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EXHIBIT 4.2
CREDIT AGREEMENT
BY AND AMONG
OSCA, INC.,
(AS BORROWER),
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
(AS AGENT)
AND
THE LENDERS PARTY HERETO
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AS OF JUNE 20, 2000
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BANK ONE CAPITAL MARKETS, INC.
(ARRANGER)
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TABLE OF CONTENTS
Page No.
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ARTICLE I. DEFINITIONS
1.1 Definitions of Certain Terms Used Herein 1
ARTICLE II. THE CREDITS
2.1 Revolving Loans 12
2.2 Swing Line Loan 12
2.3 Letters of Credit 13
2.4 Types of Advances 14
2.5 Commitment Fee 14
2.6 Minimum Amount of Each Advance 14
2.7 Prepayments; Reduction in Aggregate Commitments 14
2.8 Method of Selecting Types and Eurodollar Interest Periods for New Advances 15
2.9 Conversion and Continuation of Outstanding Advances 15
2.10 Changes in Interest Rate, etc. 16
2.11 Rates Applicable After Default 16
2.12 Method of Payment 17
2.13 Noteless Agreement; Evidence of Indebtedness 17
2.14 Telephonic Notices 18
2.15 Interest Payment Dates; Interest and Fee Basis 18
2.16 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions 18
2.17 Lending Installations 19
2.18 Non-Receipt of Funds by the Agent 19
2.19 Guaranty 19
2.20 Future Collateral 19
ARTICLE III. YIELD PROTECTION; TAXES
3.1 Yield Protection 20
3.2 Changes in Capital Adequacy Regulations 20
3.3 Availability of Types of Advances 21
3.4 Funding Indemnification 21
3.5 Taxes 21
3.6 Lender Statements; Survival of Indemnity 23
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ARTICLE IV. CONDITIONS PRECEDENT
4.1 Initial Advance 24
4.2 Each Advance 25
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.1 Existence and Standing 26
5.2 Authorization and Validity 26
5.3 No Conflict; Government Consent 26
5.4 Financial Statements 27
5.5 Material Adverse Change 27
5.6 Taxes 27
5.7 Litigation and Contingent Obligations 27
5.8 Subsidiaries 28
5.9 ERISA 28
5.10 Accuracy of Information 28
5.11 Regulation U 28
5.12 Material Agreements 28
5.13 Compliance With Laws 28
5.14 Ownership of Properties 29
5.15 Plan Assets; Prohibited Transactions 29
5.16 Environmental Matters 29
5.17 Investment Company Act 29
5.18 Public Utility Holding Company Act 29
5.19 Solvency 29
ARTICLE VI. COVENANTS
6.1 Financial Reporting 30
6.2 Use of Proceeds 31
6.3 Notice of Default 32
6.4 Conduct of Business 32
6.5 Taxes 32
6.6 Insurance 32
6.7 Compliance with Laws 32
6.8 Maintenance of Properties 33
6.9 Inspection 33
6.10 Dividends 33
6.11 Indebtedness 33
6.12 Merger 34
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6.13 Sale of Assets 34
6.14 Investments and Acquisitions 35
6.15 Liens 36
6.16 Transactions with Affiliates 37
6.17 Financial Covenants 37
ARTICLE VII. DEFAULTS 38
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration 40
8.2 Amendments 40
8.3 Preservation of Rights 41
ARTICLE IX. GENERAL PROVISIONS
9.1 Survival of Representations 42
9.2 Governmental Regulation 42
9.3 Headings 42
9.4 Entire Agreement 42
9.5 Several Obligations; Benefits of this Agreement 42
9.6 Expenses; Indemnification 42
9.7 Numbers of Documents 43
9.8 Accounting 43
9.9 Severability of Provisions 43
9.10 Nonliability of Lenders 43
9.11 Confidentiality 44
9.12 Nonreliance 44
9.13 Disclosure 44
ARTICLE X. THE AGENT
10.1 Appointment; Nature of Relationship 44
10.2 Powers 45
10.3 General Immunity 45
10.4 No Responsibility for Loans, Recitals, etc. 45
10.5 Action on Instructions of Lenders 46
10.6 Employment of Agents and Counsel 46
10.7 Reliance on Documents; Counsel 46
10.8 Agent's Reimbursement and Indemnification 46
10.9 Notice of Default 47
10.10 Rights as a Lender 47
10.11 Lender Credit Decision 47
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10.12 Successor Agent 47
10.13 Agent's Fee 48
10.14 Delegation to Affiliates 48
10.15 Notices and Reports 48
ARTICLE XI. SETOFF; RATABLE PAYMENTS
11.1 Setoff 48
11.2 Ratable Payments 49
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns 49
12.2 Participations 50
12.3 Assignments 50
12.4 Dissemination of Information 51
12.5 Tax Treatment 52
ARTICLE XIII. NOTICES
13.1 Notices 52
13.2 Change of Address 52
ARTICLE XIV. COUNTERPARTS 52
14.1 Counterparts 52
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL
15.1 Choice of Law 53
15.2 Consent to Jurisdiction 53
15.3 Waiver of Jury Trial 53
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CREDIT AGREEMENT
This Agreement, dated as of June 20, 2000, is among OSCA, INC., as
Borrower, BANK ONE, LOUISIANA, NATIONAL ASSOCIATION, as Agent, and the Lenders
party hereto, who agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions of Certain Terms Used Herein. As used in this
Agreement, the following terms shall 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
Borrower or any of its Subsidiaries (i) acquires 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 securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Eurodollar Interest Period, or (iii) made by the Agent on
the Swing Line Loan.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
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"Agent" means Bank One, Louisiana, National Association, in its
capacity as contractual representative of the Lenders pursuant to Article X, and
not in its individual capacity as a Lender, and any successor Agent appointed
pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day or (ii) the Federal Funds
Effective Rate for such day plus 1/2% per annum. "Prime Rate" means a rate per
annum equal to the prime rate of interest announced from time to time by Bank
One, N.A. (which is not necessarily the lowest rate charged to any customer),
changing when and as said prime rate changes, and effective on the date stated
in the announcement. "Federal Funds Effective Rate" means, for any day, an
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published for such day (or, if such day
is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations at approximately
10:00 a.m. (Central time) on such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by the Agent in
its sole discretion.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which commitment fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Letter of Credit Fee Rate" means, at any time, with respect
to Letters of Credit, the percentage rate per annum which is applicable at such
time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
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"Article" means an article of this Agreement unless another document is
specifically referenced.
"Asset Sale" means the sale by the Borrower and its Subsidiaries to any
Person of any fixed assets, except for the following: (i) sales of inventory in
the ordinary course of business; (ii) leases, sales or other dispositions of
Property that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than inventory in the
ordinary course of business) as permitted by this Section during the
twelve-month period ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of the Property of
the Borrower and its Subsidiaries; (iii) transfers of Property among the
Borrower and its Subsidiaries; (iv) sales of assets which are promptly replaced
thereafter by assets that are useful in the Borrower's business and are similar
in value; and (v) obsolete or worn-out equipment or assets no longer useful in
the Borrower's business, sold in the ordinary course of business.
"Assignment Agreement" means any assignment agreement in the form of
Exhibit B, executed and delivered pursuant to Section 12.3.
"Authorized Officer" means any of the Chairman, President, or Chief
Financial Officer of the Borrower, acting singly.
"Borrower" means OSCA, Inc., a Delaware corporation, and its successors
and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in New Orleans for the conduct of substantially
all of their commercial lending activities, interbank wire transfers can be made
on the Fedwire system and dealings in United States dollars are carried on in
the London interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in New Orleans for the
conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
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"Capitalized Lease Expenses" means, with reference to any period, the
lease expenses of the Borrower and its Subsidiaries with respect to Capitalized
Leases calculated on a consolidated basis for such period.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change" is defined in Section 3.2.
"Change in Control" means that the Guarantor shall no longer own or
control a majority of the voting power of the shares of Borrower.
"Closing Date" means the date upon which the conditions precedent to
the initial Advance have been satisfied or waived by the Lenders and the initial
Loan is made hereunder.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Assignment Agreement relating to any assignment that has become
effective pursuant to Section 12.3, as such amount may be modified from time to
time pursuant to the terms hereof.
"Compliance Certificate" means collectively, the certificates required
from the Borrower and Guarantor from time to time in the form of Exhibit A and
Exhibit A-1, signed by the chief financial officer of the Borrower.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Default" means an event described in Article VII.
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"EBITDA" means Net Income plus, to the extent deducted from revenues in
determining Net Income, (i) Interest Expense, (ii) expense for taxes paid or
provided for (accrued), (iii) depreciation, (iv) amortization, (v) other
non-cash charges, and (vi) extraordinary losses incurred other than in the
ordinary course of business, minus, to the extent included in Net Income,
extraordinary gains realized other than in the ordinary course of business, all
calculated for the Borrower and its Subsidiaries on a consolidated basis.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the applicable London interbank offered
rate for deposits in U.S. dollars appearing on Telerate Page 3750 as of 11:00
a.m. (London time) two Business Days prior to the first day of such Eurodollar
Interest Period, and having a maturity equal to such Eurodollar Interest Period,
provided that, if Telerate Page 3750 is not available for any reason, the
applicable Eurodollar Base Rate for the relevant Eurodollar Interest Period
shall instead be the applicable London interbank offered rate for deposits in
U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Eurodollar Interest Period, and
having a maturity equal to such Eurodollar Interest Period.
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Eurodollar Interest
Period shall end on the day which corresponds numerically to such date one, two,
three or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second or third succeeding month,
such Eurodollar Interest Period shall end on the last Business Day of such next,
second or third succeeding month. If an Eurodollar Interest Period would
otherwise end on a day which is not a Business Day, such Eurodollar Interest
Period shall end on the next succeeding Business Day, provided, however, that if
said next succeeding Business Day
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falls in a new calendar month, such Eurodollar Interest Period shall end on the
immediately preceding Business Day.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(b) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Funded Indebtedness" means at any time the aggregate dollar amount of
(i) Indebtedness of the Borrower and its Subsidiaries, calculated on a
consolidated basis, which has actually been funded and is outstanding at such
time, whether or not such amount is due or payable at such time, plus (ii) the
total rentals payable under non-cancellable operating leases for the 12-month
period beginning on the date of calculation.
"Guarantor" means Great Lakes Chemical Corporation, a Delaware
corporation, and shareholder of the Borrower.
"Guaranty Agreement" means the guaranty agreement executed by the
Guarantor in favor of the Agent and the Lenders.
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"Guarantor Credit Agreement" means that certain Credit Agreement
between the Guarantor and The Chase Manhattan Bank (National Association), as
Agent, dated as of February 16, 1994, as amended, supplemented and restated from
time to time, or a replacement facility that is in form and substance
satisfactory to the Agent and the Required Lenders.
"Income Taxes" means, with reference to any period, all federal, state
and local income taxes paid or provided for (accrued) by the Borrower and its
Subsidiaries, calculated on a consolidated basis for such period.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable and accrued expenses arising
in the ordinary course of such Person's business payable on terms customary in
the trade), (iii) obligations, whether or not assumed, secured by Liens or
payable out of the proceeds or production from Property now or hereafter owned
or acquired by such Person, (iv) obligations which are evidenced by notes,
bonds, debentures, acceptances, or other instruments, (v) obligations to
purchase securities or other Property arising out of or in connection with the
sale of the same or substantially similar securities or Property, (vi)
Capitalized Lease Obligations, (vii) any other obligation for borrowed money or
other financial accommodation which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated balance sheet of
such Person; (viii) all reimbursement obligations relating to letters of credit,
bankers' acceptances and similar instruments; (ix) all endorsements (other than
for collection or deposit in the ordinary course of business), and (x) all
obligations under guaranties for any obligations described in clauses (i)
through (ix) hereof.
"Initial Public Offering" means the initial public offering of not less
than 5,600,000 shares of the Borrower's Class A common stock.
"Interest Expense" means, with reference to any period, the interest
expense (excluding payments in kind) of the Borrower and its Subsidiaries
calculated on a consolidated basis for such period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
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"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued by a Lender upon the application of the Borrower or
any of its Subsidiaries as set forth in Section 2.3.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan (including
Swing Line Loan) made pursuant to Article II (or any conversion or continuation
thereof), whether made or continued as or converted to Floating Rate Loans or
Eurodollar Loans.
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.13 and the Guaranty Agreement.
"Loan Termination Date" means June 20, 2003 or any earlier date upon
which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms of Section 2.5.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Income" means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated on a consolidated basis
for such period.
"Net Proceeds" means the aggregate cash proceeds received by the
Borrower or any Subsidiary in respect of any Asset Sale, net of (without
duplication) (i) the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment
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banking fees, sales commissions, recording fees, title transfer fees, title
insurance premiums, appraiser fees and costs incurred in connection with
preparing such asset for sale) and any relocation expenses incurred as a result
thereof, (ii) amounts required to be applied to the repayment of Indebtedness
(other than under this Agreement) secured by a lien on the asset or assets that
were the subject of such Asset Sale, and (iii) any amounts placed in escrow
until such time as the escrow arrangement is terminated, in which case Net
Proceeds shall include the amounts returned to the Borrower or Subsidiary from
such escrow arrangement.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note evidencing Loans (including the Swing
Line Loan) issued at the request of a Lender pursuant to Section 2.13.
"Obligations" means all Indebtedness of the Borrower to the Lenders,
from time to time, including without limitation, all unpaid principal of and
accrued and unpaid interest on the Loans, all commercial and standby letters of
credit and bankers acceptances, issued by any Lender, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Liens" is defined in Section 6.15.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower may have any liability.
"Pricing Schedule" means Schedule 2.
"Pro Rata Share" means, with respect to any Lender at any time, the
percentage obtained by dividing (i) the sum of such Lender's Commitment at such
time (in each case, as adjusted from time to time in accordance with the
provisions of this Agreement) by (ii) the
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Aggregate Commitment at such time, provided, however, that if all of the
Commitments are terminated pursuant to the terms of this Agreement, then "Pro
Rata Share" means, with respect to any Lender at any time, the percentage
obtained by dividing (x) the sum of such Lender's Loans outstanding at such time
(excluding the amounts outstanding on the Swing Line Loan) by (y) the sum of the
aggregate amount of all the Term Loans and Revolving Loans outstanding hereunder
at such time.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
the Borrower and any Lender or Affiliate thereof which is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
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"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders whose Pro Rata Shares, in the
aggregate, are 70% or greater, but in any event, at least two Lenders.
"Reserve Requirement" means, with respect to an Eurodollar Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurocurrency liabilities.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Management Obligations owing to one or more Lenders.
"Subsidiary" means (i) any corporation, more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by the Borrower or by one or
more of its Subsidiaries or by the Borrower and one or more of its Subsidiaries,
or (ii) any partnership, limited liability company, association, joint venture
or similar business organization, more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 5% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of
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the consolidated net sales or of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the financial statements referred to in clause
(i) above.
"Swing Line Loans" is defined in Section 2.2.1.
"Tangible Net Worth" means at any time total stockholder's equity of
the Borrower and its Subsidiaries calculated on a consolidated basis as of such
time, less the amount of any intangible assets (such as patents, trade names,
trademarks, copyrights, franchises, goodwill or unamortized debt discount and
expense).
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II
THE CREDITS
2.1 Revolving Loans.
2.1.1. Making the Loans. From and including the Closing Date and prior
to the Loan Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make loans to the Borrower from time
to time in amounts not to exceed in the aggregate at any one time outstanding
the amount of its Commitment. Each Advance under this Section 2.1.1 shall
consist of Loans made by each Lender ratably in proportion to such Lender's
respective Pro Rata Share, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make any Loan hereunder nor shall the Commitment of any Lender be increased or
decreased as a result of any such failure. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Loans at any time prior
to the Loan Termination Date. The Commitments of the Lenders shall expire on the
Loan Termination Date.
2.1.2. Repayment of the Loans. On the Loan Termination Date, the
Borrower shall repay in full the outstanding principal balance of the Loans.
2.2 Swing Line Loan.
2.2.1 Making the Swing Line Loan. From and including the Closing Date,
and prior to the Loan Termination Date, the Agent agrees, on the terms and
conditions set forth in this Agreement, to make a revolving loan to the Borrower
from time to time in amounts not to exceed in the aggregate at any one time
outstanding $5,000,000 (the "Swing Line Loan"). The Swing Line Loan shall be
available to cover daily borrowings and repayments without having to account to
each Lender on a daily basis. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Loans at any time prior to the Loan
Termination Date. The aggregate face amount of the Swing Line Loan shall
constitute a portion of the Commitments (thereby reducing the Aggregate
Commitment available for Revolving Loans and Letters of Credit on a
dollar-for-dollar basis). Except to the extent otherwise provided in this
Section 2.2, the Swing Line Loan shall be considered a part of the Revolving
Loans.
Section 2.2.2 Interest Rate on the Swing Line Loan. The interest rate
on the Swing Line Loan shall be the Eurodollar Rate (using a one-month
Eurodollar Interest Period) plus 0.50% per annum. The Eurodollar Rate shall be
determined and adjusted on a daily basis.
Section 2.2.3 Repayment of the Swing Line Loan. Each Business Day, the
Borrower shall repay the Swing Line Loan in the amount of net collections less
all items presented for collections, or the Agent shall make an Advance to the
Borrower in the amount
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of all items presented for collections less net collections. The Agent may at
any time request the Lenders to repay the Swing Line Loan in whole or in part
through Advances on the Loans pursuant to 1Section 2.1 (even in the case where a
Unmatured Default, Default or Event of Default occurs). On the Loan Termination
Date, the Borrower shall repay in full the outstanding principal balance of the
Swing Line Loan.
2.3 Letters of Credit.
2.3.1 Issuance of Letters of Credit. From and including the Closing
Date, at the request of the Borrower, any Lender ("Issuing Lender") shall issue
one or more commercial and/or standby Letters of Credit for the account of the
Borrower or any of its Subsidiaries, pursuant to the Issuing Lender's standard
form of application for letters of credit. The aggregate face amount of all
outstanding Letters of Credit (i) shall constitute a portion of the Commitments
(thereby reducing the Commitments available for Loans on a dollar-for-dollar
basis), (ii) shall not exceed $5,000,000 (or the equivalent thereof in
currencies, and on terms, acceptable to the Agent and the Required Lenders) in
the aggregate for all standby Letters of Credit, and (iii) shall not exceed
$10,000,000 (or the equivalent thereof in currencies, and on terms, acceptable
to the Agent and the Required Lenders) in the aggregate for all Letters of
Credit (including standby Letters of Credit). The expiry date of all Letters of
Credit shall be not later than one year after date of issuance (although the
Letter of Credit may provide for the renewal thereof for additional periods of
up to one year each); provided, however, that in any event shall the expiry date
(including renewal periods) of any Letter of Credit shall be not later than five
Business Days prior to the Loan Termination Date. The Issuing Lender shall
promptly furnish the Agent with copies of the Letter of Credit (and application
received in connection therewith) issued by the Issuing Lender.
2.3.2 Risk Participation. Immediately upon the issuance of a Letter of
Credit by the Issuing Lender, each Lender shall be deemed to have automatically,
unconditionally and irrevocably (except as provided for in Section 10.8)
purchased from the Issuing Lender an undivided interest and participation in the
Letter of Credit, the obligations in respect thereof, and the liability of the
Issuing Lender, equal to the face amount of the Letter of Credit multiplied by
such Lender's Pro Rata Share.
2.3.3 Letter of Credit Fees. (a) The Borrower agrees to pay the Issuing
Lender a fronting fee equal to 0.125% per annum on the face amount of the Letter
of Credit, payable quarterly in arrears on the last day of each calendar
quarter, for the term of the Letter of Credit, together with the Issuing
Lender's customary letter of credit issuance and processing fees. The fronting
fee and customary letter of credit issuance and processing fees shall be
retained by the Issuing Lender and shall not be shared with the other Lenders.
(b) In addition, the Borrower agrees to pay the Agent a fee
equal to the Letter of Credit Fee Rate (on a per annum basis) shown on the
Pricing Schedule. The Letter of Credit fee shall be based on the principal
amount of the Letters of Credit (as reduced from
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time to time) payable quarterly in arrears on the last day of each calendar
quarter, for the term of the Letter of Credit and shall be shared by the Issuing
Lender and the other Lenders on the basis of each Lender's Pro Rata Share.
2.3.4 Reimbursement. The Borrower hereby agrees to pay on demand to the
Issuing Lender for the Benefit of the Lenders in respect of each Letter of
Credit issued for its account an amount equal to any amount paid by the Issuing
Lender under or in respect of such Letter of Credit. In the event the Issuing
Lender makes a payment pursuant to a request for draw presented under a Letter
of Credit and such payment is not promptly reimbursed by the Borrower upon
demand, the Issuing Lender shall give notice of such failure to pay to the Agent
and the applicable Lenders, and each Lender shall promptly reimburse the Issuing
Lender for such Lender's Pro Rata Share of such payment and such reimbursement
shall be deemed for all purposes of this Agreement to constitute a Floating Rate
Advance to the Borrower from such Lender. If such reimbursement is not made by
any Lender to the Issuing Lender on the same day on which the Issuing Lender
shall have made payment on any such draw, such Lender shall pay interest thereon
to the Issuing Lender at a rate per annum equal to the Federal Funds Effective
Rate. The Borrower hereby unconditionally and irrevocably authorizes, empowers,
and directs the Agent and the Lenders to record and otherwise treat such payment
under a Letter of Credit not immediately reimbursed by Borrower as a Floating
Rate Advance.
2.4. Types of Advances. The Advances must be either Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.8 and 2.9.
2.5. Commitment Fee. The Borrower agrees to pay to the Agent, for the
account of the Pro Rate Share of each Lender, a commitment fee at a per annum
rate equal to the Applicable Fee Rate on the daily unused portion of the
Aggregate Commitment from the date hereof to and including the Loan Termination
Date, payable quarterly in arrears on last day of each calendar quarter
hereafter and on the Loan Termination Date. For the purposes hereof, "unused
portion" shall mean the aggregate Revolving Loan Commitment, minus the principal
amount outstanding on the Loan (excluding amounts outstanding on the Swing Line
Loan), minus the face amount of all outstanding Letters of Credit. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder.
2.6 Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$200,000 (and in multiples of $100,000, if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Commitment.
2.7 Prepayments; Reductions in Aggregate Commitment.
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2.7.1. Optional Prepayments and Reductions. The Borrower may from time
to time, upon one Business Day's written notice to the Agent, without penalty or
premium, repay all outstanding Floating Rate Advances, or, prepay a portion of
the outstanding Floating Rate Advances in a minimum aggregate amount of
$1,000,000 or any integral multiple of $500,000 in excess thereof. The Borrower
may from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4, but without further penalty or premium, all
outstanding Eurodollar Advances, or, in a minimum aggregate amount of $1,000,000
or any integral multiple of $500,000 in excess thereof, any portion (or the full
outstanding balance of all Eurodollar Advances, if less than such minimum) of
the outstanding Eurodollar Advances upon three Business Days' prior notice to
the Agent. The Borrower may permanently reduce the Aggregate Commitment in
whole, or in part ratably among the Lenders in integral multiples of $5,000,000,
upon at least three Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction, provided, however, that the
amount of the Aggregate Commitment may not be reduced below the aggregate
principal amount of the outstanding Loans.
2.7.2. Mandatory Prepayments; Reductions in Aggregate Commitment. The
Borrower shall make prepayments of the outstanding amount of the Loans upon one
Business Days' prior notice to the Agent, in amounts equal to either or both of
the following: (i) 75% of the net sale proceeds (total proceeds less reasonable
costs of issuance) received by the Borrower or any Subsidiary (in the form of
cash or cash equivalents) from the issuance of shares of capital stock (except
in the case where a Subsidiary issues additional shares of capital stock to the
Borrower or to another of its Subsidiaries and except for shares of capital
stock issued by the Borrower in the Initial Public Offering); and (ii) 100% of
the Net Proceeds (in excess of an aggregate of 5% of the total assets of the
Borrower during any calendar year) received by the Borrower or any Subsidiary
from Asset Sales permitted by this Agreement or, if required by this Agreement,
consented to by the Agent and the Required Lenders. Such payment shall be made
not later than 15 days after the consummation of the stock issuance or Asset
Sale. If such payment constitutes a repayment of a Eurodollar Advance on a date
which is not the last day of a Eurodollar Interest Period, the Borrower shall
not be required to pay any amounts that would otherwise be due under this
Agreement (including without limitation, Section 3.4) for the repayment of a
Eurodollar Rate Advance prior to the last day of the Eurodollar Interest Period.
The amount of any such mandatory prepayment shall reduce the Aggregate
Commitment in the same amount, unless this provision is waived by the Required
Lenders or otherwise modified by the Borrower and the Required Lenders.
2.8 Method of Selecting Types and Eurodollar Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Eurodollar Interest Period applicable thereto from time
to time, except as provided in Section 2.2.1 with respect to the Swing Line
Loan. The Borrower shall give the Agent irrevocable notice (a "Borrowing
Notice") not later than 12 noon (Central
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time) at least one Business Day before the Borrowing Date of each Floating Rate
Advance and three Business Days before the Borrowing Date for each Eurodollar
Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Eurodollar
Interest Period applicable thereto.
Not later than noon (Central time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in New Orleans
to the Agent at its address specified pursuant to Article XIII. The Agent will
make the funds so received from the Lenders available to the Borrower at the
Agent's aforesaid address.
The Borrower shall not be entitled to more than four Eurodollar Rate
tranches and one Floating Rate tranche at any one time on the Loan.
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Eurodollar Interest Period
therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless (x) such Eurodollar Advance is or was repaid
in accordance with Section 2.7 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the end of
such Eurodollar Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance for the same or another Eurodollar Interest Period. Subject
to the terms of Section 2.6, the Borrower may elect from time to time to convert
all or any part of a Floating Rate Advance into a Eurodollar Advance. The
Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation
Notice") of each conversion of a Floating Rate Advance into a Eurodollar Advance
or continuation of a Eurodollar Advance not later than 12 noon (Central time) at
least three Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
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(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Eurodollar Interest Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate, and effective on the date stated in the announcement.
Each Eurodollar Advance shall bear interest on the outstanding principal amount
thereof from and including the first day of the Eurodollar Interest Period
applicable thereto to (but not including) the last day of such Eurodollar
Interest Period at the interest rate determined by the Agent as applicable to
such Eurodollar Advance based upon the Borrower's selections under Sections 2.8
and 2.9 and otherwise in accordance with the terms hereof. No Eurodollar
Interest Period with respect to any Loan may end after the Loan Termination
Date.
2.11. Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each Eurodollar Advance
shall bear interest for the remainder of the applicable Eurodollar Interest
Period at the rate otherwise applicable to such Eurodollar Interest Period plus
3% per annum and (ii) each Floating Rate Advance shall bear interest at a rate
per annum equal to the Floating Rate in effect from time to time plus 3% per
annum, provided that, during the continuance of a Default under Section 7.6 or
7.7, the interest rates set forth in clauses (i) and (ii) above shall be
applicable to all Advances without any election or action on the part of the
Agent or any Lender.
2.12. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, by noon (Central time) on the date when
due and, except for payments of Advances on the Swing Line Loan to the Agent,
shall be applied ratably by the Agent among the Lenders. Each payment delivered
to the
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Agent for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. The Agent is hereby authorized to
charge the account of the Borrower maintained with the Agent for each payment of
principal, interest and fees as it becomes due hereunder.
2.13. Noteless Agreement; Evidence of Indebtedness. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a)
the amount of each Loan made hereunder, the Type thereof and the Eurodollar
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (c) the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
(iv) Any Lender may request that its Loan be evidenced by a Note. In
such event, the Borrower shall execute and deliver to such Lender a Note for
such Loan payable to the order of such Lender in a form supplied by the Agent
and acceptable to such Lender. Thereafter, the Loan evidenced by such Note and
interest thereon shall at all times (including after any assignment pursuant to
Section 12.3) be represented by one or more Notes payable to the order of the
payee named therein or any assignee pursuant to Section 12.3, except to the
extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loan once again be evidenced as described in
paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds 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 Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized 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 manifest error.
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2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof and on the Loan
Termination Date. Interest on the Swing Line Loan shall be payable on each
Payment Date, commencing with the first such date to occur after the date hereof
and on the Loan Termination Date. Interest accrued on each Eurodollar Advance
shall be payable on the last day of its applicable Eurodollar Interest Period,
on any date on which the Eurodollar Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Eurodollar Advance
having an Eurodollar Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Eurodollar
Interest Period. Interest on the Swing Line Loan shall be payable on each
Payment Date, commencing with the first such date to occur after the date hereof
and on the Loan Termination Date. Interest, Letter of Credit fees and commitment
fees at the Floating Rate shall be calculated for actual days elapsed on the
basis of a 365-day (366-day in the case of leap years) basis. Interest at the
Eurodollar Rate shall be calculated for actual days elapsed on the basis of a
360-day year. Interest shall be payable for the day an Advance is made but not
for the day of any payment on the amount paid if payment is received prior to
noon (Central time) at the place of payment. If any payment of principal of or
interest on an Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.16. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Agent will notify each Lender of the interest rate and
Eurodollar Interest Period applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17. Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending Installation.
Each Lender may, by written notice to the Agent and the Borrower in accordance
with Article XIII, designate replacement or additional Lending Installations
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.18. Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the
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Lenders, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to the interest rate applicable
to the relevant Loan.
2.19 Guaranty. The Obligations shall be secured by the solidary (joint
and several) guaranty of the Guarantor.
2.20 Future Collateral. The Obligations shall initially be unsecured
(except for the Guaranty of the Guarantor). However, in the event that the
lenders under the Guarantor Credit Agreement require the Guarantor to grant a
security interest in a majority of its assets (in value) or a Substantial
Portion of the Borrower's assets, then the Borrower shall cause itself, its
Subsidiaries and/or the Guarantor to grant a first priority security interest in
assets of the Borrower, Subsidiaries and/or Guarantor sufficient to secure the
Secured Obligations on a basis reasonably satisfactory to the Agent and the
Required Lenders.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to
any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect
of its Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Eurodollar Loans or
reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with its
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Eurodollar Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by
reference to the amount of Eurodollar Loans held or interest
received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost
to such Lender or applicable Lending Installation of making or
maintaining its Eurodollar Loans or Commitment or to reduce
the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or
Commitment, then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost
or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or its
Commitment to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means
(i) the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
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3.4. Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Eurodollar Interest
Period, whether because of acceleration, prepayment or otherwise (but excluding
a mandatory prepayment under Section 2.7.2), or a Eurodollar Advance is not made
on the date specified by the Borrower for any reason other than default by the
Lenders, the Borrower will indemnify each Lender for any loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5. Taxes. (i) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free and clear
of and without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall furnish
to the Agent the original copy of a receipt evidencing payment thereof within 30
days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and each Lender
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Agent or such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent or such
Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after becoming a party to this Agreement,
(i) deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(ii) deliver to each of the Borrower and the Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Agent (x) renewals
or additional copies of such form (or any
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successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Agent. All forms
or amendments described in the preceding sentence shall certify that such Lender
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof 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 properly completed, because such Lender failed to notify
the Agent of a change in circumstances which rendered its exemption from
withholding 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, withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
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3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement. Notwithstanding the
foregoing, the Borrower shall not have any obligation to any Lender under this
Section 3.6 for amounts which accrued more than 180 days prior to delivery of
the written statement to the Lender. Furthermore, the Borrower may request the
Agent to use reasonable efforts to replace the Lender who submitted the written
statement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be required to make the
initial Advance hereunder unless the Borrower has furnished to the Agent with
sufficient copies for the Lenders (or has otherwise satisfied the Agent):
(i) Copies of the articles of incorporation of the Borrower and
the Guarantor, together with all amendments, and a certificate
of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation.
(ii) A certificate, executed by the Secretary or Assistant
Secretary of the Borrower on behalf of the Borrower which
shall identify by name and title and bear the signatures of
the Authorized Officers and any other officers of the Borrower
authorized to sign the Loan Documents, upon which certificate
the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower, and
certifying resolutions of the Borrower's Board of Directors
authorizing the execution of the Loan Documents.
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(iii) A certificate, executed by the Secretary or Assistant
Secretary of the Guarantor on behalf of the Guarantor which
shall identify by name and title the Authorized Officers and
any other officers of the Guarantor authorized to sign the
Guaranty Agreement upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change
in writing by the Borrower, and certifying the Guarantor's
authorization of the execution of the Guaranty Agreement.
(iv) A written opinion of the Borrower's and Guarantor's counsel,
addressed to the Lenders, in form and substance reasonably
satisfactory to the Agent.
(v) This Agreement executed by the Borrower, Agent and Lenders.
(vi) Any Notes requested by a Lender pursuant to Section 2.13
payable to the order of each such requesting Lender.
(vii) The Guaranty executed by the Guarantor.
(viii) Lien searches evidencing no liens or encumbrances against the
assets of the Borrower, except for liens and encumbrances
securing Indebtedness that will be refinanced in full with the
proceeds of the initial Advances on the Loans and for
Permitted Liens.
(ix) Written money transfer instructions addressed to the Agent and
signed by an Authorized Officer, together with such other
related money transfer authorizations as the Agent may have
reasonably requested.
(x) One or more insurance certificates evidencing the insurance
required to be maintained by the Borrower and the Guarantor
pursuant to this Agreement.
(xi) Audited consolidated financial statements of the Borrower and
the Guarantor for the fiscal year ended December 31, 1999,
accompanied by the unqualified opinion of the Borrower's and
the Guarantor's independent certified public accountants; and
interim unaudited consolidated financial statements of the
Borrower and the Guarantor for the fiscal quarter ended March
31, 2000, certified by the chief financial officer of the
Borrower on behalf of the Borrower and the Guarantor on behalf
of the Guarantor, all in form and substance reasonably
satisfactory to the Agent and the Lenders.
(xii) Agent's approval of the resulting capital structure of the
Borrower following the successful completion of the Initial
Public Offering.
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(xiii) Projections of the Borrower giving effect to the Initial
Public Offering and the closing of the Loan, together with
such information as the Agent may reasonably require to
confirm the tax, legal and business assumptions made in the
financial statements provided to the Agent, in form and
substance reasonably satisfactory to the Agent and the
Lenders.
(xiv) Evidence of the successful completion of an Initial Public
Offering of shares of the Borrower's capital stock raising a
minimum of $70,000,000 after expenses of the offering.
(xv) Compliance certificates of the Borrower and Guarantor
following the successful completion of the Initial Public
Offering and the payment in full of the Borrower's
inter-company Indebtedness to the Guarantor showing the
Borrower and Guarantor to be in compliance with all of the
provisions of this Agreement.
(xvi) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2. Each Advance. The Lenders shall not be required to make any
Advance unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct in all material respects as of such Borrowing
Date, except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case
such representation or warranty shall have been true and
correct in all material respects on and as of such earlier
date.
(iii) No Material Adverse Effect relating to the Borrower and its
Subsidiaries has occurred since the Closing Date or the date
of any financial statements of the Borrower submitted
subsequent to the Closing Date.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
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5.1. Existence and Standing. Each of the Borrower, its Subsidiaries and
the Guarantor (i) is a corporation duly and properly incorporated or organized,
as the case may be, validly existing and (to the extent such concept applies to
such entity) in good standing under the laws of its jurisdiction of
incorporation or organization, and (ii) has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to qualify could reasonably be expected to have a Material
Adverse Effect on the Borrower or the Guarantor.
5.2. Authorization and Validity. Each of the Borrower and its
Subsidiaries and the Guarantor has the power and authority and legal right to
execute and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by the Borrower and its
Subsidiaries and the Guarantor of the Loan Documents to which it is a party and
the performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and the Loan Documents to which the Borrower and
its Subsidiaries and the Guarantor is a party constitute legal, valid and
binding obligations of the Borrower and its Subsidiaries and the Guarantor
enforceable against the Borrower and Subsidiaries and the Guarantor in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower and its Subsidiaries and the Guarantor of the Loan
Documents to which it is a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any material law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries and the
Guarantor or (ii) the Borrower's or any Subsidiary's or the Guarantor's articles
or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating or
other management agreement, as the case may be, or (iii) the provisions of any
material indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries or the Guarantor is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary or the Guarantor pursuant to the terms
of any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries or the Guarantor,
is required to be obtained by the Borrower or any of its Subsidiaries or the
Guarantor in connection with the execution and delivery of the Loan Documents,
the borrowings under this Agreement, the payment and performance by the Borrower
of the Obligations or the legality, validity, binding effect or enforceability
of any of the Loan Documents.
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5.4. Financial Statements. The December 31, 1999 consolidated financial
statements of the Borrower and its Subsidiaries and the Guarantor heretofore
delivered to the Lenders were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were prepared and
fairly present in all material respects the consolidated financial condition and
operations of the Borrower and its Subsidiaries and the Guarantor at such date
and the consolidated results of their operations for the period then ended.
5.5. Material Adverse Change. Since March 31, 2000, there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries and the Guarantor
which could reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries and the Guarantor have
filed all United States federal tax returns and all other material tax returns
which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries or the Guarantor, except such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been provided in accordance
with Agreement Accounting Principles and as to which no Lien exists. No tax
liens have been filed and no claims are being asserted with respect to any such
taxes, which, if successful, could reasonably be expected to have a Material
Adverse Effect on the Borrower, its Subsidiaries or the Guarantor. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries and the
Guarantor in respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries or the Guarantor which could reasonably be
expected to have a Material Adverse Effect or which seeks to prevent, enjoin or
delay the making of any Loans. Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably be expected to
have a Material Adverse Effect, the Borrower has no material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
material Subsidiaries of the Borrower as of the Closing Date, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any
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Plan, and the Borrower has not withdrawn from any Plan or initiated steps to do
so, and no steps have been taken to reorganize or terminate any Plan.
5.10. Accuracy of Information. No material information, exhibit or
report furnished by the Borrower or any of its Subsidiaries or the Guarantor to
the Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the statements contained
therein, when taken as a whole, not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any of its
Subsidiaries nor the Guarantor is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default could reasonably be expected
to have a Material Adverse Effect or (ii) any agreement or instrument evidencing
or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries and the
Guarantor have complied with all laws, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, including, without
limitation, Regulation U, T and X of the Board of Governors of the Federal
Reserve System, and all Environmental Laws, except for any failure to comply
with any of the foregoing which could not reasonably be expected to have a
Material Adverse Effect.
5.14. Ownership of Properties. On the date of this Agreement, the
Borrower and its Subsidiaries and the Guarantor will have good title, free of
all Liens other than Permitted Liens, to all of the material Property and assets
reflected in the Borrower's and the Guarantor's most recent consolidated
financial statements provided to the Agent as owned by the Borrower and its
Subsidiaries and the Guarantor.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
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5.16. Environmental Matters. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that there is no non-compliance with the Environmental Laws that could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries nor the Guarantor has received any notice to the
effect that its operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal
or state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries nor the Guarantor is an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor any
of its Subsidiaries nor the Guarantor is a "holding company" or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
5.19. Solvency. (i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the making of
each Loan, if any, made on the date hereof and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries and the Guarantor on a consolidated basis, at
a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower and its Subsidiaries and the Guarantor
on a consolidated basis; (b) the present fair saleable value of the Property of
the Borrower and its Subsidiaries and the Guarantor on a consolidated basis,
will be greater than the amount that will be required to pay the probable
liability of the Borrower and its Subsidiaries and the Guarantor on a
consolidated basis, on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) the Borrower and its Subsidiaries and the Guarantor on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Borrower and its Subsidiaries and the
Guarantor on a consolidated basis will not have unreasonably small capital with
which to conduct the businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the date hereof. The
Borrower does not intend to, or to permit any of its Subsidiaries to, and does
not believe that it or any of its Subsidiaries or the Guarantor will, incur
debts beyond its ability to pay such debts as they mature, taking into account
the timing of and amounts of cash to be received by it or any such Subsidiary or
the
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Guarantor and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary or the Guarantor.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
for each Subsidiary, a system of accounting established and administered in
accordance with Agreement Accounting Principles, and furnish to the Agent (with
sufficient copies to distribute to each Lender other than the Agent):
(i) Within 90 days after the close of each of Borrower's and
Guarantor's fiscal years, an unqualified audit report
certified by independent certified public accountants
acceptable to the Agent, prepared in accordance with Agreement
Accounting Principles on a consolidated and consolidating
basis (consolidating statements need not be certified by such
accountants) for Borrower and its Subsidiaries and on a
consolidated basis for the Guarantor, including balance sheets
as of the end of such period, related profit and loss
statement, statement of changes in shareholders equity and
statement of cash flows, accompanied by a certificate of said
accountants that, in the course of their examination necessary
for their certification of the foregoing, they have obtained
no knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
(ii) Within 45 days after the close of each of Borrower's and
Guarantor's fiscal quarters of the Borrower and its
Subsidiaries and the Guarantor, the Borrower's and Guarantor's
Form 10-Q as filed with the Securities Exchange Commission.
(iii) Together with the financial statements and Form 10-Q required
under Sections 6.1(i) and (ii), Compliance Certificates of the
Borrower and Guarantor.
(iv) As soon as available, but in any event within 30 days after
the beginning of each of Borrower's fiscal year, a copy of the
plan and forecast (including a projected consolidated and
consolidating balance sheet, income statement and funds flow
statement) of the Borrower for each fiscal quarter of such
fiscal year and for such fiscal year as a whole.
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(v) As soon as possible and in any event within 10 days after the
Borrower or Guarantor knows that any Reportable Event has
occurred with respect to any Plan, a statement signed by the
chief financial officer of the Borrower or Guarantor, as the
case may be, describing said Reportable Event and the action
which the Borrower proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after
receipt by the Borrower or any of its Subsidiaries or the
Guarantor, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of
the Borrower and Guarantor, copies of all financial statements
(other than Forms 10-Q furnished under Item (ii) hereof),
reports and proxy statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports of the Borrower or Guarantor filed with the Securities
and Exchange Commission.
(ix) Such other information (including non-financial information)
as the Agent (or the Agent representing any Lender) may from
time to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary
to use the proceeds of the Loan for one or more of the following: (i) to
refinance existing indebtedness of the Borrower and its Subsidiaries existing on
the Closing Date, and (ii) for general corporate purposes. The Borrower will
not, nor will it permit any of its Subsidiaries to, use any of the proceeds of
the Advances to purchase or carry any "margin stock" (as defined in Regulation
U).
6.3. Notice of Default. The Borrower will (a) give prompt notice in
writing to the Agent of the occurrence of any Default or Unmatured Default and
of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect, and (b) promptly advise by written
notice to the Agent of any material inaccuracy in any representation or warranty
set forth in Article V which occurs due to events or circumstances arising after
the Closing Date (whether or not the subject of such inaccuracy could reasonably
be expected to cause or give rise to a Material Adverse Effect).
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6.4. Conduct of Business. The Borrower will, and will cause each of its
Subsidiaries to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except where the failure to so qualify could
reasonably be expected to have a Material Adverse Effect.
6.5. Taxes. The Borrower will, and will cause each of its Subsidiaries
to, timely file complete and correct United States federal and applicable
material foreign, state and local tax returns required by law and pay when due
all material taxes, assessments and governmental charges and levies upon it or
its income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside in accordance with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies, commercial general liability insurance, environmental insurance,
product liability insurance, workers compensation insurance and casualty
insurance in such amounts and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to the Agent upon request full
information as to the insurance carried.
6.7. Compliance with Laws. (a) The Borrower will, and will cause each
of its Subsidiaries to, comply with all material laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it or its
Property may be subject including, without limitation, Regulations U, T, and X
of the Board of Governors of the Federal Reserve System, and also including,
without limitation, ERISA and Environmental Laws, where the failure to do so
could reasonably be expected to have a Material Adverse Effect.
(b) The Borrower will, and will cause each of its Subsidiaries to, and
will use commercially reasonable efforts to cause each of their agents,
contractors and sub-contractors (while such Persons are acting within the scope
of their contractual relationship with the Borrower or the Subsidiaries) to
comply in all material respects with all applicable Environmental Laws, and to
prevent the unauthorized release, discharge, disposal, escape or spill of
hazardous substances on or about the properties owned or operated by the
Borrower or the Subsidiaries, which could reasonably be expected to have a
Material Adverse Effect.
6.8. Maintenance of Properties. The Borrower will, and will cause each
of its Subsidiaries to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, and make all
necessary and proper repairs,
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renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause each of its
Subsidiaries and the Guarantor to, permit the Agent and the Lenders, by their
respective representatives and agents, to inspect any of the Property, books and
financial records of the Borrower and each of its Subsidiaries and the
Guarantor, to examine and make copies of the books of accounts and other
financial records of the Borrower and each of its Subsidiaries and the
Guarantor, and to discuss the affairs, finances and accounts of the Borrower and
each of its Subsidiaries with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals, subject to prior
reasonable notice and during business hours, as the Agent or any Lender may
designate.
6.10. Dividends. Except for the payment made by the Borrower to the
Guarantor pursuant to the Initial Public Offering of the shares of the Borrower,
the Borrower will not, nor will it permit any of its Subsidiaries to, declare or
pay any dividends or make any distributions on its capital stock (other than
dividends payable in its own capital stock) or redeem, repurchase or otherwise
acquire or retire any of its capital stock at any time outstanding, except that
any Subsidiary may declare and pay dividends or make distributions to the
Borrower or to a Wholly-Owned Subsidiary.
6.11. Indebtedness. Should the Guarantor Credit Agreement (which
prohibits the Borrower from agreeing to any restrictions on other Indebtedness)
cease to exist, the Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness arising under Rate Management Transactions
related to the Loans.
(iii) Trade credit or other contractual obligations to acquire
goods, supplies, and services, including, without limitation,
obligations incurred to employees for compensation for
services rendered in the ordinary course of business, or
merchandise on terms similar to those granted to purchasers in
similar lines of business as Borrower as of the date hereof
and incurred in the ordinary course of business.
(iv) Unfunded pension fund and other employee benefit plan
obligations and liabilities, but only to the extent they are
permitted to remain unfunded under applicable law.
(v) Indebtedness to secure the unpaid purchase price of equipment
used in the operations of the Borrower and its Subsidiaries up
to the aggregate amount of $500,000 at any one time.
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(vi) Endorsements for collection, deposits or negotiation and
warranties or products or services, in each case incurred in
the ordinary course of business.
(vii) Indebtedness in respect of performance, surety or appeal bonds
obtained in the ordinary course of Borrower's or any
Subsidiary' business.
(viii) Indebtedness from the Borrower in favor of one or more of its
Subsidiaries or from one or more of its Subsidiaries in favor
of the Borrower.
6.12. Merger. The Borrower will not, nor will it permit any of its
Subsidiaries to, merge or consolidate with or into any other Person, except as
follows: (i) the Borrower or a Subsidiary may merge with another Person to
affect an Acquisition where the Borrower or Subsidiary is the surviving entity,
where the consideration does not exceed an amount equal to 10% of the Tangible
Net Worth of the Borrower immediately prior to the Acquisition within any
12-month period in the aggregate, where the pro-forma balance sheet and
statement of income of the Borrower following the Acquisition demonstrates that
the Borrower will continue to be in compliance with the financial covenants in
this Agreement, and where there is no Unmatured Default or Default at the time
of the Acquisition; and (ii) a Subsidiary may merge into the Borrower or a
Wholly-Owned Subsidiary.
6.13. Sale of Assets. The Borrower will not, nor will it permit any of
its Subsidiaries to, lease, sell or otherwise dispose of its Property to any
other Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other
than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of
the Property of the Borrower and its Subsidiaries.
(iii) Transfers of Property among the Borrower and its Subsidiaries.
(iv) A sale of assets which are promptly replaced thereafter by
assets that are useful in the Borrower's business and are
similar in value.
(v) Obsolete or worn-out equipment or assets no longer useful in
the Borrower's business, sold in the ordinary course of
business.
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6.14. Investments and Acquisitions. The Borrower will not, nor will it
permit any of its Subsidiaries to, make or suffer to exist any Investments or to
make any Acquisition of any Person, except:
(i) Short-term obligations of, or fully guaranteed by, the United
States of America, commercial paper rated A-1 or better by S&P
or P-1 or better by ▇▇▇▇▇'▇, demand deposit accounts
maintained in the ordinary course of business, and
certificates of deposit issued by, and time deposits with,
commercial banks (whether domestic or foreign) having capital
and surplus in excess of $100,000,000 or with any Lender;
provided in each case that the same provides for payment of
both principal and interest (and not principal alone or
interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
(ii) Advances or Investments by the Borrower in or to any one or
more of its Subsidiaries or by any Subsidiary in or to the
Borrower or any other Subsidiary.
(iii) Investments in Subsidiaries and other Investments in existence
on the date hereof.
(iv) Future acquisitions of substantially all of the shares or
assets of another Person during any 12-month period, where the
consideration does not exceed an amount equal to 10% of the
Tangible Net Worth of the Borrower immediately prior to the
Acquisition, where the pro-forma balance sheet and statement
of income of the Borrower following the Acquisition
demonstrates that the Borrower will continue to be in
compliance with the financial covenants in this Agreement, and
where there is no Unmatured Default or Default at the time of
the Acquisition.
(v) Acquisition of current assets or liabilities arising from the
sale or lease of goods, the rendition of services or the
extension of credit in the ordinary course of business of the
Borrowers and its Subsidiaries, including, without limitation,
investments in accounts, contract rights, chattel paper and
notes receivable.
(vi) Advances to officers, shareholders, and employees of Borrower
(excluding travel and moving and relocation expenses and loans
in the ordinary course of business) not to exceed $100,000 in
the aggregate at any one time.
(vii) Rate Management Obligations in favor of any Lender.
6.15 Liens. Should the Guarantor Credit Agreement (which prohibits the
Borrower from agreeing to any restrictions on other Debt) cease to exist, the
Borrower will not, nor will it permit any of its Subsidiaries to, create, incur,
or suffer to exist any Lien in, of or on the
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Property of the Borrower or any of its Subsidiaries, except for the following
(collectively, the "Permitted Liens"):
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v) Liens in favor of the Agent, for the benefit of the Lenders.
(vi) Liens constituting purchase money security interests in
equipment securing Indebtedness permitted by Section 6.11 (v).
(vii) Attachment, judgment and other similar, non-tax Liens in
connection with court proceedings, but only if and for so long
as the execution or other enforcement of such Liens is and
continues to be effectively stayed and bonded on appeal in a
manner reasonably satisfactory to Lenders for the full amount
of such Liens, the validity and amount of the claims secured
thereby are being actively contested in good faith and by
appropriate lawful proceedings, such Liens do not, in the
aggregate, materially detract from the value of the Property
of the Borrower or any of its Subsidiaries or materially
impair the use thereof in the operation of the Borrower's or
any of its Subsidiaries' business and such Liens are and
remain junior in priority to the Liens in favor of the Lender.
6.16. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any transaction
(including, without limitation, the purchase or sale of any
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Property or service) with, or make any payment or transfer to, any
Affiliate, except (i) in the ordinary course of business and pursuant
to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than the Borrower or such Subsidiary would
obtain in a comparable arms-length transaction, (ii) for the Separation
Agreement, the IPO and Distribution Agreement, the Registration Rights
Agreement, the Services Agreement, the Brominated Products Supply
Agreement and the Tax Disaffiliation Agreement, each between the
Borrower and Guarantor delivered simultaneously with the Borrower's
Initial Public Offering of its shares.
6.17 Financial Covenants.
6.17.1 Maximum Funded Indebtedness to EBITDA Ratio. The Borrower will not
permit the ratio, determined as of the end of each fiscal quarter, of
(i) Funded Indebtedness to (ii) EBITDA, to be greater than the
following:
Period Ending Maximum Ratio
------------- -------------
September 30, 2000 4.00 to 1.00
(Using trailing 3 quarters annualized)
December 31, 2000 4.00 to 1.00
(Using trailing 4 quarters)
March 31, 2001 through December 31, 2001 3.00 to 1.00
(Using trailing 4 quarters)
March 31, 2002 and thereafter 2.50 to 1.00
(Using trailing 4 quarters)
6.17.2 Minimum Fixed Charge Coverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each fiscal quarter, of (i) the sum
of EBITDA minus cash Income Taxes actually paid, to (ii) the sum of
Capitalized Lease Expenses, plus Interest Expense, plus scheduled
principal payments (excluding any mandatory prepayments) made on Funded
Indebtedness, in each case for the then most recently ended four fiscal
quarters, to be less than the following:
Period Ending Minimum Ratio
------------- -------------
June 30, 2000 2.50 to 1.00
(Using trailing 2 fiscal quarters)
September 30, 2000 3.00 to 1.00
(Using trailing 3 fiscal quarters)
December 31, 2000 3.00 to 1.00
(Using trailing 4 fiscal quarters)
March 31, 2001 and thereafter 3.50 to 1.00
(Using trailing 4 quarters)
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6.17.3 Minimum Tangible Net Worth. The Borrower will not permit its Tangible
Net Worth to be less than (i) $44,000,000 plus 50% of Net Income for
each quarter beginning April 1, 2000 (with no deductions for quarterly
net losses), plus 75% of the net proceeds (after all costs of issuance)
of the sale of shares of the capital stock of the Borrower.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries or the Guarantor to the Lenders
or the Agent under or in connection with this Agreement, any Loan, or
any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the
date as of which made.
7.2. Nonpayment of any interest or principal on the Loan, or nonpayment of
any commitment fee or other obligations under any of the Loan
Documents, or nonpayment of any Rate Management Obligations to any
Lender, or nonpayment of any reimbursement obligations to a Lender
under any Letter of Credit, in each case within five days after the
same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of Section
6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 and 6.17.
7.4. The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms
or provisions of this Agreement or any other Loan Document which is not
remedied within 30 days after written notice from the Agent or any
Lender.
7.5 Either (i) the occurrence of an Event of Default under the Guarantor
Credit Agreement resulting from the non-payment of principal and/or
interest, or (ii) the acceleration of the Indebtedness of the Guarantor
under the Guarantor Credit Agreement resulting from the occurrence of
any other Event of Default, under the Guarantor Credit Agreement.
7.6. Failure of the Borrower or any of its Subsidiaries to pay when due any
Indebtedness to any Person (other than the lenders pursuant to the
Guarantor Credit Agreement) other than the Lenders aggregating in
excess of 10% of Tangible Net Worth ("Material Indebtedness"); or the
default by the Borrower or any of its Subsidiaries in the performance
(beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any agreement under which
any such Material Indebtedness was created or is governed, or any other
event shall occur or condition exist, the effect of which default or
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event is to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior
to its stated maturity; or any Material Indebtedness of the Borrower or
any of its Subsidiaries shall be declared to be due and payable or
required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing
its inability to pay, its debts generally as they become due.
7.7. The Borrower or any of its Subsidiaries or the Guarantor shall (i) have
an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment
for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (iv) institute any proceeding seeking an order
for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail
to file an answer or other pleading denying the material allegations of
any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions
set forth in this Section 7.7 or (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.8.
7.8. Without the application, approval or consent of the Borrower or any of
its Subsidiaries or the Guarantor, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or
any of its Subsidiaries or the Guarantor or any Substantial Portion of
its Property, or a proceeding described in Section 7.6(iv) shall be
instituted against the Borrower or any of its Subsidiaries or the
Guarantor and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 30
consecutive days.
7.9. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower and its Subsidiaries or the
Guarantor which, when taken together with all other Property of the
Borrower and its Subsidiaries or the Guarantor so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such action occurs,
constitutes a Substantial Portion.
7.10. The Borrower or any of its Subsidiaries or the Guarantor shall fail
within 60 days to pay, bond or otherwise discharge one or more (i)
judgments or orders for the payment of money in excess of $1,000,000
(or the equivalent thereof in currencies other than U.S. Dollars) in
the case of the Borrower, or $10,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the case of the Guarantor in the
aggregate, net of insurance coverages or third party indemnifications
or (ii) nonmonetary judgments or orders which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, which
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judgment(s), in any such case, is/are not stayed on appeal or otherwise
being appropriately contested in good faith.
7.11. Any Change in Control shall occur.
7.12 The Guarantor's ▇▇▇▇▇'▇ Rating becomes less than Baa3 or the
Guarantor's S&P Rating becomes less than BBB-, or the Guarantor shall
cease to have both a ▇▇▇▇▇'▇ Rating and a S&P Rating.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.7 or 7.8 occurs
with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on
the part of the Agent or any Lender. If any other Default occurs, the
Required Lenders (or the Agent with the consent of the Required
Lenders) may terminate or suspend the obligations of the Lenders to
make Loans hereunder, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind,
all of which the Borrower hereby expressly waives.
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.7 or 7.8 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights
of the Lenders or the Borrower hereunder or waiving any Default
hereunder; provided, however, that no such supplemental agreement
shall, without the consent of each Lender affected thereby:
(i) Extend the maturity of Loan, or extend or postpone
any payment of principal and/or interest due under
any Loan, or forgive all or any portion of the
principal amount of any Loan, or reduce the rate or
extend the time of payment of interest or fees
thereon, or forebear in the collection of any Loan,
or grant a payment moratorium on any Loan; or amend
the definitions of
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"Alternate Base Rate," "Applicable Margin",
"Eurodollar Base Rate", "Eurodollar Interest Period,"
or "Eurodollar Rate" or decrease the Pricing
Schedule.
(ii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders
specified to be the applicable percentage in this
Agreement to act on specified matters, or amend the
definitions of "Required Lenders" or "Pro Rata
Share".
(iii) Extend the Loan Termination Date, or increase or
reduce the amount of the Aggregate Commitment of all
Lenders or the Commitment of any Lender hereunder, or
permit the Borrower to assign its rights under this
Agreement.
(iv) Amend this Section 8.2.
(v) Release the Guarantor, or if the Obligations are ever
collateralized, to release a Substantial Portion of
such collateral.
(vi) Waive any Default if the practical effect of such
waiver allows the Agent and/or Required Lenders to
effectuate any of the items or matters listed in
clauses (i) through (v) of this Section 8.2 (except
that any waiver or amendments of the financial
covenants set forth in Section 6.19 shall require the
consent of the Required Lenders).
No amendment of any provision of this Agreement relating to the Agent
shall be effective without the written consent of the Agent. The Agent may waive
payment of the fee required under Section 12.3.2 without obtaining the consent
of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not preclude
other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in
writing signed by the Lenders required pursuant to Section 8.2, and
then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Agent and the Lenders
until the Secured Obligations have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the
Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided
by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower and the Guarantor, the Agent and the
Lenders and supersede all prior agreements and understandings among the
Borrower and the Guarantor, the Agent and the Lenders relating to the
subject matter thereof other than the fee letter described in Section
10.13.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent
to which the Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve
any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective
successors and assigns, provided, however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically
set forth therein and shall have the right to enforce such provisions
on its own behalf and in its own name to the same extent as if it were
a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the Agent
and the Arranger for any reasonable and documented costs, internal
charges and out-of-pocket expenses (including reasonable attorneys'
fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent) paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to
reimburse the Agent, the Arranger and the Lenders for any reasonable
and documented costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for
the Agent, the Arranger and the Lenders, which attorneys may be
employees of the Agent, the Arranger or the Lenders) paid or incurred
by the Agent, the Arranger or any Lender in connection with the
collection and enforcement of the Loan Documents. The Borrower
acknowledges that from time to time the Agent may prepare and
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may distribute to the Lenders (but shall have no obligation or duty to
prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrower's assets for internal use by the
Agent from information furnished to it by or on behalf of the Borrower,
after the Agent has exercised its rights of inspection pursuant to this
Agreement.
(ii) The Borrower hereby further agrees to indemnify the Agent, the
Arranger, each Lender, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether
or not the Agent, the Arranger, any Lender or any affiliate is a party
thereto) which any of them may pay or incur arising out of or relating
to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder, except if resulting
from the gross negligence, bad faith or willful misconduct of the party
seeking indemnification, and except for litigation among the Agent and
the Lenders, and except in the case where the Borrower prevails in any
litigation. The obligations of the Borrower under this Section 9.6
shall survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles.
9.9. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any
other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrower on the
one hand and the Lenders and the Agent on the other hand shall be
solely that of borrower and lender. Neither the Agent, the Arranger nor
any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent, the Arranger nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or
operations. The Borrower agrees that neither the Agent, the Arranger
nor any Lender shall have liability to the Borrower (whether sounding
in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection
therewith, unless it is
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determined in a final non-appealable judgment by a court of competent
jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither
the Agent, the Arranger nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to
▇▇▇ for, any special, indirect or consequential damages suffered by the
Borrower in connection with, arising out of, or in any way related to
the Loan Documents or the transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates
and to other Lenders and their respective Affiliates, (ii) to legal
counsel, accountants, and other professional advisors to such Lender or
to a Transferee, (iii) to regulatory officials, (iv) to any Person as
requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to
which such Lender is a party, (vi) to such Lender's direct or indirect
contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties (in
which case the Lender shall use commercially reasonable efforts to
cause such parties to maintain confidential information in confidence),
and (vii) permitted by Section 12.4.
9.12. Nonreliance. Each Lender hereby represents that it is not relying on or
looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans
provided for herein.
9.13. Disclosure The Borrower and each Lender hereby (i) acknowledge and
agree that the Agent and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with
the Borrower and its Affiliates, and (ii) waive any liability of the
Agent or such Affiliate of the Agent to the Borrower or any Lender,
respectively, arising out of or resulting from such investments, loans
or relationships other than liabilities arising out of the gross
negligence, bad faith or willful misconduct of the Agent or its
Affiliates.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One, Louisiana, National
Association is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Agent")
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set
forth herein and in the other Loan Documents. The Agent agrees to act
as such contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the defined
term "Agent," it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by
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reason of this Agreement or any other Loan Document and that the Agent
is merely acting as the contractual representative of the Lenders with
only those duties as are expressly set forth in this Agreement and the
other Loan Documents. In its capacity as the Lenders' contractual
representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders
within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and
the other Loan Documents. Each of the Lenders hereby agrees to assert
no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender
hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental
thereto; provided, however in the event of a conflict between the terms
and provisions of any Loan Document (other than this Agreement) and
this Agreement, the terms and conditions of this Agreement shall
control. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any
action specifically provided by the Loan Documents, subject to any
limitation contained in this Agreement, to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower, the Lenders or any
Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in
a final non-appealable judgment by a court of competent jurisdiction to
have arisen from the gross negligence, bad faith or willful misconduct
of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (a) any
statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance
of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to
furnish information directly to each Lender; (c) the satisfaction of
any condition specified in Article IV, except receipt of items required
to be delivered solely to the Agent; (d) the existence or possible
existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority
of any Lien in any collateral security; or (g) the financial condition
of the Borrower or any guarantor of any of the Obligations or of any of
the Borrower's or any such guarantor's respective Subsidiaries. The
Agent shall have no duty to disclose to the Lenders information that is
not required to be furnished by the Borrower to the Agent at such time,
but is voluntarily furnished by the Borrower to the Agent (either in
its capacity as Agent or in its individual capacity).
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10.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions
signed by the Required Lenders, and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Agent shall be under
no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan Document
unless it shall be requested in writing to do so by the Required
Lenders. The Agent shall be fully justified in failing or refusing to
take any action hereunder and under any other Loan Document unless it
shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. Except as may otherwise be provided
in Section 8.2, the Agent may execute any of its duties as Agent
hereunder and under any other Loan Document by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall
be entitled to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to the
Agent's duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Agent, which counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their
respective Pro Rata Shares (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses incurred
by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses
incurred by the Agent in connection with any dispute between the Agent
and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation,
for any such amounts incurred by or asserted against the Agent in
connection with any dispute between the Agent and any Lender or between
two or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents,
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provided that (a) no Lender shall be liable for any of the foregoing to
the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Agent and (b) any
indemnification required pursuant to Section 3.5(vii) shall,
notwithstanding the provisions of this Section 10.8, be paid by the
relevant Lender in accordance with the provisions thereof. The
obligations of the Lenders under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder
unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent
shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender, the Agent shall
have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and
may exercise the same as though it were not the Agent, and the term
"Lender" or "Lenders" shall, at any time when the Agent is a Lender,
unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any
other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon the
Agent, the Arranger or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor
Agent has been appointed, forty-five days after the retiring Agent
gives notice of its intention to resign. The Agent may be removed by
the consent of all of the Lenders (excluding the Agent) at any time
with or without cause by written notice from all of the Lenders to the
Agent, such removal to be effective on the date specified by all of the
Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the
Lenders, another Lender as
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successor Agent, or, with the consent of the Borrower (which consent
will not be unreasonably withheld or delayed) a new Lender as successor
Agent. If no successor Agent shall have been so appointed by the
Required Lenders within thirty days after the resigning Agent's giving
notice of its intention to resign, then the resigning Agent may
appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding the previous sentence, the Agent may at any time
without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder.
If the Agent has resigned or been removed and no successor Agent has
been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall
deal directly with the Lenders. No successor Agent shall be deemed to
be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having
capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning or
removed Agent. Upon the effectiveness of the resignation or removal of
the Agent, the resigning or removed Agent shall be discharged from its
duties and obligations hereunder and under the Loan Documents. After
the effectiveness of the resignation or removal of an Agent, the
provisions of this Article X shall continue in effect for the benefit
of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents.
10.13. Agent's Fee. The Borrower agrees to pay to the Agent and the Arranger,
for their own accounts, the fees agreed to by the Borrower, the Agent
and the Arranger pursuant to that certain letter agreement dated June
2, 2000, or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that the
Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Agent is entitled under Articles IX and X.
10.15. Notices and Reports. The Agent agrees to furnish to the Lenders copies
of all financial statements, reports to the Securities Exchange
Commission, other reports and notices received from the Borrower or the
Guarantor pursuant to this Credit Agreement, and if the Secured
Obligations are ever secured, copies of all collateral documents, in
each case promptly after the Agent's receipt thereof.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
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11.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default occurs, any and all deposits
(including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at
any time held or owing by any Lender or any Affiliate of any Lender to
or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received
pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion
of Loans. If any Lender, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take
such action necessary such that all Lenders share in the benefits of
such collateral ratably in proportion to their Loans. In case any such
payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
If an amount to be setoff is to be applied to permitted Indebtedness of
the Borrower to a Lender other than Obligations under this Agreement,
such amount shall be applied ratably to such other Indebtedness and to
the Obligations.
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i)
the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. The parties to
this Agreement acknowledge that clause (ii) of this Section 12.1
relates only to absolute assignments and does not prohibit assignments
creating security interests, including, without limitation, any pledge
or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank; provided,
however, that no such pledge or assignment creating a security interest
shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions
of Section 12.3. The Agent may treat the Person which made any Loan or
which holds any Note as the owner thereof for all purposes hereof
unless and until such Person complies with Section 12.3; provided,
however, that the Agent may in its discretion (but shall not be
required to) follow instructions from the Person which made any Loan or
which holds any Note to direct payments relating to such Loan or Note
to another Person. Any assignee of the rights to any Loan or any Note
agrees by acceptance of such assignment to be bound by all the terms
and provisions of the Loan Documents. Any request, authority or consent
of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or
not a Note has been issued in evidence thereof), shall be conclusive
and binding on any subsequent holder or assignee of the rights to such
Loan.
12.2. Participations
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Obligations owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan Documents,
or any Letter of Credit issued by said Lender. In the event of any such
sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain the
owner of its Loans and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and
the Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
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12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the Loan
Termination Date, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan or
Commitment, releases any guarantor of any such Loan or releases all or
a Substantial Portion all of the collateral, if any, securing any such
Loan.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3. Assignments
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit B or in
such other form as may be agreed to by the parties thereto. The consent
of the Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or
an Affiliate thereof; provided, however, that if a Default has occurred
and is continuing, the consent of the Borrower shall not be required.
Any required consent of the Borrower shall not be unreasonably withheld
or delayed. Each such assignment with respect to a Purchaser which is
not a Lender or an Affiliate thereof shall (unless each of the Borrower
and the Agent otherwise consents) be in an amount not less than the
lesser of (i) $5,000,000 or (ii) the remaining amount of the assigning
Lender's Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated).
Furthermore, the assigning Lender shall pay the Agent an assignment fee
of $3,500 for each assignment.
12.3.2. Effect; Effective Date. Upon (i) delivery to the Agent
of an assignment, together with any consents required by Section
12.3.1, and (ii) payment of a $3,500 fee to the Agent for processing
such assignment (unless such fee is waived by the Agent), such
assignment shall become effective on the effective date specified in
such assignment. The
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assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment and Loans under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of
the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and Loans
assigned to such Purchaser. Upon the consummation of any assignment to
a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Agent and the Borrower shall, if the transferor Lender or the Purchaser
desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.4. Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law
(each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness
of the Borrower and its Subsidiaries, including without limitation any
information contained in any Reports; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14
with respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Facsimile: (337)
837-5211), or in case of the Agent, at its address or facsimile number
set forth on Schedule 1, (y) in the case of any Lender, at its address
or facsimile number set forth on Schedule 1 or (z) in the case of any
party, at such
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other address or facsimile number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower in accordance
with the provisions of this Section 13.1. Each such notice, request or
other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid, or (iii) if given
by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section;
provided that notices to the Agent under Article II shall not be
effective until received.
13.2. Change of Address. The Borrower, the Agent and any
Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
14.1 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute
one agreement, and any of the parties hereto may execute this Agreement
by signing any such counterpart. This Agreement shall be effective when
it has been executed by the Borrower, the Agent and the Lenders and
each party has notified the Agent by facsimile transmission or
telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF LOUISIANA,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR LOUISIANA STATE COURT SITTING IN NEW ORLEANS, LOUISIANA IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS
AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR
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PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY
LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW ORLEANS,
LOUISIANA.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
BORROWER: OSCA, INC.
BY: ________________________________
NAME:
TITLE:
AGENT: BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION, AS AGENT
BY: ________________________________
NAME:
TITLE:
LENDERS: BANK ONE, LOUISIANA, NATIONAL
ASSOCIATION
BY: ________________________________
NAME:
TITLE:
HIBERNIA NATIONAL BANK
BY: ________________________________
NAME:
TITLE:
LASALLE BANK NATIONAL
ASSOCIATION
BY: ________________________________
NAME:
TITLE:
57
63
NATIONAL CITY BANK OF INDIANA
BY: ________________________________
NAME:
TITLE:
58
64
SCHEDULE I
COMMITMENT AMOUNTS OF THE LENDERS
NAME AND ADDRESS OF LENDER PRO RATA
COMMITMENT SHARE
-----------------------------------------------------------------------------------------------------
Bank One, Louisiana, N.A. $16,000,000 40%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P. O. Box 3248
Lafayette, LA 70501/70502
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------
Hibernia National Bank $8,000,000 20%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
P. O. Box 61540
New Orleans, LA 70130/70161
Attention: Manager, Energy/Maritime
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------
LaSalle Bank National Association $8,000,000 20%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------
National City Bank of Indiana $8,000,000 20%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------
Aggregate Commitments $40,000,000 100%
-----------------------------------------------------------------------------------------------------
65
SCHEDULE 2
PRICING SCHEDULE
===================================================================================================================
APPLICABLE MARGIN (LOAN) LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------------------------------------------
Eurodollar Rate 0.50% 0.60% 0.65% 0.75% 1.00%
--------------------------------------------------------------------------------------------------------------------
Floating Rate 0.00% 0.00% 0.00% 0.00% 0.00%
===================================================================================================================
===================================================================================================================
APPLICABLE FEE RATE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------------------------------------------
Commitment Fee 0.15% 0.175% 0.20% 0.25% 0.35%
===================================================================================================================
===================================================================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
LETTER OF CREDIT FEE RATE STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------------------------------------------
Letter of Credit Fee
Rate 0.50% 0.60% 0.65% 0.75% 1.00%
===================================================================================================================
For the purposes of this Pricing Schedule, the following terms have the
following meanings, subject to the final paragraph of this Pricing Schedule:
"Level I Status" exists on any date if, as on such date, Guarantor's
▇▇▇▇▇'▇ Rating is A2 or better and Guarantor's S&P Rating is A or better.
"Level II Status" exists on any date if, on such date, (i) the
Guarantor qualified for Level I Status and (ii) Guarantor's ▇▇▇▇▇'▇ Rating is A3
or better and Guarantor's S&P Rating is A- or better.
"Level III Status" exists on any date if, on such date, (i) the
Guarantor has not qualified for Level I Status or Level II Status and (ii)
Guarantor's ▇▇▇▇▇'▇ Rating is Baa1 or better and the Guarantor's S&P Rating is
BBB+ or better.
66
"Level IV Status" exists on any date if, on such date, (i) the
Guarantor has not qualified for Level I Status, Level II Status or Level III
Status and (ii) Guarantor's ▇▇▇▇▇'▇ Rating is Baa2 or better and Guarantor's S&P
Rating is BBB or better.
"Level V Status" exists on any date if the Guarantor has not qualified
for Level I Status, Level II Status, Level III Status or Level IV Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the rating issued by ▇▇▇▇▇'▇
Investors Services, Inc. and then in effect with respect to the Guarantor's
senior unsecured long-term debt securities without third-party credit
enhancement.
"S&P Rating" means, at any time, the rating issued by Standard and
Poor's Rating Services, a division of The McGraw Hill Companies, Inc., and then
in effect with respect to the Guarantor's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin, Applicable Fee Rate and Letter of Credit Fee
Rate shall be determined in accordance with the foregoing table based on the
Guarantor's Status determined from its then-current ▇▇▇▇▇'▇ Rating and S&P
Rating. The credit rating in effect on any date for the purposes of the
foregoing table is that in effect on the close of business on such date. If at
any time the Guarantor has no ▇▇▇▇▇'▇ Rating or no S&P Rating, the interest rate
determined by the Required Lenders pursuant to Section 2.11 (in the case of a
Default) shall apply.
67
SCHEDULE 5.8
MAJOR SUBSIDIARIES OF BORROWER
Subsidiary Jurisdiction of
Name Organization
---------------------------------------------------------------------------------
OSCA Products and Services, Inc. British Virgin Islands
OSCA de Mexico S.A. de C.V. Mexico
OSCA de Venezuela S.A. Venezuela
OSCA Latin America, Inc. Delaware
OSCA Brasil Limitada Brazil
Servicios O y M S.A. de C.V. Mexico
OSCA UK Holdings Ltd. United Kingdom
MAJOR SUBSIDIARIES OF OSCA LATIN AMERICA, INC.
OSCA Brasil Limitada Brazil
Servicios O y M S.A. de C.V. Mexico
MAJOR SUBSIDIARIES OF OSCA UK HOLDINGS LTD.
OSCA ITALIA S.r.l. Italy
OSCA U.K. Limited United Kingdom
OSCA Norge A.S. Norway
68
EXHIBIT A
BORROWER'S COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of June 20, 2000 (as amended, modified, renewed or
extended from time to time, the "Credit Agreement") among OSCA, Inc. (the
"Borrower"), Bank One, Louisiana, National Association, as Agent, and the
Lenders party thereto. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings defined in the Credit
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________ of the Borrower.
2. I have reviewed the terms of the Credit Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and each of its Subsidiaries during
the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as follows:
______________
______________
______________
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Credit Agreement, all of which data and computations are true, complete and
correct.
69
5. Schedule I, Item B hereto sets forth the determination of the
Applicable Margin, Applicable Fee Rate and Letter of Credit Fee Rate, commencing
on the fifth Business Day following the delivery hereof.
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made by the undersigned (on behalf of the
Borrower) and are delivered this ______ day of __________, ______.
________________________________________
70
SCHEDULE I TO BORROWER'S COMPLIANCE CERTIFICATE
BORROWER'S FINANCIAL COVENANTS
(As of ____________)
A. Funded Indebtedness to EBITDA Ratio (Section 6.17.1)
Funded Indebtedness $____________
Plus Non-Cancellable Lease Rentals ____________
Funded Indebtedness Plus Rentals $____________
Net Income $____________
Plus Interest Expense ____________
Plus Taxes ____________
Plus Depreciation and
Amortization _____________
Plus Other Non-Cash Charges _____________
Plus Extraordinary Losses _____________
Minus Extraordinary Gains _____________
EBITDA $____________
Ratio (actual) _____ to 1.00
Ratio (required) _____ to 1.00
B. Fixed Charge Coverage Ratio (Section 6.17.2)
EBITDA (see B above) $____________
Minus Cash Income Taxes ____________
Adjusted Cash Flow $____________
Capitalized Lease Expenses $____________
Plus Interest Expense ____________
Plus Scheduled Principal
Payments on Funded
Indebtedness ____________
71
Total Fixed Charges $____________
Ratio (actual) _____ to 1.00
Ratio (required) _____ to 1.00
C. Tangible Net Worth (Section 6.17.3)
Initial Tangible Net Worth (3/31/00 Proforma after IPO) $44,000,000
Net Income (since 4/1/00) x 50% __________
Net Proceeds from Stock Sales x 75% (other than IPO) __________
Total $__________
72
EXHIBIT A-1
GUARANTOR'S COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of June 20, 2000 (as amended, modified, renewed or
extended from time to time, the "Credit Agreement") among OSCA, Inc. (the
"Borrower"), Bank One, Louisiana, National Association, as Agent, and the
Lenders party thereto. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings defined in the Credit
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________ of Great Lakes Chemical
Corporation (the "Guarantor").
2. I have reviewed the terms of the Credit Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Guarantor, Borrower and each of its
Subsidiaries during the accounting period covered by the attached financial
statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as follows:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
4. No Default or Event of Default exists under the Guarantor Credit
Agreement.
5. Guarantor's ▇▇▇▇▇'▇ Rating is _______, and Guarantor's S&P Rating is
______.
73
The foregoing certifications and the financial statements delivered
with this Certificate in support hereof, are made by the undersigned (on behalf
of the Guarantor) and are delivered this day _____ of __________ , _____.
________________________________________
74
EXHIBIT B
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
___________________________________________________________ (the "Assignor") and
________________________________________ (the "Assignee") is dated as of
____________________ , 19 _____ . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after
this Assignment Agreement, together with any consents required under the Credit
Agreement, are delivered to the Agent. In no event will the Effective Date occur
if the payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Loans hereunder, the Assignee shall pay the Assignor, on the Effective Date, the
amount agreed to by the Assignor and the Assignee. On and after the Effective
Date, the Assignee shall be entitled to receive from the Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee will promptly remit to the Assignor any interest on Loans and fees
received from the Agent which relate to the portion of the Commitment or Loans
assigned to the Assignee hereunder for periods prior to the Effective Date and
not previously paid by the Assignee to the Assignor. In the event that either
party hereto receives any payment to which the other party hereto is entitled
under
75
this Assignment Agreement, then the party receiving such amount shall promptly
remit it to the other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay
one-half of the recordation fee required to be paid to the Agent in connection
with this Assignment Agreement unless otherwise specified in Item 6 of Schedule
1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectibility of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Assignment Agreement by the Assignee is
duly authorized, (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the
76
attachment to Schedule 1, (vii) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
(viii) agrees to indemnify and hold the Assignor harmless against all losses,
costs and expenses (including, without limitation, reasonable attorneys' fees)
and liabilities incurred by the Assignor in connection with or arising in any
manner from the Assignee's non-performance of the obligations assumed under this
Assignment Agreement, and (ix) if applicable, attaches the forms prescribed by
the Internal Revenue Service of the United States certifying that the Assignee
is entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Louisiana.
9. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
77
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement: Credit Agreement dated as of
June 20, 2000, among OSCA, Inc., Bank One, Louisiana, National
Association, as Agent, and the Lenders party thereto.
2. Date of Assignment Agreement: _____________ , _________
3. Amounts Outstanding (As of Date of Item 2 above):
Facility
a. Assignee's percentage
of each Facility purchased
under the Assignment
Agreement ____________%
b. Amount of each Facility
purchased under the
Assignment Agreement $_____________
4. Assignee's Commitment
purchased hereunder: $_____________
5. Proposed Effective Date: ______________
6. Non-standard Recordation Fee
Arrangement
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
78
ACCEPTED AND CONSENTED ACCEPTED AND CONSENTED TO/BY
OSCA, INC. BANK ONE, LOUISIANA,
NATIONAL ASSOCIATION
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
79
ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name:______________________________________ Telephone No.: ___________
Fax No.:___________________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: _____________________________________
Account Name & Number for Wire Transfer:________________________________________
Other Instructions: ____________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR: ______________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name:______________________________________ Telephone No.: ___________
Fax No.:___________________________________
KEY OPERATIONS CONTACTS:
Booking Installation: ________________ Booking Installation: ________________
Name:_________________________________ Name:_________________________________
80
Telephone No.: _________________________________ Telephone No.: _____________
Fax No.:________________________________________ Fax No.: ___________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ______________________________
Account Name & Number for Wire Transfer: ____________________________________
____________________________________
Other Instructions:_____________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNEE: ______________________________________________
______________________________________________
______________________________________________
81
AGENT INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name:__________________________ Name:_________________________
Telephone No.: ________________ Telephone No.: _______________
Fax No.:_______________________ Fax No.: _____________________
INITIAL FUNDING STANDARDS:
Cibor - Fund 2 days after rates are set.
AGENT WIRE INSTRUCTIONS:
ADDRESS FOR NOTICES FOR AGENt: