANY as Borrowers THE SUBSIDIARIES OF THE BORROWERS as Guarantors THE FINANCIAL INSTITUTIONS PARTY HERETO as Lenders and WELLS...
EXHIBIT
10.1 ▇▇▇▇▇ FARGO BANK CREDIT AGREEMENT
EXECUTION
VERSION
dated
as of July 17, 2009
among
NORTH
AMERICAN GALVANIZING & COATINGS, INC.
NORTH
AMERICAN GALVANIZING COMPANY
as
Borrowers
THE
SUBSIDIARIES OF THE BORROWERS
as
Guarantors
THE
FINANCIAL INSTITUTIONS PARTY HERETO
as
Lenders
and
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Swing
Line Lender, L/C Issuer and Agent
This
Credit Agreement is entered into as of July 17, 2009, among North American
Galvanizing & Coatings, Inc., a Delaware corporation (the “Parent”), and North
American Galvanizing Company, a Delaware corporation (together with the Parent,
the “Borrowers”; each individually, a “Borrower”), the Guarantors (as
hereinafter defined), the several financial institutions from time to time party
to this Agreement (collectively, the “Lenders”; each individually, a “Lender”),
and ▇▇▇▇▇ Fargo Bank, National Association, as Swing Line Lender, L/C Issuer,
and Agent for the Lenders.
RECITAL
The
Borrowers have requested that the Lenders provide a revolving credit facility,
that the L/C Issuer provide a letter of credit subfacility, and that the Swing
Line Lender provide a swing line subfacility, and the Lenders, the Swing Line
Lender and the L/C Issuer are willing to do so on the terms and conditions set
forth herein. In consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Certain Defined
Terms. The following terms have the following
meanings:
“Acquisition” means
any transaction, or any series of related transactions, consummated on or after
the date of this Agreement, by which the Parent or one or more of its
Subsidiaries (i) acquires all or substantially all of any going business or all
or substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise, or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the outstanding Voting Stock of a corporation which has
ordinary voting power for the election of directors (other than stock having
such power only by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding Voting Stock of a partnership or
limited liability company.
“Affiliate” means, as
to any Person, any other Person which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. A
Person shall be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of the other Person, whether through the ownership
of Voting Stock, by contract, or otherwise.
“Agent” means ▇▇▇▇▇
Fargo in its capacity as agent for the Lenders hereunder, and any successor
agent appointed under Section
11.09.
“Agent-Related
Persons” means ▇▇▇▇▇ Fargo and any successor agent appointed under Section 11.09 and any
successor letter of credit issuing bank hereunder, together with their
respective Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
“Agent’s Payment
Office” means the address for payments set forth on Schedule 12.02 or
such other address as the Agent may from time to time specify.
“Aggregate Commitment”
means the aggregate Commitments of the Lenders, initially equal to Twenty-Five
Million Dollars ($25,000,000).
“Agreement” means this
Credit Agreement, as it may be amended, supplemented or modified from time to
time.
“Applicable Margin”
means, for any period, the applicable of the following percentages per annum in
effect with respect to such period as the Leverage Ratio of the Parent shall
fall within the indicated ranges:
|
Leverage Ratio
|
Applicable Margin
|
|
Less
Than or Equal to 1.75 to 1.00
|
1.50%
|
|
Greater
Than 1.75 to 1.00, but Less Than or Equal to 2.25 to 1.00
|
1.75%
|
|
Greater
Than 2.25 to 1.00, but Less Than or Equal to 2.75 to 1.00
|
2.25%
|
|
Greater
than 2.75 to 1.00
|
2.50%
|
The
Leverage Ratio shall be calculated by the Parent as of the end of each fiscal
quarter, commencing with the fiscal quarter ending September 30, 2009, and shall
be reported to the Agent pursuant to a Compliance Certificate executed by a
Responsible Officer on behalf of the Parent and delivered pursuant to Subsection 7.01(c)
hereof. The Applicable Margin shall be adjusted, if necessary, on the
third (3rd) Business Day after the delivery of such certificate, with such
adjustment (i) to apply to all Interest Periods then outstanding and (ii) to
begin on such Business Day and continue thereafter until the next adjustment
date. From the Closing Date until adjusted as described above, the
Applicable Margin shall be 1.50%.
“Applicable Usury Law”
shall mean the laws of the State of Oklahoma or the federal laws of the United
States applicable to this transaction, whichever laws allow the greater
interest, as such laws now exist or may be changed or amended or come into
effect in the future.
“Asset Coverage Ratio”
means, as of any date of determination, the ratio of (a) the sum of (i) cash or
readily-marketable cash equivalents, (ii) accounts receivable, (iii) inventory,
and (iv) net property, plant and equipment, in each case determined as of such
date for the Parent and its Subsidiaries on a consolidated basis, to (b) Funded
Debt of the Parent and its Subsidiaries on a consolidated basis as of such
date.
“Assignee” has the
meaning specified in Subsection
12.08(a).
“Attorney Costs” means
and includes all reasonable fees and disbursements of any law firm or other
external counsel.
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“Bankruptcy Code”
means the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as amended, and the
regulations promulgated thereunder.
“Borrowing” means a
borrowing hereunder consisting of Loans of the same Type made to the Borrowers
on the same day by the Lenders or Swing Line Lender under Article II, and, in
the case of LIBOR Rate Loans, having the same Interest Period.
“Borrowing Date” means
any date on which a Borrowing occurs under Section
2.03.
“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the state where
the Agent’s Office is located and, if such day relates to any LIBOR Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and
between commercial banks in the applicable offshore Dollar interbank
market.
“Capital Adequacy
Regulation” means any guideline, request or directive of any central bank
or other Governmental Authority, or any other law, rule or regulation, whether
or not having the force of law, in each case, regarding capital adequacy of any
bank or of any corporation controlling a bank.
“Capital Expenditures”
means, for any period and with respect to any Person, the aggregate of all
expenditures by such Person and its Subsidiaries for the acquisition or leasing
of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) which should be
capitalized under GAAP on a consolidated balance sheet of such Person and its
Subsidiaries.
“Capital Stock” means
(a) in the case of a corporation, corporate stock, (b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, (c) in the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited) and (d) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
“Cash Collateralize”
means to pledge and deposit with or deliver to the Agent, for the benefit of the
Agent, the L/C Issuer and the Lenders, as additional collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders).
“Change of Control”
means the occurrence of any of the following events:
(a) the
direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Parent and its
Subsidiaries taken as a whole to any “person” (as that term is used in Section
13(d) of the Exchange Act, but excluding any Plan of the Parent or any of its
Subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) or
related persons constituting a “group” (as such term is used in Rule 13d-5 under
the Exchange Act);
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(b) the
consummation of any transaction (including any merger or consolidation) the
result of which is that any “person” (as defined above) or related persons
constituting a “group” (as such term is used in Rule 13d-5 under the Exchange
Act) becomes the beneficial owner, directly or indirectly, of more than 40% of
the Capital Stock of the Parent, measured by voting power rather than number of
shares;
(c) the
first day on which a majority of the members of the Board of Directors of the
Parent are not Continuing Directors; or
(d) the
Parent consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Parent, in any such event
pursuant to a transaction in which any of the outstanding Capital Stock of the
Parent or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the Capital Stock of
the Parent outstanding immediately prior to such transaction is converted into
or exchanged for voting Capital Stock of the surviving or transferee Person
constituting a majority of the outstanding shares of such voting Capital Stock
of such surviving or transferee Person (immediately after giving effect to such
issuance).
“Closing Date” means
the date on which all conditions precedent set forth in Section 5.01 are satisfied or waived
by all Lenders (or, in the case of Subsection 5.01(e),
waived by the Person entitled to receive such payment).
“Code” means the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder.
“Collateral” means all
property and interests in property and proceeds thereof now owned or hereafter
acquired by the Loan Parties in or upon which a Lien now or hereafter exists in
favor of the Lenders, or the Agent on behalf of the Lenders, whether under this
Agreement, under the Collateral Documents or under any other documents executed
by any such Person and delivered to the Agent or the Lenders.
“Collateral Documents”
means, collectively, (a) the Security Agreement and all other security
agreements, patent and trademark assignments, lease assignments, guarantees and
other similar agreements between any Loan Party and the Agent (for the benefit
of the Lenders) now or hereafter delivered to the Agent pursuant to or in
connection with the transactions contemplated hereby, and all financing
statements (or comparable documents now or hereafter filed in accordance with
the UCC or comparable law) against any Loan Party as debtor in favor of the
Agent (for the benefit of the Lenders) as secured party, and (b) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
“Commitment” means, as
to each Lender, its Revolving Loan Commitment and its obligation to purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule
2.01.
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“Commitment Fee
Margin” means 0.25% per annum.
“Compliance
Certificate” means a certificate substantially in the form of Exhibit
“C”.
“Contingent
Obligation” means, as to any Person, any direct or indirect liability of
that Person, whether or not contingent, with or without recourse, (a) with
respect to any Debt, lease, dividend, letter of credit or other obligation (the
“primary
obligations”) of another Person (the “primary obligor”),
including any obligation of that Person (i) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (ii) to advance or
provide funds for the payment or discharge of any such primary obligation, or to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless the holder
of any such primary obligation against loss in respect thereof (each, a “Guaranty
Obligation”); (b) with respect to any Surety Instrument issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any materials, supplies
or other property from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered, or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations other than in respect of Swap
Contracts, shall be equal to the maximum reasonably anticipated liability in
respect thereof and, in the case of Contingent Obligations in respect of Swap
Contracts, shall be equal to the Swap Termination Value.
“Continuing Directors”
means, as of any date of determination, any member of the Board of Directors of
the Parent who (a) was a member of such Board of Directors on the Closing Date
or (b) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election.
“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, undertaking, contract, indenture, mortgage,
deed of trust or other instrument, document or agreement to which such Person is
a party or by which it or any of its property is bound.
“Conversion/Continuation
Date” means any date on which, under Section 2.04, the
Borrower (a) converts Loans of one Type to another Type, or (b) continues as
Loans of the same Type, but with a new Interest Period.
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“Credit Extension”
means and includes (a) the making of any Loans hereunder, and (b) the Issuance
of any Letters of Credit hereunder.
“Current Portion of Long Term
Debt” means, as of any calculation date, that portion of long-term Funded
Debt due or scheduled to be paid within the next twelve (12)
months.
“Daily One-Month LIBOR
Rate” means, for any day, the rate of interest equal to the LIBOR Rate
then in effect for delivery for a one-month period.
“Daily One-Month LIBOR Rate
Loan” means a Loan or an L/C Advance that bears interest based on the
Daily One-Month LIBOR Rate.
“Debt” means, without
duplication, (a) all indebtedness for borrowed money; (b) all obligations
issued, undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary course of
business on ordinary terms); (c) all Contingent Obligations with respect to
Surety Instruments (including Letters of Credit issued hereunder); (d) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement; (f) all obligations
with respect to capital leases; (g) all indebtedness referred to in clauses (a)
through (f) above secured by (or for which the holder of such indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt; (h) all preferred Capital Stock issued by such Person and required by the
terms thereof to be redeemed, or for which mandatory sinking fund payments are
due, by a fixed date; and (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (h) above. For all purposes of this Agreement, the Debt of
any Person shall include all recourse Debt of any partnership or joint venture
in which such Person is a general partner or a joint venturer.
“Default” means any
event or circumstance which, with the giving of notice, the lapse of time, or
both, would (if not cured or otherwise remedied during such time) constitute an
Event of Default.
“Default Rate” means,
with respect to any Loan, an interest rate equal to the interest rate otherwise
applicable to such Loan plus four percent (4%) per annum; provided, however, that in no
event shall the Default Rate exceed the Highest Lawful Rate.
“Dollars”, “dollars” and ”$” each mean lawful
money of the United States.
“Early Termination
Date” shall have that meaning as described in any Specified Swap
Contract.
“EBITDA” means, for
any period, for the Parent and is Subsidiaries, determined on a consolidated
basis in accordance with GAAP, the sum of (a) the net income (or net loss) for
such period, plus (b) all amounts treated as expenses for depreciation and
interest and the amortization of intangibles of any kind to the extent included
in the determination of such net income (or loss), plus (c) all accrued taxes on
or measured by income to the extent included in the determination of such net
income (or net loss), provided, however, that net income (or net loss) shall be
computed by adding any extraordinary loss or losses and subtracting any
extraordinary gain or gains.
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“Effective Amount”
means (a) with respect to any Loans, on any date, the aggregate outstanding
principal amount thereof after giving effect to any Borrowings and prepayments
or repayments of Loans occurring on such date; and (b) with respect to any
outstanding L/C Obligations on any date, the amount of such L/C Obligations on
such date after giving effect to any Issuances of Letters of Credit occurring on
such date and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on such
date.
“Eligible Assignee”
means (a) a commercial bank organized under the laws of the United States, or
any state thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development (the “OECD”), or a
political subdivision of any such country, and having a combined capital and
surplus of at least $100,000,000, provided that such bank is acting through a
branch or agency located in the United States; (c) a Person that is primarily
engaged in the business of commercial banking and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary, or
(iii) a Person of which a Lender is a Subsidiary; and (d) any other entity
approved by the Agent.
“Environmental Claims”
means all claims, however asserted, by any Governmental Authority or other
Person alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), investigation, cleanup,
removal, remedial or response costs, restitution, civil or criminal penalties,
injunctive relief, or other type of relief, resulting from or based upon the
presence, placements, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental, placements, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from any property, whether or not owned by any
Loan Party or taken as Collateral, or in connection with any operations of any
Loan Party.
“Environmental Laws”
means all federal, state or local laws, statutes, common law duties, rules,
regulations, ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters, including, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Clean Air
Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal
Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, and the Emergency Planning and Community Right-to-Know
Act.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended, and regulations
promulgated thereunder.
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“ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Parent within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Sections 412 and 430 of the Code).
“ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a
Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any
ERISA Affiliate.
“Event of Default”
means any of the events or circumstances specified in Section
9.01.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the regulations promulgated
thereunder.
“FDIC” means the
Federal Deposit Insurance Corporation, and any Governmental Authority succeeding
to any of its principal functions.
“Federal Funds Rate”
means, for any day, the rate set forth in the weekly statistical release
designated as H.15(519), or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, “H.15(519)”) on the
preceding Business Day opposite the caption “Federal Funds (Effective)”; or, if
for any relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (Central time) on that day by each of three leading
brokers of Federal funds transactions in Chicago selected by the
Agent.
“Fixed Charge Coverage
Ratio” means, as of the last day of any fiscal quarter, the ratio of
(a) EBITDA for the four (4) consecutive fiscal quarters ending on such date
minus the sum
of (i) depreciation and amortization expense for the same period, (ii) cash
Taxes paid during the same period, and (iii) Restricted Payments made during the
same period, to (b) the sum of (i) interest expense for the same period and (ii)
the Current Portion of Long Term Debt as of such date, in each case determined
on a consolidated basis for the Parent and its Subsidiaries.
“FRB” means the Board
of Governors of the Federal Reserve System, and any Governmental Authority
succeeding to any of its principal functions.
“Funded Debt” of any
Person means, without duplication, (a) all Debt of such Person other than Debt
of the types referred to in clauses (h) and (i) of the definition of “Debt”, (b)
all Contingent
Obligations of such Person with respect to Debt of the type referred to in the
foregoing clause (a) of another Person, and (c) all Debt of the type referred to
in the foregoing clause (a) of any partnership or joint venture for which such
Person is legally obligated or has a reasonable expectation of being
liable.
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“GAAP” means generally
accepted accounting principles set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the U.S. accounting profession), which are
applicable to the circumstances as of the date of determination.
“Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank, or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guarantors” means (i)
NAGalv-Ohio, Inc. a Delaware corporation, ▇▇▇▇▇▇ Galvanizing Company-Kansas
City, an Oklahoma corporation, Reinforcing Services, Inc., an Oklahoma
corporation, Premier Coatings, Inc., an Oklahoma corporation, and NAGALV - WV,
Inc., a Delaware corporation, and (ii) any other Person that hereafter becomes a
Subsidiary of the Parent.
“Guaranty Obligation”
has the meaning specified in the definition of “Contingent Obligation”.
“Hazardous Materials”
means all those substances that are regulated by, or which may form the basis of
liability or a standard of conduct under, any Environmental Law, including any
substance identified under any Environmental Law as a pollutant, contaminant,
hazardous waste, hazardous constituent, special waste, hazardous substance,
hazardous material, or toxic substance, or petroleum or petroleum-derived
substance or waste.
“Highest Lawful Rate”
shall mean the maximum nonusurious rate of interest that any Lender is permitted
under Applicable Usury Law to contract for, take, charge, or receive from the
Borrower.
“Honor Date” has the
meaning specified in Subsection
3.03(b).
“Indemnified
Liabilities” has the meaning specified in Section
12.05(a).
“Indemnified Person”
has the meaning specified in Section
12.05(a).
“Independent Auditor”
has the meaning specified in Subsection
7.01(a).
“Insolvency
Proceeding” means, with respect to any Person, (a) any case, action or
proceeding with respect to such Person before any court or other Governmental
Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case, undertaken under U.S. Federal, state or foreign
law, including the Bankruptcy Code.
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“Interest Payment
Date” means, (i) as to any LIBOR Rate Loan, the last day of each Interest
Period applicable to such Loan and the Maturity Date, (ii) as to any Daily
One-Month LIBOR Rate Loan, the last day of each calendar quarter and the
Maturity Date, and (iii) as to any Swing Line Loan, the last day of each
calendar month and the Maturity Date.
“Interest Period”
means, as to any LIBOR Rate Loan, the period commencing on the Borrowing Date of
such LIBOR Rate Loan or on the Conversion/Continuation Date on which the Loan is
converted or continued as a LIBOR Rate Loan, and ending on the date one month,
two months, three months or six months thereafter, whichever is applicable;
provided
that:
(a) any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date.
“Investments” has the
meaning specified in Section
8.04.
“IRS” means the
Internal Revenue Service, and any Governmental Authority succeeding to any of
its principal functions under the Code.
“Issuance Date” has
the meaning specified in Subsection
3.01(a).
“Issue” means, with
respect to any Letter of Credit, to issue or to extend the expiry of, or to
renew or increase the amount of, such Letter of Credit; and the terms “Issued,” “Issuing” and “Issuance” have
corresponding meanings.
“Knowledge” and words
of similar meaning when used with respect to any Loan Party means the actual
personal knowledge of any Responsible Officer.
“L/C Advance” means
each Lender’s participation in any L/C Borrowing in accordance with its Pro Rata
Share.
“L/C Amendment
Application” means an application form for amendment of outstanding
standby or commercial documentary letters of credit as shall at any time be in
use at the L/C Issuer, as the L/C Issuer shall request.
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“L/C Application”
means an application form for issuances of standby letters of credit as shall at
any time be in use at the L/C Issuer, as the L/C Issuer shall
request.
“L/C Borrowing” means
an extension of credit resulting from a drawing under any Letter of Credit which
shall not have been reimbursed on the date when made nor converted into a
Borrowing of Revolving Loans under Subsection
3.03(d).
“L/C Commitment” means
the commitment of the L/C Issuer to Issue, and the commitment of the Lenders
severally to participate in, Letters of Credit from time to time Issued or
outstanding under Article III, in an
aggregate amount not to exceed on any date the amount of $3,000,000, as the same
may be reduced as a result of a reduction in the L/C Commitment pursuant to
Section 2.08;
provided that
the L/C Commitment is a part of the Aggregate Commitment, rather than a
separate, independent commitment.
“L/C Issuer” means, in
respect of each Letter of Credit, ▇▇▇▇▇ Fargo or such other Lender selected by
the Agent which has agreed to act as issuer of such Letter of Credit
hereunder.
“L/C Obligations”
means at any time the sum of (a) the aggregate undrawn amount of all Letters of
Credit then outstanding, plus (b) the amount of all unreimbursed drawings under
all Letters of Credit, including all outstanding L/C Borrowings.
“L/C-Related
Documents” means the Letters of Credit, the L/C Applications, the L/C
Amendment Applications and any other document relating to any Letter of Credit,
including any standard form documents used by the L/C Issuer for letter of
credit issuances.
“Lender” has the
meaning specified in the introductory clause hereto and, as the context
requires, includes the Swing Line Lender. Unless the context otherwise clearly
requires, “Lender” includes any such institution in its capacity as a Swap
Provider. Unless the context otherwise clearly requires, references
to such institution as a “Lender” shall also
include any of such institution’s Affiliates that may at any time of
determination be Swap Providers.
“Lending Office”
means, as to any Lender, the office or offices of such Lender specified as its
“Lending Office” on Schedule 12.02, or
such other office or offices as such Lender may from time to time notify the
Borrowers and the Agent.
“Letter of Credit”
means any standby letter of credit (but excluding any other type of letter of
credit) issued by the L/C Issuer pursuant to Article
III.
“Leverage Ratio”
means, as of the last day of any fiscal quarter, the ratio of (a) all Funded
Debt of the Parent and its Subsidiaries on a consolidated basis as of such date,
to (b) EBITDA for the period of four (4) fiscal quarters ending on such
date.
“LIBOR Rate” means the
rate per annum (rounded upward, if necessary, to the nearest whole 1/8 of 1%)
and determined pursuant to the following formula:
|
LIBOR =
|
Base
LIBOR
|
|
100%
- LIBOR Reserve Percentage
|
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For purposes of this
definition:
(i) “Base
LIBOR” means, for any LIBOR Rate Loan or Daily One-Month LIBOR Rate Loan, the
rate per annum for United States Dollar deposits quoted by ▇▇▇▇▇ Fargo as the
Inter-Bank Market Offered Rate, with the understanding that such rate is quoted
by ▇▇▇▇▇ Fargo for the purpose of calculating effective rates of interest for
loans making reference thereto, for delivery of funds for a period corresponding
to the applicable Interest Period (in the case of any LIBOR Rate Loan) or for a
period of one month (in the case of any Daily One-Month LIBOR Rate Loan) in an
amount equal to the principal amount of such Loan. The Borrowers
understand and agree that ▇▇▇▇▇ Fargo may base its quotation of the Inter-Bank
Market Offered Rate upon such offers or other market indicators of the
Inter-Bank Market as ▇▇▇▇▇ Fargo in its discretion deems appropriate, including
the rate offered for U.S. Dollar deposits on the London Inter-Bank
Market.
(ii) “LIBOR
Reserve Percentage” means the reserve percentage prescribed by the FRB for
“Eurocurrency Liabilities” (as defined in Regulation D of the FRB, as amended),
adjusted by the Agent for expected changes in such reserve percentage during the
term of any Loan.
“LIBOR Rate Loan”
means a Loan that bears interest for an applicable Interest Period based on the
LIBOR Rate.
“Lien” means any
security interest, mortgage, deed of trust, pledge, hypothecation, assignment,
charge or deposit arrangement, encumbrance, lien (statutory or other) or similar
interest of any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a capital lease, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
“Loan” means an
extension of credit by a Lender to the Borrowers under Article II or Article III in the
form of a Revolving Loan, Swing Line Loan or an L/C Advance.
“Loan Parties” means
the Borrowers and the Guarantors, collectively.
“Loan Documents” means
this Agreement, any Note, the L/C-Related Documents, the Collateral Documents,
and all other documents delivered to the Agent or any Lender in connection
herewith.
“Margin Stock” means
“margin stock” as such term is defined in Regulation T, U or X of the
FRB.
“Material Adverse
Effect” means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities (actual or
contingent), or financial condition
of the Parent and its Subsidiaries taken as a whole; (b) a material impairment
of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party.
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“Maturity Date” means
the earlier to occur of:
(a) July 17,
2012, or
(b) the date
on which the Aggregate Commitment terminates in accordance with the provisions
of this Agreement.
“Multiemployer Plan”
means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA,
to which a Loan Party or any ERISA Affiliate makes, is making, or is obligated
to make contributions or, during the preceding three calendar years, has made,
or been obligated to make, contributions.
“Net Proceeds” means,
with respect to any sale, transfer or other disposition of assets of a Loan
Party, cash or readily marketable cash equivalents received (but excluding any
other non-cash form) therefrom, whether at the time of such sale, transfer,
disposition or issuance or subsequent thereto, net, in either case, of all
legal, title and recording tax expenses, commissions and other fees and all
costs and expenses incurred and all Federal, state, local, and other taxes
required to be paid or accrued as a liability as a consequence of such
transaction.
“Note” means a
promissory note executed by the Borrowers in favor of any Lender pursuant to the
terms of this Agreement.
“Notice of Borrowing”
means a notice in substantially the form of Exhibit “A” and, with
respect to a Swing Line Loan, means a Swing Line Loan Notice.
“Notice of
Conversion/Continuation” means a notice in substantially the form of
Exhibit “B” or
a notice to the Agent by an electronic method permitted by the
Agent.
“Obligations” means
and includes, without duplication, any and all: (i) indebtedness, obligations
and liabilities of the Borrowers to the Agent and the Lenders incurred or which
may be incurred or purportedly incurred pursuant to the terms of this Agreement
or any of the other Loan Documents, and any extensions, renewals, substitutions,
amendments and increases in amount thereof, including, but not limited to such
amounts as may be evidenced by the Notes and all lawful interest, loan closing
fees, service fees, unused facility fees, commitment fees, arrangement fees, and
all costs and expenses incurred in connection with the preparation, filing and
recording of the Loan Documents, including Attorney Costs; (ii) any and all
payment and performance obligations or liabilities, whether now existing or
hereafter incurred or created, of the Borrowers to the Agent, the Lenders or any
Affiliate thereof (the “Swap Provider”),
relating to or arising under (a) any and all rate swap transactions, basis
swaps, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions,
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cross-currency
rate swap transactions, currency options, or any other similar transactions or
any combination of any of the foregoing (including any options to enter into any
of the foregoing) between the Agent, any Lender, Swap Provider and a Borrower,
whether or not any such transaction is governed by or subject to any master
agreement, or (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., or any other master agreement, entered into
between the Agent, any Lender, a Swap Provider and a Borrower (any such master
agreement, together with any related schedules, as amended, supplemented,
superseded or replaced from time to time, a “Master Agreement”),
including but not limited to any such obligations or liabilities under any
Master Agreement; (iii) all other indebtedness, obligations (whether direct or
indirect, primary or secondary, fixed or contingent) and liabilities of a
Borrower to any Lender, including future advances and loans made by any Lender
to a Borrower and any extensions, renewals, substitutions, amendments and
increases in amount thereof; (iv) all reasonable costs and expenses paid or
incurred by the Agent or any Lender, including Attorney Costs, in enforcing or
attempting to enforce collection of any Obligations and in enforcing or
realizing upon or attempting to enforce or realize upon any collateral or
security for any Obligations, including interest on all sums so expended by the
Agent and the Lenders accruing from the date upon which such expenditures are
made until paid, at an annual rate equal to the Default Rate; (v) all sums
expended by Lender in curing any Event of Default or Default of the Borrowers
under the terms of this Agreement, the other Loan Documents or any other writing
evidencing or securing the payment of the Notes together with interest on all
sums so expended by the Agent and the Lenders accruing from the date upon which
such expenditures are made until paid, at an annual rate equal to the Default
Rate; (vi) all reasonable costs and expenses paid or incurred by the Agent and
the Lenders, including Attorney Costs, in enforcing or attempting to enforce any
right, remedy or cause of action of the Agent or any Lender against any
Guarantor, including interest on all sums so expended by the Agent and/or any
Lender accruing from the date upon which such expenditures are made until paid,
at an annual rate equal to the Default Rate; (vii) all sums expended by the
Agent and/or any Lender in defending the validity or priority of any Lien
securing repayment of any of the Obligations, together with interest on all sums
so expended by the Agent and any Lender accruing from the date upon which such
expenditures are made until paid, at an annual rate equal to the Default Rate;
and (viii) all “Indebtedness” or “Secured Indebtedness” or “Secured Obligations”
as said terms are defined in any of the Loan Documents.
“Organization
Documents” means, for any corporation, the certificate or articles of
incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation, and for any limited
liability company, the certificate or articles or organization, the operating
agreement, any voting agreement (or similar agreement) and all applicable
actions by the body having management authority over such limited liability
company.
“Participant” has the
meaning specified in Subsection
12.08(e).
“PBGC” means the
Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding
to any of its principal functions under ERISA.
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“Pension Plan” means a
pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA
which a Loan Party or any ERISA Affiliate sponsors, maintains, or to which it
makes, is making, or is obligated to make contributions, or otherwise has any
liability, or in the case of a single employer plan which has two (2) or more
contributing sponsors (as described in Section 4064(a) of ERISA), it has made
contributions at any time during the immediately preceding five (5) plan
years.
“Permitted
Acquisition” means any Acquisition which is not otherwise prohibited by
this Agreement and with respect to which each of the following conditions are
met:
(a) there
exists no Default or Event of Default;
(b) the
Borrowers demonstrate pro-forma compliance with all terms and conditions of this
Agreement based on combined historical operating results of the Acquisition
target combined with the Borrowers’ historical operating results;
(c)
if the
Acquisition involves a cash payment, directly or indirectly, of more than
$5,000,000, the Borrowers shall have provided the Agent with copies of (i) the
audited financial statements of the Acquisition target completed not more than
fifteen (15) months prior to the closing date of such Permitted Acquisition, to
the extent audited financial statements are available, (ii) to the extent
audited financial statements are not available, if requested by the Agent, a
calculation of EBITDA for the Acquisition
target for such period as the Agent shall request, prepared and certified by an
outside accounting firm satisfactory to the Agent, and (iii) such other
information as may be requested by the Agent regarding the financial condition
and results of operation of the Acquisition target;
(d)
the
Acquisition is undertaken in accordance with all applicable Requirements of
Law;
(e) the board
of directors or equivalent governing body of the Acquisition target consents to
or approves the Acquisition;
(f)
the
Person or business which is the subject of the Acquisition is in the same or a
substantially related line of business to the lines of business in which the
Loan Parties are engaged on the date hereof, including the coatings business or
any business related to steel processing; and
(g) the
Acquisition consists exclusively of (i) assets primarily located in the United
States, Canada or Mexico or (ii) a Person organized under the laws of the United
States, Canada or Mexico or any state or province thereof.
“Permitted Liens” has
the meaning specified in Section
8.01.
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“Permitted Swap
Obligations” means all obligations (contingent or otherwise) of the Loan
Parties existing or arising under Swap Contracts, provided that each of
the following criteria is satisfied: (a) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments
or assets held or reasonably anticipated by such Person, or changes in the value
of securities issued by such Person in conjunction with a securities repurchase
program not otherwise prohibited hereunder, and not for purposes of speculation
or taking a “market view;” (b) such Swap Contracts do not contain (i) any
provision (“walk-away” provision) exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party,
or (ii) with respect to any Swap Contract that is not a Specified Swap Contract,
any provision creating or permitting the declaration of an event of default,
termination event or similar event upon the occurrence of an Event of Default
hereunder (other than an Event of Default under Subsection 9.01(a));
and (c) a perfected security interest in such Person’s rights and interests to
and in such Swap Contracts has been granted, and exists, in favor of the Agent,
for the benefit of the Lenders, as collateral for the
Obligations. “Permitted Swap Obligations” shall also include all
obligations (contingent or otherwise) of the Loan Parties existing or arising
under Swap Contracts that are Specified Swap Contracts.
“Person” means an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, limited cooperative association, unincorporated
association, joint venture or Governmental Authority.
“Plan” means an
employee benefit plan (as defined in Section 3(3) of ERISA) which a Loan Party
or any ERISA Affiliate sponsors or maintains or to which a Loan Party or any
ERISA Affiliate makes, is making, or is obligated to make contributions or
otherwise has any liability and includes any Pension Plan.
“Pro Rata Share”
means, as to any Lender, (a) in respect of a particular Loan and/or Commitment,
(i) at any time at which the Commitments in respect of such Loan remain
outstanding, the percentage equivalent (expressed as a decimal, rounded to the
ninth decimal place) at such time of such Lender’s Commitment in respect of such
Loan divided by the combined Commitments in respect of such Loan, and (ii) after
the termination of the Commitments in respect of such Loan, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of the principal amount outstanding of such Loans held by such Lender
divided by the aggregate principal amount outstanding of such Loans held by all
Lenders, and (b) in respect of all Loans and/or Commitments, (i) at any time at
which the Aggregate Commitment (or any portion thereof) remains outstanding, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Lender’s Commitments in respect of all Loans divided
by the Aggregate Commitment, and (b) after the termination of the Aggregate
Commitment, the percentage equivalent (expressed as a decimal, rounded to the
ninth decimal place) at such time of the principal amount of such Lender’s
outstanding Loans (including such Lender’s ratable share of L/C Obligations)
divided by the aggregate principal amount of the outstanding Loans and L/C
Obligations of all of the Lenders.
“Rate Swap Documents”
means, collectively, all Swap Contracts entered into between any Loan Party and
any Lender or any Affiliate thereof in respect of any portion of the
Obligations.
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“Reportable Event”
means, any of the events set forth in Section 4043(c) of ERISA or the
regulations thereunder, other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations issued by the
PBGC.
“Required Lenders”
means at any time Lenders then holding at least sixty-six percent (66%) of the
amount of the Aggregate Commitment (or if all Commitments have been terminated,
then the aggregate principal amount outstanding of Loans plus the outstanding
amount of L/C Obligations); provided, that, if no
principal amount of any Loan is then outstanding, then “Required Lenders” shall
mean Lenders then having at least sixty-six percent (66%) of the Aggregate
Commitment.
“Requirement of Law”
means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
“Responsible Officer”
means, as to any Loan Party, the chief executive officer, the president, the
chief financial officer, the treasurer or any other officer having substantially
the same authority and responsibility.
“Restricted Payments”
has the meaning specified in Section
8.10.
“Revolving Loan” has
the meaning specified in Subsection
2.01.
“Revolving Loan
Commitment” as to each Lender has the meaning specified in Subsection
2.01.
“Security Agreement”
means that certain Security Agreement and Assignment dated as of the date hereof
between the Loan Parties and the Agent, as it may be amended, modified or
supplemented from time to time, pursuant to which the Loan Parties grant to the
Agent, for the benefit of the Lenders, a continuing security interest in all of
their property (other than real property), including accounts, contract rights,
general intangibles, machinery, equipment, fixtures, inventory, and Capital
Stock in their respective Subsidiaries.
“Solvent” means, as to
any Person at any time, that (a) the fair value of the property of such Person
is greater than the amount of such Person’s liabilities (including disputed,
contingent and unliquidated liabilities) as such value is established and
liabilities evaluated for purposes of Section 101(31) of the Bankruptcy Code;
(b) the present fair saleable value of the property of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured; (c) such Person is able
to realize upon its property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities, but applying the reasonably
anticipated liability, after giving effect to payments under insurance policies
and indemnity agreements which such Person reasonably expects to receive) as
they mature in the normal course of business; (d) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay as such debts and liabilities mature; and (e) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute
unreasonably small capital.
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“Specified Swap
Amount” means, at any time, in respect of Specified Swap Contracts to
which any Swap Provider is party, the Swap Termination Value relating thereto;
provided that
for purposes of this definition, any Swap Termination Value that is negative as
to (i.e., owing by) any Swap Provider shall be deemed equal to zero
(0).
“Specified Swap
Contract” means any Swap Contract made or entered into at any time, or in
effect at any time (whether heretofore or hereafter), whether directly or
indirectly, and whether as a result of assignment or transfer or otherwise,
between any Borrower and any Swap Provider which Swap Contract is or was
intended by a Loan Party to have been entered into, in part or entirely, for
purposes of mitigating interest rate or currency exchange risk relating to any
Loan (which intent shall conclusively be deemed to exist if a Loan Party so
represents to the Swap Provider in writing), and as to which the final scheduled
payment by a Loan Party is not later than the Maturity Date.
“Stated Amount” means
the stated or face amount of a Letter of Credit to the extent available at the
time for drawing (subject to presentment of all requested documents), as the
same may be increased or decreased from time to time in accordance with the
terms of such Letter of Credit.
“Subordinated Debt”
means (i) the Subordinated Notes and (ii) any other Debt of the Loan Parties
which is unsecured, which does not require any payments of principal to be made
prior to the date which is 180 days following the Maturity Date and which is
subordinated as to principal and interest to the prior payment in full of the
Obligations under the Loan Documents in a manner reasonably satisfactory to the
Agent and the Required Lenders and which is otherwise on terms and conditions
reasonably satisfactory to the Agent and the Required Lenders (it being
understood that any subordination provisions which are the same as or
substantially similar to those set forth in the Subordinated Notes shall be
deemed to be reasonably satisfactory to the Agent and the Required
Lenders).
“Subordinated Notes”
means the 10% Subordinated Notes due July 31, 2014, to be issued by the Parent
pursuant to the Private Placement Memorandum dated July 2009 in the aggregate
principal amount of $10,000,000 ($11,500,000 with overallotment
option).
“Subsidiary” of a
Person means any corporation, association, partnership, limited liability
company, joint venture or other business entity of which more than fifty percent
(50%) of the Voting Stock is owned or controlled directly or indirectly by such
Person, or one or more of the Subsidiaries of such Person, or a combination
thereof. Unless the context otherwise clearly requires, references herein to a
“Subsidiary” refer to a Subsidiary of the Parent.
“Surety Bonds” means
all bonds issued for the account of any Loan Party to assure the performance
thereby (or to the extent issued in the ordinary course of business, any other
Person) under any contract entered into in the ordinary course of
business.
“Surety Instruments”
means all letters of credit (including standby and commercial), banker’s
acceptances, bank guaranties, shipside bonds, performance bonds, Surety Bonds
and similar instruments.
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“Swap Contract” means
any agreement, whether or not in writing, relating to any transaction that is a
rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap or option, bond, note or ▇▇▇▇ option,
interest rate option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swap option, currency
option or any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the context
otherwise clearly requires, any master agreement relating to or governing any or
all of the foregoing.
“Swap Provider” means
any Lender, or any Affiliate of a Lender, that is at the time of determination
party to a Swap Contract with a Loan Party.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to
such Swap Contracts, (a) for any date on or after the date such Swap Contracts
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the ▇▇▇▇-to-market value(s)
for such Swap Contracts, as determined by the Parent based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
“Swing Line” means the
revolving credit facility made available by the Swing Line Lender pursuant to
Subsection
2.05.
“Swing Line Borrowing”
means a borrowing of a Swing Line Loan.
“Swing Line Lender”
means ▇▇▇▇▇ Fargo in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.
“Swing Line Loan” has
the meaning specified in Subsection
2.05(a).
“Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Subsection 2.05(b),
which, if in writing, shall be substantially in the form of Exhibit
“A-1”.
“Swing Line Sublimit”
means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate
Commitment (if the Aggregate Commitment is reduced below $10,000,000 pursuant to
Section 2.06).
The Swing Line Sublimit is part of, and not in addition to, the Aggregate
Commitment.
“Taxes” means any and
all present or future taxes, levies, assessments, imposts, duties, deductions,
fees, withholdings or similar charges, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, respectively, taxes imposed
on or measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the Agent, as the
case may be, is organized or maintains a lending office.
“Tribunal” shall mean
any municipal, state, commonwealth, federal, foreign, territorial or other
sovereign, governmental entity, governmental department, court, commission,
board, bureau, agency or instrumentality.
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A “Type” of Loan means
its status as either a Daily One-Month LIBOR Rate Loan or a LIBOR Rate
Loan.
“UCC” means the
Uniform Commercial Code as in effect in the State of Oklahoma or any other
applicable jurisdiction.
“Unfunded Pension
Liability” means the excess of a Plan’s benefit liabilities under Section
4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined
in accordance with the assumptions used for funding the Pension Plan pursuant to
Sections 412 and 430 of the Code for the applicable plan year.
“United States” and
“U.S.” each
means the United States of America.
“Voting Stock” of any
Person as of any date means the Capital Stock of such Person that is entitled to
vote in the election of the board of directors (or other governing body) of such
Person.
“▇▇▇▇▇ Fargo” means
▇▇▇▇▇ Fargo Bank, National Association.
Section
1.02 Other Interpretive
Provisions.
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The
words “hereof”, “herein”, “hereunder” and similar words refer to this Agreement
as a whole and not to any particular provision of this Agreement; and
Subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c)
The term “documents” includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings, however
evidenced.
(d)
The term “including” is not limiting and means
“including”.
(e)
In the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including”; the words “to”
and “until” each mean “to but excluding”, and the word “through” means “to and
including”.
(f)
The term “property” includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(g) Unless
the context otherwise requires, references herein to “the Borrowers” shall be
construed to mean “the Borrowers, joint and severally, and each of them
individually,” and references herein to “the Loan Parties” shall be construed to
mean “the Loan Parties, joint and severally, and each of them
individually.”
(h) Unless
otherwise expressly provided herein, (i) references to agreements (including
this Agreement) and other contractual instruments shall be deemed to include
all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of any
Loan Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting the statute or
regulation.
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(i)
The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(j)
This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms.
(k)
Unless otherwise expressly provided, any reference to
any action of the Agent or the Lenders by way of consent, approval or waiver
shall be deemed modified by the phrase “in its/their sole
discretion”.
(l)
This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Borrowers
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agent merely because of the
Agent’s or Lenders’ involvement in their preparation.
Section
1.03 Accounting
Principles.
(a) Unless
the context otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations required under
this Agreement shall be made with respect to the Parent and its Subsidiaries on
a consolidated basis in accordance with GAAP, consistently applied.
(b) References
herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods of the
Parent.
(c) In
the event that any changes in GAAP occur after the date of this Agreement and
such changes result in a material variation in the method of calculation of
financial covenants or other terms of this Agreement, then the Borrowers, the
Agent and the Lenders agree to amend such provisions of this Agreement so as to
equitably reflect such changes so that the criteria for evaluating the Parent’s
financial condition will be the same after such changes as if such changes had
not occurred.
ARTICLE
II
THE
CREDITS
Section
2.01 Amounts and Terms of
Commitments. Each Lender severally agrees, on the terms and
conditions set forth herein, to make loans to the Borrowers (each such loan, a
“Revolving
Loan”) from time to time on any Business Day during the period from the
Closing Date to the Business Day preceding the Maturity Date, in an aggregate
amount not to exceed at
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any time
outstanding its Commitment (such amount, as the same may be reduced under Section 2.06 or
increased under Section 2.17, or as a
result of one or more assignments under Section 11.08, shall
be such Lender’s “Revolving Loan
Commitment”); provided, however, that, after
giving effect to any Borrowing of Revolving Loans and Swing Line Loans, the
Effective Amount of all outstanding Loans, together with the Effective Amount of
all L/C Obligations and Swing Line Loans, shall not at any time exceed the
Aggregate Commitment; and provided further, that the
Effective Amount of the Revolving Loans of any Lender plus the participation of
such Lender in the Effective Amount of all L/C Obligations shall not at any time
exceed such Lender’s Commitment. Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01, prepay
under Sections
2.07 and 2.08 and reborrow
under this Section
2.01.
Section
2.02 Loan
Accounts.
(a) The Loans
made by each Lender and the Letters of Credit Issued by the L/C Issuer shall be
evidenced by one or more accounts or records maintained by the Agent or the L/C Issuer, as
the case may be, in the ordinary course of business. The accounts or
records maintained by the Agent and the L/C Issuer shall be conclusive absent
clear and obvious error of the amount of the Loans made by the Lenders to the
Borrowers and the Letters of Credit Issued for the account of a Borrower, and
the interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers hereunder to pay any amount owing with respect to the Loans or
any Letter of Credit.
(b) Any
Lender may request that Loans made by it be evidenced by a promissory
note. In such event, the Borrowers shall execute and deliver to such
Lender one or more promissory notes payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Agent (each, a “Note” and
collectively, the “Notes”) to evidence
such Lender’s Loans. Each Lender may, instead of or in addition to maintaining a
loan account, endorse on the schedule annexed to its Note(s) the date, amount
and maturity of each Loan made by it and the amount of each payment of principal
made by the Borrowers with respect thereto. Each Lender is
irrevocably authorized by the Borrowers to endorse its Note(s) as applicable;
provided, however, that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of the
Borrowers hereunder or under any such Note to such Lender.
Section
2.03 Procedure for
Borrowing.
(a) Each
Borrowing shall be made upon the Borrowers’ irrevocable notice delivered to the
Agent in the form of a Notice of Borrowing (which notice must be received by the
Agent prior to 11:00 a.m. (Central time) (i) three (3) Business Days prior to
the requested Borrowing Date, in the case of LIBOR Rate Loans, and (ii) on the
requested Borrowing Date, in the case of Daily One-Month LIBOR Rate Loans)
specifying:
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(A) the
amount of the Borrowing, which shall be in an aggregate minimum amount of
$250,000 or any multiple of $50,000 in excess thereof;
(B) the
requested Borrowing Date, which shall be a Business Day; and
(C) the
Type of Loans comprising the Borrowing, however, that with respect to the
Borrowing to be made on the Closing Date, such Borrowing will consist of Daily
One-Month LIBOR Rate Loans only.
(b) The Agent
will promptly notify each applicable Lender of its receipt of any Notice of
Borrowing and of the amount of such Lender’s Pro Rata Share of that
Borrowing.
(c) Each
Lender will make the amount of its Pro Rata Share of each Borrowing available to
the Agent for the account of the Borrowers at the Agent’s Payment Office by 2:00
p.m. (Central time) on the Borrowing Date requested by the Borrowers in funds
immediately available to the Agent. The proceeds of all such Loans
will then be made available to the Borrowers by the Agent at such office by
crediting the account of the Borrowers on the books of ▇▇▇▇▇ Fargo with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent.
(d) After
giving effect to any Borrowing, unless the Agent shall otherwise consent, there
may not be more than four (4) different Interest Periods in effect.
(e) The
Borrowers hereby authorize the Lenders and the Agent to accept Notices of
Borrowing based on telephonic notices made by any person or persons the Agent or
any Lender in good faith believes to be acting on behalf of the
Borrowers. The Borrowers agree to deliver promptly to the Agent a
written confirmation of each telephonic notice, signed on behalf of the
Borrowers by a Responsible Officer or an authorized designee. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, (i) the records of the Agent and the Lenders shall
govern absent clear and obvious error and (ii) any prepayment by the Borrowers
of any amount of any Borrowing which exceeds the written confirmation therefor,
shall not be subject to the minimum repayment amounts set forth in Section
2.07.
Section
2.04 Conversion and Continuation
Elections.
(a) Each Loan
may be converted from one Type to the other or any expiring LIBOR Rate Loan may
be continued upon the Borrowers’ delivery of a written Notice of
Conversion/Continuation to the Agent. Each such notice must be
received by the Agent not later than 11:00 a.m. (Central time) three Business Days
prior to the requested date of any Conversion/Continuation Date. Each
conversion to or continuation of a LIBOR Rate Loan shall be in a principal
amount of $250,000 or a whole multiple of $50,000 in excess
thereof. Each conversion to a Daily One-Month LIBOR Rate Loan shall
be in integral multiples of $50,000. Each Notice of
Continuation/Continuation shall specify (i) whether the Borrowers are
requesting a conversion or a continuation of a LIBOR Rate Loan, (ii) the
proposed Conversion/Continuation Date, which shall be a Business Day,
(iii) the
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principal
amount of the Loans to be converted or continued, (iv) the Type of Loans to be
converted and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrowers fail to specify a Type of Loan in a
Notice of Conversion/Continuation or if the Borrowers fail to give timely notice
requesting a conversion, then the applicable Loans shall be converted to Daily
One-Month LIBOR Rate Loans. Any such automatic conversion to Daily
One-Month LIBOR Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable LIBOR Rate
Loans. If the Borrowers request a conversion or continuation of a
LIBOR Rate Loan in any such Notice of Conversion/Continuation, but fail to
specify an Interest Period, they will be deemed to have specified an Interest
Period of one month.
(b) Notwithstanding
anything to the contrary herein, if at any time the aggregate amount of LIBOR
Rate Loans in respect of any Borrowing is reduced, by payment, prepayment or
conversion of a part thereof to be less than $250,000, such LIBOR Rate Loans
shall automatically convert to Daily One-Month LIBOR Rate Loans, and on and
after such date the right of the Borrowers to continue such Loans as, and
convert such Loans into, LIBOR Rate Loans shall terminate (provided that,
assuming all applicable requirements and conditions thereto set forth in this
Agreement are met, nothing in this Subsection 2.04(b)
shall prevent the Borrowers from obtaining new LIBOR Rate Loans to pay off such
Daily One-Month LIBOR Rate Loans which had been converted thereto from LIBOR
Rate Loans); provided that nothing
in this Subsection
2.04(b) shall be deemed to grant to the Borrowers the right to prepay any
LIBOR Rate Loan except as set forth elsewhere in this Agreement.
(c) If upon
the expiration of any Interest Period applicable to LIBOR Rate Loans, the
Borrowers have failed to advise the Agent of the continuation thereof as a LIBOR
Rate Loan, or if any Default or Event of Default then exists, the Borrowers
shall be deemed to have elected to convert such LIBOR Rate Loans into Daily
One-Month LIBOR Rate Loans effective as of the expiration date of such Interest
Period.
(d) The Agent
will promptly notify each applicable Lender of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the Borrowers,
the Agent will promptly notify each applicable Lender of the details of any
automatic continuation. All conversions and continuations shall be
made ratably according to the respective outstanding principal amounts of the
Loans with respect to which the notice was given held by each
Lender.
(e) Unless
the Required Lenders otherwise consent, during the existence of a Default or
Event of Default, the Borrowers may not elect to have a Loan converted into or
continued as a LIBOR Rate Loan.
(f) After
giving effect to any conversion or continuation of Loans, unless the Agent shall
otherwise consent, there may not be more than four (4) different Interest
Periods in effect.
(g) The
Borrowers hereby authorize the Lenders and the Agent to accept Notices of
Conversion/Continuation based on telephonic notices made by any person or persons
the Agent or any Lender in good faith believes to be acting on behalf of the
Borrowers. The Borrowers agree to deliver promptly to the Agent a
written confirmation of each telephonic notice, signed on behalf of the
Borrowers by a Responsible Officer. If the written confirmation
differs in any material respect from the action taken by the Agent and the
Lenders, the records of the Agent and the Lenders shall govern absent clear and
obvious error.
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Section
2.05 Swing Line
Loans.
(a) The Swing Line.
Subject to the terms and conditions set forth herein, the Swing Line Lender
agrees to make loans (each such loan, a “Swing Line Loan”) to
the Borrowers from time to time on any Business Day during the period from the
Closing Date to the Maturity Date in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Effective Amount of the
Loans of the Swing Line Lender in its capacity as a Lender, may exceed the
amount of such Lender’s Commitment; provided, however, that after
giving effect to any Swing Line Loan, the aggregate Effective Amount of all
Loans and L/C Obligations shall not exceed the Aggregate Commitment, and provided, further, that the
Swing Line Lender shall not make any Swing Line Loan to refinance an outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrowers may borrow under this Section 2.05, prepay
under Section
2.07 and reborrow under this Section
2.05. Each Swing Line Loan shall be a Daily One-Month LIBOR
Rate Loan.
(b) Borrowing Procedures.
Each Swing Line Borrowing shall be made upon the Borrowers’ irrevocable notice
to the Swing Line Lender, which may be given by telephone. Swing Line
Lender shall promptly notify the Agent of any such notice. Each such notice must
be received by the Swing Line Lender not later than 1:00 p.m. Central time, on
the requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $50,000 unless otherwise agreed by Swing Line
Lender, and (ii) the requested date of such Swing Line Borrowing, which shall be
a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender of a written Swing Line Loan Notice,
appropriately completed and signed on behalf of the Borrowers by a Responsible
Officer. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will promptly advise
the Agent thereof (by telephone or in writing) and, if such Swing Line Loan
Notice was not previously provided to the Agent, the Swing Line Lender will
notify the Agent (by telephone or in writing) of the contents
thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Agent (including at the request of any Lender)
prior to 2:00 p.m., Central time, on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the first proviso to the first
sentence of Subsection
2.05(a), or (B) that one or more of the applicable conditions specified
in Article V is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m., Central time, on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the
Borrowers at its office by crediting the account of the Borrowers on the books
of the Swing Line Lender in immediately available funds.
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(c) Refinancing of Swing Line
Loans.
(i) The Swing
Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Borrowers (which hereby irrevocably request the Swing Line Lender
to act on their behalf), that each Lender make a Daily One-Month LIBOR Rate Loan
in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line
Loans then outstanding. Such request shall be made in accordance with the
requirements of Section 2.03, without
regard to the minimum and multiples specified therein for the principal amount
of Daily One-Month LIBOR Rate Loans, but subject to the unutilized portion of
the Aggregate Commitment and the conditions set forth in Section
5.02. The Swing Line Lender shall furnish the Borrowers with a
copy of the applicable Notice of Borrowing promptly after delivering such notice
to the Agent. Each Lender shall make an amount equal to its Pro Rata
Share of the amount specified in such Notice of Borrowing available to the Agent
in immediately available funds for the account of the Swing Line Lender at the
Agent’s Office not later than 1:00 p.m., Central time, on the day specified in
such Notice of Borrowing, whereupon, subject to Subsection
2.05(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Loan to the Borrowers in such amount. The Agent shall
remit the funds so received to the Swing Line Lender. Notwithstanding
the foregoing, the Borrowers have directed and do hereby direct the Agent,
without any further notice or instruction from the Borrowers, to refinance any
balance of the Swing Line Loan in excess of $1,000,000 which is outstanding on
the last Business Day of each week as set forth in this Subsection
2.05(c)(i).
(ii) If for
any reason any Borrowing cannot be requested in accordance with Subsection 2.05(c)(i)
or any Swing Line Loan cannot be refinanced by such a Borrowing, the Notice of
Borrowing submitted by the Swing Line Lender shall be deemed to be a request by
the Swing Line Lender that each of the Lenders fund its participation in the
relevant Swing Line Loan and each Lender’s payment to the Agent for the account
of the Swing Line Lender pursuant to Section 2.05(c)(i)
shall be deemed payment in respect of such participation.
(iii) If any
Lender fails to make available to the Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Subsection 2.05(c) by
the time specified in Subsection
2.05(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the LIBOR Rate plus the Applicable Margin from time to time in
effect. A certificate of the Swing Line Lender submitted to any
Lender (through the Agent) with respect to any amounts owing under this Subsection
2.05(c)(iii) shall be conclusive absent clear and obvious
error.
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(iv) Each
Lender’s obligation to make Loans or to purchase and fund participations in
Swing Line Loans pursuant to this Subsection 2.05(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Swing Line Lender, the
Borrowers or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default or Event of Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing. Any
such purchase of participations shall not relieve or otherwise impair the
obligation of the Borrowers to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of
Participations.
(i) At any
time after any Lender has purchased and funded a participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing
Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata
Share of such payment (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender’s participation was
outstanding and funded) in the same funds as those received by the Swing Line
Lender.
(ii) If any
payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender, each
Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand
of the Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Agent will make such demand upon the request of the Swing
Line Lender.
(e) Interest for Account of
Swing Line Lender. The Swing Line Lender shall be responsible
for invoicing the Borrowers for interest on the Swing Line Loans. Until each
Lender funds its Daily One-Month LIBOR Rate Loan or participation pursuant to
this Section
2.05 to refinance such Lender’s Pro Rata Share of any Swing Line Loan,
interest in respect of such Pro Rata Share shall be solely for the account of
the Swing Line Lender.
(f) Payments Directly to Swing
Line Lender. The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.
(g) References to Swing
Line. The provisions of this Agreement relating to the Swing
Line and the making of Swing Line Loans shall be operative only during such
periods of time that there is more than one Lender party to this
Agreement.
Section
2.06 Voluntary Termination or
Reduction of Revolving Loan Commitments. The Borrowers may, upon not less
than five (5) Business Days’ prior notice to the Agent, terminate the Revolving
Loan Commitments, or permanently reduce the Revolving Loan
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Commitments
by an aggregate minimum amount of $250,000 or any multiple of $50,000 in excess
thereof, provided that, after
giving effect to any such reduction and to any prepayments of Loans made on the
effective date thereof, (a) the Effective Amount of all Revolving Loans and L/C
Obligations together shall not exceed the amount of the Aggregate Commitment as
so reduced, and (b) the Effective Amount of all L/C Obligations then outstanding
shall not exceed the L/C Commitment. Once reduced in accordance with this
Section, the Revolving Loan Commitments may not be increased. Any reduction of
the Revolving Loan Commitments shall be applied to each Lender according to its
Pro Rata Share. If and to the extent specified by the Borrowers in
the notice to the Agent, some or all of the reduction in the Revolving Loan
Commitments shall be applied to reduce the L/C Commitment. All
accrued commitment and letter of credit fees to, but not including, the
effective date of any reduction or termination of Revolving Loan Commitments,
shall be paid on the effective date of such reduction or
termination.
Section
2.07 Optional
Prepayments. Subject to Section 4.02, the
Borrowers may, at any time or from time to time, upon not less than three (3)
Business Days’ irrevocable notice to the Agent in respect of LIBOR Rate Loans
and by not later than 10:00 a.m. (Central time) on the prepayment date in
respect of Daily One-Month LIBOR Rate Loans, prepay Loans in whole or in part,
provided that as to LIBOR Rate Loans, such prepayments shall be in minimum
amounts of $250,000 or any multiple of $50,000 in excess
thereof. Such notice of prepayment shall specify the date and amount
of such prepayment, which Loans are to be prepaid and the Type(s) of such Loans
to be prepaid. The Agent will promptly notify each Lender of its
receipt of any such notice, and of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by the Borrowers, the Borrowers
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together, in the case of LIBOR
Rate Loans, with accrued interest to each such date on the amount prepaid and
any amounts required pursuant to Section
4.02.
Section
2.08 Mandatory Prepayments of
Loans.
(a) If on any
date the Effective Amount of L/C Obligations exceeds the L/C Commitment, the
Borrowers shall Cash Collateralize on such date the outstanding Letters of
Credit in an amount equal to the excess of the maximum amount then available to
be drawn under the Letters of Credit over the Aggregate L/C
Commitment. Subject to Section 4.02, if on
any date after giving effect to any Cash Collateralization made on such date
pursuant to the preceding sentence, the Effective Amount of all Revolving Loans
then outstanding plus the Effective Amount of all L/C Obligations exceeds the
Aggregate Commitment, the Borrowers shall immediately, and without notice or
demand, prepay the outstanding principal amount of the Revolving Loans and L/C
Advances by an amount equal to the applicable excess.
(b) The Net
Proceeds of any disposition of any Loan Party’s property to be paid to the Agent
pursuant to Subsection
8.02(c)(iii)(A) of this Agreement shall be paid to the Agent no later
than three (3) days after receipt by the applicable Loan Party of such Net
Proceeds. Any prepayments pursuant to this Subsection 2.08(b)
shall be applied to the outstanding principal balance of the Revolving Loans
(without any reduction in the Revolving Loan Commitment of any Lender), first to
all Daily One-Month LIBOR Rate Loans and
then to LIBOR Rate Loans in direct order of maturity of the Interest Periods for
such LIBOR Rate Loans. The Borrowers shall pay, together with each
prepayment under this Subsection 2.08(b),
accrued interest on the amount prepaid.
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Section
2.09 Repayment of
Loans.
(a) The
Borrowers shall pay to the Lenders on the Maturity Date the aggregate principal
amount of all Revolving Loans outstanding on such date.
(b) The
Borrowers shall repay each Swing Line Loan from the Borrowers’ funds or from
proceeds of the other Loans or Borrowings which may be allowed under this
Agreement, or otherwise, on the earlier to occur of (i) the date ten (10)
Business Days after such Loan is made and (ii) the Maturity Date.
Section
2.10 Interest.
(a) Each
Revolving Loan shall bear interest on the outstanding principal amount thereof
from the applicable Borrowing Date at a rate per annum equal to the LIBOR Rate
or the Daily One-Month LIBOR Rate, as the case may be (and subject to the
Borrowers’ right to convert to another Type of Loan under Section 2.04), plus
the Applicable Margin. Each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Daily One-Month LIBOR Rate plus the Applicable
Margin.
(b) Interest
on each Revolving Loan shall be paid in arrears on each Interest Payment
Date. Interest on LIBOR Rate Loans shall be paid on the date of any
prepayment of Loans under Section 2.07 or 2.08 for the portion
of the Loans so prepaid and upon payment (including prepayment) in full
thereof. During the existence of any Event of Default, interest on
all Loans shall be paid on demand of the Agent at the request or with the
consent of the Required Lenders.
(c) Notwithstanding
Subsection (a) of this Section, if any amount of principal of or interest on any
Loan, or any other amount payable hereunder or under any other Loan Document is
not paid in full when due (whether at stated maturity, by acceleration, demand
or otherwise), the Borrowers agree to pay interest on such unpaid principal or
other amount, from the date such amount becomes due until the date such amount
is paid in full, and after as well as before any entry of judgment thereon to
the extent permitted by law, payable on demand, at a fluctuating rate per annum
equal to the Default Rate.
(d) Anything
herein to the contrary notwithstanding, the obligations of the Borrowers to any
Lender hereunder shall be subject to the limitation that payments of interest
shall not be required for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or receiving such
payment by such Lender would be contrary to the provisions of any law applicable
to such Lender limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Lender, and in such event the
Borrowers shall pay such Lender interest at the Highest Lawful
Rate.
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Section
2.11 Commitment
Fees. In addition to certain fees described in Section 3.08, the
Borrowers shall pay to the Agent, for the account of each Lender in accordance
with its Pro Rata Share, a commitment fee on the average daily unused portion of
the Aggregate Commitment during each fiscal quarter based upon the daily
utilization for that quarter as calculated by the Agent, equal to the Commitment
Fee Margin multiplied by the average of the daily unused portion. For
purposes of calculating utilization under this Subsection, all outstanding
Revolving Loans and Swing Line Loans and the Effective Amount of all L/C
Obligations will be considered utilization. Such commitment fee shall
accrue from the date hereof to the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on September 30, 2009, through the Maturity Date, with the final
payment to be made on the Maturity Date; provided that, in
connection with any reduction or termination of Revolving Loan Commitments under
Section 2.06,
the accrued commitment fee calculated for the period ending on such date shall
also be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The
commitment fees provided in this Subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article V are not
met. Notwithstanding the foregoing, no such fee shall be due and
payable for any periods after the Agent declares the unpaid principal amount of
all outstanding Loans to be due and payable pursuant to Subsection
9.02(b).
Section
2.12 Computation of Fees and
Interest.
(a) All
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each
determination of an interest rate by the Agent shall be conclusive and binding
on the Borrowers and the Lenders in the absence of clear and obvious
error.
Section
2.13 Payments by the
Borrowers.
(a) All
payments to be made by the Borrowers shall be made without setoff, recoupment or
counterclaim. Except as otherwise expressly provided herein, all
payments by the Borrowers shall be made to the Agent for the account of the
Lenders at the Agent’s Payment Office, and shall be made in Dollars and in
immediately available funds, no later than 11:00 a.m. (Central time) on the date
specified herein. The Agent will promptly distribute to each Lender
its applicable share of such payment in like funds as received which, except as
otherwise expressly provided herein, shall be based upon such Lender’s Pro Rata
Share of the Loans in respect of which such prepayment has been made. Any
payment received by the Agent later than 1:00 p.m. (Central time) shall be
deemed to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
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(b) Subject
to the provisions set forth in the definition of “Interest Period” herein,
whenever any payment is due on a day other than a Business Day, such payment
shall be made on the following Business Day, and such extension of time shall in
such case be included in the computation of interest or fees, as the case may
be.
(c) Unless
the Agent receives notice from the Borrowers prior to the date on which any
payment is due to the Lenders that the Borrowers will not make such payment in
full as and when required, the Agent may assume that the Borrowers have made
such payment in full to the Agent on such date in immediately available funds
and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrowers have
not made such payment in full to the Agent, each Lender shall repay to the Agent
on demand such amount distributed to such Lender, together with interest thereon
at the LIBOR Rate plus the Applicable Margin for each day from the date such
amount is distributed to such Lender until the date repaid.
Section
2.14 Auto-Debit. The
Borrowers authorize and direct that the Agent shall deduct payments due pursuant
to Section
2.13, Section
4.02 or otherwise under this Agreement or any of the Loan Documents,
including but not limited to payments of principal, interest and any commitment
fee, arrangement fee, letter of credit fee or other fee, or any other cost or
expense (including Attorney Costs) due and payable to the Agent, the L/C Issuer,
or ▇▇▇▇▇ Fargo under the Loan Documents, by automatic debit from an account of
the Borrowers at the Agent, the identity of which account the Borrowers shall
advise Agent on or before the Closing Date. With respect to any such
commitment fee, arrangement fee, letter of credit fee or other fee, or any other
cost or expense (including Attorney Costs), (i) ▇▇▇▇▇ Fargo shall give notice to
the Borrowers thereof not later than 9:00 a.m. (Central time) on the date of
such debit, (ii) if there are insufficient funds in such deposit accounts to
cover the amount of the fee or other cost or expense then due, such debits will
be reversed so as not to create an overdraft (in whole or in part, in ▇▇▇▇▇
Fargo’s sole discretion) and such amount not debited shall be deemed to be
unpaid. No such debit under this Section 2.14 shall be
deemed a set-off.
Section
2.15 Payments by the Lenders to
the Agent.
(a) Unless
the Agent receives notice from a Lender on or prior to the Closing Date or, with
respect to any Borrowing after the Closing Date, at least one (1) Business Day
prior to the date of such Borrowing, that such Lender will not make available as
and when required hereunder to the Agent for the account of the Borrowers the
amount of that Lender’s Pro Rata Share of the Borrowing, the Agent may assume
that each Lender has made such amount available to the Agent in immediately
available funds on the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Borrowers on
such date a corresponding amount. If and to the extent any Lender
shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the
Borrowers such amount, that Lender shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with interest
at the LIBOR Rate plus the Applicable Margin for each day during such period. A
notice of the Agent submitted to any Lender with respect to amounts owing under
this Subsection
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2.15(a) shall be
conclusive, absent clear and obvious error. If such amount is so made
available, such payment to the Agent shall constitute such Lender’s Loan on the
date of Borrowing for all purposes of this Agreement. If such amount
is not made available to the Agent on the Business Day following the Borrowing
Date, the Agent will notify the Borrowers of such failure to fund and, upon
demand by the Agent, the Borrowers shall pay such amount to the Agent for the
Agent’s account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The
failure of any Lender to make any Loan on any Borrowing Date shall not relieve
any other Lender of any obligation hereunder to make a Loan on such Borrowing
Date, but no Lender shall be responsible for the failure of any other Lender to
make the Loan to be made by such other Lender on any Borrowing
Date.
Section
2.16 Sharing of
Payments. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder), such Lender shall immediately (a) notify the Agent of such fact, and
(b) 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 pro rata with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender’s ratable share
(according to the proportion of (i) the amount of such paying 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. The Borrowers agree that any Lender
so purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 12.10) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such participation. The
Agent will keep records (which shall be conclusive and binding in the absence of
clear and obvious error) of participations purchased under this Section and will
in each case notify the Lenders following any such purchases or
repayments.
Section
2.17 Increase in
Commitments.
(a) At any
time and from time to time after the Closing Date, the Borrowers may request an
increase in the Aggregate Commitment, provided that (i) each increase in the
Aggregate Commitment shall be in the minimum amount of $5,000,000 (or in
multiples of $5,000,000 in excess thereof), and (ii) in no event may the
Aggregate Commitment be increased to an amount greater than
$40,000,000. If the Borrowers desire an increase in the Aggregate
Commitment, it shall first deliver a written request (“Request for Aggregate
Commitment Increase”) to the Agent and each of the Lenders specifying the
amount of the proposed increase in the Aggregate Commitment and the proposed
effective date of such increase and requesting that the Lenders severally
increase their respective Commitments. Upon the Borrowers’ delivery
of any Request for
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Aggregate
Commitment Increase, each of the Lenders will have the right, but not the
obligation, to increase its Commitment in accordance with its Pro Rata Share of
the requested increase in the Aggregate Commitment. Each of the Lenders shall
notify the Borrowers and the Agent of its determination within ten (10) days
after receipt of the Request for Aggregate Commitment Increase. If
one or more of the Lenders elects not to increase its Commitment (or to increase
its Commitment by an amount less than its Pro Rata Share of the requested
increase in the Aggregate Commitment), the Borrowers may request that the other
Lenders increase their Commitments by the amount of the shortfall or seek to
obtain Commitments from other financial institutions to become additional
Lenders under this Agreement (subject to the consent of the Agent, but without
the consent of any other Lenders). The Borrowers shall notify the
Agent of any financial institution that shall have agreed to become an
additional Lender party to this Agreement (a “New Lender”) in
connection with a Request for Aggregate Commitment Increase and the amount of
its proposed Commitment, and the Agent shall then have a period of five Business
Days in which to consent or withhold consent to the admission of the proposed
New Lender. If the Borrowers are unable within thirty (30) days after
delivering any Request for Aggregate Commitment Increase to obtain approval from
the Lenders to increase their Commitments and/or to secure Commitments from New
Lenders for the full amount of the requested increase in the Aggregate
Commitment, the Request for Aggregate Commitment Increase shall become effective
to the extent of the increased or new Commitments actually
obtained. Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment on the part of any Lender to increase its Commitment
at any time, and no Lender shall be obligated to agree to any increase in its
Commitment.
(b) If any
Request for Aggregate Commitment Increase is approved by the requisite Lenders
(including any New Lenders approved by the Agent), the Agent shall notify the
Borrowers, the Lenders and any New Lenders of the effective date (“Increase Effective
Date”) proposed by the Borrowers for the increase in the Aggregate
Commitment and the Commitments which will be in effect for each of the
applicable Lenders and any New Lenders as of the Increase Effective
Date.
(c) Any
increase in the Aggregate Commitment shall be subject to the satisfaction of the
following conditions precedent at or as of the Increase Effective Date: (i) no
Default or Event of Default shall have occurred and then be continuing; (ii) all
representations, warranties and covenants contained in this Agreement and the
other Loan Documents shall be true and correct in all material respects as
though made on such date; (iii) each Lender that shall have agreed to provide an
increase in its Commitment shall have confirmed such increase to the Borrowers
and the Agent in writing; (iv) each New Lender shall have executed and delivered
such documents as the Agent shall have reasonably required in order for it to
subscribe to the terms and conditions of this Agreement and the other Loan
Documents and agree to be bound by the terms and provisions hereof and thereof
or as the Agent shall have reasonably requested in connection with such
increase; (v) a secretary or assistant secretary of each of the Borrowers shall
have provided to the Agent a certified copy of directors’ resolutions
authorizing such increase in the Commitments; (vi) the outstanding Loans shall
have been reallocated ratably among the Lenders (including the New Lenders)
after giving
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effect to
such increase; and (vii) all legal matters incident to such increase and the
admission of any New Lenders under this Agreement shall be satisfactory to the
Agent and its counsel. The Borrowers hereby agree to compensate each Lender, as
and to the extent provided in Section 4.02, for all
losses, expenses and liabilities incurred by such Lender in connection with the
reallocation of any outstanding Loans. Upon delivery of the documents
contemplated by clause (iv) of the first sentence of this Subsection 2.17(c),
each New Lender shall become for all purposes a Lender party to this Agreement
and all other Loan Documents and shall have all the rights and obligations of a
Lender under this Agreement and all other Loan Documents, to the same extent as
if it were an original party thereto. No increase in the Aggregate Commitments
shall become effective unless and until each of the foregoing conditions
precedent has been satisfied.
ARTICLE
III
THE LETTERS OF
CREDIT
Section
3.01 The Letter of Credit
Subfacility.
(a) On
the terms and conditions set forth herein (i) the L/C Issuer agrees, (A) from
time to time on any Business Day, during the period from the Closing Date to the
day which is five (5) days prior to the Maturity Date, to issue Letters of
Credit for the account of a Borrower in an aggregate Stated Amount at any one
time that, together with the aggregate Stated Amount of all other outstanding
Letters of Credit issued pursuant hereto, does not exceed the L/C Commitment,
and to amend or renew Letters of Credit previously issued by it, in accordance
with Subsections
3.02(c) and 3.02(d), and (B) to
honor drafts under the Letters of Credit; and (ii) the Lenders severally agree
to participate in Letters of Credit Issued for the account of the Borrower;
provided, that the L/C Issuer shall not be obligated to Issue, and no Lender
shall be obligated to participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the “Issuance Date”) (1)
the Effective Amount of all L/C Obligations plus the Effective Amount of all
Loans exceeds the Aggregate Commitment, (2) the participation of any Lender in
the Effective Amount of all L/C Obligations plus the Effective Amount of the
Loans of such Lender exceeds such Lender’s Commitment, or (3) the Effective
Amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Borrowers may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed.
(b)
The L/C
Issuer is under no obligation to, and shall not, Issue any Letter of Credit
if:
(i) any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from Issuing such Letter
of Credit, or any Requirement of Law applicable to the L/C Issuer or any request
or directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or request that
the L/C Issuer refrain from, the Issuance of letters of credit
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generally
or such Letter of Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital requirement
(for which the L/C Issuer is not otherwise compensated hereunder) not in effect
on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which the L/C
Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the L/C
Issuer has received written notice from any Lender, the Agent or the Borrowers,
on or prior to the Business Day prior to the requested date of Issuance of such
Letter of Credit, that one or more of the applicable conditions contained in
Article V is
not then satisfied;
(iii) the
expiry date of any requested Letter of Credit is (A) more than 365 days after
the date of Issuance, unless the Required Lenders have approved such expiry date
in writing, or (B) after the date which is five (5) days prior to the Maturity
Date, unless all of the Lenders have approved such expiry date in
writing;
(iv) the
expiry date of any requested Letter of Credit is prior to the maturity date of
any financial obligation to be supported by the requested Letter of
Credit;
(v) any
requested Letter of Credit does not provide for drafts, or is not otherwise in
form and substance reasonably acceptable to the L/C Issuer, or the Issuance of a
Letter of Credit would violate any applicable policies of the L/C Issuer;
or
(vi) such
Letter of Credit is to be denominated in a currency other than
Dollars.
Section
3.02 Issuance, Amendment and
Renewal of Letters of Credit.
(a) Each
Letter of Credit shall be issued upon the irrevocable written request of any
Borrower received by the L/C Issuer (with a copy sent by such Borrower to the
Agent) at least four (4) days (or such shorter time as the L/C Issuer may agree
in a particular instance in its sole discretion) prior to the proposed date of
issuance. Each such request for issuance of a Letter of Credit shall
be by facsimile or e-mail, confirmed immediately in an original writing, in the
form of an L/C Application (or such other form as shall be acceptable to the L/C
Issuer), and shall specify in form and detail reasonably satisfactory to the L/C
Issuer: (i) the proposed date of issuance of the Letter of Credit (which shall
be a Business Day); (ii) the face amount of the Letter of Credit; (iii) the
expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the L/C Issuer may reasonably
require.
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(b)
At least
two (2) Business Days prior to the Issuance of any Letter of Credit (or such
shorter time as the Agent may agree in a particular instance in its sole
discretion), the L/C Issuer will confirm with the Agent (by telephone or in
writing) that the Agent has received a copy of the L/C Application or L/C
Amendment Application from the Borrowers and, if not, the L/C Issuer will
provide the Agent with a copy thereof. Unless the L/C Issuer has
received notice on or before the Business Day immediately preceding the date the
L/C Issuer is to issue a requested Letter of Credit from the Agent (A) directing
the L/C Issuer not to issue such Letter of Credit because such issuance is not
then permitted under Subsection 3.01(a) as
a result of the limitations set forth in clauses (1) through (3) thereof; or (B)
that one or more conditions specified in Article V are not
then satisfied; then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
Borrowers in accordance with the L/C Issuer’s usual and customary business
practices.
(c) From time
to time while a Letter of Credit is outstanding and prior to the Maturity Date,
the L/C Issuer will, upon the written request of the Borrowers received by the
L/C Issuer (with a copy sent by the Borrowers to the Agent) at least three (3)
days (or such shorter time as the L/C Issuer may agree in a particular instance
in its sole discretion) prior to the proposed date of amendment, amend any
Letter of Credit issued by it. Each such request for amendment of a Letter of
Credit shall be made by facsimile or e-mail, confirmed immediately in an
original writing, made in the form of an L/C Amendment Application and shall
specify in form and detail satisfactory to the L/C Issuer: (i) the Letter of
Credit to be amended; (ii) the proposed date of amendment of the Letter of
Credit (which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the L/C Issuer may reasonably require.
The L/C Issuer shall be under no obligation to amend any Letter of Credit if:
(A) the L/C Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms of this Agreement; or (B) the
beneficiary of any such letter of Credit does not accept the proposed amendment
to the Letter of Credit. The Agent will promptly notify the Lenders of the
receipt by it of any L/C Application or L/C Amendment Application.
(d) The L/C
Issuer and the Lenders agree that, while a Letter of Credit is outstanding and
prior to the Maturity Date, at the option of the Borrowers and upon the written
request of the Borrowers received by the L/C Issuer (with a copy sent by the
Borrowers to the Agent) at least five (5) days (or such shorter time as the L/C
Issuer may agree in a particular instance in its sole discretion) prior to the
proposed date of notification of renewal, the L/C Issuer shall be entitled to
authorize the automatic renewal of any Letter of Credit issued by
it. Each such request for renewal of a Letter of Credit shall be made
by facsimile or e-mail, confirmed immediately in an original writing, in the
form of an L/C Amendment Application, and shall specify in form and detail
satisfactory to the L/C Issuer: (i) the Letter of Credit to be renewed; (ii) the
proposed date of notification of renewal of the Letter of Credit (which shall be
a Business Day); (iii) the revised expiry date of the Letter of Credit; and (iv)
such other matters as the L/C Issuer may reasonably require. The L/C
Issuer shall be under no obligation so to renew any Letter of Credit if: (A) the
L/C Issuer would have no obligation at such time to issue or amend such Letter
of Credit in its renewed form under the terms of this Agreement; or
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(B) the
beneficiary of any such Letter of Credit does not accept the proposed renewal of
the Letter of Credit. If any outstanding Letter of Credit shall provide that it
shall be automatically renewed unless the beneficiary thereof receives notice
from the L/C Issuer that such Letter of Credit shall not be renewed, and if at
the time of renewal the L/C Issuer would be entitled to authorize the automatic
renewal of such Letter of Credit in accordance with this Subsection 3.02(d)
upon the request of the Borrowers but the L/C Issuer shall not have received any
L/C Amendment Application from the Borrowers with respect to such renewal or
other written direction by the Borrowers with respect thereto, the L/C Issuer
shall nonetheless be permitted to allow such Letter of Credit to renew, and the
Borrowers and the Lenders hereby authorize such renewal, and, accordingly, the
L/C Issuer shall be deemed to have received an L/C Amendment Application from
the Borrowers requesting such renewal.
(e) The L/C
Issuer may, at its election (or as required by the Agent at the direction of the
Required Lenders) and upon reasonable prior written notice to the Borrowers and
subject to the terms of the applicable Letter of Credit, deliver any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the date which is five (5) days prior to the
Maturity Date.
(f) This
Agreement shall control in the event of any conflict with any L/C-Related
Document (other than any Letter of Credit).
(g) The L/C
Issuer will also deliver to the Agent, concurrently or promptly following its
delivery of a Letter of Credit, or amendment to or renewal of a Letter of
Credit, to an advising bank or a beneficiary, a true and complete copy of each
such Letter of Credit or amendment to or renewal of a Letter of
Credit.
Section
3.03 Risk Participations,
Drawings and Reimbursements.
(a) Immediately
upon the Issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to the product of (i) the Pro Rata Share of such Lender, times (ii) the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively. For purposes of Section 2.01, each
Issuance of a Letter of Credit shall be deemed to utilize the Revolving Loan
Commitment of each Lender by an amount equal to the amount of such
participation.
(b) In the
event of any request for a drawing under a Letter of Credit by the beneficiary
or transferee thereof, the L/C Issuer will promptly notify the
Borrowers. The Borrowers shall reimburse the L/C Issuer prior to
11:00 a.m. (Central time), on each date that any amount is paid by the L/C
Issuer under any Letter of Credit (each such date, an “Honor Date”), in an
amount in Dollars equal to the amount so paid by the L/C Issuer. In
the event the Borrowers fail to reimburse the L/C Issuer the full amount of any
drawing under any Letter of Credit by 11:00 a.m. (Central time) on the Honor
Date, the L/C Issuer
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will
promptly notify the Agent and the Agent will promptly notify each Lender
thereof, and the Borrowers shall be deemed to have requested that a Daily
One-Month LIBOR Rate Loan in an amount equal to such unreimbursed amount be made
by the Lenders to be disbursed on the Honor Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Aggregate Commitment and
subject to the conditions set forth in Section
5.02. Any notice given by the L/C Issuer or the Agent pursuant
to this Subsection
3.03(b) may be oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(c) Each
Lender shall upon any notice pursuant to Subsection 3.03(b)
make available to the Agent for the account of the L/C Issuer an amount in
Dollars and in immediately available funds equal to its Pro Rata Share of the
Dollar Equivalent of the amount of the drawing, whereupon the participating
Lenders shall (subject to Subsection 3.03(d))
each be deemed to have made a Revolving Loan consisting of a Daily One-Month
LIBOR Rate Loan to the Borrowers in that amount. If any Lender so
notified fails to make available to the Agent for the account of the L/C Issuer
the amount of such Lender’s Pro Rata Share of the Dollar Equivalent of the
amount of the drawing by no later than 12:00 noon (Central time) on the Honor
Date, then interest shall accrue on such Lender’s obligation to make such
payment, from the Honor Date to the date such Lender makes such payment, at a
rate per annum equal to the LIBOR Rate plus the Applicable Margin in effect from
time to time during such period. The Agent will promptly give notice
of the occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Lender to effect
such payment on such date shall not relieve such Lender from its obligations
under this Section
3.03.
(d) With
respect to any unreimbursed drawing that is not converted into Revolving Loans
consisting of Daily One-Month LIBOR Rate Loans to the Borrowers in whole or in
part, because of the Borrower’s failure to satisfy the conditions set forth in
Section 5.02 or
for any other reason, the Borrowers shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the Dollar Equivalent of the amount of such
drawing, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to the LIBOR Rate
plus the Applicable Margin, plus four percent (4.0%) per annum, and each
Lender’s payment to the L/C Issuer pursuant to Subsection 3.03(c)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section
3.03.
(e) Each
Lender’s obligation in accordance with this Agreement to make the Revolving
Loans or L/C Advances, as contemplated by this Section 3.03, as a
result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the L/C Issuer and shall not be affected
by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C Issuer, the
Borrowers or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever, whether or not
similar
to any of the foregoing; provided, however, that each Lender’s obligation to
make Revolving Loans under this Section 3.03 is
subject to the conditions set forth in Section
5.02.
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Section
3.04 Repayment of
Participations.
(a) Upon
(and only upon) receipt by the Agent for the account of the L/C Issuer of
immediately available funds in Dollars from the Borrowers (i) in reimbursement
of any payment made by the L/C Issuer under the Letter of Credit with respect to
which any Lender has paid the Agent for the account of the L/C Issuer for such
Lender’s participation in the Letter of Credit pursuant to Section 3.03 or (ii)
in payment of interest thereon, the Agent will promptly pay to each Lender, in
the same funds as those received by the Agent for the account of the L/C Issuer,
the amount of such Lender’s Pro Rata Share of such funds, and the L/C Issuer
shall receive the amount of the Pro Rata Share of such funds of any Lender that
did not so pay the Agent for the account of the L/C Issuer.
(b) If the
Agent or the L/C Issuer is required at any time to return to the Borrowers, or
to a trustee, receiver, liquidator, custodian, or any official in any Insolvency
Proceeding, any portion of the payments made by the Borrowers to the Agent for
the account of the L/C Issuer pursuant to Subsection 3.04(a) in
reimbursement of a payment made under the Letter of Credit or interest or fee
thereon, each Lender shall, on demand of the Agent, forthwith return to the
Agent or the L/C Issuer the amount of its Pro Rata Share of any amounts so
returned by the Agent or the L/C Issuer plus interest thereon from the date such
demand is made to the date such amounts are returned by such Lender to the Agent
or the L/C Issuer, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
Section
3.05 Role of the L/C
Issuer.
(a) Each
Lender and the Borrowers agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft and certificates expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.
(b) No
Agent-Related Person nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for: (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders (including the Required Lenders or Required Lenders, as applicable);
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The
Borrowers hereby assume all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrowers’
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Agent-Related
Person, nor any of the respective
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correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (vii) of Section 3.06; provided, however, anything in
such clauses to the contrary notwithstanding, that the Borrowers may have a
claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrowers,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrowers which the
Borrowers prove were caused by the L/C Issuer’s willful misconduct or gross
negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing: (i)
the L/C Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the L/C Issuer shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
Section
3.06 Obligations Absolute.
The obligations of the Borrowers under this Agreement and any L/C-Related
Document to reimburse the L/C Issuer for a drawing under a Letter of Credit, and
to repay any L/C Borrowing and any drawing under a Letter of Credit converted
into Revolving Loans, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
L/C-Related Document under all circumstances, including the
following:
(a) any lack
of validity or enforceability of this Agreement or any L/C-Related
Document;
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the obligations of the Borrowers in respect of any Letter of Credit or
any other amendment or waiver of or any consent to departure from all or any of
the L/C-Related Documents;
(c) the
existence of any claim, set-off, defense or other right that the Borrowers may
have at any time against any beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may
be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-Related Documents
or any unrelated transaction;
(d) any
draft, demand, certificate or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit;
(e) any
payment by the L/C Issuer under any Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of any Letter of
Credit; or any payment made by the L/C Issuer under any Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency
Proceeding;
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(f) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guarantee, for all
or any of the obligations of the Borrowers in respect of any Letter of Credit;
or
(g) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrowers or a
Guarantor.
Section
3.07 Cash Collateral
Pledge. Upon the request of the Agent, if the L/C Issuer has honored any
full or partial drawing request on any Letter of Credit and such drawing has
resulted in an L/C Borrowing hereunder (and has not been converted into
Revolving Loan), the Borrowers shall immediately Cash Collateralize the L/C
Obligations in an amount equal to the L/C Obligations. The Borrowers
shall also immediately Cash Collateralize the L/C Obligations in an amount equal
to the L/C Obligations if (i) any Letters of Credit for any reason outstanding
and partially or wholly undrawn as of the Maturity Date, (ii) any of the
circumstances described in Subsection 2.08(a)
shall occur, or (iii) the Aggregate Commitment is terminated.
Section
3.08 Letter of Credit
Fees.
(a) The
Borrowers shall pay to the Agent for the account of each Lender in accordance
with its Pro Rata Share a Letter of Credit fee equal to the LIBOR Rate plus the
Applicable Margin for each standby Letter of Credit times the daily
maximum amount available to be drawn under such Letter of Credit (whether or not
such maximum amount is then in effect under such Letter of Credit). Such letter
of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable on the
last Business Day of each calendar quarter, commencing with the first such date
to occur after the issuance of such Letter of Credit and thereafter on demand
and on the Maturity Date. The Borrowers shall pay to the L/C Issuer
for its own account fees in the amounts and at the times specified below in
Subsection
3.08(b). Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(b) In
addition to the foregoing, the Borrowers shall pay to the L/C Issuer from time
to time on demand the normal issuance, presentation, amendment, transfer,
negotiation, and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect. Such letter of credit fees and charges shall be computed on a
quarterly basis and shall due and payable on the last Business Day of each
calendar quarter and on the Maturity Date. The Borrowers acknowledge
that, as of the date hereof, the usual fees and charges of the L/C Issuer will
include (i) an issuance fee of $250 for each Letter of Credit Issued hereunder,
(ii) a negotiation fee equal to the greater of (A) $250 or (B) 0.125% of the
amount drawn under any Letter of Credit, and (iii) an amendment fee equal to
$130 for any amendment to any Letter of Credit.
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Section
3.09 Uniform Customs and
Practice. The Uniform Customs and Practice for Documentary
Credits as published by the International Chamber of Commerce most recently at
the time of issuance of any Letter of Credit shall (unless otherwise expressly
provided in the Letters of Credit) apply to the Letters of Credit.
ARTICLE
IV
TAXES, YIELD PROTECTION AND
ILLEGALITY
Section
4.01 Taxes. Any
and all payments by the Borrowers to each Lender or the Agent under this
Agreement and any other Loan Document shall be made free and clear of, and
without deduction or withholding by the Borrowers for any Taxes.
Section
4.02 Funding
Losses. The Borrowers shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of:
(a) the
failure of the Borrowers to make on a timely basis any payment of principal of
any LIBOR Rate Loan;
(b) the
failure of the Borrowers to borrow, continue or convert a Loan after the
Borrowers have given (or is deemed to have given) a Notice of Borrowing or a
Notice of Conversion/Continuation;
(c) the
failure of the Borrowers to make any prepayment in accordance with any notice
delivered under Section
2.07;
(d) the
prepayment (including pursuant to Section 2.08) or
other payment (including after acceleration thereof) of a LIBOR Rate Loan on a
day that is not the last day of the relevant Interest Period; or
(e) the
automatic conversion under Subsection 2.04(b) of
any LIBOR Rate Loan on a day that is not the last day of the relevant Interest
Period;
including
any such loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain its LIBOR Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Borrowers to the Lenders under
this Section, each LIBOR Rate Loan made by a Lender (and each related reserve,
special deposit or similar requirement) shall be conclusively deemed to have
been funded at the LIBOR Rate used in determining the LIBOR Rate for such LIBOR
Rate Loan by a matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such
LIBOR Rate Loan is in fact so funded.
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Section
4.03 Inability to Determine
Rates. If the Agent determines that for any reason adequate
and reasonable means do not exist for determining the LIBOR Rate for any
requested Interest
Period with respect to a proposed LIBOR Rate Loan, or that the LIBOR Rate
applicable pursuant to Subsection 2.10(a)
for any requested Interest Period with respect to a proposed LIBOR Rate Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Loan, the Agent will promptly so notify the Borrowers and each
Lender. Thereafter, the obligation of the Lenders to make or maintain
LIBOR Rate Loans hereunder shall be suspended until the Agent revokes such
notice in writing. Upon receipt of such notice, the Borrowers may
revoke without cost or penalty any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by them. If the Borrowers do
not revoke such Notice, the Lenders shall make, convert or continue the Loans,
as proposed by the Borrowers, in the amount specified in the applicable notice
submitted by the Borrowers, and such Loans shall made, converted or continued as
Daily One-Month LIBOR Rate Loans.
Section
4.04 Certificates of
Lenders. Any Lender claiming reimbursement or compensation
under this Article
IV shall deliver to the Borrowers (with a copy to the Agent) a
certificate setting forth in reasonable detail the amount payable to the Lender
hereunder and such certificate shall be presumptively correct in the absence of
clear and obvious error. Any disagreement of any kind arising between the
Borrowers and any Lender claiming error in any certificate described above in
this Section
4.04 should be resolved amicably by negotiations between the
parties. If such a disagreement should arise, the parties to such
disagreement shall willingly enter into discussions and negotiations in a good
faith effort to settle the dispute as expeditiously as possible. Such
negotiations shall at a minimum be held between executives of the parties who
have authority to settle the dispute. In the event such negotiations
fail, in the opinion of either party, to resolve the disagreement within a
reasonable period of time not to exceed forty-five (45) calendar days, the
parties shall be free to exercise all other rights they may have under this
Agreement pertaining to such disagreement.
Section
4.05 Survival. The
agreements and obligations of the Borrowers in this Article IV shall
survive the payment of all other Obligations.
ARTICLE
V
CONDITIONS
PRECEDENT
Section
5.01 Conditions of Initial Credit
Extensions. The obligation of each Lender to make its initial
Credit Extension hereunder is subject to the Borrowers’ fulfillment of each of
the following conditions precedent:
(a) Credit Agreement and Loan
Documents. This Agreement, the Notes, the Security Agreement
and all other Loan Documents shall have been executed by each Loan Party thereto
and delivered to the Agent.
(b) Resolutions;
Incumbency. The Agent shall have received:
(i) Copies of
the resolutions of the board of directors (or other governing body) of each Loan
Party authorizing the transactions contemplated hereby and the execution,
delivery and performance of each Loan Document to which it is a party, certified
as of the Closing Date by the secretary or an assistant secretary of each Loan
Party; and
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(ii) A
certificate of the secretary or assistant secretary of each Loan Party
certifying the names and true signatures of the officers of such Loan Party who
are authorized to execute, deliver and perform, as applicable, this Agreement
and all other Loan Documents to be delivered by it hereunder;
(c) Organization Documents; Good
Standing. The Agent shall have received each of the following
documents:
(i) a copy of
the Organization Documents of each Loan Party as in effect on the Closing Date,
certified by the Secretary or Assistant Secretary of such Loan Party as of the
Closing Date; and
(ii) a good
standing certificate or certificate of status for each Loan Party from the
Secretary of State (or similar, applicable Governmental Authority) of its state
of incorporation or formation and such other states as shall be reasonably
requested by the Agent;
(d) Legal
Opinion. The Agent shall have received an opinion of Hall,
Estill, Hardwick, Gable, Golden & ▇▇▇▇▇▇, P.C., counsel to the Loan Parties,
addressed to the Agent and the Lenders, substantially in the form of Exhibit
“F”;
(e) Payment of
Fees. The Borrowers shall have paid all accrued and unpaid
fees, costs and expenses of the Agent to the extent then due and payable on the
Closing Date, together with the Attorney Costs of ▇▇▇▇▇ Fargo to the extent
invoiced prior to or on the Closing Date.
(f) Certificate. The
Agent shall have received a certificate signed on behalf of the Borrowers by a
Responsible Officer and dated as of the Closing Date, stating that:
(i) the
representations and warranties contained in Article VI are true
and correct on and as of such date, as though made on and as of such
date;
(ii) no
Default or Event of Default exists or would result from the Credit Extension;
and
(iii) there has
occurred since March 31, 2009, no event or circumstance that has resulted or
could reasonably be expected to result in a Material Adverse
Effect;
(g) Collateral
Documents. The Collateral Documents shall have been executed
by the Loan Parties, in appropriate form for recording, where necessary, and
delivered to the Agent, together with:
(i) all
filings, registrations and recordings necessary and advisable to perfect the
Liens of the Agent for the benefit of the Lenders in accordance with applicable
law;
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(ii) written
advice relating to such Lien and judgment searches as the Agent shall have
requested, and such termination statements or other documents as may be
necessary to confirm that the Collateral is subject to no other Liens in favor
of any Persons (other than Permitted Liens);
(iii) to the
extent requested by the Agent, funds sufficient to pay any filing or recording
tax or fee in connection with any and all UCC financing statements;
(iv) evidence
that the Agent has been named as loss payee under all policies of casualty
insurance, and as additional insured under all policies of liability insurance,
required by any of the Loan Documents; and
(v) evidence
that all other actions necessary or, in the opinion of the Agent, desirable to
perfect and protect the first priority Lien created by the Collateral Documents,
and to enhance the Agent’s ability to preserve and protect its interests in and
access to the Collateral, have been taken (or arrangements therefor satisfactory
to the Agent have been made);
(h) Insurance
Policies. The Agent shall have received standard lenders’
payable endorsements with respect to the insurance policies or other instruments
or documents evidencing insurance coverage on the properties of the Loan Parties
in accordance with Section 6.18 (or
arrangements therefor satisfactory to the Agent);
(i) Payoff
Letter. The Agent shall have received a satisfactory payoff
letter from Bank of America, N.A. (“BofA”) which shall
generally (i) state the amount, if any (the “Payoff Amount”)
necessary to pay in full all principal, interest, fees and other amounts owing
by the Borrowers to BofA and its Affiliates, including amounts owed to BofA or
its Affiliates under capital leases or Swap Contracts, (ii) state that, upon
BofA’s receipt of the Payoff Amount in good funds, all Liens (including any
“negative pledge” or similar restriction) on any properties of the Loan Parties
will be released and terminated, and that neither BofA nor any of its Affiliates
will thereafter have any Lien or security interest in any properties of the Loan
Parties, (iii) state that all credit agreements, mortgages, security agreements,
promissory notes and other documents pertaining to any Debt owing by any of the
Loan Parties to BofA and its Affiliates will be cancelled or terminated, and
(iv) authorize the Agent, upon receipt of written confirmation that BofA has
received the Payoff Amount, to file all required UCC termination statements and
other documentation evidencing the termination by BofA of its Liens in and to
any of the properties of the Loan Parties;
(j) Proceedings.
(i) All
corporate and other legal proceedings and all instruments and agreements to be
executed by the Loan Parties in connection with the transactions contemplated by
this Agreement and the Loan Documents shall be reasonably satisfactory in form
and substance to the Agent, and the Agent shall have received all information
and copies of all certificates, documents and papers, including good
standing certificates and any other records of corporate proceedings and
governmental approvals, if any, which the Agent reasonably may have requested in
connection therewith, such documents and papers, where appropriate, to be
certified by proper corporate or governmental authorities;
and
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(ii) The
ownership and capital structure (including, the terms of any capital stock,
options, warrants or other securities issued by the Borrowers) of the Borrowers
shall be in form and substance reasonably satisfactory to the
Agent;
(k) Delivery of Financial
Statements. The Borrowers shall have delivered to the Agent
the consolidated financial statements of the Parent as provided in Subsection 6.11(a),
in form and substance satisfactory to the Agent;
(l) Solvency. The Agent
shall have received a solvency certificate from a Responsible Officer on behalf
of each Borrower addressed to the Agent and each of the Lenders and dated the
Closing Date and supporting the conclusions, that it and each of its
Subsidiaries (if any) are not insolvent and will not be rendered insolvent by
the indebtedness incurred in connection herewith, will not be left with
unreasonably small capital with which to engage in its respective businesses and
will not have incurred debts beyond its ability to pay such debts in the
ordinary course as they mature and become due;
(m) Litigation. There
shall be no litigation or administrative proceedings or other legal or
regulatory developments, actual or threatened, that, in the judgment of the
Agent, could reasonably be expected to have a Material Adverse Effect, and no
injunction or other restraining order shall have been issued or a hearing
therefor be pending or noticed with respect to the Loan Parties concerning the
Loan Documents or the transactions contemplated hereby or thereby;
(n) No Material Adverse
Change. Since March 31, 2009, there shall not have been any
material adverse change in the condition (financial or otherwise), results of
operations, assets, properties, business or prospects of the Parent and its
Subsidiaries, taken as a whole; and
(o) Other
Documents. The Agent shall have received such other approvals,
opinions, documents or materials as the Agent may reasonably
request.
Section
5.02 Conditions to All Credit
Extensions. The obligation of each Lender to make any
Revolving Loan to be made by it (including its initial Revolving Loan) and the
obligation of the L/C Issuer to Issue any Letter of Credit (including the
initial Letter of Credit) is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance
Date:
(a) Notice,
Application. The Agent shall have received a Notice of
Borrowing or in the case of any Issuance of any Letter of Credit, the L/C Issuer
and the Agent shall have received an L/C Application or L/C Amendment
Application, as required under Subsection 3.02(b),
or in the case of any Swing Line Loan the Swing Line Lender shall have received
a proper Notice of Borrowing;
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(b) Continuation of
Representations and Warranties. The representations and
warranties in Article
VI shall be true and correct in all material respects on and as of such
Borrowing Date or Issuance Date with the same effect as if made on and as of
such Borrowing Date or Issuance Date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date); and
(c) No Existing
Default. No Default or Event of Default shall exist or shall
result from such Borrowing or Issuance.
Each
Notice of Borrowing and L/C Application or L/C Amendment Application submitted
by the Borrowers hereunder shall constitute a representation and warranty by the
Borrowers hereunder, as of the date of each such notice and as of each Borrowing
Date or Issuance Date, as applicable, that all of the conditions in this Section 5.02 are
satisfied.
ARTICLE
VI
REPRESENTATIONS AND
WARRANTIES
The Loan
Parties represent and warrant to the Agent and each Lender that, as of the date
hereof and as the date of each Credit Extension:
Section
6.01 Corporate Existence and
Power. Each Loan Party:
(a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation;
(b) has the
power and authority and all material governmental licenses, authorizations,
consents and approvals to own its assets, to carry on its business and to
execute, deliver, and perform its obligations under the Loan Documents to which
it is a party;
(c) is duly
qualified or registered as a foreign corporation and is licensed and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license, except to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect; and
(d) is in
compliance in all material respects with all Requirements of Law.
Section
6.02 Authorization; No
Contravention. The execution, delivery and performance by each Loan Party
of this Agreement and each other Loan Document to which it is a party have been
duly authorized by all necessary corporate action, and do not and will
not:
(a) contravene
the terms of any Loan Party’s Organization Documents;
(b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any Contractual Obligation to which any Loan
Party is
a party or any order, injunction, writ or decree of any Governmental Authority
to which any Loan Party or its property is subject; or
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(c) violate
any Requirement of Law.
Section
6.03 Governmental
Authorization. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority
(except those that have been obtained and remain in effect and for recordings or
filings in connection with the Liens granted to the Agent under the Collateral
Documents) is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this Agreement or
any other Loan Document to which it is a party.
Section
6.04 Binding
Effect. This Agreement and each other Loan Document to which
each Loan Party is a party constitute the legal, valid and binding obligations
of such Loan Party, enforceable against such Loan Party in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles relating to
enforceability.
Section
6.05 Litigation. To
the Knowledge of the Loan Parties, there are no actions, suits, proceedings,
claims or disputes pending, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against any Loan Party or any
of their properties:
(a) which
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby or thereby; or
(b) except as
disclosed on Schedule
6.05, as to which there exists a substantial likelihood of an adverse
determination, which determination could reasonably be expected to have a
Material Adverse Effect.
No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
Section
6.06 No
Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Borrowers or from the grant or
perfection of the Liens of the Agent on the Collateral. As of the
Closing Date, no Loan Party is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing Date, create an
Event of Default under Subsection
9.01(e).
Section
6.07 ERISA
Compliance. Except as specifically disclosed in Schedule
6.07:
(a) Each Plan
is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law. Each Plan which is intended
to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS and to the Knowledge of the Loan Parties,
nothing has occurred which would cause the loss of such
qualification. The Borrowers and each ERISA Affiliate have made all
required contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver pursuant to Section 412 of the Code has been
made with respect to any Plan.
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(b) There are
no pending or, to the Knowledge of the Loan Parties, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan
which has resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan which has
resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither the Borrowers nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither of the
Borrowers nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrowers nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
Section
6.08 Use of Proceeds; Margin
Regulations. The proceeds of the Loans will be used solely for
the purposes set forth in and permitted by Section
7.12. None of the proceeds of any Loan or any Letter of Credit
will be used, directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance indebtedness of any Loan Party or others
incurred to purchase or carry Margin Stock, or (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock. Neither of the
Borrowers is generally engaged in the business of purchasing or selling Margin
Stock or extending credit for the purpose of purchasing or carrying Margin
Stock.
Section
6.09 Title to
Properties. The Loan Parties have good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of their respective businesses, except
for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. As of the Closing
Date, the properties of the Loan Parties are not subject to any Liens, other
than Permitted Liens.
Section
6.10 Taxes. The
Loan Parties have filed all Federal and other material tax returns and reports
required to be filed, and has paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon the them
or their properties, income or assets otherwise due and payable, except those
which are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against any Loan Party
that would, if made, have a Material Adverse Effect.
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Section
6.11 Financial
Condition.
(a) Each
of (i) the audited consolidated balance sheets of the Parent dated December 31,
2006, December 31, 2007 and December 31, 2008, respectively, and the related
audited consolidated statements of income or operations, shareholders’ equity
and cash flows for the fiscal years ended on such dates, and (ii) the unaudited
quarterly consolidated financial statements of the Parent dated March 31, 2009,
and the related consolidated statements of income or operations and
shareholders’ equity for the three (3) months ended on that date:
(x) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except for the absence of footnotes and as otherwise expressly
noted therein, subject, in the case of such unaudited financial statements, to
ordinary, good faith year end adjustments;
(y) fairly
present the consolidated financial position of the Parent in all material
respects as of the date thereof and results of operations for the period covered
thereby; and
(z) except
as specifically disclosed in Schedule 8.07, show
all material indebtedness and other liabilities of the Loan Parties as of the
date thereof.
(b) Since
March 31, 2009, there has been no Material Adverse Effect.
Section
6.12 Environmental
Matters.
(a) Except
as specifically disclosed in Schedule 6.12, the
on-going operations of the Loan Parties comply in all respects with all
Environmental Laws, except such non-compliance which could not (if enforced in
accordance with applicable law) reasonably be expected to have a Material
Adverse Effect.
(b) Except as
specifically disclosed in Schedule 6.12, each
Loan Party has obtained all material licenses, permits, authorizations and
registrations required under any Environmental Law (“Environmental
Permits”) and necessary for its respective ordinary course operations,
all such Environmental Permits are in good standing, and each Loan Party is in
compliance with all material terms and conditions of such Environmental
Permits.
(c) Except as
specifically disclosed in Schedule 6.12,
neither any Loan Party nor any of its properties or operations is subject to any
outstanding written order from or agreement with any Governmental Authority, nor
subject to (i) any judicial or docketed administrative proceeding, respecting
any Environmental Law, Environmental Claim or Hazardous Material or (ii) to the
extent that it could reasonably be expected to have a Material Adverse Effect,
any claim, proceeding or written notice from any Person regarding any
Environmental Law, Environmental Claim or Hazardous Material.
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(d) Except as
specifically disclosed in Schedule 6.12, there
are no Hazardous Materials or other conditions or circumstances existing with
respect to any property of any Loan Party, or arising from operations prior to
the Closing Date, of any Loan Party that would reasonably be expected to give
rise to Environmental Claims which, if adversely decided, could reasonably be
expected to have a Material Adverse Effect. Except as disclosed in
Schedule 6.12,
(i) the Loan Parties have no underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws, or (y) that are
leaking or disposing of Hazardous Materials off-site, which in any such case
could reasonably be expected to have a Material Adverse Effect, and (ii) the
Loan Parties have met all material notification requirements under applicable
Environmental Laws.
Section
6.13 Collateral
Documents.
(a) The
Security Agreement is effective to create in favor of the Agent, for the ratable
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral (as defined in such Security Agreement) and, when financing
statements in appropriate form are filed in the applicable UCC filing offices,
the Security Agreement will constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in all personal
property of the Loan Parties in which a security interest may be perfected by
the filing of one or more financing statements under the UCC, in each case prior
and superior in right to any other Person, other than Permitted
Liens.
(b) All
representations and warranties of the Loan Parties contained in the Collateral
Documents are true and correct.
Section
6.14 Investment Company
Act. Neither of the Borrowers nor any Person controlling
either of the Borrowers is an “investment company” within the meaning of the
Investment Company Act of 1940.
Section
6.15 No Burdensome
Restrictions. None of the Loan Parties is a party to or bound
by any Contractual Obligation, or subject to any restriction in any Organization
Document, or any Requirement of Law, which could reasonably be expected to have
a Material Adverse Effect.
Section
6.16 Copyrights, Patents,
Trademarks and Licenses, etc. Each of the Loan Parties owns or
is licensed or otherwise has the right to use all of the patents, trademarks,
service marks, trade names, copyrights, contractual franchises, authorizations
and other rights that are reasonably necessary for the operation of its
business, without conflict with the rights of any other Person. To
the Knowledge of the Loan Parties, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by any Loan Party infringes upon any rights held by
any other Person. Except as specifically disclosed in Schedule 6.16, no
claim or litigation regarding any of the foregoing is pending or, to the
Knowledge of the Loan Parties, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the Knowledge of the Loan Parties, proposed, which, in either
case, could reasonably be expected to have a Material Adverse
Effect.
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Section
6.17 Capitalization;
Subsidiaries. As of the Closing Date, the Borrowers have no
Subsidiaries other than the Guarantors and no equity investments in any other
corporation or entity other than those specifically disclosed in part (a) of
Schedule
6.17. The capitalization of each of the Loan Parties as of the
Closing Date is as set forth on part (b) of Schedule
6.17.
Section
6.18 Insurance. The
properties of the Loan Parties are insured with financially sound and reputable
insurance companies not Affiliates of the Borrowers in such amounts, after
giving effect to any self-insurance compatible with the following standards,
with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where each Loan Party operates. The insurance coverage of the Loan
Parties as in effect on the date hereof is outlined as to carrier, policy
number, expiration date, type, amount and deductibles on Schedule 6.18.
Section
6.19 Swap
Obligations. None of the Loan Parties has incurred any
outstanding obligations under any Swap Contracts, other than Permitted Swap
Obligations. Each Loan Party has undertaken its own independent assessment of
its assets, liabilities and commitments and has considered appropriate means of
mitigating and managing risks associated with such matters and has not relied on
any swap counterparty or any Affiliate of any swap counterparty in determining
whether to enter into any Swap Contract.
Section
6.20 Solvency. Immediately
following the making of each Borrowing and after giving effect to the
application of the proceeds of each Borrowing, each Loan Party is and will be
Solvent.
Section
6.21 Senior
Indebtedness. The Obligations of the Loan Parties hereunder
constitute senior indebtedness (however denominated) in respect of any
Subordinated Debt of the Parent and its Subsidiaries.
Section
6.22 Full
Disclosure. None of the representations or warranties made by
the Loan Parties in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, report, statement or certificate furnished by or on behalf of the
Borrowers or any other Loan Party in connection with the Loan Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they are made, not misleading as of
the time when made or delivered.
ARTICLE
VII
AFFIRMATIVE
COVENANTS
So long
as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, and unless the Required Lenders shall waive compliance in
writing, each Loan Party shall:
Section
7.01 Financial
Statements. Deliver or cause to be delivered to the Agent, in
form and detail reasonably satisfactory to the Agent, with sufficient copies for
each Lender:
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(a) as soon
as available, but not later than 120 days after the end of each fiscal year
(commencing with the fiscal year ending December 31, 2009), a copy of the
audited consolidated balance sheet of the Parent as at the end of such year and
the related consolidated statements of income, shareholders’ equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of Deloitte &
Touche LLP or another recognized independent public accounting firm (“Independent Auditor”)
which opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification
or exception or any qualification or exception as to the scope of such audit and
shall state that such consolidated financial statements present fairly, in all
material respects, the consolidated financial position of the Parent and its
Subsidiaries as at the end of such fiscal year and their consolidated results of
operations and cash flows for such fiscal year in conformity with GAAP (or words
substantially similar to the foregoing) and that the examination by such
Independent Auditor in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing
standards;
(b) as soon
as available, but not later than 45 days after the end of each fiscal quarter
(including the last fiscal quarter of each fiscal year), commencing with the
fiscal quarter ending June 30, 2009, a copy of the unaudited consolidated
balance sheet of the Parent as at the end of such quarter and the related
unaudited consolidated statements of income, shareholders’ equity and cash flows
for such quarter, setting forth in each case in comparative form the figures for
the previous fiscal quarter, certified on behalf of the Parent by a Responsible
Officer to present fairly, in accordance with GAAP (subject to normal year-end
audit adjustments and the absence of footnotes), the consolidated financial
position of the Parent as of the last day of such fiscal quarter and the results
of operations for the fiscal quarter then ended;
(c) together
with each delivery of financial statements required by Subsections 7.01(a)
and (b) above,
a Compliance Certificate executed on behalf of the Loan Parties by a Responsible
Officer, demonstrating (with computations in reasonable detail) compliance by
the Loan Parties with the provisions of Sections 8.15,
8.16, 8.17 and 8.18 and stating that
there exists no Default or Event of Default, or, if any Default or Event of
Default exists, specifying the nature and period of existence thereof and what
action the Borrowers propose to take with respect thereto; and
(d) as soon
as available, but not later than 45 days after the end of each fiscal year
(commencing with the fiscal year ending December 31, 2009), a copy of the
Parent’s annual operating budget and Capital Expenditures budget for the
following fiscal year.
Section
7.02 Certificates; Other
Information. Furnish or cause to be furnished to the
Agent:
(a) promptly
upon receipt thereof, copies of any detailed audit reports, management letters
and any reports as to material inadequacies in accounting controls (including
reports as to the absence of any such inadequacies) or recommendations submitted
to the board of directors (or the audit committee of the board of directors) of
the
Parent by independent accountants in connection with the accounts or books of
the Parent or any Subsidiary thereof, or any audit of any of
them;
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(b) promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the
Parent, and copies of all annual, regular, periodic and special reports and
registration statements which the Parent may file or be required to file with
the SEC under Section 13 or 15(d) of the Exchange Act or any other securities
Governmental Authority, and not otherwise required to be delivered to the Agent
pursuant hereto;
(c) to the
extent not otherwise provided for herein, as soon as available, any press
release or other public announcement or statement by any Loan Party;
and
(d) promptly,
such additional information regarding the business, financial or corporate
affairs of the Loan Parties as the Agent, at the request of any Lender, may from
time to time reasonably request.
Section
7.03 Notices. Promptly
give notice to the Agent of any of the following:
(a) the
occurrence of any Default or Event of Default, and of the occurrence or
existence of any event or circumstance that foreseeably will become a Default or
Event of Default;
(b) any
matter, including (i) any breach or non-performance of, or any default under, a
Contractual Obligation of any Loan Party, (ii) any dispute, litigation,
investigation, proceeding or suspension between any Loan Party and any
Governmental Authority, (iii) the commencement of, or any material development
in, any litigation or proceeding affecting any Loan Party, or (iv) the assertion
of any Environmental Claim, to the extent such matter has resulted in or could
reasonably be expected to have a Material Adverse Effect;
(c) the
commencement of any action, suit or proceeding at law or in equity before any
Tribunal, an adverse outcome in which would (i) materially impair the ability of
any Loan Party to carry on its business substantially as now conducted, (ii)
materially and adversely affect the condition (financial or otherwise) of any
Loan Party, or (iii) result in monetary damages in excess of $500,000;
and
(d) the
occurrence of any of the following events affecting any Loan Party or any ERISA
Affiliate (but in no event more than ten (10) days after such event becomes
Known to a Responsible Officer of any Loan Party), and deliver to the Agent a
copy of any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Borrowers
or any ERISA Affiliate with respect to such event:
(i) an ERISA
Event;
(ii) a
material increase in the Unfunded Pension Liability of any Pension
Plan;
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(iii) the
adoption of, or the commencement of contributions to, any Plan subject to
Section 412 of the Code by any Loan Party or any ERISA Affiliate resulting in a
material contribution obligation; or
(iv) the
adoption of any amendment to a Plan subject to Section 412 of the Code, if such
amendment results in a material increase in contributions or Unfunded Pension
Liability;
(e) any
material change in accounting policies or financial reporting practices by any
Loan Party; and
(f) upon, but
in no event later than fifteen (15) days after, any officer of any Loan Party
becoming aware of (i) any and all enforcement, investigation, cleanup, removal
or other governmental or regulatory actions instituted, completed or threatened
against any Loan Party or any of its properties pursuant to any applicable
Environmental Laws which could reasonably be expected to have a Material Adverse
Effect, (ii) all other material Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoining or in the
vicinity of the property of any Loan Party that could reasonably be anticipated
to cause such property of such Loan Party or any part thereof to be subject to
any restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws that could reasonably be expected to have
a Material Adverse Effect.
Each
notice under this Section shall be accompanied by a written statement by a
Responsible Officer setting forth details of the occurrence referred to therein,
and stating what action the Borrowers or relevant Loan Party propose to take
with respect thereto.
Section
7.04 Preservation of Corporate
Existence.
(a) Preserve
and maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation, except to the
extent otherwise expressly permitted herein;
(b) Preserve
and maintain in full force and effect all governmental rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of its business except in connection with transactions permitted
by Section 8.03
and sales of assets permitted by Section
8.02;
(c) Use
reasonable efforts, in the ordinary course of business, to preserve its business
organization and goodwill; and
(d) Preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
Section
7.05 Maintenance of
Property. Maintain and preserve all its property which is used
or useful in its business in reasonably good working order and condition,
ordinary wear and tear excepted, and make all necessary repairs thereto and
renewals and replacements
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thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
Section
7.06 Insurance. In
addition to insurance requirements set forth in the Collateral Documents,
maintain with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons; including workers’ compensation insurance,
public liability and property and casualty insurance which
amount. All casualty insurance maintained by any of the Loan Parties
shall name the Agent as loss payee and all liability insurance shall name the
Agent as additional insured for the benefit of the Lenders, as their interests
may appear. Upon request of the Agent or any Lender, the Borrowers shall furnish
the Agent, with sufficient copies for each Lender, at reasonable intervals (but,
so long as no Default or Event of Default exists, not more than once per
calendar year) a certificate of a Responsible Officer of the Parent (and, if
requested by the Agent, any insurance broker of the Parent) setting forth the
nature and extent of all insurance maintained by the Loan Parties in accordance
with this Section or any Collateral Documents (and which, in the case of a
certificate of a broker, were placed through such broker).
Section
7.07 Payment of
Obligations. Pay and discharge as the same shall become due
and payable, all of its obligations and liabilities, including:
(a) all Taxes
imposed upon the income or profits of such Loan Party or upon the property,
real, personal or mixed, or upon any part thereof, belonging to such Loan Party
before the same shall be in default, all assessments and governmental charges or
levies upon such Loan Party or its properties or assets, and all lawful claims
for labor, rentals, materials and supplies which, if unpaid, might become a Lien
upon its property or any part thereof; provided however, that no Loan Party
shall not be required to pay and discharge or cause to be paid or discharged any
such Tax, assessment or claim so long as the validity thereof shall be contested
in good faith by appropriate proceedings, and adequate book reserves shall be
established with respect thereto, and the Borrowers shall pay or cause to be
paid such Tax, charge or claim before any property subject thereto shall become
subject to execution (nothing contained in this Section 7.07 shall
override any term or provision of any Specified Swap Contract regarding
withholding taxes related to Swap Contracts); and
(b) all
lawful claims which, if unpaid, would by law become a Lien upon its
property.
Section
7.08 Compliance with
Laws. Comply in all material respects with all Requirements of
Law of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may
exist.
Section
7.09 Compliance with
ERISA. With respect to each Plan:
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(a) maintain
and cause each ERISA Affiliate to maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law;
(b) cause
each Plan which is qualified under Section 401(a) of the Code to maintain such
qualification; and
(c) make and
cause each ERISA Affiliate to make all required contributions to any Plan
subject to Section 412 of the Code.
Section
7.10 Inspection of Property and
Books and Records.
(a) Maintain
proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Loan
Parties;
(b) Permit
representatives and independent contractors of the Agent or any Lender to visit
and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, to perform
collateral audits, and to discuss its affairs, finances and accounts with their
respective directors, officers, and independent public accountants, all at such
reasonable times during normal business hours and as often as will be reasonably
desired, upon no less than three (3) days’ advance notice to the Borrowers, but
no more often than one time per calendar quarter. The Borrowers shall pay or
reimburse the expenses of the Agent incurred in connection with any of
foregoing; provided, however, that (i) the Loan Parties’ aggregate expense in
any calendar year incurred in connection with any of the foregoing shall not
exceed $10,000, (ii) the Borrowers shall have no obligation to pay or reimburse
the expenses of any Lender (other than the Agent, in its capacity as Agent)
incurred in connection with the foregoing, and (iii) when an Event of Default
exists, the Agent or any Lender may do any of the foregoing at the expense of
the Borrowers at any time during normal business hours and without advance
notice.
Section
7.11 Environmental
Laws.
(a) Conduct
its operations and keep and maintain its property in compliance with all
Environmental Laws, the violation of which could reasonably be expected to
result in liability to any Loan Party in excess of $250,000 in the aggregate (net of
any payments under insurance policies or indemnity agreements which such Loan
Party reasonably expects to receive).
(b) Upon the
written request of the Agent or any Lender, submit to the Agent, with sufficient
copies for each Lender, at the Borrowers’ sole cost and expense, at reasonable
intervals, a report providing an update of the status of any environmental,
health or safety compliance, hazard or liability issue identified in any notice
or report required pursuant to Subsection 7.03(e),
that could, individually or in the aggregate, result in liability in excess of
$250,000 (net of
any payments under insurance policies or indemnity agreements which any Loan
Party reasonably expects to receive).
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Section
7.12 Use of
Proceeds. Use the proceeds of the Loans (i) to refinance
existing Debt of the Parent outstanding as of the Closing Date, (ii) to pay fees
and expenses incurred in connection with this Agreement, (iii) to finance
Permitted Acquisitions, and (iv) for working capital and other general corporate
purposes (but not including the payment or prepayment of the principal balance
of any Subordinated Debt or the defeasance, purchase or redemption of any
Subordinated Debt).
Section
7.13 Collateral and
Guaranties.
(a) Grant to
the Agent a first priority perfected security interest in and to all of its
personal property, now owned or hereafter acquired, subject only to Permitted
Liens.
(b) Within
thirty (30) days after any other Person becomes a Subsidiary, (i) cause such
Person to become a Guarantor by executing and delivering to the Agent a
supplement to this Agreement or such other document as the Agent shall deem
appropriate for such purpose, (ii) cause such Person to execute a supplement to
the Security Agreement in order to become a party thereto and such other
Collateral Documents as the Agent may request, in each case to secure the
Obligations, (iii) deliver to the Agent documents of the types referred to in
Sections
5.01(b) and (c) and a favorable
opinion of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to in clauses (i) and (ii)), all in form, content and scope reasonably
satisfactory to the Agent, and (iv) cause the immediate parent of such
Subsidiary to pledge 100% of the Capital Stock in such Subsidiary to secure the
Obligations and provide such legal opinions relating thereto as the Agent may
reasonably request, along with share certificates pledged thereby and
appropriately executed stock powers in blank.
Section
7.14 Further
Assurances.
(a) Ensure
that all written information, exhibits and reports furnished to the Agent or the
Lenders do not and will not contain any untrue statement of a material fact and
do not and will not omit to state any material fact or any fact necessary to
make the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Agent and the
Lenders and correct any defect or error that may be discovered therein or in any
Loan Document or in the execution, acknowledgment or recordation
thereof.
(b) Promptly
upon request by the Agent or the Required Lenders, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register, any and all
such further acts, deeds, conveyances, security agreements, mortgages,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments the Agent or such Lenders, as the case may be,
may reasonably require from time to time in order (i) to carry out more
effectively the purposes of this Agreement or any other Loan Document, (ii) to
subject to the Liens created by any of the Collateral Documents any of the
properties, rights or interests covered by any of the Collateral Documents,
(iii) to perfect and maintain the validity, effectiveness and priority of any of
the Collateral Documents
and the Liens intended to be created thereby, and (iv) to better assure, convey,
grant, assign, transfer, preserve, protect and confirm to the Agent and Lenders
the rights granted or now or hereafter intended to be granted to the Lenders
under any Loan Document or under any other document executed in connection
therewith.
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ARTICLE
VIII
NEGATIVE
COVENANTS
So long
as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, and unless the Required Lenders shall waive compliance in
writing, no Loan Party shall:
Section
8.01 Limitation on
Liens. Directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following (“Permitted
Liens”):
(a) any Lien
existing on property of any Loan Party on the Closing Date and set forth in
Schedule 8.01
securing or reflecting Debt outstanding on such date;
(b) any Lien
created under any Loan Document;
(c) Liens for
taxes, fees, assessments or other governmental charges which are not delinquent
or remain payable without penalty, or to the extent that non-payment thereof is
permitted by Section
7.07, provided that no notice of lien has been filed or recorded under
the Code;
(d) carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
similar Liens arising in the ordinary course of business which are not
delinquent or remain payable without penalty or which are being contested in
good faith and by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
(e) Liens
(other than any Lien imposed by ERISA) consisting of pledges or deposits
required in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security
legislation;
(f) Liens on
the property of any Loan Party securing (i) the non-delinquent performance of
bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) Contingent Obligations in connection with performance bonds,
Surety Bonds and appeal bonds, and (iii) other non-delinquent obligations of a
like nature, in each case, incurred in the ordinary course of business; provided
that all such Liens in the aggregate could not reasonably be expected to cause a
Material Adverse Effect;
(g) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the businesses of any Loan Party;
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(h) Liens
securing obligations in respect of capital leases on assets subject to such
leases, provided that such capital leases are otherwise permitted
hereunder;
(i) Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution;
provided that (i) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by any Loan Party in
excess of those set forth by regulations promulgated by the FRB, and (ii) such
deposit account is not intended by any Loan Party to provide collateral to the
depository institution;
(j) Liens in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
and
(k) Liens
incurred after the Closing Date securing obligations of any Loan Party incurred
for the purpose of Capital Expenditures authorized by Section 8.18 of this
Agreement, provided that such obligations shall not exceed the amount allowed to
be expended by Section
8.18 of this Agreement.
Section
8.02 Disposition of
Assets. Directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
any property, including accounts and notes receivable, with or without recourse
(each, an “Asset
Disposition”), or enter into any agreement to do any of the foregoing,
except:
(a) dispositions
of inventory or rental equipment and collection of accounts in the ordinary
course of business;
(b) the sale
of equipment to the extent that such equipment is exchanged for credit against
the purchase price of similar replacement equipment, or the proceeds of such
sale are reasonably promptly applied to the purchase price of such replacement
equipment; and
(c) dispositions
not otherwise permitted hereunder which are made for fair market value;
provided, that (i) at the time of any disposition, no Event of Default shall
exist or shall result from such disposition, (ii) the aggregate value of all
assets so sold by the Loan Parties after the date hereof shall not exceed
$1,500,000 in any single transaction or $2,000,000 in any fiscal year without
the prior written consent of the Agent, and (iii) all Net Proceeds of any such
disposition (which shall mean the gross sale price less commissions, if any,
arising from such disposition, less all amounts paid to holder(s) of Permitted
Liens on the property disposed in return for releases of such Permitted Liens,
and less all fees, costs and expenses incurred as a result of such disposition)
in excess of $500,000 are either (A) paid to the Agent for application to the
Obligations pursuant to Subsection 2.08(d),
or (B) utilized within 180 days of the disposition for the purchase of property
of a similar nature and purpose as that property which was
disposed.
Upon any
Asset Disposition permitted by this Section (and subject to compliance by the
Loan Parties with the conditions of this Section), the Agent shall execute such
UCC financing statement
amendments (partial releases) and other Lien releases as may be requested by the
Borrowers and as may be reasonably necessary in order to permit the property
which is the subject of such Asset Disposition to be sold or conveyed free and
clear of any Liens of the Agent.
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Section
8.03 Consolidations and Mergers;
Acquisitions. Merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that any
Subsidiary may merge with or into a Borrower or any other Subsidiary, (ii)
undertake any Acquisition other than a Permitted Acquisition, (iii) adopt or
effect any plan of reorganization, recapitalization, liquidation or dissolution,
(iv) acquire any properties or assets, other than in the ordinary course of
business and Permitted Acquisitions; or (v) form any Subsidiary or acquire any
Person that will become a Subsidiary except in connection with a Permitted
Acquisition.
Section
8.04 Loans and
Investments. Purchase or acquire, or make any commitment
therefor, any Capital Stock of, or any obligations or other securities of, or
any interest in, any Person, or make or commit to make any Acquisitions, or make
or commit to make any advance, loan, extension of credit or capital contribution
to or any other investment in, any Person including any Affiliate of a Borrower
(together, “Investments”), except
for:
(a) Investments
held by any Loan Party in the form of cash equivalents or short-term marketable
securities;
(b) extensions
of credit in the nature of accounts receivable or notes receivable arising from
the sale or lease of goods or services in the ordinary course of
business;
(c) Investments
constituting Permitted Swap Obligations or payments or advances under Swap
Contracts relating to Permitted Swap Obligations;
(d) advances
to vendors and customers of any Loan Party, or suppliers to such vendors, to
enable such vendors, customers and suppliers to purchase goods or parts to be
processed and sold to a Borrower in the ordinary course of business and
consistent with past practices;
(e) Investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(f) Investments
of a nature not contemplated by the foregoing clauses hereof that are
outstanding as of the Closing Date and set forth in Schedule 8.04
hereto;
(g) Permitted
Acquisitions complying with the other terms of this Agreement;
(h) Repurchases
or redemptions of common stock of the Parent, to the extent permitted under
Section
8.10(e); and
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(i) other
Investments (in addition to Investments permitted under the foregoing clauses
(a) through (h)) made after the Closing Date and not exceeding $500,000 in the
aggregate.
Section
8.05 Limitation on
Debt. Create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any Debt,
except:
(a) Debt
incurred pursuant to this Agreement;
(b) Debt
consisting of Contingent Obligations permitted pursuant to Section
8.08;
(c) existing
Debt as set forth on Schedule 8.05
hereto;
(d) Subordinated
Debt not exceeding $15,000,000 in the aggregate at any time outstanding (provided, however, that at
least ten (10) days prior to the issuance or incurrence of any additional
Subordinated Debt permitted hereunder, the Borrowers shall give notice to the
Agent of the proposed issuance or incurrence thereof and furnish a copy of the
form of promissory note or other instrument and any other relevant documents
evidencing or governing such Subordinated Debt); and
(e) other
Debt (in addition to Debt permitted under the foregoing clauses (a) through (d))
incurred after the Closing Date in any aggregate amount not exceeding $2,000,000
at any time outstanding.
Section
8.06 Transactions with
Affiliates. Enter into any transaction with any Affiliate of
any Loan Party, except upon fair and reasonable terms no less favorable to such
Affiliate than it would obtain in a comparable arm’s-length transaction with a
Person not an Affiliate of the Loan Parties and except for the
following:
(a) employment
or severance agreements entered into by any Loan Party in the ordinary course of
business;
(b) the
payment of reasonable directors’ fees and benefits, provided that the amount of
such fees and benefits paid to any Affiliate does not exceed the amount of such
fees and benefits paid to any Person who is not otherwise an Affiliate of any
Loan Party;
(c) Restricted
Payments permitted pursuant to Section 8.10 and
transactions permitted pursuant to Section 8.04 or Section
8.08;
(d) the
provision of officers’ and directors’ indemnification and insurance in the
ordinary course of business to the extent permitted by applicable
law;
(e) the
payment of employee salaries, bonuses and employee benefits in the ordinary
course of business; and
(f) transactions
between or among Loan Parties in the ordinary course of business and consistent
with past practice.
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Section
8.07 Contingent
Obligations. Create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements
for collection or deposit in the ordinary course of business;
(b) Permitted
Swap Obligations;
(c) Contingent
Obligations of the Loan Parties existing as of the Closing Date and listed on
Schedule
8.08;
(d) Contingent
Obligations with respect to Letters of Credit issued by the L/C issuer
hereunder;
(e) Guaranty
Obligations pertaining to Debt of another Loan Party, to the extent such Debt is
permitted under the terms of this Agreement; and
(f) other
Contingent Obligations (in addition to Contingent Obligations permitted under
the foregoing clauses (a) through (e)) not exceeding at any time the sum of
$3,000,000 in the aggregate.
Section
8.08 Rental
Obligations. Create or suffer to exist any obligations for the
payment of rent under any operating lease or agreement to lease, except
for:
(a) operating
leases in existence on the Closing Date and any renewal, extension or
refinancing thereof; and
(b) operating
leases for real or personal property entered into by any Loan Party after the
Closing Date in the ordinary course of business.
Section
8.09 Subordinated
Debt. Directly or indirectly prepay, defease or in substance
defease, purchase, redeem, retire or otherwise acquire, any Subordinated Debt,
or make any payments in respect of principal or interest on any Subordinated
Debt after the occurrence and during the continuation of any Default hereunder,
or make or permit any amendment or modification to any indenture, notes or other
agreement evidencing or governing any Subordinated Debt (including the terms of
subordination set forth therein). Nothing contained herein shall
prohibit the Borrowers from paying any Subordinated Date at its stated maturity,
provided that no Default has occurred and is continuing as of the stated
maturity date.
Section
8.10 Restricted
Payments. Declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, or purchase, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding
(collectively, “Restricted
Payments”), except that:
(a) each
Subsidiary of the Parent may make Restricted Payments to the Parent or any of
its other wholly-owned Subsidiaries;
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(b) the
Parent may declare and make dividend payments or other distributions payable to
the holders of its Voting Stock solely in shares of its common
stock;
(c) the
Parent may purchase, redeem or otherwise acquire shares of its common stock or
warrants or options to acquire any such shares with the proceeds received from
the substantially concurrent issue of new shares of its common stock (provided that such
newly issued common stock is not mandatorily redeemable by the holder thereof,
is not subject to any repurchase requirements by the Parent and does not have a
scheduled maturity date prior to the date that is 180 days after the Maturity
Date);
(d) provided
that no Default or Event of Default then exists or would result, the Parent may
declare and pay cash dividends in amounts in any fiscal year which, when added
with payments made pursuant to Subsection 8.10(e),
do not exceed 40% of the Parent’s net income for such fiscal year,
and
(e) provided
that no Default or Event of Default then exists or would result, the Parent may
purchase, redeem or otherwise acquire shares of its common stock, provided that
the aggregate payments made in any period of four consecutive fiscal quarters
does not exceed $10,000,000.
Section
8.11 ERISA. Suffer
or permit any ERISA Affiliate to: (a) engage in a prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in liability of the Loan
Parties in an aggregate amount in excess of $1,000,000; or (b) engage in a
transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
Section
8.12 Change in
Business. Engage in any material line of business
substantially different from those lines of business carried on by the Loan
Parties on the date hereof (it being understood that a substantially different
line of business would be a line of business that was not related to the
coatings business or a business related to steel processing).
Section
8.13 Accounting
Changes. Make any significant change in accounting treatment
or reporting practices, except (i) as required by GAAP, and (ii) any other
change which does not affect the calculations required to determine compliance
with Section
8.15,
8.16, 8.17, 8.18 and 8.19, or change the
fiscal year of the Parent.
Section
8.14 Amendments to Organization
Documents. Make or permit any amendment or modification to any
terms or provisions of its Organization Documents which is in any manner adverse
to the Agent or the Lenders.
Section
8.15 Leverage
Ratio. Permit the Leverage Ratio to be more than 3.25 to 1.0.
The Loan Parties’ compliance with this Section 8.15 shall be
calculated at the end of each fiscal quarter, commencing with the fiscal quarter
ending September 30, 2009.
Section
8.16 Fixed Charge Coverage
Ratio. Permit the Fixed Charge Coverage Ratio to be less than
1.10 to 1.0. The Loan Parties’ compliance with this Section 8.16 shall be
calculated at the end of each fiscal quarter, commencing with the fiscal quarter
ending September 30, 2009.
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Section
8.17 Asset Coverage
Ratio. Permit the Asset Coverage Ratio to be less than 1.50 to
1.0. The Loan Parties’ compliance with this Section 8.17 shall be
calculated at the end of each fiscal quarter, commencing with the fiscal quarter
ending September 30, 2009.
Section
8.18 Capital
Expenditures. Permit aggregate Capital Expenditures of the
Loan Parties in any fiscal year to exceed $10,000,000.
ARTICLE
IX
EVENTS OF
DEFAULT
Section
9.01 Event of
Default. Any of the following shall constitute an “Event of
Default”:
(a) Non-Payment. The
Borrowers fail to pay, (i) within five (5) days after required to be
paid herein, any amount of principal of any Loan or of any L/C Obligation, or
(ii) within ten (10) days after the same becomes
due, any interest, fee or any other amount payable hereunder or under any other
Loan Document; or
(b) Representation or
Warranty. Any representation or warranty by any Loan Party
made or deemed made in this Agreement or in any other Loan Document, or
contained in any certificate, document or financial or other statement by any
Loan Party or any Responsible Officer on behalf of the Loan Parties, furnished
at any time under this Agreement, or in or under any other Loan Document, is
incorrect in any material respect on or as of the date made or deemed made and
remains uncured and uncorrected after ten (10) days written notice from the
Agent or any Lender; or
(c) Breach of
Covenants. Any Loan Party (i) fails to perform or observe any
covenant contained in Sections 7.04 or
7.12 or in
Article VIII of
this Agreement (except for a breach of a covenant contained in Section 8.01, 8.04, 8.05, 8.06 or 8.07 which is not
material to the business or operations of the Loan Parties taken as a whole and
which is remedied by the Loan Parties within thirty (30) days after the earlier
of (A) the date any Responsible Officer of the Borrowers first has notice
of or becomes aware of such failure or (B) the date upon which written
notice thereof is given to the Borrowers by the Agent or any Lender), or
(ii) fails to perform or observe any other term or covenant set forth in
this Agreement which is not covered by clause (i) above or any other
provision of this Section 9.01 if
such failure shall continue unremedied for thirty (30) days after the earlier of
(A) the date any Responsible Officer of the Borrowers first has notice of
or becomes aware of such failure or (B) the date upon which written notice
thereof is given to the Borrowers by the Agent or any Lender;
(d) Other
Defaults. Any Loan Party fails to perform or observe in any
material respect any other term or covenant contained in any other Loan Document
which is not covered by clause (i) of Subsection 9.01(c) or
any other provision of this Section 9.01 and
such failure shall continue unremedied for thirty (30) days after the earlier of
(A) the date any Responsible Officer of the Borrowers first has notice of
or becomes aware of such failure or (B) the date upon which written notice
thereof is given to the Borrowers by the Agent or any Lender; or
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(e) Cross-Default.
(i) Any Loan
Party:
(A) fails to
make any payment in respect of any Debt or Contingent Obligation (other than in
respect of Swap Contracts or in regard to any of the Loans), having an aggregate
principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $500,000 when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) and such failure
continues after the later of (I) the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure or (II) ten (10)
days after due; provided that in the case of any such Debt which the Loan
Parties incurred in the ordinary course of their business for the purchase of
supplies or inventory, no Event of Default shall occur so long as such Loan
Party is contesting the same in good faith by appropriate proceedings diligently
conducted; or
(B) fails to
perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any such
Debt or Contingent Obligation, and such failure continues after the later of (I)
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure, event or condition or (II) forty-five (45)
days after the date
of such failure, event or condition, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such Debt or
beneficiary or beneficiaries of such Debt (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such Debt to be
declared to be due and payable, or to be required to be repurchased, prior to
its stated maturity, or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded;
(ii) The
Borrowers shall fail to make when and as required to be paid under any Specified
Swap Contract, any payment or transfer under such Specified Swap
Contract;
(iii) there
occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (1) any event of default under such Swap Contract
as to which any Loan Party is the Defaulting Party (as defined in such Swap
Contract) or (2) any Termination Event (as so defined) as to which any Loan
Party is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by any Loan Party as a result thereof is greater than
$500,000; or
(iv) any Loan
Party fails to perform or observe any condition or covenant under any contract
providing for the issuance of, or reimbursement of amounts
in respect of, Surety Instruments, which in such event requires the making of
payments in excess of $500,000 in the aggregate, net of the proceeds of
insurance policies and indemnity agreements in favor of any Loan Party and
received or reasonably expected to be received thereby; or
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(f) Insolvency; Voluntary
Proceedings. Any Loan Party (i) ceases or fails to be solvent,
or generally fails to pay, or admits in writing its inability to pay, its debts
as they become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its business in
the ordinary course; (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(g) Involuntary
Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against any Loan Party, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied against any of any
Loan Party’s properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within sixty (60) days
after commencement, filing or levy; (ii) any Loan Party admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) any Loan Party acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i)
An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in liability of a
Borrower or any ERISA Affiliate under Title IV of ERISA to such Pension Plan or
Multiemployer Plan or to the PBGC in an aggregate amount for all such Pension
Plans and Multiemployer Plans in excess of $500,000; (ii) the aggregate amount
of Unfunded Pension Liability among all Pension Plans and Multiemployer Plans at
any time exceeds $1,000,000 (determined, in respect
of Multiemployer Plans, by reference to the Unfunded Pension Liability for which
a Borrower or any ERISA Affiliate may be liable) and could reasonably be
expected to have a Material Adverse Effect; or (iii) a Loan Party or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under Section
4201 of ERISA to a Multiemployer Plan in an aggregate amount in excess of
$500,000; or
(i) Monetary
Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against a
Loan Party involving in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents or
conditions, of $500,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed for more than thirty (30) days; or
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(j) Non-Monetary
Judgments. Any non-monetary judgment, order or decree is
entered against a Loan Party which does or would reasonably be expected
to have a Material Adverse Effect, or
(k) Change of
Control. There occurs any Change of Control; or
(l) Loss of
Licenses. Any Governmental Authority revokes or fails to renew
any license, permit or franchise of any Loan Party, or a Loan Party for any
reason loses any license, permit or franchise, or a Loan Party suffers the
imposition of any restraining order, escrow, suspension or impound of funds in
connection with any proceeding (judicial or administrative) with respect to any
license, permit or franchise and any of the foregoing has or could reasonably be
expected to have a Material Adverse Effect; or
(m) Guarantor
Defaults. Any Guarantor fails in any material respect to perform or observe
any term, covenant or agreement in the guaranty contained in Article X; or such
guaranty is for any reason partially (including with respect to future advances)
or wholly revoked or invalidated, or otherwise ceases to be in full force and
effect, or any Guarantor or any other Person contests in any manner the validity
or enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at Subsections (f) or (g) of this
Section occurs with respect to any Guarantor; or
(n) Collateral.
(i) any
material provision
of any Collateral Document (other than pursuant to the terms thereof) shall for
any reason cease to be valid and binding on or enforceable against the Loan
Parties and the Loan Parties shall fail to cure the same within ten (10) days of
written demand by any Lender therefor; or
(ii) A Loan
Party shall so state in writing or bring an action to limit its obligations or
liabilities thereunder; or
(iii) any
Collateral Document shall for any reason (other than pursuant to the terms
thereof) cease to create a valid security interest in the Collateral purported
to be covered thereby or such security interest shall for any reason cease to be
a perfected and first priority security interest subject only to Permitted Liens
and the Loan Parties shall fail to cure the same within ten (10) days of written
demand by any Lender therefor.
Section
9.02 Remedies. If
any Event of Default occurs, the Agent may, and shall, at the request of the
Required Lenders.
(a) declare
the Commitment of each Lender to make Loans and any obligation of the L/C Issuer
to Issue Letters of Credit to be terminated, whereupon such Commitments and
obligation shall be terminated;
(b) declare
an amount equal to the maximum aggregate amount that is or at any time
thereafter may become available for drawing under any outstanding Letters of
Credit (whether or not any beneficiary shall have presented, or shall be
entitled at such time to
present, the drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, and declare the unpaid principal
amount of all outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other Loan Document to
be immediately due and payable, without presentment, demand, protest or other
notice of any kind (except as otherwise expressly provided herein), all of which
are hereby expressly waived by the Borrower; and
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(c) exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law;
provided, however, that upon
the occurrence of any event specified in Subsection 9.01(f) or
9.01(g) (in the
case of Subsection
9.01(g) upon the expiration of the 60-day period mentioned therein), the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to
Issue Letters of Credit shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the Agent, the
L/C Issuer or any Lender, and provided, further, that the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to
Issue Letters of Credit during the 60-day period mentioned in Subsection 9.01(g)
shall be automatically suspended.
Section
9.03 Swap
Providers. Notwithstanding any other provision of this Article IX, upon the
occurrence of any Event of Default each Swap Provider shall have the right, with
prior notice to Lender, but without the approval or consent of the Agent or the
other Lenders, with respect to any Specified Swap Contract of such Swap
Provider, (a) to declare an event of default, termination event or other similar
event thereunder and to create an Early Termination Date, (b) to determine net
termination amounts in accordance with the terms of such Specified Swap
Contracts and to set-off amounts between Specified Swap Contracts, and (c) to
prosecute any legal action against the Borrowers to enforce net amounts owing to
such Swap Provider.
Section
9.04 Rights Not
Exclusive. The rights provided for in this Agreement and the
other Loan Documents are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE
X
THE
GUARANTY
Section
10.01 Liabilities
Guaranteed. Each Guarantor hereby, joint and severally,
irrevocably and unconditionally guarantees the prompt payment at maturity of the
Obligations (hereinafter referred to as “this
guaranty”).
Section
10.02 Nature of
Guaranty. This guaranty is an absolute, irrevocable, completed
and continuing guaranty of payment and not a guaranty of collection, and no
notice of the Obligations or any extension of credit already or hereafter
contracted by or extended to the Borrowers need be given to any
Guarantor. This guaranty may not be revoked by any Guarantor and
shall continue to be effective with respect to the Obligations arising or
created
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after any
attempted revocation by such Guarantor and shall remain in full force and effect
until the Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto no Obligations may be
outstanding. The Borrowers and the Lenders may modify, alter,
rearrange, extend for any period and/or renew from time to time, the
Obligations, and the Lenders may waive any Default or Events of Default without
notice to any Guarantor and in such event each Guarantor will remain fully bound
hereunder on the Obligations. This guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
the Obligations is rescinded or must otherwise be returned by any of the Lenders
upon the insolvency, bankruptcy or reorganization of either Borrower or
otherwise, all as though such payment had not been made. This
guaranty may be enforced by the Agent, the Lenders and any subsequent holder of
any of the Obligations and shall not be discharged by the assignment or
negotiation of all or part of the Obligations. Each Guarantor hereby
expressly waives presentment, demand, notice of non-payment, protest and notice
of protest and dishonor, notice of Default or Event of Default, and also notice
of acceptance of this guaranty, acceptance on the part of the Lenders being
conclusively presumed by the Lenders’ request for this guaranty and the
Guarantors being party to this Agreement.
Section
10.03 Agent’s
Rights. Each Guarantor authorizes the Agent, without notice or
demand and without affecting any Guarantor’s liability hereunder, to take and
hold security for the payment of its obligations under this Article X and/or the
Obligations, and exchange, enforce, waive and release any such security; and to
apply such security and direct the order or manner of sale thereof as the Agent
in its discretion may determine, and to obtain a guaranty of the Obligations
from any one or more Persons and at any time or times to enforce, waive,
rearrange, modify, limit or release any of such other Persons from their
obligations under such guaranties.
Section
10.04 Guarantors’
Waivers.
(a) Each
Guarantor waives any right to require any of the Lenders to (i) proceed against
the Borrowers or any other Person liable on the Obligations, (ii) enforce any of
their rights against any other guarantor of the Obligations, (iii) proceed or
enforce any of their rights against or exhaust any security given to secure the
Obligations, (iv) have the Borrowers joined with any Guarantor in any suit
arising out of this Article X and/or the
Obligations, or (v) pursue any other remedy in the Lenders’ powers whatsoever.
It is agreed between the Guarantors and the Lenders that the foregoing waivers
are of the essence of the transaction contemplated by this Agreement and the
other Loan Documents and that, but for this guaranty and such waivers, the
Lenders would not extend or continue to extend credit under this Agreement. The
Lenders shall not be required to mitigate damages or take any action to reduce,
collect or enforce the Obligations. Each Guarantor waives any defense arising by
reason of any disability, lack of corporate authority or power, or other defense
of the Borrowers or any other guarantor of the Obligations, and shall remain
liable hereon regardless of whether the Borrowers or any other guarantor be
found not liable thereon for any reason. Whether and when to exercise any of the
remedies of the Lenders under any of the Loan Documents shall be in the sole and
absolute discretion of the Agent, and no delay by the Agent in enforcing any
remedy, including delay in conducting a foreclosure sale, shall be a defense to
any Guarantor’s liability under this Article
X.
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(b) In
addition to the waivers contained in Subsection 10.04(a),
the Guarantors waive, and agree that they shall not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
appraisal, valuation, stay, extension, marshaling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by the Guarantors of their
obligations under, or the enforcement by any Agent or the Lenders of, this
guaranty. The Guarantors hereby waive diligence, presentment and
demand (whether for nonpayment or protest or of acceptance, maturity, extension
of time, change in nature or form of the Obligations, acceptance of further
security, release of further security, composition or agreement arrived at as to
the amount of, or the terms of, the Obligations, notice of adverse change in the
Borrowers’ financial condition or any other fact which might materially increase
the risk to the Guarantors) with respect to any of the Obligations or all other
demands whatsoever and waive the benefit of all provisions of law which are or
might be in conflict with the terms of this Article
X. The Guarantors, jointly and severally, represent, warrant
and agree that, as of the date of this Guaranty, their obligations under this
Guaranty are not subject to any offsets or defenses of any kind against any
Agent, the Lenders, the Borrowers or any other Person that executes a Loan
Document. The Guarantors further jointly and severally agree that
their obligations under this guaranty shall not be subject to any counterclaims,
offsets or defenses of any kind which may arise in the future against any Agent,
the Lenders, the Borrowers or any other Person that executes a Loan
Document.
(c) Until the
Obligations have been paid in full, each Guarantor waives all rights of
subrogation or reimbursement against the Borrowers, whether arising by contract
or operation of law (including any such right arising under the Bankruptcy Code
or any other Federal, state or other applicable insolvency laws) and waives any
right to enforce any remedy which the Lenders now have or may hereafter have
against the Borrowers, and waives any benefit or any right to participate in any
security now or hereafter held by the Agent or any Lender.
Section
10.05 Maturity of Obligations,
Payment. Each Guarantor agrees that if the maturity of any of the
Obligations is accelerated by bankruptcy or otherwise, such maturity shall also
be deemed accelerated for the purpose of this Article X without
demand or notice to any Guarantor. Each Guarantor will, forthwith
upon notice from the Agent, jointly and severally pay to the Agent the amount
due and unpaid by the Borrowers and guaranteed hereby. The failure of
the Agent to give this notice shall not in any way release any Guarantor
hereunder.
Section
10.06 Agent’s
Expenses. If any Guarantor fails to pay the Obligations after
notice from the Agent of the Borrowers’ failure to pay any Obligations at
maturity, and if the Agent obtains the services of an attorney for collection of
amounts owing by any Guarantor hereunder, or obtaining advice of counsel in
respect of any of their rights under this Article X, or if suit
is filed to enforce this Article X, or if
proceedings are had in any bankruptcy, probate, receivership or other judicial
proceedings for the establishment or collection of any amount owing by any
Guarantor hereunder, or if any amount owing by any Guarantor hereunder is
collected through such proceedings, each Guarantor jointly and severally agrees
to pay to the Agent the Agent’s Attorney Costs.
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Section
10.07 Liability. It is
expressly agreed that the liability of each Guarantor for the payment of the
Obligations guaranteed hereby shall be primary and not secondary.
Section
10.08 Events and Circumstances Not
Reducing or Discharging any Guarantor’s Obligations. Each Guarantor
hereby consents and agrees to each of the following to the fullest extent
permitted by law, and agrees that each Guarantor’s obligations under this Article X shall not
be released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any rights (including rights to notice) which each
Guarantor might otherwise have as a result of or in connection with any of the
following:
(a) Any
renewal, extension, modification, increase, decrease, alteration or
rearrangement of all or any part of the Obligations, or this Agreement or any
instrument executed in connection therewith, or any contract or understanding
between the Borrowers and any of the Lenders, or any other Person, pertaining to
the Obligations, or the waiver or consent by any Agent or the Lenders with
respect to any of the provisions hereof or thereof, or any modification or
termination of the terms of any intercreditor or subordination agreement
pursuant to which claims of other creditors against any Guarantor or the
Borrowers are subordinated to the claims of the Lenders or pursuant to which the
Obligations are subordinated to claims of other creditors;
(b) Any
adjustment, indulgence, forbearance or compromise that might be granted or given
by any of the Lenders to the Borrowers or any Guarantor or any Person liable on
the Obligations;
(c) The
insolvency, bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution, death or lack of power of either of the Borrowers or
any other Guarantor or any other Person at any time liable for the payment of
all or part of the Obligations; or any dissolution of either of the Borrowers or
any other Guarantor, or any sale, lease or transfer of any or all of the assets
of either of the Borrowers or any other Guarantor, or any changes in the
shareholders, partners, or members of either of the Borrowers or any other
Guarantor; or any reorganization of either of the Borrowers or any other
Guarantor;
(d) The
invalidity, illegality or unenforceability of all or any part of the
Obligations, or any document or agreement executed in connection with the
Obligations, for any reason whatsoever, including the fact that the Obligations,
or any part thereof, exceed the amount permitted by law, the act of creating the
Obligations or any part thereof is ultra ▇▇▇▇▇, the officers or
representatives executing the documents or otherwise creating the Obligations
acted in excess of their authority, the Obligations violate any Applicable Usury
Law, either of the Borrowers have valid defenses, claims or offsets (whether at
law, in equity or by agreement) which render the Obligations wholly or partially
uncollectible from the Borrowers, the creation, performance or repayment of the
Obligations (or the execution, delivery and performance of any document or
instrument representing part of the Obligations or executed in connection with
the Obligations, or given to secure the repayment of the Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or this Agreement
or other documents or instruments pertaining
to the Obligations have been forged or otherwise are irregular or not genuine or
authentic;
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(e) Any full
or partial release of the liability of the Borrowers on the Obligations or any
part thereof, of any co-guarantors, or any other Person now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly and severally, to
pay, perform, guarantee or assure the payment of the Obligations or any part
thereof, it being recognized, acknowledged and agreed by any Guarantor that such
Guarantor may be required to pay the Obligations in full without assistance or
support of any other Person, and no Guarantor has been induced to enter into
this Article X
on the basis of a contemplation, belief, understanding or agreement that other
parties other than the Borrowers will be liable to perform the Obligations, or
the Lenders will look to other parties to perform the Obligations;
(f) The
taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Obligations;
(g) Any
release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including negligent, willful, unreasonable or unjustifiable
impairment) of any Collateral, property or security, at any time existing in
connection with, or assuring or securing payment of, all or any part of the
Obligations;
(h) The
failure of the Lenders or any other Person to exercise diligence or reasonable
care in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such Collateral, property or
security;
(i) The fact
that any Collateral, security, security interest or Lien contemplated or
intended to be given, created or granted as security for the repayment of the
Obligations shall not be properly perfected or created, or shall prove to be
unenforceable or subordinate to any other security interest or Lien, it being
recognized and agreed by each Guarantor that no Guarantor is entering into this
Article X in
reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectability or value of any of the collateral for the
Obligations;
(j) Any
payment by the Borrowers to the Lenders is held to constitute a preference under
the Bankruptcy Code or any other Federal, state or other debtor relief law, or
for any reason the Lenders are required to refund such payment or pay such
amount to the Borrowers or someone else; or
(k) Any other
action taken or omitted to be taken with respect to this Agreement, the
Obligations, or the security and Collateral therefor, whether or not such action
or omission prejudices any Guarantor or increases the likelihood that any
Guarantor will be required to pay the Obligations pursuant to the terms hereof,
it being the unambiguous and unequivocal intention of each Guarantor that each
Guarantor shall be obligated to joint and severally pay the Obligations when
due, notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or
uncontemplated, and whether or not otherwise or particularly described herein,
except for the full and final payment and satisfaction of the
Obligations.
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Section
10.09 Subordination of All
Guarantor Claims.
(a) As used
herein, the term “Guarantor Claims”
shall mean all Debts and liabilities of the Borrowers to any Guarantor, whether
such Debts and liabilities now exist or are hereafter incurred or arise, or
whether the obligation of the Borrowers thereon be direct, contingent, primary,
secondary, several, joint and several, or otherwise, and irrespective of whether
such debts or liabilities be evidenced by note, contract, open account, or
otherwise, and irrespective of the person or persons in whose favor such debts
or liabilities may, at their inception, have been, or may hereafter be created,
or the manner in which they have been or may hereafter be acquired by any
Guarantor. The Guarantor Claims shall include all rights and claims
of any Guarantor against the Borrowers arising as a result of subrogation or
otherwise as a result of such Guarantor’s payment of all or a portion of the
Obligations.
(b) Upon any
distribution of assets of any Loan Party in any dissolution, winding up,
liquidation or reorganization (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or
otherwise):
(i) The
Lenders shall first be entitled to receive payment in full in cash of the
Obligations before the Borrowers or any Guarantor is entitled to receive any
payment on account of the Guarantor Claims.
(ii) Any
payment or distribution of assets of any Loan Party of any kind or character,
whether in cash, property or securities, to which the Borrowers or any Guarantor
would be entitled except for the provisions of this Subsection 10.09(b),
shall be paid by the liquidating trustee or agent or other Person making such
payment or distribution directly to the Lenders, to the extent necessary to make
payment in full of all Obligations remaining unpaid after giving effect to any
concurrent payment or distribution or provisions therefor to the
Lenders.
Section
10.10 Claims in
Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor’s relief, or other Insolvency Proceedings
involving either of the Borrowers or any Subsidiary of the Borrowers, as debtor,
the Lenders shall have the right to prove their claim in any proceeding, so as
to establish their rights hereunder and receive directly from the receiver,
trustee or other court custodian, dividends and payments which would otherwise
be payable upon Guarantor Claims. Each Guarantor hereby assigns such
dividends and payments to the Lenders. Should the Agent or any Lender
receive, for application upon the Obligations, any such dividend or payment
which is otherwise payable to any Guarantor, and which, as between the Borrowers
or any Subsidiary of the Borrowers and any Guarantor, shall constitute a credit
upon the Guarantor Claims, then upon payment in full of the Obligations, such
Guarantor shall become subrogated to the rights of the Lenders to the extent
that such payments to the Lenders on the Guarantor Claims have contributed
toward the liquidation of the Obligations, and such subrogation shall be with
respect to that proportion of the Obligations which
would have been unpaid if the Agent or a Lender had not received dividends or
payments upon the Guarantor Claims.
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Section
10.11 Payments Held in
Trust. In the event that notwithstanding Sections 10.09 and
10.10 above,
any Guarantor should receive any funds, payments, claims or distributions which
is prohibited by such Sections, such Guarantor agrees to hold in trust for the
Lenders an amount equal to the amount of all funds, payments, claims or
distributions so received, and agrees that it shall have absolutely no dominion
over the amount of such funds, payments, claims or distributions except to pay
them promptly to the Agent, and each Guarantor covenants promptly to pay the
same to the Agent for the benefit of the Lenders.
Section
10.12 Benefit of
Guaranty. The provisions of this Article X are for the
benefit of the Lenders, and their permitted successors, transferees, endorsees
and assigns. In the event all or any part of the Obligations are transferred,
endorsed or assigned by the Lenders, as the case may be, to any Person or
Persons in accordance with the terms of this Agreement, any reference to the
“Lenders” herein, as the case may be, shall be deemed to refer equally to such
Person or Persons.
Section
10.13 Reinstatement. This
Article X shall
remain in full force and effect and continue to be effective in the event any
petition is filed by or against either of the Borrowers, any Guarantor or any
other Loan Party for liquidation or reorganization, in the event that any of
them becomes insolvent or makes an assignment for the benefit of creditors or in
the event a receiver, trustee or similar Person is appointed for all or any
significant part of any of their assets, and shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Obligations, or any part thereof, is, pursuant to any Requirement of Law,
rescinded or reduced in amount, or must otherwise be restored or returned by the
Lenders, whether as a “voidable preference,” “fraudulent conveyance,” or
otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
Section
10.14 Liens
Subordinate. Each Guarantor agrees that any Liens, security
interests, judgment liens, charges or other encumbrances upon the Borrowers’ or
any Subsidiary of the Borrowers’ properties securing payment of the Guarantor
Claims shall be and remain inferior and subordinate to any Liens, security
interests, judgment liens, charges or other encumbrances upon the Borrowers’ or
any Subsidiary of the Borrowers’ properties securing payment of the Obligations,
regardless of whether such encumbrances in favor of any Guarantor, the Agent or
the Lenders presently exist or are hereafter created or attach.
Section
10.15 Guarantors’ Enforcement
Rights. Without the prior written consent of the Agent, no
Guarantor shall (a) exercise or enforce any creditor’s right it may have against
the Borrowers or any Subsidiary of the Borrowers, or (b) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceeding
(judicial or otherwise, including the commencement of or joinder in any
liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency
proceeding) to enforce any lien, mortgages, deeds of trust, security interest,
collateral rights, judgments or other encumbrances on assets of the Borrowers
held by Guarantor.
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Section
10.16 Limitation. It
is the intention of the Guarantors and each Lender that the amount of the
Obligations guaranteed by each Guarantor shall be in, but not in excess of, the
maximum amount permitted by fraudulent conveyance, fraudulent transfer and
similar Requirement of Law applicable to such Guarantor. Accordingly,
notwithstanding anything to the contrary contained in this Article X or in any
other agreement or instrument executed in connection with the payment of any of
the Obligations guaranteed hereby, the amount of the Obligations guaranteed by a
Guarantor under this Article X shall be
limited to an aggregate amount equal to the largest amount that would not render
such Guarantor’s obligations hereunder subject to avoidance under Section 548 of
the Bankruptcy Code or any comparable provision of any other Requirement of
Law.
Section
10.17 Contribution
Rights.
(a) To the
extent that any payment is made under this guaranty (a “Guarantor Payment”),
by a Guarantor, which Guarantor Payment, taking into account all other Guarantor
Payments then previously or concurrently made by all other Guarantors, exceeds
the amount which such Guarantor would otherwise have paid if each Guarantor had
paid the aggregate Obligations satisfied by such Guarantor Payment in the same
proportion that such Guarantor’s Allocable Amount (as defined below) (in effect
immediately prior to such Guarantor Payment) bore to the aggregate Allocable
Amounts of all of the Guarantors in effect immediately prior to the making of
such Guarantor Payment, then, following the date on which the Obligations shall
be paid and satisfied in full and each Guarantor shall have performed all of its
obligations hereunder, such Guarantor shall be entitled to receive contribution
and indemnification payments from, and be reimbursed by, each of the other
Guarantors for the amount of such excess, pro rata based upon their respective
Allocable Amounts in effect immediately prior to such Guarantor
Payment.
(b) As of any
date of determination, the “Allocable Amount” of
any Guarantor shall be equal to the maximum amount of the claim which could then
be recovered from such Guarantor under this Guaranty without rendering such
claim voidable or avoidable under Section 548 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This
Section 10.17
is intended only to define the relative rights of the Guarantors and nothing set
forth in this Section
10.17 is intended to or shall impair the obligations of the Guarantors,
jointly and severally, to pay any amounts as and when the same shall become due
and payable in accordance with the terms of this guaranty.
(d) The
rights of the parties under this Section 10.17 shall
be exercisable upon the date the Obligations shall be paid and satisfied in full
and each Guarantor shall have performed all of its obligations
hereunder.
(e) The
parties hereto acknowledge that the right of contribution and indemnification
hereunder shall constitute assets of any Guarantor to which such contribution
and indemnification is owing.
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Section
10.18 Release of
Guarantors. Upon the sale or disposition of any Guarantor pursuant to the
terms of this Agreement to any Person other than the Borrowers or any other
Guarantor, the Agent shall, at the Borrowers’ expense, execute and deliver to
such Guarantor such documents as such Guarantor shall reasonably require and
take any other actions reasonably required to evidence or effect the release of
such Guarantor from this Agreement and the other Loan Documents.
ARTICLE
XI
THE
AGENT
Section
11.01 Appointment and
Authorization.
(a) Each
Lender hereby irrevocably (subject to Section 11.09)
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Agent have or be deemed to have 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 Loan Document or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the term
“agent” in this Agreement with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as
a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting
parties.
(b)
The L/C
Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
Issued by it and the documents associated therewith until such time and except
for so long as the Agent may agree at the request of the Required Lenders to act
for the L/C Issuer with respect thereto; provided, however, that the L/C Issuer
shall have all of the benefits and immunities (i) provided to the Agent in this
Article XI with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit Issued by it or proposed to be Issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term “Agent”, as used in this Article XI, included
the L/C Issuer with respect to such acts or omissions, and (ii) as additionally
provided in this Agreement with respect to the L/C Issuer.
(c)
The Agent
is hereby authorized to negotiate and execute as Agent intercreditor and
subordination agreements with third parties without the prior consent of any of
the Lenders.
Section
11.02 Delegation of Duties.
The Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The
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Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
Section
11.03 Liability of Agent.
None of the Agent-Related Persons shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct), or (b) be responsible in any manner
to any of the Lenders for any recital, statement, representation or warranty
made by a Borrower or Affiliate of the Borrower, or any officer thereof,
contained in this Agreement or in any other Loan 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 Loan Document, or for the value of or title to any Collateral, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of a Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall 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
Loan Document, or to inspect the properties, books or records of the Loan Party
or their Affiliates.
Section
11.04 Reliance by
Agent.
(a) The
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, e-mail, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Borrowers), independent
accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, 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 or any other Loan Document in accordance with a request or consent of
the Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b)
For
purposes of determining compliance with the conditions specified in Section 5.01, each
Lender that has executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Lender.
Section
11.05 Notice of
Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the
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Lenders,
unless the Agent shall have received written notice from a Lender or the
Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. The
Agent will notify the Lenders of its receipt of any such notice. The
Agent shall take such action with respect to such Default or Event of Default as
may be requested by the Required Lenders in accordance with Article XI; provided,
however, that unless and until the Agent has received any such request, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable or in the best interest of the Lenders.
Section
11.06 Credit
Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender. Each Lender represents to the
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Loan Parties, the value of and title to any Collateral, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrowers
hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person 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 Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and
other documents expressly herein required to be furnished to the Lenders by the
Agent, the Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Loan Parties which may come into the possession of any of the Agent-Related
Persons.
Section
11.07 Indemnification of
Agent. Whether or not the transactions contemplated hereby are
consummated, the Lenders shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), in accordance with such
Lender’s Pro Rata Share of all Loans and Commitments, from and against any and
all Indemnified Liabilities; provided, however, that no Lender shall be liable
for the payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting from such Person’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
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Section
11.08 Agent in Individual
Capacity. ▇▇▇▇▇ Fargo and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Borrowers and their Affiliates
as though ▇▇▇▇▇ Fargo were not the Agent or the L/C Issuer hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, ▇▇▇▇▇ Fargo or its Affiliates may receive information regarding
a Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of a Borrower) and acknowledge that the
Agent shall be under no obligation to provide such information to
them. With respect to its Loans, ▇▇▇▇▇ Fargo shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent or the L/C Issuer.
Section
11.09 Successor
Agent. The Agent may, and at the request of the Required
Lenders shall, resign as Agent upon thirty (30) days’ notice to the
Lenders. If the Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders
subject, so long as no Event of Default has occurred and is then continuing, to the consent of the
Borrowers, which shall not be unreasonably withheld or delayed. If no
successor agent is appointed prior to the effective date of the resignation of
the Agent, the Agent may appoint, after consulting with the Lenders and the
Borrowers, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term “Agent” shall mean such successor agent and the retiring Agent’s
appointment, powers and duties as Agent shall be terminated. After
any retiring Agent’s resignation hereunder as Agent, the provisions of this
Article XI and
Sections 12.04
and 12.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is thirty (30) days following a retiring
Agent’s notice of resignation, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Notwithstanding the
foregoing, however, ▇▇▇▇▇ Fargo may not be removed as the Agent at the request
of the Required Lenders unless ▇▇▇▇▇ Fargo shall also simultaneously be replaced
as the L/C Issuer (if any letters of credit Issued by ▇▇▇▇▇ Fargo are then
outstanding) and Swing Line Lender hereunder pursuant to documentation in form
and substance reasonably satisfactory to ▇▇▇▇▇ Fargo.
Section
11.10 Withholding
Tax.
(a) If
any Lender is a “foreign corporation, partnership or trust” within the meaning
of the Code and such Lender claims exemption from, or a reduction of, U.S.
withholding tax under Sections 1441 or 1442 of the Code, such Lender agrees with
and in favor of the Agent and the Borrowers, to deliver to the Agent and the
Borrowers:
(i) if such
Lender claims an exemption from, or a reduction of, withholding tax under a
United States tax treaty, two properly completed and executed copies of IRS Form
1001 before the payment of any interest in the first calendar year and before
the payment of any interest in each third succeeding calendar year during which
interest may be paid under this Agreement;
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(ii) if such
Lender claims that interest paid under this Agreement is exempt from United
States withholding tax because it is effectively connected with a United States
trade or business of such Lender, two properly completed and executed copies of
IRS Form 4224 before the payment of any interest is due in the first taxable
year of such Lender and in each succeeding taxable year of such Lender during
which interest may be paid under this Agreement; and
(iii) such
other form or forms as may be required under the Code or other laws of the
United States as a condition to exemption from, or reduction of, United States
withholding tax.
Such
Lender agrees to promptly notify the Agent and the Borrowers of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any
foreign Lender claims exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of “portfolio interest”,
such Lender agrees with and in favor of the Agent and the Borrowers to deliver
to the Agent and the Borrowers a Form W-8, or any subsequent versions thereof or
successors thereto (and, if such Lender delivers a Form W-8, a certificate
representing that such Lender is not a “bank” for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrowers and is not a controlled foreign
corporation related to the Borrowers (within the meaning of Section 864(d)(4) of
the Code)).
(c) If any
Lender claims exemption from, or reduction of, withholding tax under a United
States tax treaty by providing IRS Form 1001 and such Lender sells, assigns,
grants a participation in, or otherwise transfers all or part of the Obligations
of the Borrowers to such Lender, such Lender agrees to notify the Agent of the
percentage amount in which it is no longer the beneficial owner of Obligations
of the Borrowers to such Lender. To the extent of such percentage
amount, the Agent will treat such Lender’s IRS Form 1001 as no longer
valid.
(d) If any
Lender claiming exemption from United States withholding tax by filing IRS Form
4224 with the Agent sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Borrowers to such Lender, such
Lender agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(e) If any
Lender is entitled to a reduction in the applicable withholding tax, the Agent
may withhold from any interest payment to such Lender an amount equivalent to
the applicable withholding tax after taking into account such
reduction. However, if the forms or other documentation required by
Subsection (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Lender not providing such forms
or other documentation an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
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(f) If the
IRS or any other Governmental Authority of the United States or other
jurisdiction asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or was not properly executed, or because such Lender failed to
notify the Agent of a change in circumstances which rendered the exemption from,
or reduction of, withholding tax ineffective, or for any other reason) such
Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders under this Subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Agent.
Section
11.11 Collateral
Matters.
(a) The
Agent is authorized on behalf of all the Lenders, without the necessity of any
notice to or further consent from the Lenders, from time to time to take any
action with respect to any Collateral or the Collateral Documents which may be
necessary to perfect and maintain perfected the security interest in and Liens
upon the Collateral granted pursuant to the Collateral Documents.
(b) The
Lenders irrevocably authorize the Agent, at its option and in its discretion, to
release any Lien granted to or held by the Agent upon any Collateral (i) upon
termination of the Commitments and payment in full of all Loans and all other
Obligations known to the Agent and payable under this Agreement or any other
Loan Document; (ii) constituting property sold or to be sold or disposed of as
part of or in connection with any disposition permitted hereunder; (iii)
constituting property in which the Loan Parties owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting property
leased to the Loan Party under a lease which has expired or been terminated in a
transaction permitted under this Agreement or is about to expire and which has
not been, and is not intended by the Borrowers or any of their Subsidiaries to
be, renewed or extended; (v) consisting of an instrument evidencing Debt or
other debt instrument, if the indebtedness evidenced thereby has been paid in
full; or (vi) if approved, authorized or ratified in writing by the Required
Lenders or all the Lenders, as the case may be, as provided in Subsection 12.01(f).
Upon request by the Agent at any time, the Lenders will confirm in writing the
Agent’s authority to release particular types or items of Collateral pursuant to
this Subsection
11.11(b), provided that the absence of any such confirmation for whatever
reason shall not affect the Agent’s rights under this Section
11.11.
(c) Each
Lender agrees with and in favor of each other (which agreement shall not be for
the benefit of the Borrowers) that the Borrowers’ obligations to such Lender
under this Agreement and the other Loan Documents are not and shall not be
secured by any real property collateral now or hereafter acquired by such
Lender.
ARTICLE
XII
MISCELLANEOUS
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Section
12.01 Amendments and
Waivers. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent with respect to any departure by the Loan
Parties therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or by the Agent at the written request of the
Required Lenders) and the applicable Loan Parties and acknowledged by the Agent,
and then any such waiver or consent shall be effective only (i) in the specific
instance and for the specific purpose for which given and (ii) two (2) Business
Days after notice of any such waiver or amendment to each Lender is deemed to be
effective under Subsection 12.02(b);
provided, however, that no such waiver, amendment, or consent shall, unless in
writing and signed by all the Lenders and the Borrowers and acknowledged by the
Agent, do any of the following:
(a) increase
or extend the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section
9.02);
(b) postpone
or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any
of them) hereunder or under any other Loan Document including any mandatory
prepayment required pursuant to Section
2.08;
(c) reduce
the principal of, or the rate of interest specified herein on any Loan, or any
fees or other amounts payable hereunder or under any other Loan
Document;
(d) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Loans which is required for the Lenders or any of them to take any action
hereunder or reduce the percentage specified in the definition of “Required
Lenders” or, without the consent of each Lender, “Required Lenders”;
or
(e) amend
this Section
12.01, Section
2.16, or any provision herein providing for consent or other action by
all Lenders;
(f) release
all or substantially all of the Collateral except as otherwise may be provided
in the Collateral Documents or except where the consent of the Required Lenders
only is specifically provided for;
and,
provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Required Lenders or all
the Lenders, as the case may be, affect the rights or duties of the L/C Issuer
under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by it, (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the
Required Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Swing Line Lender under this Agreement; and (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Required Lenders or all the Lenders, as the case may be, affect the
rights or duties of the Agent under this Agreement or any other Loan
Document.
Section
12.02 Notices.
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(a) All
notices, requests, consents, approvals, waivers and other communications shall
be in writing (including, unless the context expressly otherwise provides, by
facsimile transmission or e-mail, provided that any matter transmitted by
facsimile or e-mail (i) shall be immediately confirmed by a telephone call to
the recipient at the number specified on Schedule 12.02, and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule
12.02; or, as directed to the Borrowers or the Agent, to such other
address as shall be designated by such party in a written notice to the other
parties, and as directed to any other party, at such other address as shall be
designated by such party in a written notice to the Borrowers and the
Agent.
(b) All such
notices, requests and communications shall, when transmitted by overnight
delivery, or faxed or e-mailed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine or
e-mail, respectively, or if mailed or delivered, upon delivery; except that
notices pursuant to Articles II, III or X to the Agent shall
not be effective until actually received by the Agent, and notices pursuant to
Article III to
the L/C Issuer shall not be effective until actually received by the L/C Issuer
at the address specified on Schedule
12.02.
(c) Any
agreement of the Agent and the Lenders herein to receive certain notices by
telephone, facsimile or e-mail is solely for the convenience and at the request
of the Borrowers. The Agent and the Lenders shall be entitled to rely
on the authority of any Person purporting to be, a Person authorized by the
Borrowers to give such notice and the Agent and the Lenders shall not have any
liability to the Borrowers or other Person on account of any action taken or not
taken by the Agent or the Lenders in reliance upon such telephonic, facsimile or
e-mail notice. The obligation of the Borrowers to repay the Loans and
L/C Obligations shall not be affected in any way or to any extent by any failure
by the Agent and the Lenders to receive written confirmation of any telephonic,
facsimile or e-mail notice or the receipt by the Agent and the Lenders of a
confirmation which is at variance with the terms understood by the Agent and the
Lenders to be contained in the telephonic, facsimile or e-mail
notice.
Section
12.03 No Waiver; Cumulative
Remedies. No failure to exercise and no delay in exercising,
on the part of the Agent or any Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege.
Section
12.04 Costs and
Expenses. The Borrowers shall:
(a) whether
or not the transactions contemplated hereby are consummated, pay or reimburse
▇▇▇▇▇ Fargo (including in its capacity as Agent and L/C Issuer) within five (5)
Business Days after demand (subject to Subsection 5.01(e))
for all costs and expenses incurred by ▇▇▇▇▇ Fargo (including in its capacity as
Agent and L/C Issuer) in connection with the development, preparation, delivery,
administration, syndication and execution of, and any amendment, supplement,
waiver or modification to (in each case, whether or not consummated), this
Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable Attorney
Costs incurred by ▇▇▇▇▇ Fargo (including in its capacity as Agent and L/C
Issuer) with respect thereto;
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(b) pay or
reimburse the Agent and each Lender within five (5) Business Days after demand
(subject to Subsection
5.01(e)) for all costs and expenses (including Attorney Costs) incurred
by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any other Loan
Document during the existence of a Default, an Event of Default or after
acceleration of the Loans (including in connection with any “workout” or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding); and
(c) subject
to Section
7.10, pay or reimburse ▇▇▇▇▇ Fargo (including in its capacity as Agent)
within five (5) Business Days after demand (also subject to Subsection 5.01(e))
for all reasonable appraisal, audit (including collateral audits), environmental
inspection and review (including the allocated cost of such internal services),
search and filing costs, fees and expenses, incurred or sustained by ▇▇▇▇▇ Fargo
(including in its capacity as Agent) in connection with the matters referred to
under Subsections (a) and (b) of this Section.
Section
12.05 The Borrowers’
Indemnification.
(a) The
Borrowers shall indemnify, defend and hold the Agent-Related Persons, and each
Lender and each of its respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an “Indemnified Person”)
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time (regardless of whether occurring before or after the repayment of the
Loans, the termination of the Letters of Credit and the termination, resignation
or replacement of the Agent or replacement of any Lender or assignment by any
Lender of its Loans or Commitments) be imposed on, incurred by or asserted
against any Indemnified Person by any Person other than the Borrowers, existing
because, or arising due to the fact that, such Lender is a lender to the
Borrowers or holds a security interest or lien against any Collateral (all the
foregoing, collectively, the “Indemnified
Liabilities”); provided, that the Borrowers shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting from the gross negligence or willful misconduct of such Indemnified
Person. The agreements in this Section shall survive payment of all
other Obligations.
(b) (i) The
Borrowers shall indemnify, defend and hold harmless each Indemnified Person,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs and the allocated cost of internal environmental audit
or review services), which may be incurred by or asserted against such
Indemnified Person in connection with or arising out of any pending or
threatened investigation, litigation or proceeding, or any action
reasonably taken by any Person, with respect to any Environmental Claim arising
out of or related to any property now or previously owned or leased by any Loan
Party, or arising out of or related to any operations of the Loan
Parties. No action taken by legal counsel chosen by the Agent or any
Lender in defending against any such investigation, litigation or proceeding or
requested remedial, removal or response action shall vitiate or in any way
impair the Borrowers’ obligation and duty hereunder to indemnify and hold
harmless the Agent and each Lender.
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(ii) In no event
shall any site visit, observation, or testing by the Agent or any Lender (or any
contractee of the Agent or any Lender) be deemed a representation or warranty
that Hazardous Materials are or are not present in, on, or under, the site, or
that there has been or shall be compliance with any Environmental
Law. Neither the Borrowers nor any other Person is entitled to rely
on any site visit, observation, or testing by the Agent or any
Lender. Neither the Agent nor any Lender owes any duty of care to
protect the Borrowers or any other Person against, or to inform the Borrowers or
any other party of, any Hazardous Materials or any other adverse condition
affecting any site or property. The Agent or any Lender may, at its
discretion, disclose to the Borrowers or any other Person any report or findings
made as a result of, or in connection with, any site visit, observation, or
testing by the Agent or any Lender. The Borrowers understand and
agrees that the Agent and the Lenders make no warranty or representation to the
Borrowers or any other Person regarding the truth, accuracy or completeness of
any such report or findings that may be disclosed. The Borrowers also
understands that, depending upon the results of any site visit, observation or
testing by the Agent or any Lender and disclosed to the Borrowers, the Borrowers
may have a legal obligation to notify one or more environmental agencies of the
results and that such reporting requirements are site-specific and are to be
evaluated by the Borrowers without advice or assistance from the Agent or any
Lender.
(c) Survival;
Defense. The obligations in this Section shall survive payment
of all other Obligations. At the election of any Indemnified Person, the
Borrowers shall defend such Indemnified Person using legal counsel reasonably
satisfactory to such Indemnified Person in such Person’s sole discretion, at the
sole cost and expense of the Borrower. All amounts owing under this
Section shall be paid upon demand.
Section
12.06 Marshalling; Payments Set
Aside. Neither the Agent nor the Lenders shall be under any
obligation to marshal any assets in favor of the Borrowers or any other Person
or against or in payment of any or all of the Obligations. To the
extent that the Borrowers make a payment to the Agent or the Lenders, or the
Agent or the Lenders exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Agent.
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Section
12.07 Successors and
Assigns. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrowers may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Agent and each Lender.
Section
12.08 Assignments, Participations,
etc.
(a) Any
Lender may, with the written consent of the Borrowers at all times other than
during the existence of an Event of Default, the Agent, and the L/C Issuer with
an outstanding Letter of Credit, which consents shall not be unreasonably
withheld or delayed, at any time assign and delegate to one or more Eligible
Assignees (each an “Assignee”) all, or
any part of all, of the Loans, the Commitments, the L/C Obligations and the
other rights and obligations of such Lender hereunder, in a minimum amount of
$5,000,000 or, if less, the total amount of such Lender’s outstanding Loans
and/or Commitments (provided that no written consent of the Borrower, the Agent,
or the L/C Issuer shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender); provided, however, that the Borrowers and the Agent may continue to
deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrowers and the Agent by such Lender
and the Assignee; (ii) such Lender and its Assignee shall have delivered to the
Borrowers and the Agent an Assignment and Acceptance in the form of Exhibit “D” (“Assignment and
Acceptance”) together with any Note or Notes subject to such assignment
and (iii) the assignor Lender or Assignee has paid to the Agent a processing fee
in the amount of $3,000 provided, that in the case of contemporaneous
assignments by a Lender to more than one fund managed by the same investment
advisor, only a single fee of $3,000 shall be payable for all such
contemporaneous assignments.
(b) From and
after the date that the Agent notifies the assignor Lender that it has received
(and, if required, provided its consent with respect to) an executed Assignment
and Acceptance and payment of the above-referenced processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder (including any obligations under Section 11.10) have
been assigned to it pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Lender under the Loan Documents, and (ii) the
assignor Lender shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents.
(c) Within
five (5) Business Days after its receipt of notice by the Agent that it has
received an executed Assignment and Acceptance and payment of the processing
fee, this Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the resulting
adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning Lender
pro tanto.
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(d) The Agent
shall maintain a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in such register shall be conclusive, in
the absence of clear and obvious error, and the Borrowers, the Agent and the
Lenders shall treat each person whose name is recorded in such register as the
owner of the Commitments and the Loans recorded therein for all purposes of this
Agreement. The register shall be available for inspection by the
Borrowers, any Lender and their representatives, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Any
Lender may at any time sell to one or more commercial banks or other Persons not
Affiliates of the Borrowers (a “Participant”)
participating interests in any Loans, the Commitment of that Lender and the
other interests of that Lender (the “originating Lender”)
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Lender’s obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Borrowers, the L/C Issuer and the Agent shall
continue to deal solely and directly with the originating Lender in connection
with the originating Lender’s rights and obligations under this Agreement and
the other Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Lenders as described in the clause (a)
(but only in respect of any increase of any Commitment of any Originating
Lender), (b) or (c) of the first proviso to Section
12.01. In the case of any such participation, the Participant
shall be entitled to the benefit of Sections 4.01 and
11.05 as though
it were also a Lender hereunder, and if amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement.
(f) Notwithstanding
any other provision in this Agreement, (i) any Lender may at any time create a
security interest in, or pledge, all or any portion of its rights under and
interest in this Agreement and the Notes held by it in favor of any Federal
Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 C.F.R. Section 203.14, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law
and (ii) any Lender that is a fund that invests in bank loans may, without the
consent of the Agent or the Borrower, pledge all or any portion of its rights
under and interest in this Agreement to any trustee or to any other
representative of holders of obligations owed or securities issued by such fund
as security for such obligations or securities; provided, that any transfer to
any Person upon the enforcement of such pledge or security interest may only be
made subject to Section 12.08.
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Section
12.09 Confidentiality. Each
Lender agrees to take and to cause its Affiliates to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information provided to it by the Loan Parties, or by the Agent on the Loan
Parties’ behalf, under this Agreement or any other Loan Document, and neither it
nor any of its Affiliates shall use any such information other than in
connection with or in enforcement of this Agreement and the other Loan Documents
or in connection with other business now or hereafter existing or contemplated
with the Loan Parties; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by the
Lender or its Affiliates, or (ii) was or becomes available on a non-confidential
basis from a source other than the Loan Parties, provided that such source is
not bound by a confidentiality agreement with any Loan Party known to the
Lender; provided, however, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which the Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Lender or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Lender’s independent auditors and other professional advisors; (G) to
any Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Lenders hereunder; (H) as to any Lender or its Affiliate, as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which any Loan Party is party or is deemed party with such
Lender or such Affiliate; (I) to its Affiliates; and (J) to the National
Association of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to information about
such Lender’s investment portfolio in connection with ratings issued with
respect to such Lender.
Section
12.10 Set-off. In
addition to any rights and remedies of the Lenders provided by law, if an Event
of Default exists or the Loans have been accelerated, each Lender is authorized
at any time and from time to time, without prior notice to the Borrowers, any
such notice being waived by the Borrowers to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any
time owing by, such Lender to or for the credit or the account of the Borrowers
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Agent or such Lender shall have made demand
under this Agreement or any Loan Document and although such Obligations may be
contingent or unmatured. Each Lender agrees promptly to notify the
Borrowers and the Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
Section
12.11 Loan
Documents. In the event of any inconsistency between this
Agreement and any of the other Loan Documents, this Agreement shall
control.
Section
12.12 Notification of Addresses,
Lending Offices, Etc. Each Lender shall notify the Agent in
writing of any changes in the address to which notices to the Lender should be
directed, of addresses of any Lending Office, of payment instructions in respect
of all payments to be
made to it hereunder and of such other administrative information as the Agent
shall reasonably request.
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Section
12.13 Counterparts. This
Agreement may be executed in any number of separate counterparts, each of which,
when so executed, shall be deemed an original, and all of said counterparts
taken together shall be deemed to constitute but one and the same
instrument.
Section
12.14 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.
Section
12.15 No Third Parties
Benefited. This Agreement is made and entered into for the
sole protection and legal benefit of the Borrowers, the Lenders, the Agent and
the Agent-Related Persons, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
Section
12.16 Usury
Laws. The Borrowers and Lenders and all other parties to the
Loan Documents intend to conform to and contract in strict compliance with all
Applicable Usury Laws from time to time in effect. All agreements
between the Borrowers and Lenders (or any other party liable with respect to any
Obligations under the Loan Documents) are hereby limited by the provisions of
this Section
12.16 which shall override and control all such agreements, whether now
existing or hereafter arising. In no way, nor in any event or
contingency (including but not limited to prepayment, default, demand for
payment, or acceleration of the maturity of any Obligation), shall the interest
taken, reserved, contracted for, charged, chargeable, or received under this
Agreement, the Notes, any of the other Loan Documents, or otherwise, exceed the
Highest Lawful Rate. If, from any possible construction of any
document, interest would otherwise be payable in excess of the Highest Lawful
Rate, any such construction shall be subject to the provisions of this Section
and such document shall ipso facto be automatically reformed and the interest
payable shall be automatically reduced to the Highest Lawful Rate, without the
necessity of execution of any amendment or new document. If (a) the
maturity of any Obligation is accelerated for any reason, (b) any Obligation is
prepaid and as a result any amounts held to constitute interest are determined
to be in excess of the Highest Lawful Rate, or (c) any Lender or any other
holder of any or all of the Obligations shall otherwise collect moneys which are
determined to constitute interest which would otherwise increase the interest on
any or all of the Obligations to an amount in excess of the Highest Lawful Rate,
then all such sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then outstanding
principal of the related Obligations or, at such Lender’s or such holder’s
option, promptly returned to the Borrowers or the other payor thereof upon such
determination. In determining whether or not the interest paid or
payable under any specific circumstance exceeds the Highest Lawful Rate, Lenders
and the Borrowers (and any other payors thereof) shall to the greatest extent
permitted under applicable law, (x) characterize any non-principal payment as an
expense, fee or premium rather than as interest, (y) exclude voluntary
prepayments and the effects thereof, and (z) amortize, prorate, allocate and
spread the total amount of interest throughout the entire contemplated term of
the instruments evidencing the Obligations in accordance with the amounts
outstanding from time to time thereunder and the
- 90
-
Highest
Lawful Rate from time to time in effect in order to lawfully charge the Highest
Lawful Rate. It is the intention of the Borrowers and Lenders that
all sums charged, for the use, forbearance or detention of any Obligations under
the Loan Documents have been in good faith calculated to comply with all
Applicable Usury Laws. Therefore, the Borrowers acknowledge and agree
that any sum paid or accrued for the use, forbearance or detention of the
Obligations of the Borrowers to Lender in excess of the Highest Lawful Rate
shall have been paid or accrued unintentionally or as a result of a bona fide
error and not in violation of or in reckless disregard of any applicable
law.
Section
12.17 Governing
Law. THIS AGREEMENT AND THE LOAN DOCUMENTS SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF OKLAHOMA
(WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED THAT THE
BORROWERS, THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
Section
12.18 ARBITRATION.
(a) This
Section concerns the resolution of any controversies or claims between the
Borrowers and the Agent or any of the Lenders, whether arising in contract, tort
or by statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this Agreement (including any renewals, extensions or
modifications); or (ii) any document related to this Agreement (collectively, a
“Claim”).
(b) At the
request of the Borrower, the Agent or any Lender, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (9 U.S.C.
Sections 1 et seq.)
(the “Act”). The
Act will apply even though this Agreement provides that it is governed by the
law of a specified state.
(c) Arbitration
proceedings will be determined in accordance with the Act, the applicable rules
and procedures for the arbitration of disputes of JAMS or any successor thereof
(“JAMS”), and
the terms of this Section. In the event of any inconsistency, the
terms of this Section shall control.
(d) The
arbitration shall be administered by JAMS and conducted in Tulsa County,
Oklahoma. All Claims shall be determined by one arbitrator; however,
if Claims exceed $5,000,000, upon the request of any party, the Claims shall be
decided by three arbitrators. All arbitration hearings shall commence within one
hundred twenty (120) days of the demand for arbitration and close within ninety
(90) days of commencement and the award of the arbitrator(s) shall be issued
within thirty (30) days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the commencement of the hearing for up
to an additional sixty (60) days. The arbitrator(s) shall provide a
concise written statement of reasons for the award. The arbitration
award may be submitted to any court having jurisdiction to be confirmed and
enforced.
(e) The
arbitrator(s) will have the authority to decide whether any Claim is barred by
the statute of limitations and, if so, to dismiss the arbitration of such Claim
on
- 91
-
that
basis. For purposes of the application of the statute of limitations,
the service on JAMS under applicable JAMS rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this
arbitration provision or whether a Claim is arbitrable shall be determined by
the arbitrator(s). The arbitrator(s) shall have the power to award
legal fees pursuant to the terms of this Agreement.
(f) This
Section does not limit the right of the Borrowers, the Agent or any Lender to:
(i) exercise self-help remedies, such as but not limited to, setoff; (ii)
initiate judicial or nonjudicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights, or
(iv) act in a court of law to obtain an interim remedy, such as but not limited
to, injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) By
agreeing to binding arbitration, the parties irrevocably and voluntarily waive
any right they may have to a trial by jury in respect of any Claim. Furthermore,
without intending in any way to limit this agreement to arbitrate, to the extent
any Claim is not arbitrated, the parties irrevocably and voluntarily waive any
right they may have to a trial by jury in respect of such Claim. This
provision is a material inducement for the parties entering into this
Agreement.
Section
12.19 Jurisdiction;
Venue. For purposes of enforcing and/or interpreting the
provisions of this Agreement and all other Loan Documents, or resolving any
dispute arising out of the execution, delivery or performance of this Agreement
or any of the Loan Documents, the Borrowers hereby submit themselves to the
jurisdiction of the Courts of the State of Oklahoma, and the Borrowers waive all
objections to service of process therefrom and the Borrowers waive all
objections to venue of any state or federal court sitting in Oklahoma County,
Oklahoma. Nothing in this Section shall override any contrary
provision contained in any Specified Swap Contract. EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO.
Section
12.20 USA PATRIOT Act
Notice. Each Lender and the Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “PATRIOT Act”), it is
required to obtain, verify and record information that identifies the Borrowers
and the other Loan Parties, which information includes the name and address of
the Borrowers and other information that will allow such Lender or Agent, as
applicable, to identify the Borrowers and the other Loan Parties in accordance
with the PATRIOT Act.
Section
12.21 Entire Agreement.
This Agreement, together with the other Loan Documents, embodies the entire
agreement and understanding among the Loan Parties, the Lenders and the Agent,
and supersedes all prior or contemporaneous agreements and understandings of
such Persons, verbal or written, relating to the subject matter hereof and
thereof.
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-
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURES
APPEAR ON FOLLOWING PAGES]
- 93
-
| “Borrowers” |
NORTH AMERICAN GALVANIZING
&
COATINGS, INC., a
Delaware corporation
By:
Name:
Title:
|
|
NORTH
AMERICAN GALVANIZING
COMPANY, a Delaware
corporation
By:
Name:
Title:
|
| “Guarantors” |
NAGALV-OHIO, INC., a
Delaware corporation
By:
Name:
Title:
|
|
▇▇▇▇▇▇ GALVANIZING
COMPANY-KANSAS CITY, an Oklahoma
corporation
By:
Name:
Title:
|
|
REINFORCING SERVICES,
INC.,
an Oklahoma corporation
By:
Name:
Title:
|
|
PREMIER
COATINGS, INC., an Oklahoma corporation
By:
Name:
Title:
|
|
NAGALV
- WV, INC., a Delaware corporation
By:
Name:
Title:
|
| “Lenders” | ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION,
as
Lender and as Agent, L/C Issuer and Swing LineLender
By:
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Vice President
|
SCHEDULES:
|
Schedule
2.01
|
Commitments
and Pro Rata Shares
|
|
Schedule
6.05
|
Litigation
|
|
Schedule
6.07
|
ERISA
Compliance
|
|
Schedule
6.12
|
Environmental
Matters
|
|
Schedule
6.16
|
Copyrights,
Patents, Trademarks
|
|
Schedule
6.17
|
Capitalization;
Subsidiaries
|
|
Schedule
6.18
|
Insurance
Coverage
|
|
Schedule
8.01
|
Permitted
Liens
|
|
Schedule
8.04
|
Investments
|
|
Schedule
8.05
|
Permitted
Debt
|
|
Schedule
8.07
|
Contingent
Obligations
|
|
Schedule
12.02
|
Agent’s
Payment Office; Lending Offices; Addresses for
Notices
|
EXHIBITS:
|
Exhibit
A
|
-
|
Form
of Notice of Borrowing
|
| Exhibit A-1 |
-
|
Form
of Swing Line Loan Notice
|
| Exhibit B |
-
|
Form
of Notice of Conversion or
Continuation
|
| Exhibit C |
-
|
Compliance
Certificate
|
| Exhibit D |
-
|
Form
of Assignment and Acceptance
|
| Exhibit E |
-
|
Form
of Opinion of Borrowers’ Counsel
|
SCHEDULE
2.01
COMMITMENTS
AND PRO RATA SHARES
|
LENDER
|
REVOLVING
LOAN COMMITMENT
|
PRO
RATA SHARE
|
|
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
|
$25,000,000
|
100%
|
SCHEDULE
6.05
LITIGATION
None
SCHEDULE
6.07
ERISA
COMPLIANCE
No
exceptions
SCHEDULE
6.12
ENVIRONMENTAL
MATTERS
|
Location
|
Description
|
|
Canton,
Ohio
|
US
EPA RCRA Corrective Action
|
|
Hurst,
Texas
|
TCEQ
Consent Order – Groundwater
Compliance
|
|
Tulsa,
Oklahoma
|
ODEQ
Non-Active CERCLA matter
|
|
▇▇▇▇▇▇▇▇,
Illinois
|
IEPA
Non-Active matter
|
|
Texas
City, Texas
|
NPL
Site –deminimus settlement
reached
|
SCHEDULE
6.16
COPYRIGHTS,
PATENTS, TRADEMARKS
(Claims)
None
SCHEDULE
6.17
CAPITALIZATION;
SUBSIDIARIES
PLEDGED
STOCK
|
NAME
OF ISSUER
|
NAME
OF REGISTERED OWNER
|
STOCK
CERTIFICATE NUMBER
|
NUMBER
OF SHARES
|
PAR
VALUE PER SHARE
|
PERCENT
OWNED
|
|
NAGALV-OHIO,
INC.
|
NORTH
AMERICAN GALVANIZING COMPANY
|
1
|
100
|
.01
|
100%
|
|
NORTH
AMERICAN GALVANIZING COMPANY
|
NORTH
AMERICAN GALVANIZING & COATINGS, INC.
|
1
|
100
|
.01
|
100%
|
|
PREMIER
COATINGS, INC.
|
NORTH
AMERICAN GALVANIZING COMPANY
|
3
|
1000
|
.10
|
100%
|
|
▇▇▇▇▇▇
GALVANIZING COMPANY-KANSAS CITY
|
NORTH
AMERICAN GALVANIZING COMPANY
|
2
|
1000
|
1.00
|
100%
|
|
REINFORCING
SERVICES, INC.
|
NORTH
AMERICAN GALVANIZING COMPANY
|
2
|
1000
|
1.00
|
100%
|
|
NAGALV
- WV, INC.
|
NORTH
AMERICAN GALVANIZING COMPANY
|
1
|
100
|
.01
|
100%
|
SCHEDULE
6.18
INSURANCE
MATTERS
|
Coverage
|
Carrier
|
Policy
Term
|
Limit
|
|
Property
|
▇▇▇▇▇▇▇
Insurance Company
|
12-31-08
to
12-31-09
|
Real
Property
Business
Personal Property
Loss
of Business Income
|
|
Auto
|
Commerce
& Industry (AIG)
|
12-31-08
to
12-31-09
|
Single
Limits Liability
Medical
Payments
Uninsured/Underinsured
Motorist
Comprehensive
Collision
Includes
Hired Car Physical Damage
|
|
General
Liability/
Pollution
Legal Liability
|
American
International Specialty (AIG)
|
12-31-08
to
12-31-09
|
Each
Occurrence
General
Aggregate
Products/Completed
Ops.
Personal/Advertising
Injury
Pollution
Legal Liability
Fire
Damage Limit
Medical
Payments Limit
Employee
Benefits
|
|
Workers’
Compensation
|
Wausau
|
12-31-08
to
12-31-09
|
Workers’
Compensation
Employers
Liability
|
|
Umbrella
|
American
International Specialty (AIG)
|
12-31-08
to
12-31-09
|
Each
Occurrence
P/CO
Aggregate
All
Other (except Auto) Aggregate
|
|
Crime
|
Hartford
Fire Insurance Company
|
12-31-07
To
6-22-09
|
Employee
Theft
Depositors
Forgery
|
|
Employment
Practices Liability
|
St.
▇▇▇▇ Mercury
|
06-22-08
To
06-22-09
|
Limit
of Liability
|
|
Directors
& Officers
|
Federal
Insurance Company
|
6-22-08
To
6-22-09
|
Each
Claim
Each
Policy Period
|
|
Fiduciary
|
St.
▇▇▇▇ Mercury
|
6-22-08
to
6-22-09
|
Annual
Aggregate Limit
|
SCHEDULE
8.01
PERMITTED
LIENS
|
DEBTOR
|
SECURED
PARTY
|
JURISDICTION
|
TYPE
OF FILING
|
FILING
INFORMATION
|
DESCRIPTION
OF COLLATERAL
|
|
NORTH
AMERICAN GALVANIZING COMPANY
|
TOYOTA
MOTOR CREDIT CORPORATION
|
DELAWARE
|
UCC-1
|
6370213
1
|
ONE
(1) NEW TOYOTA FORKLIFTMODEL #7FDU70 SERIAL 60722
|
|
NORTH
AMERICAN GALVANIZING & COATINGS, INC.
|
CITICORP
LEASING, INC.
|
DELAWARE
|
UCC-1
|
6396426
9
|
(1)
ONE NEW CATERPILLAR MODEL # DP70D SERIAL # T20C62874
|
|
NAGALV-OHIO,
INC.
|
CITICORP
LEASING, INC.
|
DELAWARE
|
UCC-1
|
070215092
|
(1)
ONE NEW CATERPILLAR MODEL # DEP40KD SSERIAL #
AT10C02518
|
|
NAGALV-OHIO,
INC.
|
CITICORP
LEASING, INC.
|
DELAWARE
|
UCC-1
|
070421050
|
(1)
ONE NEW CATERPILLAR MODEL # DEP40KD SERIAL # AT19C02657
|
|
NORTH
AMERICAN GALVANIZING COMPANY
|
TOYOTA
MOTOR CREDIT CORPORATION
|
OKLAHOMA
|
UCC-1
|
2007006210725
|
TOYOTA
FORKLIFT
|
|
NORTH
AMERICAN GALVANIZING & COATINGS, INC.
|
BANK
OF AMERICA, N.A.
|
CASH
DEPOSIT SECURING PREVIOUSLY-ISSUED LETTERS OF
CREDIT
|
SCHEDULE
8.04
INVESTMENTS
None
SCHEDULE
8.05
PERMITTED
DEBT
Letters of
Credit:
Issuer: Bank
of America
Amount: $25,000
Date: 12/31/2009
expiration (one year)
Beneficiary: National
American Insurance Company (NAICO) worker’s compensation
Issuer: Bank
of America
Amount: $139,000
Date: 12/31/2009
expiration (one year)
Beneficiary: Liberty
Mutual (formerly Wassau) worker’s compensation
SCHEDULE
8.07
CONTINGENT
OBLIGATIONS
Incorporated
into this Schedule by reference is the information set forth on Schedule
8.05
SCHEDULE
12.02
AGENT’S
PAYMENT OFFICE;
LENDING
OFFICES;
ADDRESSES
FOR NOTICES
|
▇▇▇▇▇
Fargo Bank, N.A.
Oklahoma
Commercial Banking Group
Attn: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Vice President
One
Leadership Square
▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
with
a copy to:
▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLP
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
North
American Galvanizing & Coatings, Inc.
North
American Galvanizing Company
Reinforcing
Services, Inc.
Premier
Coatings, Inc.
NAGALV-OHIO,
Inc.
NAGALV
- WV, Inc.
▇▇▇▇▇▇
Galvanizing Company - Kansas City
Attn: ▇▇▇▇
▇. ▇▇▇▇, Vice President
▇▇▇▇
▇. ▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
|
with
a copy to:
Del
▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
EXHIBIT
“A”
(Form of
Notice of Borrowing)
EXHIBIT
“A-1”
(Form of
Swing Line Notice)
EXHIBIT
“B”
(Form of
Notice of Conversion or Continuation)
EXHIBIT “C”
(Compliance
Certificate)
EXHIBIT “D”
(Assignment
and Acceptance)
EXHIBIT
“E”
(Form of
Legal Opinion)