EXHIBIT 99.1
EXECUTION VERSION
REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 8, 2006
AMONG
RPC, INC.,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
as Syndication Agent
AND
SUNTRUST BANK
as Administrative Agent
====================================================================
SUNTRUST CAPITAL MARKETS, INC.,
as Joint Lead Arranger and Sole Book Manager
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION.......................................................................1
Section 1.1. Definitions............................................................................1
Section 1.2. Classifications of Loans and Borrowings...............................................18
Section 1.3. Accounting Terms and Determination....................................................18
Section 1.4. Terms Generally.......................................................................19
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS............................................................19
Section 2.1. General Description of Facilities.....................................................19
Section 2.2. Revolving Loans.......................................................................20
Section 2.3. Procedure for Revolving Borrowings....................................................20
Section 2.4. Swingline Commitment..................................................................20
Section 2.5. Funding of Borrowings.................................................................22
Section 2.6. Interest Elections....................................................................23
Section 2.7. Optional Reduction and Termination of Commitments.....................................24
Section 2.8. Repayment of Loans....................................................................24
Section 2.9. Evidence of Indebtedness..............................................................24
Section 2.10. Optional Prepayments..................................................................25
Section 2.11. Mandatory Prepayment..................................................................25
Section 2.12. Interest on Loans.....................................................................25
Section 2.13. Fees..................................................................................26
Section 2.14. Computation of Interest and Fees......................................................27
Section 2.15. Inability to Determine Interest Rates.................................................27
Section 2.16. Illegality............................................................................28
Section 2.17. Increased Costs.......................................................................28
Section 2.18. Funding Indemnity.....................................................................30
Section 2.19. Taxes.................................................................................30
Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...........................31
Section 2.21. Letters of Credit.....................................................................33
Section 2.22. Increase of Commitments; Additional Lenders...........................................37
Section 2.23. Extensions of Commitment Termination Date.............................................39
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT............................................40
Section 3.1. Conditions To Effectiveness...........................................................40
Section 3.2. Each Credit Event.....................................................................42
Section 3.3. Delivery of Documents.................................................................43
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................................................43
Section 4.1. Existence; Power......................................................................43
Section 4.2. Organizational Power; Authorization...................................................43
Section 4.3. Governmental Approvals; No Conflicts..................................................43
Section 4.4. Financial Statements..................................................................43
Section 4.5. Litigation and Environmental Matters..................................................44
Section 4.6. Compliance with Laws and Agreements...................................................44
Section 4.7. Investment Company Act, Etc...........................................................44
Section 4.8. Taxes.................................................................................44
Section 4.9. Margin Regulations....................................................................45
Section 4.10. ERISA.................................................................................45
Section 4.11. Ownership of Property.................................................................45
Section 4.12. Disclosure............................................................................46
Section 4.13. Labor Relations.......................................................................46
Section 4.14. Subsidiaries..........................................................................46
Section 4.15. Insolvency............................................................................46
Section 4.16. OFAC..................................................................................47
Section 4.17. Patriot Act...........................................................................47
ARTICLE V AFFIRMATIVE COVENANTS..........................................................................47
Section 5.1. Financial Statements and Other Information............................................47
Section 5.2. Notices of Material Events............................................................48
Section 5.3. Existence; Conduct of Business........................................................49
Section 5.4. Compliance with Laws, Etc.............................................................49
Section 5.5. Payment of Obligations................................................................49
Section 5.6. Books and Records.....................................................................49
Section 5.7. Visitation, Inspection, Etc...........................................................50
Section 5.8. Maintenance of Properties; Insurance..................................................50
Section 5.9. Use of Proceeds and Letters of Credit.................................................50
Section 5.10. Additional Subsidiaries...............................................................50
ARTICLE VI FINANCIAL COVENANTS............................................................................51
Section 6.1. Leverage Ratio........................................................................51
Section 6.2. Interest Coverage Ratio...............................................................51
ARTICLE VII NEGATIVE COVENANTS.............................................................................51
Section 7.1. Indebtedness and Preferred Equity.....................................................51
Section 7.2. Negative Pledge.......................................................................52
Section 7.3. Fundamental Changes...................................................................53
Section 7.4. Investments, Loans, Etc...............................................................54
Section 7.5. Restricted Payments...................................................................54
Section 7.6. Sale of Assets........................................................................55
Section 7.7. Transactions with Affiliates..........................................................55
Section 7.8. Restrictive Agreements................................................................55
Section 7.9. Sale and Leaseback Transactions.......................................................56
Section 7.10. Hedging Transactions..................................................................56
Section 7.11. Amendment to Material Documents.......................................................56
Section 7.12. Lease Obligations.....................................................................56
Section 7.13. Accounting Changes; Changes in Fiscal Year............................................57
ARTICLE VIII EVENTS OF DEFAULT...................................................................................57
Section 8.1. Events of Default.....................................................................57
ARTICLE IX THE ADMINISTRATIVE AGENT.......................................................................59
Section 9.1. Appointment of Administrative Agent...................................................59
Section 9.2. Nature of Duties of Administrative Agent..............................................60
Section 9.3. Lack of Reliance on the Administrative Agent..........................................61
Section 9.4. Certain Rights of the Administrative Agent............................................61
Section 9.5. Reliance by Administrative Agent......................................................61
Section 9.6. The Administrative Agent in its Individual Capacity...................................61
Section 9.7. Successor Administrative Agent........................................................62
Section 9.8. Authorization to Execute other Loan Documents.........................................62
Section 9.9. Documentation Agent; Syndication Agent................................................62
ARTICLE X MISCELLANEOUS..................................................................................63
Section 10.1. Notices...............................................................................63
Section 10.2. Waiver; Amendments....................................................................65
Section 10.3. Expenses; Indemnification.............................................................66
Section 10.4. Successors and Assigns................................................................68
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process............................71
Section 10.6. WAIVER OF JURY TRIAL..................................................................72
Section 10.7. Right of Setoff.......................................................................72
Section 10.8. Counterparts; Integration.............................................................73
Section 10.9. Survival..............................................................................73
Section 10.10. Severability..........................................................................73
Section 10.11. Confidentiality.......................................................................73
Section 10.12. Interest Rate Limitation..............................................................74
Section 10.13. Waiver of Effect of Corporate Seal....................................................74
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II Commitment Amounts
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guaranty Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.6 - Form of Notice of Continuation/Conversion
Exhibit 3.1(b)(v) - Form of Secretary's Certificate
Exhibit 3.1(b)(viii) - Form of Officer's Certificate
Exhibit 5.1(c) - Form of Compliance Certificate
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered into
as of September 8, 2006, by and among RPC, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions and lenders from
time to time party hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as
administrative agent for the Lenders (the "Administrative Agent"), as issuing
bank (the "Issuing Bank") and as swingline lender (the "Swingline Lender").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$250,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the Issuing Bank and the Swingline Lender to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Borrower, the Lenders, the Administrative Agent, the
Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Additional Commitment Amount" shall have the meaning given to such term in
Section 2.22.
"Additional Lender" shall have the meaning given to such term in Section
2.22.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period for a
Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR for such
Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar Reserve
Percentage.
"Administrative Agent" shall have the meaning assigned to such term in the
opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person that directly,
or indirectly through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such Person. For the purposes of this definition,
"Control" shall mean the power, directly or indirectly, either to (i) vote 5% or
more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by control or otherwise. The terms
"Controlling", "Controlled by", and "under common Control with" have the
meanings correlative thereto.
"Aggregate Revolving Commitment Amount" shall mean the aggregate principal
amount of the Aggregate Revolving Commitments from time to time. On the Closing
Date, the Aggregate Revolving Commitment Amount is $250,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all Revolving
Commitments of all Lenders at any time outstanding.
"Applicable Lending Office" shall mean, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or an Affiliate of such Lender)
designated for such Type of Loan in the Administrative Questionnaire submitted
by such Lender or such other office of such Lender (or an Affiliate of such
Lender) as such Lender may from time to time specify to the Administrative Agent
and the Borrower as the office by which its Loans of such Type are to be made
and maintained.
"Applicable Margin" shall mean, as of any date, with respect to interest on
all Revolving Loans outstanding on any date or the letter of credit fee, as the
case may be, a percentage per annum determined by reference to the applicable
Leverage Ratio in effect on such date as set forth on Schedule I; provided, that
a change in the Applicable Margin resulting from a change in the Leverage Ratio
shall be effective on the second Business Day after which the Borrower delivers
the financial statements required by Section 5.1(a) or (b) and the Compliance
Certificate required by Section 5.1(c); provided further, that if at any time
the Borrower shall have failed to deliver such financial statements and such
Compliance Certificate when so required, the Applicable Margin shall be at Level
IV as set forth on Schedule I until such time as such financial statements and
Compliance Certificate are delivered, at which time the Applicable Margin shall
be determined as provided above. Notwithstanding the foregoing, the Applicable
Margin from the Closing Date until the financial statements and Compliance
Certificate for the Fiscal Quarter ending September 30, 2006 are required to be
delivered shall be at Level I as set forth on Schedule I.
"Applicable Percentage" shall mean, as of any date, with respect to the
facility fee as of any date, the percentage per annum determined by reference to
the applicable Leverage Ratio in effect on such date as set forth on Schedule I;
provided, that a change in the Applicable Percentage resulting from a change in
the Leverage Ratio shall be effective on the second Business Day after which the
Borrower delivers the financial statements required by Section 5.1(a) or (b) and
the Compliance Certificate required by Section 5.1(c); provided further, that if
at any time the Borrower shall have failed to deliver such financial statements
and such Compliance Certificate, the Applicable Percentage shall be at Level IV
as set forth on Schedule I until such time as such financial statements and
Compliance Certificate are delivered, at which time the Applicable Percentage
shall be determined as provided above. Notwithstanding the foregoing, the
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Applicable Percentage for the facility fee from the Closing Date until the
financial statements and Compliance Certificate for the Fiscal Quarter ending
September 30, 2006 are required to be delivered shall be at Level I as set forth
on Schedule I.
"Approved Fund" shall mean any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (i) a Lender, (ii) an Affiliate
of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.4(b)) and accepted by the Administrative Agent, in the
form of Exhibit C attached hereto or any other form approved by the
Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to but
excluding the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning in the introductory paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which banks are not open for dealings in dollar deposits
are carried on in the London interbank market.
"Capital Expenditures" shall mean for any period, without duplication, (i)
the additions to property, plant and equipment and other capital expenditures of
the Borrower and its Subsidiaries that are (or would be) set forth on a
consolidated statement of cash flows of the Borrower for such period prepared in
accordance with GAAP and (ii) Capital Lease Obligations incurred by the Borrower
and its Subsidiaries during such period.
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"Capital Lease Obligations" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) of real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Stock" shall mean any non-redeemable capital stock (or in the case
of a partnership or limited liability company, the partners' or members'
equivalent equity interest) of the Borrower or any of its Subsidiaries (to the
extent issued to a Person other than the Borrower), whether common or preferred.
"Change in Control" shall mean the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower and its Subsidiaries taken as a whole to any Person
or "group" (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder in effect on the date
hereof), (ii) the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or "group" (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of 30% or more of the outstanding
shares of the voting stock of the Borrower, or (iii) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (a) nominated by the current board of directors nor (b)
appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any applicable law, rule or
regulation after the date of this Agreement, (ii) any change in any applicable
law, rule or regulation, or any change in the interpretation or application
thereof, by any Governmental Authority after the date of this Agreement, or
(iii) compliance by any Lender (or its Applicable Lending Office) or the Issuing
Bank (or for purposes of Section 2.17(b), by such Lender's or the Issuing Bank's
parent corporation, if applicable) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans and when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean a Revolving Commitment, a Swingline Commitment or
any combination thereof (as the context shall permit or require).
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"Compliance Certificate" shall mean a certificate from the principal
executive officer and the principal financial officer of the Borrower in the
form of, and containing the certifications set forth in, the certificate
attached hereto as Exhibit 5.1(c).
"Consolidated EBIT" shall mean, for the Borrower and its Subsidiaries for
any period, an amount equal to the sum of (i) Consolidated Net Income for such
period plus (ii) to the extent deducted in determining Consolidated Net Income
for such period, (A) Consolidated Interest Expense and (B) income tax expense
determined on a consolidated basis in accordance with GAAP, determined on a
consolidated basis in accordance with GAAP, in each case for such period.
"Consolidated EBITDA" shall mean, for the Borrower and its Subsidiaries for
any period, an amount equal to the sum of (i) Consolidated Net Income for such
period plus (ii) to the extent deducted in determining Consolidated Net Income
for such period, (A) Consolidated Interest Expense, (B) income tax expense
determined on a consolidated basis in accordance with GAAP, (C) depreciation and
amortization determined on a consolidated basis in accordance with GAAP, and (D)
all other non-cash charges reasonably acceptable to the Administrative Agent,
determined on a consolidated basis in accordance with GAAP, in each case for
such period.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) with respect to Hedging Transactions during such period (whether or
not actually paid or received during such period).
"Consolidated Net Income" shall mean, for the Borrower and its Subsidiaries
for any period, the net income (or loss) of the Borrower and its Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP, but
excluding therefrom (to the extent otherwise included therein) (i) any
extraordinary gains or losses, (ii) any gains attributable to write-ups of
assets, (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary, and
(iv) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
on the date that such Person's assets are acquired by the Borrower or any
Subsidiary as reasonably approved by the Administrative Agent; provided,
however, that to the extent that the term "Consolidated Net Income" is used in
calculating Consolidated EBITDA, Consolidated Net Income shall include any
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any Subsidiary on the
date that such Person's assets are acquired by the Borrower or any Subsidiary,
subject to the approval thereof by the Administrative Agent, such approval not
to be unreasonably withheld.
"Consolidated Total Debt" shall mean, as of any date, all Indebtedness of
the Borrower and its Subsidiaries measured on a consolidated basis as of such
date, but excluding Indebtedness of the type described in subsection (xi) of the
definition thereto.
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"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"Declining Lender" shall have the meaning given to such term in Section
2.23.
"Default" shall mean any condition or event that, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section 2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United States
of America.
"Domestic Subsidiary" shall mean any Subsidiary that is organized under the
laws of one of the fifty states of the United States or the District of
Columbia.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the protection of the environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or otherwise
(including any liability for damages, costs of environmental investigation and
remediation, costs of administrative oversight, fines, natural resource damages,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (i) any actual violation of any
Environmental Law, (ii) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (iii) any actual exposure to
any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous
Materials or (v) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (i) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (ii) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iii)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(v) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by the PBGC of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
6
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (vii) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the maximum
reserve percentages (including, without limitation, any emergency, supplemental,
special or other marginal reserves) expressed as a decimal (rounded upwards to
the next 1/100th of 1%) in effect on any day to which the Administrative Agent
is subject with respect to the Adjusted LIBO Rate pursuant to regulations issued
by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities" under
Regulation D). Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Event of Default" shall have the meaning provided in Article VIII.
"Excluded Taxes" shall mean with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (iii) is attributable to such Foreign Lender's failure
to comply with Section 2.19(e).
"Extending Lender" shall have the meaning set forth in Section 2.16.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published by the
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Federal Reserve Bank of New York on the next succeeding Business Day or if such
rate is not so published for any Business Day, the Federal Funds Rate for such
day shall be the average rounded upwards, if necessary, to the next 1/100th of
1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of July 7, 2006,
executed by SunTrust Capital Markets, Inc. and SunTrust Bank and accepted by
Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Foreign Lender" shall mean any Lender that is not a United States person
under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized under the
laws of a jurisdiction other than one of the fifty states of the United States
or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3.
"Governmental Authority" shall mean the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
8
"Hazardous Materials" shall mean all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Obligations" of any Person shall mean any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions and (iii) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions.
"Hedging Transaction" of any Person shall mean any transaction (including
an agreement with respect thereto) now existing or hereafter entered into by
such Person that is a rate swap, basis swap, forward rate transaction, commodity
swap, interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collateral 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.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(g), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations. The Indebtedness
of any Person shall include the Indebtedness of any partnership or joint venture
in which such Person is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Information Memorandum" shall mean the Confidential Information Memorandum
dated August 2006 relating to the Borrower and the transactions contemplated by
this Agreement and the other Loan Documents.
9
"Interest Coverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated EBIT for the four consecutive Fiscal Quarters ending on or
immediately prior to such date to (ii) Consolidated Interest Expense for the
four consecutive Fiscal Quarters ending on or immediately prior to such date.
"Interest Period" shall mean with respect to (i) any Swingline Borrowing,
such period as the Swingline Lender and the Borrower shall mutually agree and
(ii) any Eurodollar Borrowing, a period of one, two, three or six months;
provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in
which case such Interest Period would end on the next preceding Business
Day;
(iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall end on
the last Business Day of such calendar month;
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Issuing Bank" shall mean SunTrust Bank or any other Lender, each in its
capacity as an issuer of Letters of Credit pursuant to Section 2.21.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed $50,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate undrawn
amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender and each Additional Lender that joins this Agreement pursuant to Section
2.22.
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"Letter of Credit" shall mean any stand-by letter of credit issued pursuant
to Section 2.21 by the Issuing Bank for the account of the Borrower pursuant to
the LC Commitment.
"Leverage Ratio" shall mean, as of any date, the ratio of (i) Consolidated
Total Debt as of such date to (ii) Consolidated EBITDA for the four consecutive
Fiscal Quarters ending on or immediately prior to such date.
"LIBOR" shall mean, for any applicable Interest Period with respect to any
Eurodollar Loan, the British Bankers' Association Interest Settlement Rate per
annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow Jones Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. (Atlanta, Georgia time) for
delivery on the first day of such Interest Period, for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien (statutory
or otherwise), charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of the foregoing
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having the same economic
effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes (if
any), the LC Documents, the Fee Letter, the Subsidiary Guaranty Agreement, all
Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance
Certificates and any and all other instruments, agreements, documents and
writings executed in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan Parties.
"Loans" shall mean all Revolving Loans and Swingline Loans in the aggregate
or any of them, as the context shall require.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
11
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets or liabilities of the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform any of their respective material obligations under the Loan
Documents, (iii) the material rights and remedies of the Administrative Agent,
the Issuing Bank, Swingline Lender, and the Lenders under any of the Loan
Documents (including the right to accelerate the maturity of the Loans) or (iv)
the legality, validity or enforceability of any of the Loan Documents.
"Material Domestic Subsidiary" shall mean at any time any direct or
indirect Domestic Subsidiary of the Borrower having: (a) assets in an amount
equal to at least 5% of the total assets of the Borrower and its Subsidiaries
determined on a consolidated basis as of the last day of the most recent Fiscal
Quarter at such time; or (b) operating income in an amount equal to at least 5%
of the total operating income of the Borrower and its Subsidiaries on a
consolidated basis for the 12-month period ending on the last day of the most
recent Fiscal Quarter at such time.
"Material Indebtedness" shall mean Indebtedness (other than the Loans and
Letters of Credit) and Hedging Obligations of the Borrower or any of its
Subsidiaries, individually or in an aggregate principal amount exceeding
$5,000,000. For purposes of determining the amount of attributed Indebtedness
from Hedging Obligations, the "principal amount" of any Hedging Obligations at
any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Net Mark-to-Market Exposure" of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of all
unrealized losses over all unrealized profits of such Person arising from such
Hedging Obligation. "Unrealized losses" shall mean the fair market value of the
cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the Hedging
Transaction were to be terminated as of that date), and "unrealized profits"
means the fair market value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging Transaction
were to be terminated as of that date).
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of Revolving
Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.6(b).
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"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as set forth in
Section 2.4.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
reasonable fees and expenses of counsel to the Administrative Agent, the Issuing
Bank and any Lender actually incurred (including the Swingline Lender) incurred
pursuant to this Agreement or any other Loan Document), whether direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, and all Hedging Obligations owed to
the Administrative Agent, any Lender or any of their Affiliates incurred in
order to limit interest rate or fee fluctuation with respect to the Loans and
Letters of Credit, and all obligations and liabilities incurred in connection
with collecting and enforcing the foregoing, together with all renewals,
extensions, modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability of such Person under any sale
and leaseback transactions that do not create a liability on the balance sheet
of such Person, (iii) any Synthetic Lease Obligation or (iv) any obligation
arising with respect to any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a liability on
the balance sheet of such Person.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant" shall have the meaning set forth in Section 10.4(d).
"Payment Office" shall mean the office of the Administrative Agent located
at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location as
to which the Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA, and any successor entity performing similar functions.
13
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves are being maintained in accordance
with GAAP;
(ii) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen and similar Liens arising by operation of law in the ordinary
course of business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(vi) customary rights of set-off, revocation, refund or chargeback
under deposit agreements or under the Uniform Commercial Code or common law
of banks or other financial institutions where Borrower or any of its
Subsidiaries maintains deposits (other than deposits intended as cash
collateral) in the ordinary course of business; and
(vii) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
14
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within
six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above;
(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i) through (iv) above; and
(vi) Capital Stock, obligations, securities or other property received
by Borrower or any Subsidiary in settlement of accounts receivable created
in the ordinary course of business from bankrupt obligors.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" shall mean (i) with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Revolving Credit
Exposure), and the denominator of which shall be the sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, all Revolving Credit Exposure of all
Lenders) and (ii) with respect to all Commitments of any Lender at any time, the
numerator of which shall be the sum of such Lender's Revolving Commitment (or if
such Revolving Commitments have been terminated or expired or the Loans have
been declared to be due and payable, such Lender's Revolving Credit Exposure)
and the denominator of which shall be the sum of all Lenders' Revolving
Commitments (or if such Revolving Commitments have been terminated or expired or
the Loans have been declared to be due and payable, all Revolving Credit
Exposure of all Lenders funded under such Commitments).
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
15
"Related Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Replacement Lender" shall have the meaning given to such term in Section
2.23.
"Required Lenders" shall mean, at any time, Lenders holding more than 50%
of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding more than 50% of
the Revolving Credit Exposure.
"Requirement of Law" for any Person shall mean the articles or certificate
of incorporation, bylaws, partnership certificate and agreement, or limited
liability company certificate of organization and agreement, as the case may be,
and other organizational and governing documents of such Person, and any law,
treaty, rule or regulation, or determination of a Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" shall mean any of the president, the chief executive
officer, the chief operating officer, the chief financial officer, the treasurer
or a vice president of the Borrower or such other representative of the Borrower
as may be designated in writing by any one of the foregoing with the consent of
the Administrative Agent; and, with respect to the financial covenants only, the
chief financial officer or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans to the Borrower and to acquire
participations in Letters of Credit and Swingline Loans in an aggregate
principal amount not exceeding the amount set forth with respect to such Lender
on Schedule II, as such schedule may be amended pursuant to Section 2.22 or
2.23, or in the case of a Person becoming a Lender after the Closing Date, the
amount of the assigned "Revolving Commitment" as provided in the Assignment and
16
Acceptance executed by such Person as an assignee, or the joinder executed by
such Person, in each case as such commitment may subsequently be increased or
deceased pursuant to terms hereof.
"Revolving Commitment Termination Date" shall mean the earliest of (i)
September 8, 2011, subject to the extension thereof pursuant to Section 2.23,
(ii) the date on which the Revolving Commitments are terminated pursuant to
Section 2.7 and (iii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
(whether by acceleration or otherwise); provided, however, that the Revolving
Commitment Termination Date of any Lender that is a Declining Lender with
respect to any requested extension pursuant to Section 2.23 shall be the
earliest of (x) the Revolving Commitment Termination Date in effect immediately
prior to such extension, (y) the date on which the Revolving Commitments are
terminated pursuant to Section 2.7 and (z) the date on which all amounts
outstanding under this Agreement have been declared or have automatically become
due and payable (whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, LC Exposure and Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's, a Division of the McGraw-Hill
Companies.
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (ii) that is, as
of such date, otherwise controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary Guaranty
Agreement, dated as of the date hereof and substantially in the form of Exhibit
D, executed by certain Subsidiaries of the Borrower in favor of the
Administrative Agent for the benefit of the Lenders.
"Subsidiary Loan Party" shall mean any Subsidiary that executes or becomes
a party to the Subsidiary Guaranty Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $20,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the principal
amount of the Swingline Loans in which such Lender is legally obligated either
to make a Base Rate Loan or to purchase a participation in accordance with
Section 2.4, which shall equal such Lender's Pro Rata Share of all outstanding
Swingline Loans.
17
"Swingline Lender" shall mean SunTrust Bank, or any other Lender that may
agree to make Swingline Loans hereunder.
"Swingline Loan" shall mean a loan made to the Borrower by the Swingline
Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower payable to
the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially the form of Exhibit B.
"Swingline Rate" shall mean, for any Interest Period, the rate as offered
by the Swingline Lender and accepted by the Borrower. The Borrower is under no
obligation to accept this rate, and the Swingline Lender is under no obligation
to provide it.
"Synthetic Lease" shall mean a lease transaction under which the parties
intend that (i) the lease will be treated as an "operating lease" by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
(ii) the lessee will be entitled to various tax and other benefits ordinarily
available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person, the
sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Type", when used in reference to a Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Base Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a "Revolving
Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or by Class and
Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be classified and
referred to by Class (e.g. "Revolving Borrowing") or by Type (e.g. "Eurodollar
Borrowing") or by Class and Type (e.g. "Revolving Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise defined
or specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with GAAP as
in effect from time to time, applied on a basis consistent with the most recent
audited consolidated financial statement of the Borrower delivered pursuant to
Section 5.1(a); provided, that if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant in Article VI to eliminate the
18
effect of any change in GAAP on the operation of such covenant, or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Article VI for such purpose, in each case no later than one year following
the effectiveness of such change, then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon the
terms and conditions herein set forth, (i) the Lenders hereby establish in favor
of the Borrower a revolving credit facility pursuant to which each Lender
severally agrees (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing
Bank agrees to issue Letters of Credit in accordance with Section 2.21, (iii)
the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4, and (iv) each Lender agrees to purchase a participation interest in the
Letters of Credit and the Swingline Loans pursuant to the terms and conditions
hereof; provided, that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed
at any time the Aggregate Revolving Commitment Amount from time to time in
effect.
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SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Revolving Loans, ratably in
proportion to its Pro Rata Share, to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Revolving Commitment or (b) the aggregate Revolving Credit
Exposures of all Lenders exceeding the Aggregate Revolving Commitment Amount.
During the Availability Period, the Borrower shall be entitled to borrow, prepay
and reborrow Revolving Loans in accordance with the terms and conditions of this
Agreement; provided, that the Borrower may not borrow or reborrow should there
exist a Default or Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a "Notice of Revolving Borrowing") (x)
prior to 11:00 a.m. (Atlanta, Georgia time) one (1) Business Day prior to the
requested date of each Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta,
Georgia time) three (3) Business Days prior to the requested date of each
Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable
and shall specify: (i) the aggregate principal amount of such Borrowing, (ii)
the date of such Borrowing (which shall be a Business Day), (iii) the Type of
such Revolving Loan comprising such Borrowing and (iv) in the case of a
Eurodollar Borrowing, the duration of the initial Interest Period applicable
thereto (subject to the provisions of the definition of Interest Period). Each
Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar
Loans, as the Borrower may request. The aggregate principal amount of each
Eurodollar Borrowing shall be not less than $5,000,000 or a larger multiple of
$1,000,000 (or the remaining amount of the Aggregate Revolving Commitment
Amount, if less), and the aggregate principal amount of each Base Rate Borrowing
shall not be less than $1,000,000 or a larger multiple of $100,000 (or the
remaining amount of the Aggregate Revolving Commitment Amount, if less);
provided, that Base Rate Loans made pursuant to Section 2.4 or Section 2.21(d)
may be made in lesser amounts as provided therein. At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed six. Promptly
following the receipt of a Notice of Revolving Borrowing in accordance herewith,
the Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT.
(a) Subject to the terms and conditions set forth herein, the Swingline
Lender shall make Swingline Loans to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time
not to exceed the lesser of (i) the Swingline Commitment and (ii) the difference
between the Aggregate Revolving Commitment Amount and the aggregate Revolving
Credit Exposures of all Lenders; provided, that the Swingline Lender shall not
be required to make a Swingline Loan to refinance an outstanding Swingline Loan.
The Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in
accordance with the terms and conditions of this Agreement.
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(b) The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.4 attached hereto ("Notice of Swingline
Borrowing") prior to 10:00 a.m. (Atlanta, Georgia time) on the requested date of
each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which shall be a Business Day) and (iii)
the account of the Borrower to which the proceeds of such Swingline Loan should
be credited. The Administrative Agent will promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest
at the Swingline Rate and shall have an Interest Period (subject to the
definition thereof) as agreed between the Borrower and the Swingline Lender. The
aggregate principal amount of each Swingline Loan shall be not less than
$100,000 or a larger multiple of $50,000, or such other minimum amounts agreed
to by the Swingline Lender and the Borrower. The Swingline Lender will make the
proceeds of each Swingline Loan available to the Borrower in Dollars in
immediately available funds at the account specified by the Borrower in the
applicable Notice of Swingline Borrowing not later than 1:00 p.m. (Atlanta,
Georgia time) on the requested date of such Swingline Loan.
(c) The Swingline Lender, at any time and from time to time in its sole
discretion, may, on behalf of the Borrower (which hereby irrevocably authorizes
and directs the Swingline Lender to act on its behalf), give a Notice of
Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.5, which will be used solely for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made in accordance
with the foregoing provisions, then each Lender (other than the Swingline
Lender) shall purchase an undivided participating interest in such Swingline
Loan in an amount equal to its Pro Rata Share thereof on the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each
Lender shall promptly transfer, in immediately available funds, the amount of
its participating interest to the Administrative Agent for the account of the
Swingline Lender. If such Swingline Loan bears interest at a rate other than the
Base Rate, such Swingline Loan shall automatically become a Base Rate Loan on
the effective date of any such participation and interest shall become payable
on demand.
(e) Each Lender's obligation to make a Base Rate Loan pursuant to Section
2.4(c) or to purchase the participating interests pursuant to Section 2.4(d)
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or would reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
21
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section 2.4, until such amount has been
purchased in full.
SECTION 2.5. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by it hereunder on
the proposed date thereof by wire transfer in immediately available funds by
11:00 a.m. (Atlanta, Georgia time) to the Administrative Agent at the Payment
Office; provided, that the Swingline Loans will be made as set forth in Section
2.4. The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with
the Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender
prior to 5:00 p.m. (Atlanta, Georgia time) one (1) Business Day prior to the
date of a Borrowing in which such Lender is to participate that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date, and the
Administrative Agent, in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate until the second Business Day after such demand and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent together
with interest at the rate specified for such Borrowing. Nothing in this
subsection shall be deemed to relieve any Lender from its obligation to fund its
Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis of
their respective Pro Rata Shares. No Lender shall be responsible for any default
by any other Lender in its obligations hereunder, and each Lender shall be
obligated to make its Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to make its Loans hereunder.
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SECTION 2.6. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section 2.6. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall NOT apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section 2.6, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.6 attached hereto (a "Notice of Conversion/Continuation") that is to
be converted or continued, as the case may be, (x) prior to 10:00 a.m. (Atlanta,
Georgia time) one (1) Business Day prior to the requested date of a conversion
into a Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta, Georgia time)
three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being elected with
respect to different portions thereof, the portions thereof that are to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Notice of Continuation/Conversion, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
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SECTION 2.7. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments, Swingline
Commitments and LC Commitments shall terminate on the Revolving Commitment
Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.7 shall be in an amount of at
least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitment Amount to an amount less than the outstanding Revolving Credit
Exposures of all Lenders. Any such reduction in the Aggregate Revolving
Commitment Amount below the sum of the principal amount of the Swingline
Commitment and the LC Commitment shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the Swingline
Commitment and the LC Commitment.
SECTION 2.8. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be due
and payable (together with accrued and unpaid interest thereon) on the Revolving
Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued and unpaid interest thereon) on the earlier of
(i) the last day of the Interest Period applicable to such Borrowing and (ii)
the Revolving Commitment Termination Date.
SECTION 2.9. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall maintain in
accordance with its usual practice appropriate records 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 thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.6, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.6, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. Absent manifest
error, the entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, that the failure or delay of any Lender or the Administrative Agent in
24
maintaining or making entries into any such record or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans (both
principal and unpaid accrued interest) of such Lender in accordance with the
terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at any
time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the case of the Swingline Lender only, a Swingline
Note, payable to the order of such Lender.
SECTION 2.10. OPTIONAL PREPAYMENTS. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent no later than
(i) in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. (Atlanta,
Georgia time) not less than three (3) Business Days prior to any such
prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing, not
less than one Business Day prior to the date of such prepayment, and (iii) in
the case of Swingline Borrowings, prior to 11:00 a.m. (Atlanta, Georgia time) on
the date of such prepayment. Each such notice shall be irrevocable and shall
specify the proposed date of such prepayment and the principal amount of each
Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest to
such date on the amount so prepaid in accordance with Section 2.12(d); provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last day of
an Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.18. Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in an amount that would be permitted in the case
of an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2
or in the case of a Swingline Loan pursuant to Section 2.4. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
SECTION 2.11. MANDATORY PREPAYMENT. If at any time the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as
reduced pursuant to Section 2.7 or otherwise, the Borrower shall immediately
repay Swingline Loans and Revolving Loans in an amount equal to such excess,
together with all accrued and unpaid interest on such excess amount and any
amounts due under Section 2.18. Each prepayment shall be applied first to the
Swingline Loans to the full extent thereof, second to the Base Rate Loans to the
full extent thereof, and finally to Eurodollar Loans to the full extent thereof.
If after giving effect to prepayment of all Swingline Loans and Revolving Loans,
the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving
Commitment Amount, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Issuing Bank and the Lenders, an amount in cash equal to such
excess plus any accrued and unpaid fees thereon to be held as collateral for the
LC Exposure. Such account shall be administered in accordance with Section
2.21(g) hereof.
SECTION 2.12. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base Rate
in effect from time to time and on each Eurodollar Loan at the Adjusted LIBO
Rate for the applicable Interest Period in effect for such Loan, plus the
Applicable Margin in effect from time to time.
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(b) The Borrower shall pay interest on each Swingline Loan at the Swingline
Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the option
of the Required Lenders, the Borrower shall pay interest ("Default Interest")
with respect to all Eurodollar Loans at the rate otherwise applicable for the
then-current Interest Period plus an additional 2% per annum until the last day
of such Interest Period, and thereafter, and with respect to all Base Rate Loans
(including all Swingline Loans) and all other Obligations hereunder (other than
Loans), at an all-in rate in effect for Base Rate Loans, plus an additional 2%
per annum.
(d) Interest on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Commitment Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months or 90 days, respectively, on each day which
occurs every three months or 90 days, as the case may be, after the initial date
of such Interest Period, and on the Revolving Commitment Termination Date or the
Maturity Date, as the case may be. Interest on each Swingline Loan shall be
payable on the maturity date of such Loan, which shall be the last day of the
Interest Period applicable thereto, and on the Revolving Commitment Termination
Date. Interest on any Loan which is converted into a Loan of another Type or
which is repaid or prepaid shall be payable on the date of such conversion or on
the date of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder and shall promptly notify the Borrower and the Lenders of
such rate in writing (or by telephone, promptly confirmed in writing). Any such
determination shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.13. FEES.
(a) The Borrower shall pay to the Administrative Agent for its own account
fees in the amounts and at the times previously agreed upon in writing by the
Borrower and the Administrative Agent.
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, which shall accrue at the Applicable Percentage
per annum (determined daily in accordance with Schedule I) on the daily amount
of the Revolving Commitment (whether used or unused) of such Lender during the
Availability Period; provided, that if such Lender continues to have any
Revolving Credit Exposure after the Revolving Commitment Termination Date, then
26
the facility fee shall continue to accrue on the daily amount of such Revolving
Credit Exposure from and after the Revolving Commitment Termination Date to the
date that all of such Lender's Revolving Credit Exposure has been paid in full.
(c) The Borrower agrees to pay (i) to the Administrative Agent, for the
account of each Lender, a letter of credit fee with respect to its participation
in each Letter of Credit, which shall accrue at a rate per annum equal to the
Applicable Margin then in effect on the average daily amount of such Lender's LC
Exposure attributable to such Letter of Credit during the period from and
including the date of issuance of such Letter of Credit to but excluding the
date on which such Letter of Credit expires or is drawn in full (including
without limitation any LC Exposure that remains outstanding after the Revolving
Commitment Termination Date) and (ii) to the Issuing Bank for its own account a
fronting fee, which shall accrue at the rate of 0.125% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the Availability Period (or until the date
that such Letter of Credit is irrevocably cancelled, whichever is later), as
well as the Issuing Bank's standard fees with respect to issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Notwithstanding the foregoing, if the Required Lenders elect to
increase the interest rate on the Loans to the Default Interest pursuant to
Section 2.12(c), the rate per annum used to calculate the letter of credit fee
pursuant to clause (i) above shall automatically be increased by an additional
2% per annum.
(d) The Borrower shall pay to the Administrative Agent, for the ratable
benefit of each Lender, the upfront fee previously agreed upon by the Borrower
and the Administrative Agent, which shall be due and payable on the Closing
Date.
(e) Accrued fees under paragraphs (b) and (c) above shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on September 30, 2006 and on the Revolving Commitment
Termination Date (and if later, the date the Loans and LC Exposure shall be
repaid in their entirety); provided further, that any such fees accruing after
the Revolving Commitment Termination Date shall be payable on demand.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES.
All computations of interest and fees hereunder shall be made on the basis
of a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
SECTION 2.15. INABILITY TO DETERMINE INTEREST RATES. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
and reasonable means do not exist for ascertaining LIBOR for such Interest
Period, or
27
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans
for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. Until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) the obligations of the Lenders to make Eurodollar Revolving Loans or
to continue or convert outstanding Loans as or into Eurodollar Loans shall be
suspended and (ii) all such affected Loans shall be converted into Base Rate
Loans on the last day of the then current Interest Period applicable thereto
unless the Borrower prepays such Loans in accordance with this Agreement. Unless
the Borrower notifies the Administrative Agent at least one Business Day before
the date of any Eurodollar Revolving Borrowing for which a Notice of Revolving
Borrowing has previously been given that it elects not to borrow on such date,
then such Revolving Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.16. ILLEGALITY. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Revolving Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended. In the case
of the making of a Eurodollar Revolving Borrowing, such Lender's Revolving Loan
shall be made as a Base Rate Loan as part of the same Revolving Borrowing for
the same Interest Period and if the affected Eurodollar Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the
last day of the then current Interest Period applicable to such Eurodollar Loan
if such Lender may lawfully continue to maintain such Loan to such date or (ii)
immediately if such Lender shall determine that it may not lawfully continue to
maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation would avoid
the need for giving such notice and if such designation would not otherwise be
materially disadvantageous to such Lender in the good faith exercise of its
discretion.
SECTION 2.17. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of
the Adjusted LIBO Rate hereunder against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
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(ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement or any
Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein;
and the result of either of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within ten (10) Business Days after the date of such notice and
demand, additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within ten (10) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's parent corporation, as the case may be, specified
in paragraph (a) or (b) of this Section 2.17 shall be delivered to the Borrower
(with a copy to the Administrative Agent) and shall be conclusive, absent
manifest error. The Borrower shall pay any such Lender or the Issuing Bank, as
the case may be, such amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.17 shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided, that the Borrower shall not be required to compensate a Lender or the
Issuing Bank under this Section 2.17 for any increased costs or reductions
incurred more than six (6) months prior to the date that such Lender or the
Issuing Bank notifies the Borrower of such increased costs or reductions and of
such Lender's or the Issuing Bank's intention to claim compensation therefor;
provided further, that if the Change in Law giving rise to such increased costs
or reductions is retroactive, then such six-month period shall be extended to
include the period of such retroactive effect.
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SECTION 2.18. FUNDING INDEMNITY. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrower shall compensate each Lender,
within ten (10) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.18 submitted to the Borrower by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.19. TAXES.
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.19) the Administrative Agent, any Lender or the Issuing
Bank (as the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within ten (10) Business Days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.19) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or the Issuing Bank, shall be conclusive absent manifest error.
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(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the Code or any treaty to which the United States is a
party with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent) such properly completed and
executed documentation prescribed by applicable law at the time or times
prescribed by applicable law and promptly, if reasonably requested by the
Borrower to permit such payments to be made without withholding or at a reduced
rate. Without limiting the generality of the foregoing, each Foreign Lender
agrees that it will deliver to the Administrative Agent and the Borrower (or in
the case of a Participant, to the Lender from which the related participation
shall have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan agreement
entered into in the ordinary course of its trade or business, within the meaning
of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
(f) If any Lender or Issuing Bank determines, in its sole discretion, that
it has received any credit or refund of any Indemnified Tax or Other Tax as to
which it has been indemnified by the Borrower, it shall pay over such refund or
credit to Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by Borrower under this Section, with respect to
Indemnified Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of such Lender or Issuing Bank (as applicable) and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that Borrower, upon request of
31
any Lender or the Issuing Bank, agrees to repay the amount paid over the
Borrower (plus any penalties, interest or other charges imposed by the
Governmental Authority) to such Lender or the Issuing Bank in the event such
Lender or the Issuing Bank, as applicable, is requested to repay such refund to
the Governmental Authority.
SECTION 2.20. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.17, 2.18 or 2.19, or
otherwise) prior to 12:00 noon (Atlanta, Georgia time) on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.17, 2.18 and 2.19 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving Loans or participations in LC Disbursements or Swingline Loans
that would result in such Lender receiving payment of a greater proportion of
the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
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(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.4(c) and (d), 2.5(a), 2.20(d), 2.21(d) or (e) or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.21. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in reliance upon the
agreements of the other Lenders pursuant to Section 2.21(d), agrees to issue, at
the request of the Borrower, Letters of Credit for the account of the Borrower
or its Subsidiaries on the terms and conditions hereinafter set forth; provided,
that (i) each Letter of Credit shall expire on the earlier of (A) the date one
year after the date of issuance of such Letter of Credit (or in the case of any
renewal or extension thereof, one year after such renewal or extension) and (B)
the date that is five (5) Business Days prior to the Revolving Commitment
Termination Date; (ii) each Letter of Credit shall be in a stated amount of at
least $50,000; and (iii) no Letter of Credit may be requested if, after giving
effect to such issuance (A) the aggregate LC Exposure would at any time
thereafter (giving effect to the respective scheduled expiration dates of the
Letters of Credit) exceed the LC Commitment (giving effect to any reductions
resulting from the scheduled expiration of the Commitments of Declining Lenders
not offset by new or increased Commitments of Replacement Lenders or Extending
33
Lenders pursuant to Section 2.23), or (B) the aggregate Revolving Credit
Exposure of all Lenders would at any time thereafter exceed the Aggregate
Revolving Commitment Amount (giving effect to any reductions resulting from the
scheduled expiration of the Commitments of Declining Lenders not offset by new
or increased Commitments of Replacement Lenders or Extending Lenders pursuant to
Section 2.23). Each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a
participation in each Letter of Credit equal to such Lender's Pro Rata Share of
the aggregate amount available to be drawn under such Letter of Credit on the
date of issuance with respect to all other Letters of Credit. Each issuance of a
Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit, the name and
address of the beneficiary thereof, the account party for such Letter of Credit
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of the conditions
in Article III, the issuance of such Letter of Credit (or any amendment which
increases the amount of such Letter of Credit) will be subject to the further
conditions that such Letter of Credit shall be in such form and contain such
terms as the Issuing Bank shall approve and that the Borrower shall have
executed and delivered, and shall have caused any Subsidiary (to the extent that
it is an account party on any Letter of Credit) to have executed and delivered,
any additional applications, agreements and instruments relating to such Letter
of Credit as the Issuing Bank shall reasonably require; provided, that in the
event of any conflict between such applications, agreements or instruments and
this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.21(a) or that one or
more conditions specified in Article III are not then satisfied, then, subject
to the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's usual
and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to represent a
demand for payment under a Letter of Credit promptly following its receipt
thereof. The Issuing Bank shall notify the Borrower and the Administrative Agent
of such demand for payment and whether the Issuing Bank has made or will make a
LC Disbursement thereunder; provided, that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Lenders with respect to such LC Disbursement. The
Borrower shall be irrevocably and unconditionally obligated to reimburse the
Issuing Bank for any LC Disbursements paid by the Issuing Bank in respect of
such drawing, without presentment, demand or other formalities of any kind and
whether or not Borrower is the account party on the Letter of Credit. Unless the
Borrower shall have notified the Issuing Bank and the Administrative Agent prior
34
to 11:00 a.m. (Atlanta, Georgia time) on the Business Day immediately prior to
the date on which such drawing is honored that the Borrower intends to reimburse
the Issuing Bank for the amount of such drawing in funds other than from the
proceeds of Revolving Loans, the Borrower shall be deemed to have timely given a
Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders
to make a Base Rate Borrowing on the date on which such drawing is honored in an
exact amount due to the Issuing Bank; provided, that for purposes solely of such
Borrowing, the conditions precedent set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of such Borrowing
in accordance with Section 2.3, and each Lender shall make the proceeds of its
Base Rate Loan included in such Borrowing available to the Administrative Agent
for the account of the Issuing Bank in accordance with Section 2.5. The proceeds
of such Borrowing shall be applied directly by the Administrative Agent to
reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made in accordance
with the foregoing provisions, then each Lender (other than the Issuing Bank)
shall be obligated to fund the participation that such Lender purchased pursuant
to subsection (a) in an amount equal to its Pro Rata Share of such LC
Disbursement on and as of the date which such Base Rate Borrowing should have
occurred. Each Lender's obligation to fund its participation shall be absolute
and unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or other
right that such Lender or any other Person may have against the Issuing Bank or
any other Person for any reason whatsoever, (ii) the existence of a Default or
an Event of Default or the termination of the Aggregate Revolving Commitments,
(iii) any adverse change in the condition (financial or otherwise) of the
Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by the
Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrower, to any of its Subsidiaries or to
a trustee, receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or the Issuing
Bank any portion thereof previously distributed by the Administrative Agent or
the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount required to
be paid pursuant to paragraphs (d) or (e) of this Section on the due date
therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3)
35
Business Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the rate set forth in
Section 2.12(c).
(g) If any Event of Default shall occur and be continuing, on the Business
Day that the Borrower receives notice from the Administrative Agent or the
Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid fees thereon; provided, that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (g) or (h) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrower agrees to execute any
documents and/or certificates to effectuate the intent of this paragraph. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest and profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement and the other Loan Documents. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence and
continuance of an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
(h) Promptly following the end of each calendar quarter, the Issuing Bank
shall deliver (through the Administrative Agent) to each Lender and the Borrower
a report describing the aggregate Letters of Credit outstanding at the end of
such Fiscal Quarter. Upon the request of any Lender from time to time, the
Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements hereunder shall
be absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement under all circumstances whatsoever
and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit or
this Agreement;
36
(ii) The existence of any claim, set-off, defense or other right which
the Borrower or any Subsidiary or Affiliate of the Borrower may have at any
time against a beneficiary or any transferee of any Letter of Credit (or
any Persons or entities for whom any such beneficiary or transferee may be
acting), any Lender (including the Issuing Bank) or any other Person,
whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.21, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any actual direct damages (as
opposed to special, indirect (including claims for lost profits or other
consequential damages), or punitive damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise due care when determining whether drafts or other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised due care in
each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
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(j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower
when a Letter of Credit is issued and subject to applicable laws, performance
under Letters of Credit by the Issuing Bank, its correspondents, and the
beneficiaries thereof will be governed by (i) either (x) the rules of the
"International Standby Practices 1998" (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date
any Letter of Credit may be issued) or (y) the rules of the "Uniform Customs and
Practices for Documentary Credits" (1993 Revision), International Chamber of
Commerce Publication No. 500 (or such later revision as may be published by the
International Chamber of Commerce on any date any Letter of Credit may be
issued), as applicable and (ii) to the extent not inconsistent therewith, the
governing law of this Agreement set forth in Section 10.5.
SECTION 2.22. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS.
(a) So long as no Event of Default has occurred and is continuing, from
time to time after the Closing Date, Borrower may, upon at least 45 days'
written notice to the Administrative Agent (who shall promptly provide a copy of
such notice to each Lender), propose to increase the Aggregate Revolving
Commitments by an aggregate amount not to exceed $50,000,000 (the amount of such
increase, the "Additional Commitment Amount"). Each Lender shall have the right
for a period of 15 days following receipt of such notice, to elect by written
notice to the Borrower and the Administrative Agent to increase its Revolving
Commitment by a principal amount equal to its Pro Rata Share of the Additional
Commitment Amount. No Lender (or any successor thereto) shall have any
obligation to increase its Revolving Commitment or its other obligations under
this Agreement and the other Loan Documents, and any decision by a Lender to
increase its Revolving Commitment shall be made in its sole discretion
independently from any other Lender.
(b) If any Lender shall not elect to increase its Revolving Commitment
pursuant to subsection (a) of this Section 2.22, the Borrower may designate
another bank or other financial institution (which may be, but need not be, one
or more of the existing Lenders) which at the time agrees to, in the case of any
such Person that is an existing Lender, increase its Revolving Commitment and in
the case of any other such Person (an "Additional Lender"), become a party to
this Agreement; provided, however, that any new bank or financial institution
must be acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the Revolving
Commitments of the existing Lenders pursuant to this subsection (b) plus the
Revolving Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Additional Commitment Amount.
(c) An increase in the aggregate amount of the Revolving Commitments
pursuant to this Section 2.22 shall become effective upon the receipt by the
Administrative Agent of an supplement or joinder in form and substance
satisfactory to the Administrative Agent executed by the Borrower, by each
Additional Lender and by each other Lender whose Revolving Commitment is to be
increased, setting forth the new Revolving Commitments of such Lenders and
setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, together with
Notes evidencing such increase in the Commitments, and such evidence of
appropriate corporate authorization on the part of the Borrower with respect to
38
the increase in the Revolving Commitments and such opinions of counsel for the
Borrower with respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request.
(d) Upon the acceptance of any such supplement or joinder by the
Administrative Agent, the Aggregate Revolving Commitment Amount shall
automatically be increased by the amount of the Revolving Commitments added
through such supplement or joinder and Schedule II shall automatically be deemed
amended to reflect the Revolving Commitments of all Lenders after giving effect
to the addition of such Revolving Commitments.
(e) Upon any increase in the aggregate amount of the Revolving Commitments
pursuant to this Section 2.22 that is not pro rata among all Lenders, (x) within
five Business Days, in the case of any Base Rate Loans then outstanding, and at
the end of the then current Interest Period with respect thereto, in the case of
any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in
their entirety and, to the extent the Borrower elects to do so and subject to
the conditions specified in Article III, the Borrower shall reborrow Loans from
the Lenders in proportion to their respective Revolving Commitments after giving
effect to such increase, until such time as all outstanding Loans are held by
the Lenders in proportion to their respective Commitments after giving effect to
such increase and (y) effective upon such increase, the amount of the
participations held by each Lender in each Letter of Credit then outstanding
shall be adjusted automatically such that, after giving effect to such
adjustments, the Lenders shall hold participations in each such Letter of Credit
in proportion to their respective Revolving Commitments.
SECTION 2.23. EXTENSIONS OF COMMITMENT TERMINATION DATE.
(a) No earlier than 60 days and at least 45 days prior to each of the first
and second anniversary of the Closing Date, the Borrower may, by written notice
to the Administrative Agent (who shall promptly notify each Lender thereof),
request that the Revolving Commitment Termination Date then in effect be
extended for a one-year period.
(b) If a Lender agrees, in its individual and sole discretion, to so extend
its Revolving Commitment (an "Extending Lender"), it shall deliver to the
Administrative Agent a written notice of its agreement to do so at least 30 days
prior to such anniversary date and the Administrative Agent shall promptly
thereafter notify the Borrower of such Extending Lender's agreement to extend
its Revolving Commitment (and such agreement shall be irrevocable until such
anniversary date). The Revolving Commitment of any Lender that fails to accept
or respond to the Borrower's request for extension of the Revolving Commitment
Termination Date (a "Declining Lender") shall be terminated on the Revolving
Commitment Termination Date then in effect for such Lender (without regard to
any extension by other Lenders). The Administrative Agent shall promptly notify
the Borrower and each Extending Lender of the aggregate Revolving Commitments of
the Declining Lenders. Each Extending Lender may offer to increase its
respective Revolving Commitment by an aggregate amount up to the aggregate
amount of the Declining Lenders' Revolving Commitments and such Extending Lender
shall deliver to the Administrative Agent a notice of its offer to so increase
its Revolving Commitment no later than 15 days prior to such anniversary date
(and such offer shall be irrevocable until such anniversary date).
39
(c) To the extent the aggregate amount of extended Revolving Commitments is
less than the aggregate amount of Revolving Commitments so requested to be
extended pursuant to the foregoing, the Borrower shall have the right to require
any Declining Lender to (and any such Declining Lender shall) assign in full its
rights and obligations under this Agreement to one or more banks or other
financial institutions (which may be, but need not be, one or more of the
existing Lenders) which at the time agree to, in the case of any such Person
that is an existing Lender, increase its Revolving Commitment and in the case of
any other such Person (a "Replacement Lender") become a party to this Agreement;
provided that (i) such assignment is otherwise in compliance with Section 10.4,
(ii) such Declining Lender receives payment in full of the unpaid principal
amount of all Revolving Loans owing to such Declining Lender, together with all
accrued and unpaid interest thereon and all fees accrued and unpaid under this
Agreement to the date of such payment of principal and all other amounts due to
such Declining Lender under this Agreement and (iii) any such assignment shall
be effective on the date on or before such anniversary date as may be specified
by the Borrower and agreed to by the Replacement Lenders or the Extending
Lenders, as the case may be, and the Administrative Agent.
(d) On the Revolving Commitment Termination Date for each Declining Lender,
(x) the Borrower shall pay in full the unpaid principal amount of all Revolving
Loans owing to such Declining Lender, together with all accrued and unpaid
interest thereon and all fees accrued and unpaid under this Agreement to the
date of such payment of principal and all other amounts due to such Declining
Lender under this Agreement, and (y) the amount of the participations held by
each remaining Lender in each Letter of Credit and Swingline Loan then
outstanding shall be adjusted automatically such that, after giving effect to
such adjustments, the remaining Lenders shall hold participations in each such
Letter of Credit and Swingline Loan in proportion to their respective Revolving
Commitments.
(e) Notwithstanding the foregoing, if, but only if, Extending Lenders and
Replacement Lenders have agreed to provide Revolving Commitments in an aggregate
amount greater than 50% of the aggregate amount of the Revolving Commitments
outstanding immediately prior to such anniversary date, the Revolving Commitment
Termination Date of such Extending Lenders and Replacement Lenders shall be
extended by one year.
SECTION 2.24. MITIGATION OF OBLIGATIONS. If Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.19, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under
Section 2.20 in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.
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ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the Lenders
(including the Swingline Lender) to make Loans and the obligation of the Issuing
Bank to issue any Letter of Credit hereunder shall not become effective until
the date on which each of the following conditions is satisfied (or waived in
accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Closing Date, including reimbursement or
payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrower hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Arranger.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of each
party hereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement;
(ii) duly executed Revolving Credit Notes payable to such Lender and
the Swingline Note payable to the Swingline Lender;
(iii) the Subsidiary Guaranty Agreement duly executed by each Material
Domestic Subsidiary;
(iv) copies of duly executed payoff letters, in form and substance
satisfactory to Administrative Agent, executed by each Person holding
Indebtedness to be repaid at closing;
(v) a certificate of the Secretary or Assistant Secretary of the each
Loan Party in the form of Exhibit 3.1(b)(v), attaching and certifying
copies of its bylaws and of the resolutions of its boards of directors, or
partnership agreement or limited liability company agreement, or comparable
organizational documents and authorizations, authorizing the execution,
delivery and performance of the Loan Documents to which it is a party and
certifying the name, title and true signature of each officer of such Loan
Party executing the Loan Documents to which it is a party;
(vi) certified copies of the articles or certificate of incorporation,
certificate of organization or limited partnership, or other registered
organizational documents of each Loan Party, together with certificates of
good standing or existence, as may be available from the Secretary of State
of the jurisdiction of organization of such Loan Party and each other
jurisdiction where such Loan Party is required to be qualified to do
business as a foreign corporation, except where a failure to be so
41
qualified would not have a Material Adverse Effect and except to the extent
that Borrower is required to deliver good standing certificates on a
post-closing basis pursuant to Section 5.11;
(vii) a favorable written opinion of Arnall Golden & Gregory LLP,
counsel to the Loan Parties, addressed to the Administrative Agent and each
of the Lenders, and covering such matters relating to the Loan Parties, the
Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;
(viii) a certificate in the form of Exhibit 3.1(b)(viii), dated the
Closing Date and signed by a Responsible Officer, certifying that (x) no
Default or Event of Default exists, (y) all representations and warranties
of each Loan Party set forth in the Loan Documents are true and correct and
(z) since the date of the financial statements of the Borrower described in
Section 4.4, there shall have been no change which has had or would
reasonably be expected to have a Material Adverse Effect;
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement agreement, together with a
report setting forth the sources and uses of the proceeds hereof;
(xi) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required to be made or obtained under
any Requirement of Law, or by any Contractual Obligation of each Loan
Party, in connection with the execution, delivery, performance, validity
and enforceability of the Loan Documents or any of the transactions
contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and all
applicable waiting periods shall have expired, and no investigation or
inquiry by any governmental authority regarding the Commitments or any
transaction being financed with the proceeds thereof shall be ongoing; and
(xii) copies of (A) the internally prepared quarterly financial
statements of Borrower and its Subsidiaries on a consolidated basis for the
Fiscal Quarter ending on June 30, 2006, and (B) the audited consolidated
financial statements for Borrower and its Subsidiaries for the Fiscal Years
ending December 31, 2004 and December 31, 2005.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to make a
Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such Borrowing or
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default or Event of Default shall exist and be continuing;
(b) at the time of and immediately after giving effect to such Borrowing or
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto (except
42
for those which expressly relate to an earlier date which shall be true and
correct in all material respects as of such earlier date);
(c) since the date of the financial statements of the Borrower described in
Section 4.4, there shall have been no change which has had or would reasonably
be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents,
certificates or information as the Administrative Agent or the Required Lenders
may reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of any
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and each
Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing as a corporation,
partnership or limited liability company under the laws of the jurisdiction of
its organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is duly qualified to do business, and is in
good standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution, delivery
and performance by each Loan Party of the Loan Documents to which it is a party
are within such Loan Party's organizational powers and have been duly authorized
by all necessary organizational, and if required, shareholder, partner or
member, action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms,
43
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution, delivery
and performance by the Borrower of this Agreement, and by each Loan Party of the
other Loan Documents to which it is a party (a) do not require any consent or
approval of, registration or filing with, or any action by, any Governmental
Authority, except those as have been obtained or made and are in full force and
effect, (b) will not violate any Requirements of Law applicable to the Borrower
or any of its Subsidiaries or any judgment, order or ruling of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
material agreement or other material instrument binding on the Borrower or any
of its Subsidiaries or any of its assets or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to each
Lender (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2005 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
prepared by Grant Thornton LLP and (ii) the unaudited consolidated balance sheet
of the Borrower and its Subsidiaries as of June 30, 2006, and the related
unaudited consolidated statements of income and cash flows for the Fiscal
Quarter and year-to-date period then ending, certified by a Responsible Officer.
Such financial statements fairly present in all material respects the
consolidated financial condition of the Borrower and its Subsidiaries as of such
dates and the consolidated results of operations for such periods in conformity
with GAAP consistently applied, subject to year end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii).
Since December 31, 2005, there have been no changes with respect to the Borrower
and its Subsidiaries which have had or would reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before any arbitrators
or Governmental Authorities is pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that would reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any other Loan
Document.
(b) Except for the matters set forth on Schedule 4.5, neither the Borrower
nor any of its Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, except as would not reasonably be expected
to have a Material Adverse Effect, (ii) has become subject to any material
Environmental Liability, (iii) has received written notice of any claim with
respect to any material Environmental Liability or (iv) has actual knowledge of
any basis for any Environmental Liability.
44
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and each
Subsidiary is in compliance with (a) all Requirements of Law and all judgments,
decrees and orders of any Governmental Authority and (b) all indentures,
agreements or other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any of
its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, or (b) otherwise subject
to any other regulatory scheme limiting its ability to incur debt or requiring
any approval or consent from or registration or filing with, any Governmental
Authority in connection therewith. SECTION 4.8. TAXES. The Borrower and its
Subsidiaries and each other Person for whose taxes the Borrower or any
Subsidiary could become liable have timely filed or caused to be filed all
Federal income tax returns and all other material tax returns that are required
to be filed by them, and have paid all taxes shown to be due and payable on such
returns or on any assessments made against it or its property and all other
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority, except where the same are currently being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as the case may be, has set aside on its books adequate reserves in
accordance with GAAP. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so provided are
anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the Loans
or Letters of Credit will be used, directly or indirectly, for "purchasing" or
"carrying" any "margin stock" with the respective meanings of each of such terms
under Regulation U of the Board of Governors of the Federal Reserve System as
now and from time to time hereafter in effect or for any purpose that violates
the provisions of the Regulation U. Neither the Borrower nor its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying "margin stock."
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan by more than $15,000,000, and the present value
of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of all such underfunded
Plans by more than $15,000,000.
45
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid
leasehold interests in, all of its real and personal property material to the
operation of its business, including all such properties reflected in the most
recent audited consolidated balance sheet of the Borrower referred to in Section
4.4 or purported to have been acquired by the Borrower or any Subsidiary after
said date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement.
All leases that individually or in the aggregate are material to the business or
operations of the Borrower and its Subsidiaries are valid and subsisting and are
in full force.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks, trade
names, copyrights and other intellectual property applicable to its business,
and the use thereof by the Borrower and its Subsidiaries does not infringe in
any material respect on the rights of any other Person, except for those the
failure to own or have such legal right would not reasonably be expected to have
a Material Adverse Effect.
(c) The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies which are not Affiliates of
the Borrower, in such amounts with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or any applicable Subsidiary
operates.
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading.
All projections delivered prior to, at, or after the Closing Date are based upon
estimates and assumptions, all of which Borrower believes to be in good faith in
light of the conditions and facts known to Borrower as of the date of delivery
of such projections and, as of the Closing Date, reflect Borrower's good faith
estimates of the future financial performance of Borrower and of the other
information projected therein for the period set forth therein. The projections
are not a guaranty of future performance. Actual results may differ
substantially from those projected.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
46
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation or
organization of, and the type of, each Subsidiary. As of the Closing Date, the
Material Domestic Subsidiaries and the Subsidiary Loan Parties are Patterson
Services, Inc., a Delaware corporation, Cudd Pressure Control, Inc., a Delaware
corporation, Cudd Pumping Services, Inc., a Delaware corporation, and Bronco
Oilfield Services, Inc., a Delaware corporation.
SECTION 4.15. INSOLVENCY. After giving effect to the execution and delivery
of the Loan Documents and the making of the Loans under this Agreement, neither
the Borrower nor its Subsidiaries will be "insolvent," within the meaning of
such term as defined in ss. 101 of Title 11 of the United States Code, as
amended from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
SECTION 4.16. OFAC. No Loan Party (i) is a person whose property or
interest in property is blocked or subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions
prohibited by Section 2 of such executive order, or is otherwise associated with
any such person in any manner violative of Section 2, or (iii) is a person on
the list of Specially Designated Nationals and Blocked Persons or subject to the
limitations or prohibitions under any other U.S. Department of Treasury's Office
of Foreign Assets Control regulation or executive order.
SECTION 4.17. PATRIOT ACT. Each Loan Party is in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended, and each
of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the
Loans will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
47
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower will
deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of
each Fiscal Year of Borrower, (i) a copy of the annual audited report for such
Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income, stockholders' equity and
cash flows (together with all footnotes thereto) of the Borrower and its
Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous Fiscal Year, all in reasonable detail and
reported on by Grant Thornton LLP or other independent public accountants of
regionally recognized standing acceptable to the Agent, such acceptance not to
be unreasonably withheld (without a "going concern" or like qualification,
exception or explanation and without any qualification or exception as to scope
of such audit) to the effect that such financial statements present fairly in
all material respects the financial condition and the results of operations of
the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and
consolidating basis in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards; and (ii) an
annual budget for the following Fiscal Year.
(b) as soon as available and in any event within 45 days after the end of
each Fiscal Quarter of the Borrower, an unaudited consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal
Quarter and the related unaudited consolidated and consolidating statements of
income and cash flows of the Borrower and its Subsidiaries for such Fiscal
Quarter and the then elapsed portion of such Fiscal Year, setting forth in each
case in comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to
in clauses (a) and (b) above, a Compliance Certificate signed by the principal
executive officer and the principal financial officer of the Borrower;
(d) concurrently with the delivery of the financial statements referred to
in clause (a) above, a certificate (whether contained in the annual audit or
otherwise) of the accounting firm that reported on such financial statements
stating whether they obtained any knowledge during the course of their
examination of such financial statements of any Event of Default (which
certificate may be limited to the extent required by accounting rules or
guidelines); provided, however, that such accountants shall not be liable by
reason of any failure to obtain knowledge of such Event of Default that would
not be disclosed during the course of their audit examination;
48
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, would reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence and continuance of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, and are continuing,
would reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $2,500,000;
(e) (i) the occurrence of any event of default beyond any applicable cure
period, or (ii) to the extent notice has not been delivered under clause (i),
the receipt by Borrower or any of its Subsidiaries of any written notice of an
alleged event of default beyond any applicable cure period, with respect to any
Material Indebtedness of the Borrower or any of its Subsidiaries; and
(f) any other development that results in, or would reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.2 shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises, patents,
49
copyrights, trademarks and trade names applicable to the conduct of its business
and will continue to engage in the same business as presently conducted or such
other businesses that are reasonably related thereto, except as would not
reasonably be expected to result in a Material Adverse Effect; provided, that
nothing in this Section 5.3 shall prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause each
of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all taxes, assessments
and other governmental charges, levies and all other claims that could result in
a statutory Lien) before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true
and correct entries shall be made of all dealings and transactions in relation
to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and will cause
each of its Subsidiaries to, permit any representative of the Administrative
Agent or any Lender, to visit and inspect its properties, to examine its books
and records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its independent
certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior
written notice to the Borrower; provided, however, if an Event of Default has
occurred and is continuing, no prior notice shall be required.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and
will cause each of its Subsidiaries to, (a) except with respect to property no
longer used or no longer useful in the business of Borrower or its Subsidiaries,
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and (b) maintain
with financially sound and reputable insurance companies, insurance with respect
to its properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily insured against by
companies in the same or similar businesses operating in the same or similar
locations.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower will use
the proceeds of all Loans to refinance existing Indebtedness and pay related
closing costs on the Closing Date, and thereafter to finance working capital
needs and Capital Expenditures and for other general corporate purposes of the
50
Borrower and its Subsidiaries, specifically including, but not limited to, the
financing of the acquisition of inventory to be sold or leased by Borrower and
its Subsidiaries in the ordinary course of their business. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including Regulations T, U or X. All Letters of
Credit will be used for general corporate purposes.
SECTION 5.10. ADDITIONAL SUBSIDIARIES.
(a) If any Subsidiary becomes a Material Domestic Subsidiary after the
Closing Date, or any Material Domestic Subsidiary is acquired or formed after
the Closing Date, the Borrower will promptly notify the Administrative Agent and
the Lenders thereof and, within ten (10) Business Days after any such Subsidiary
becomes a Material Domestic Subsidiary, or such Material Domestic Subsidiary is
acquired or formed, will cause such Material Domestic Subsidiary to become a
Subsidiary Loan Party.
(b) The Borrower may elect at any time to have any Subsidiary become an
additional Subsidiary Loan Party as provided in clause (c) below. Upon the
occurrence and during the continuation of any Event of Default, if the Required
Lenders so direct, the Borrower shall (i) cause all of its Subsidiaries to
become additional Subsidiary Loan Parties, as provided in clause (c) below,
within ten (10) Business Days after the Borrower's receipt of written
confirmation of such direction from the Administrative Agent.
(c) A Subsidiary shall become an additional Subsidiary Loan Party by
executing and delivering to the Administrative Agent a Subsidiary Guaranty
Supplement, accompanied by (i) certified copies of certificates or articles of
incorporation or organization, by-laws, membership operating agreements, and
other organizational documents, appropriate authorizing resolutions of the board
of directors of such Subsidiaries, and opinions of counsel comparable to those
delivered pursuant to Section 3.1(b), and (ii) such other documents as the
Administrative Agent may reasonably request. No Subsidiary that becomes a
Subsidiary Loan Party shall thereafter cease to be a Subsidiary Loan Party or be
entitled to be released or discharged from its obligations under the Subsidiary
Guaranty Agreement; provided, however, that if (x) the Borrower certifies to the
Agent that a Subsidiary Loan Party is no longer a Material Domestic Subsidiary
and requests that such Subsidiary Loan Party be released from the Subsidiary
Guaranty Agreement, and (y) no Event of Default is then continuing, then the
Agent shall promptly release such Subsidiary Loan Party from the Subsidiary
Guaranty Agreement pursuant to a release in form and substance reasonably
satisfactory to Agent and at the expense of Borrower.
SECTION 5.11. POST-CLOSING REQUIREMENT. No later than 15 days after the
Closing Date, the Borrower shall deliver to Agent good standing certificates for
(i) Bronco Oilfield Services, Inc. from the Secretaries of State of Wyoming and
Oklahoma, and (ii) Cudd Pressure Control, Inc. from the Secretary of State of
New Mexico, and no later than 180 days after the Closing Date, the Borrower
shall deliver to Agent good standing certificates for Bronco Oilfield Services,
Inc. from the Secretary of State of Texas.
51
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 6.1. LEVERAGE RATIO. The Borrower will maintain at all times a
Leverage Ratio of not greater than 2.5:1.0.
SECTION 6.2. INTEREST COVERAGE RATIO. The Borrower will maintain, as of the
end of each Fiscal Quarter, commencing with the Fiscal Quarter ending September
30, 2006, an Interest Coverage Ratio of not less than 2.0:1.0.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains outstanding:
SECTION 7.1. INDEBTEDNESS AND PREFERRED EQUITY. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing on the date
hereof and set forth on Schedule 7.1 and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations, and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof; provided, that such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvements or extensions, renewals, and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof
(immediately prior to giving effect to such extension, renewal or replacement)
or shorten the maturity or the weighted average life thereof; provided further,
that the aggregate principal amount of such Indebtedness does not exceed
$10,000,000 at any time outstanding;
(d) Indebtedness of the Borrower owing to any Subsidiary and of any
Subsidiary owing to the Borrower or any other Subsidiary; provided, that any
such Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan
Party shall be subject to Section 7.4;
52
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any
Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided,
that Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not
a Subsidiary Loan Party shall be subject to Section 7.4;
(f) Indebtedness of any Person which becomes a Subsidiary after the date of
this Agreement; provided, that such Indebtedness exists at the time that such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (ii) the aggregate
principal amount of such Indebtedness permitted hereunder shall not exceed
$10,000,000 outstanding at any time;
(g) Hedging Obligations permitted by Section 7.10; and
(h) other unsecured Indebtedness of the Borrower in an aggregate principal
amount not to exceed $20,000,000 at any time outstanding.
Borrower will not, and will not permit any Subsidiary to, issue any preferred
stock or other preferred equity interests that (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may
become redeemable or repurchaseable by Borrower or such Subsidiary at the option
of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
stock or any other preferred equity interests described in this paragraph, on or
prior to, in the case of clause (i), (ii) or (iii), the first anniversary of the
Revolving Commitment Termination Date.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on
any of its assets or property now owned or hereafter acquired or, except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any Subsidiary
existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien
shall not apply to any other property or asset of the Borrower or any
Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets to secure
the purchase price or the cost of construction or improvement of such fixed or
capital assets or to secure Indebtedness incurred solely for the purpose of
financing the acquisition, construction or improvement of such fixed or capital
assets (including Liens securing any Capital Lease Obligations); provided, that
(i) such Lien secures Indebtedness permitted by Section 7.1(c), (ii) such Lien
attaches to such asset concurrently or within 90 days after the acquisition,
improvement or completion of the construction thereof; (iii) such Lien does not
extend to any other asset; and (iv) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any
Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in the contemplation of any of the foregoing
53
and any such Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or the date of
such acquisition; and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (c) of this Section 7.2; provided, that the principal
amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate into any other Person, or permit any other Person to merge
into or consolidate with it, or sell, lease, transfer or otherwise dispose of
(in a single transaction or a series of transactions) all or substantially all
of its assets (in each case, whether now owned or hereafter acquired) or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether
now owned or hereafter acquired) or liquidate or dissolve; provided, that if at
the time thereof and immediately after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing (i) the Borrower or any
Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the
Borrower is not a party to such merger) is the surviving Person, (ii) any
Subsidiary may merge into another Subsidiary; provided, that if any party to
such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the
surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to the Borrower or to a
Subsidiary Loan Party and (iv) any Subsidiary (other than a Subsidiary Loan
Party) may liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower and is
not materially disadvantageous to the Lenders; provided, that any such merger
involving a Person that is not a wholly-owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date hereof, businesses reasonably related
thereto and ancillary or complementary lines of business thereto.
SECTION 7.4. INVESTMENTS, LOANS, ETC. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a wholly-owned Subsidiary prior to
such merger), any common stock, evidence of indebtedness or other securities
(including any option, warrant, or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person (all of the foregoing being collectively called "Investments"), or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person that constitute a business unit, or create or
form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the date
hereof and set forth on Schedule 7.4 (including Investments in Subsidiaries);
54
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
provided, that the aggregate principal amount of Indebtedness of Subsidiaries
that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party shall
be subject to the limitation set forth in clause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and by any
Subsidiary to the Borrower or in or to another Subsidiary; provided, that the
aggregate amount of Investments by Loan Parties in or to, and Guarantees by Loan
Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party
(including all such Investments and Guarantees existing on the Closing Date)
shall not exceed $25,000,000 at any time outstanding;
(e) loans or advances to employees, officers or directors of the Borrower
or any Subsidiary in the ordinary course of business for travel, relocation and
related expenses; provided, however, that the aggregate amount of all such loans
and advances does not exceed $1,000,000 at any time outstanding;
(f) Hedging Transactions permitted by Section 7.10;
(g) Redemptions and repurchases of Borrower's common stock permitted by
Section 7.5; and
(h) Other Investments which in the aggregate do not exceed $10,000,000 in
any Fiscal Year.
SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit its Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Borrower
or any Guarantee thereof or any options, warrants, or other rights to purchase
such common stock or such Indebtedness, whether now or hereafter outstanding
(each, a "Restricted Payment"), except for (i) dividends payable by the Borrower
solely in shares of any class of its common stock, (ii) Restricted Payments made
by any Subsidiary to the Borrower or to another Subsidiary, on at least a pro
rata basis with any other shareholders if such Subsidiary is not wholly owned by
the Borrower and other wholly owned Subsidiaries, (iii) Restricted Payments paid
in cash so long as (x) no Event of Default has occurred and is continuing or
would result therefrom at the time such dividend or distribution is paid or
redemption is made, and (y) the aggregate amount of all such Restricted Payments
made by the Borrower in any Fiscal Year does not exceed the greater of (a)
$15,000,000 so long as after giving pro forma effect to such Restricted
Payments, the Leverage Ratio would not exceed 2.0:1.0 or (b) 50% of Net Income
(if greater than $0) earned during the immediately preceding Fiscal Year.
SECTION 7.6. SALE OF ASSETS. The Borrower will not, and will not permit any
of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
55
of such Subsidiary's common stock to any Person other than to the Borrower or
any Subsidiary Loan Party (or to qualify directors if required by applicable
law), except:
(a) the sale or other disposition for fair market value of obsolete or worn
out property or other property no longer used or useful in the conduct of
Borrower's business;
(b) the sale of inventory and Permitted Investments in the ordinary course
of business;
(c) the sale or other disposition of such assets in an aggregate amount not
to exceed $15,000,000 in any twelve-month period or $50,000,000 in the aggregate
over the term of this Agreement;
(d) leases of equipment in the ordinary course of business, and losses of
equipment resulting from the failure of customers to return equipment to
Borrower or its Subsidiary;
(e) losses of, damage to and other destruction of equipment with a book
value not to exceed $5,000,000 in the aggregate; and
(f) any condemnation or other taking for public use of any assets of
Borrower or any of its Subsidiaries.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and any Subsidiary Loan Party not
involving any other Affiliates and (c) any Restricted Payment permitted by
Section 7.5.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to
exist any agreement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit any
Lien upon any of its assets or properties, whether now owned or hereafter
acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.
56
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
SECTION 7.10. HEDGING TRANSACTIONS. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course
of business to hedge or mitigate risks.
SECTION 7.11. AMENDMENT TO MATERIAL DOCUMENTS. The Borrower will not, and
will not permit any of its Subsidiaries to, amend, modify or waive any of its
rights in a manner materially adverse to the Lenders under its certificate of
incorporation, bylaws or other organizational documents.
SECTION 7.12. LEASE OBLIGATIONS. The Borrower will not, and will not permit
any Subsidiary to, create or suffer to exist any obligations for the payment
under operating leases or agreements to lease (but excluding any obligations
under leases required to be classified as capital leases under GAAP having a
term of five years or more) which would cause the lease payments of the
Consolidated Companies under such leases or agreements, on a consolidated basis,
to exceed $10,000,000 in the aggregate in any Fiscal Year.
SECTION 7.13. ACCOUNTING CHANGES; CHANGES IN FISCAL YEAR. The Borrower will
not, and will not permit any of its Subsidiaries to, make any significant change
in accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Borrower or of any of its Subsidiaries, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that of the
Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events (each an
"Event of Default") shall occur:
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(a) the Borrower shall fail to pay any principal of any Loan or of any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount payable under clause (a) of this Section
8.1) payable under this Agreement or any other Loan Document, when and as the
same shall become due and payable, and such failure shall continue unremedied
for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or agreement
contained in Section 5.2, Section 5.3 (with respect to the Borrower's existence)
or Articles VI or VII; or the Borrower shall fail to observe or perform any
covenant or agreement contained in Section 5.1, and such failure shall remain
unremedied for 5 days after the earlier of (i) any Responsible Officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for 30 days after the earlier of (i) any Responsible Officer
of the Borrower becomes aware of such failure, or (ii) notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of, or premium or
interest on, any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing or governing such Material Indebtedness; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to such Material Indebtedness and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or permit the acceleration of, the
maturity of such Material Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such Material
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; or
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(g) the Borrower, any Material Domestic Subsidiary or any Subsidiary Loan
Party shall (i) commence a voluntary case or other proceeding or file any
petition seeking liquidation, reorganization or other relief under any federal,
state or foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee, receiver, liquidator
or other similar official of it or any substantial part of its property, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (i) of this Section 8.1,
(iii) apply for or consent to the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower, any such Material
Domestic Subsidiary or any such Subsidiary Loan Party or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, or (vi) take any action for the purpose of
effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower, any such Material Domestic Subsidiary, any such
Subsidiary Loan Party, or its debts, or any substantial part of its assets,
under any federal, state or foreign bankruptcy, insolvency or other similar law
now or hereafter in effect or (ii) the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower, any Material
Domestic Subsidiary or any Subsidiary Loan Party or for a substantial part of
its assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower, any Material Domestic Subsidiary or any Subsidiary Loan
Party shall become unable to pay, shall admit in writing its inability to pay,
or shall fail to pay, its debts as they become due; or
(j) an ERISA Event shall have occurred and is continuing that, in the
opinion of the Required Lenders, when taken together with other ERISA Events
that have occurred and are continuing, would reasonably be expected to result in
liability to the Borrower and the Subsidiaries in an aggregate amount exceeding
$2,500,000; or
(k) any judgment or order for the payment of money in excess of $10,000,000
in any Fiscal Year or in excess of $20,000,000 in the aggregate (except to the
extent covered by insurance with a financially sound insurance carrier rated at
least A- by A.M. Best, that has acknowledged coverage of the relevant claim) in
the aggregate shall be rendered against the Borrower or any Subsidiary, and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be a period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that would reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
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(n) any provision of any Subsidiary Guaranty Agreement shall for any reason
cease to be valid and binding on, or enforceable against, any Subsidiary Loan
Party, or any Subsidiary Loan Party shall so state in writing, or any Subsidiary
Loan Party shall seek to terminate its Subsidiary Guaranty Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section 8.1) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by written notice to the
Borrower, take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of each Lender
shall terminate immediately, (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become, due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, (iii) exercise all remedies contained in any
other Loan Document, and (iv) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either clause (g) or (h)
shall occur, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon, and all
fees, and all other Obligations shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT.
(a) Each Lender irrevocably appoints SunTrust Bank as the Administrative
Agent and authorizes it to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent under this Agreement and the
other Loan Documents, together with all such actions and powers that are
reasonably incidental thereto. The Administrative Agent may perform any of its
duties hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent or attorney-in-fact may perform any
and all of its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions set forth in this Article
shall apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such attorney-in-fact and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree at the request
of the Required Lenders to act for the Issuing Bank with respect thereto;
provided, that the Issuing Bank shall have all the benefits and immunities (i)
provided to the Administrative Agent in this Article with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
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if the term "Administrative Agent" as used in this Article included the Issuing
Bank with respect to such acts or omissions and (ii) as additionally provided in
this Agreement with respect to the Issuing Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The Administrative
Agent shall not have any duties or obligations except those expressly set forth
in this Agreement and the other Loan Documents. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with
legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
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SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, posting or other
distribution) believed by it to be genuine and to have been signed, sent or made
by the proper Person. The Administrative Agent may also rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person and shall not incur any liability for relying thereon. The Administrative
Agent may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or not taken by it in accordance with the advice of
such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The bank
serving as the Administrative Agent shall have the same rights and powers under
this Agreement and any other Loan Document in its capacity as a Lender as any
other Lender and may exercise or refrain from exercising the same as though it
were not the Administrative Agent; and the terms "Lenders", "Required Lenders",
"holders of Notes", or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default or Event of
Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
62
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each Lender
hereby authorizes the Administrative Agent to execute on behalf of all Lenders
all Loan Documents other than this Agreement.
SECTION 9.9. DOCUMENTATION AGENT; SYNDICATION AGENT. Each Lender hereby
designates Bank of America, N.A. as Syndication Agent and agrees that the
Syndication Agent shall have no duties or obligations under any Loan Documents
to any Lender or any Loan Party.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Written Notices.
(i) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to
any party herein to be effective shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered
mail or sent by telecopy, as follows:
To the Borrower: RPC, Inc.
2170 Piedmont Road
Atlanta, Georgia 30324
Attention: Richard A. Hubbell
Telecopy Number: (404) 321-5483
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With a copy to: Ronald A. Weiner, Esq.
Arnall Golden Gregory, LLP
171 17th Street, Suite 2100
Atlanta, Georgia 30363
Telecopy Number: (404) 873-8193
To the Administrative Agent
or Swingline Lender: SunTrust Bank
303 Peachtree Street, N. E.
Atlanta, Georgia 30308
Attention: Brad Staples
Telecopy Number: (404) 588-8833
With a copy to: SunTrust Bank
Agency Services
303 Peachtree Street, N. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Ms. Dorris Folsom
Telecopy Number: (404) 658-4906
and
King & Spalding LLP
1180 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Carolyn Z. Alford
Telecopy Number: (404) 572-5100
To the Issuing Bank: SunTrust Bank
25 Park Place, N. E./Mail Code 3706
Atlanta, Georgia 30303
Attention: John Conley
Telecopy Number: (404) 588-8129
To the Swingline Lender: SunTrust Bank
Agency Services
303 Peachtree Street, N.E./25th Floor
Atlanta, Georgia 30308
Attention: Ms. Dorris Folsom
Telecopy Number: (404) 658-4906
To any other Lender: the address set forth in the Administrative
Questionnaire or the Assignment and Acceptance
Agreement executed by such Lender
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Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
such notices and other communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the mail or if delivered, upon delivery; provided, that
notices delivered to the Administrative Agent, the Issuing Bank or the
Swingline Lender shall not be effective until actually received by such
Person at its address specified in this Section 10.1.
(ii) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice
and the Administrative Agent and Lenders shall not have any liability to
the Borrower or other Person on account of any action taken or not taken by
the Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any
extent by any failure of the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which
is at variance with the terms understood by the Administrative Agent and
the Lenders to be contained in any such telephonic or facsimile notice.
(b) Electronic Communications.
(i) Notices and other communications to the Lenders and the Issuing
Bank hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender or the Issuing Bank pursuant to Article 2
unless such Lender, the Issuing Bank, as applicable, and Administrative
Agent have agreed to receive notices under such Section by electronic
communication and have agreed to the procedures governing such
communications. Administrative Agent or Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.
(ii) Unless Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received
upon the sender's receipt of an acknowledgement from the intended recipient
(such as by the "return receipt requested" function, as available, return
e-mail or other written acknowledgement); provided that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
65
shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying
the website address therefor.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or
any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 10.2, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the other
Loan Documents, nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders or the Borrower and the Administrative Agent
with the consent of the Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder (other than in accordance with Section
2.23) or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment (other than in
accordance with Section 2.23), without the written consent of each Lender
affected thereby, (iv) change Section 2.20(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section 10.2 or
the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender, except to the extent contemplated by Section
5.10(c); (vii) release all or substantially all collateral (if any) securing any
of the Obligations, without the written consent of each Lender; provided
further, that no such agreement shall amend, modify or otherwise affect the
rights, duties or obligations of the Administrative Agent, the Swingline Lender
or the Issuing Bank without the prior written consent of such Person.
Notwithstanding anything contained herein to the contrary, this Agreement may be
amended and restated without the consent of any Lender (but with the consent of
66
the Borrower and the Administrative Agent) if, upon giving effect to such
amendment and restatement, such Lender shall no longer be a party to this
Agreement (as so amended and restated), the Commitments of such Lender shall
have terminated (but such Lender shall continue to be entitled to the benefits
of Sections 2.17, 2.18, 2.19 and 10.3), such Lender shall have no other
commitment or other obligation hereunder and shall have been paid in full all
principal, interest and other amounts owing to it or accrued for its account
under this Agreement.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and
expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel actually incurred for the
Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Loan Documents and any amendments, modifications or waivers thereof (whether
or not the transactions contemplated in this Agreement or any other Loan
Document shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket costs and expenses (including, without limitation, the
reasonable fees, charges and disbursements of outside counsel and the allocated
cost of inside counsel) incurred by the Administrative Agent, the Issuing Bank
or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section 10.3, or
in connection with the Loans made or any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all reasonable fees and time
charges and disbursements for attorneys actually incurred who may be employees
of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee
by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
67
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) The Borrower shall pay, and hold the Administrative Agent and each of
the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be
paid to the Administrative Agent, the Issuing Bank or the Swingline Lender under
clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof. To the extent permitted by applicable law, none of the
Agent, Issuing Bank and the Lenders shall assert, and each hereby waives, any
claim against the Borrower, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages)
arising out of, in connection with or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions contemplated
therein, any Loan or any Letter of Credit or the use of proceeds thereof.
(f) All amounts due under this Section 10.3 shall be payable promptly after
written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender, and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in
68
accordance with the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section
or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of paragraph (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing
to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this
purpose includes Loans and Revolving Credit Exposure outstanding
thereunder) or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loans and Revolving Credit
Exposure of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Acceptance, as of the
Trade Date) shall not be less than $1,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Loans, Revolving
Credit Exposure or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by paragraph (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an
Event of Default has occurred and is continuing at the time of such
assignment or (y) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
69
(B) the consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed) shall be required for assignments
to a Person that is not a Lender with a Commitment; and
(C) the consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then
outstanding), and the consent of the Swingline Lender (such consent
not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of the Revolving Credit Commitments.
(iv) Assignment and Acceptance. The parties to each assignment shall
deliver to the Administrative Agent (A) a duly executed Assignment and
Acceptance, (B) a processing and recordation fee of $3,000, (C) an
Administrative Questionnaire unless the assignee is already a Lender and
(D) the documents required under Section 2.19 if such assignee is a Foreign
Lender.
(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section 10.4, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.17, 2.18, 2.19 and 10.3 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this Section
10.4. If the consent of the Borrower to an assignment is required hereunder
(including a consent to an assignment which does not meet the minimum assignment
thresholds specified above), the Borrower shall be deemed to have given its
consent ten Business Days after the date written notice thereof has actually
been delivered by the assigning Lender (through the Administrative Agent) to the
Borrower, unless such consent is expressly refused by the Borrower prior to such
tenth Business Day.
70
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Atlanta, Georgia a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and Revolving Credit Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the "Register").
Information contained in the Register with respect to any Lender shall be
available for inspection by such Lender at any reasonable time and from time to
time upon reasonable prior notice; information contained in the Register shall
also be available for inspection by the Borrower at any reasonable time and from
time to time upon reasonable prior notice. In establishing and maintaining the
Register, Administrative Agent shall serve as Company's agent solely for tax
purposes and solely with respect to the actions described in this Section, and
the Borrower hereby agrees that, to the extent SunTrust Bank serves in such
capacity, SunTrust Bank and its officers, directors, employees, agents,
sub-agents and affiliates shall constitute "Indemnitees."
(d) Any Lender may at any time, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Lender or the Issuing Bank
sell participations to any Person (other than a natural person, the Borrower or
any of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders, Issuing Bank and Swingline Lender shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(e) Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver with respect to the following to the
extent affecting such Participant: (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or postpone
the scheduled date for the termination or reduction of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.20(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section 10.4 or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement without the written consent of each Lender except
to the extent such release is expressly provided under the terms of such
guaranty agreement; or (vii) release all or substantially all collateral (if
any) securing any of the Obligations. Subject to paragraph (e) of this Section
71
10.4, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18, and 2.19 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 10.4. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.7 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.20 as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.17 and Section 2.19 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.19 unless
the Borrower is notified in writing of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.19(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
United States District Court of the Northern District of Georgia, and of the
Business Case Division of the Fulton County Superior Court located in Atlanta,
Georgia, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Fulton County Superior Court or,
to the extent permitted by applicable law, such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) Each of the parties hereto irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section 10.5 and
brought in any court referred to in paragraph (b) of this Section 10.5. Each of
the parties hereto irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
72
(d) Each party to this Agreement irrevocably consents to the service of
process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
each Lender and the Issuing Bank shall have the right, at any time or from time
to time upon the occurrence and during the continuance of an Event of Default,
without prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final)
of the Borrower at any time held or other obligations at any time owing by such
Lender and the Issuing Bank to or for the credit or the account of the Borrower
against any and all Obligations held by such Lender or the Issuing Bank, as the
case may be, irrespective of whether such Lender or the Issuing Bank shall have
made demand hereunder and although such Obligations may be unmatured. Each
Lender and the Issuing Bank agree promptly to notify the Administrative Agent
and the Borrower after any such set-off and any application made by such Lender
and the Issuing Bank, as the case may be; provided, that the failure to give
such notice shall not affect the validity of such set-off and application. Each
Lender and the Issuing Bank agrees to apply all amounts collected from any such
set-off to the Obligations before applying such amounts to any other
Indebtedness or other obligations owed by the Borrower and any of its
Subsidiaries to such Lender or Issuing Bank.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
73
SECTION 10.9. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.17, 2.18, 2.19, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the
illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section 10.11, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any
of the foregoing on a non-confidential basis from a source other than the
Borrower, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or (vii)
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section 10.11 shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
SECTION 10.12. INTEREST RATE LIMITATION. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the "Charges"), shall exceed the
maximum lawful rate of interest (the "Maximum Rate") which may be contracted
74
for, charged, taken, received or reserved by a Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 10.12 shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment (to the extent permitted by applicable law), shall have
been received by such Lender.
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower represents
and warrants that neither it nor any other Loan Party is required to affix its
corporate seal to this Agreement or any other Loan Document pursuant to any
requirement of law or regulation, agrees that this Agreement is delivered by
Borrower under seal and waives any shortening of the statute of limitations that
may result from not affixing the corporate seal to this Agreement or such other
Loan Documents.
SECTION 10.14. PATRIOT ACT. The Administrative Agent and each Lender hereby
notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
"Patriot Act"), it is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Party in accordance
with the Patriot Act. Each Loan Party shall, and shall cause each of its
Subsidiaries to, provide to the extent commercially reasonable, such information
and take such other actions as are reasonably requested by the Administrative
Agent or any Lender in order to assist the Administrative Agent and the Lenders
in maintaining compliance with the Patriot Act.
(remainder of page left intentionally blank)
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
RPC, INC.
By: /s/ Richard A. Hubbell
-------------------------------------
Name: Richard A. Hubbell
Title: President and Chief Executive
Officer
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK, as Administrative Agent,
as Issuing Bank, as Swingline Lender and
as a Lender
By: /s/ Stacy M. Lewis
-------------------------------------
Name: Stacy M. Lewis
Title: Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as Syndication
Agent and Lender
By: /s/ Shawn Janko
-------------------------------------
Name: Shawn Janko
Title: Sr. Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL ASSOCIATION, as
a Lender
By: /s/ Samantha W. Jones
-------------------------------------
Name: Samantha W. Jones
Title: Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
BRANCH BANKING AND TRUST COMPANY, as a
Lender
By: /s/ McKie M. Trotter
-------------------------------------
Name: McKie M. Trotter
Title: Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
REGIONS BANK, as a Lender
By: /s/ W. Brad Davis
-------------------------------------
Name: W. Brad Davis
Title: VP
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
WELLS FARGO BANK, N.A., as a Lender
By: /s/ James T. Wilkins, Jr.
-------------------------------------
Name: James T. Wilkins, Jr.
Title: Senior Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
COMERICA BANK, as a Lender
By: /s/ Erica M. Krzeminski
-------------------------------------
Name: Erica M. Krzeminski
Title: Account Officer
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
FIFTH THIRD BANK, N.A., as a Lender
By: /s/ Brian J. Biomeke
-------------------------------------
Name: Brian J. Biomeke
Title: Assistant Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
MERCANTILE-SAFE DEPOSIT & TRUST COMPANY,
as a Lender
By: /s/ Douglas Sawyer
-------------------------------------
Name: Douglas Sawyer
Title: Senior Vice President
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
- ---------------------- ------------------ -------------------------- -------------------------
Pricing Leverage Ratio Applicable Margin for Applicable Percentage
Level Eurodollar Loans and for Facility Fee
Letter of Credit Fee
- ---------------------- ------------------ -------------------------- -------------------------
I Less than
0.75:1.00 0.40% per annum 0.10% per annum
- ---------------------- ------------------ -------------------------- -------------------------
II Less than
1.25:100 but 0.50% per annum 0.125% per annum
greater than or
equal to
0.75:1.00
- ---------------------- ------------------ -------------------------- -------------------------
III Less than
1.75:100 but 0.60% per annum 0.15% per annum
greater than or
equal to
1.25:1.00
- ---------------------- ------------------ -------------------------- -------------------------
IV Greater than or
equal to 0.80% per annum 0.20% per annum
1.75:1.00
SCHEDULE II
COMMITMENT AMOUNTS
- --------------------------------------------------- -------------------------------------------
LENDER REVOLVING COMMITMENT AMOUNT
- --------------------------------------------------- -------------------------------------------
SunTrust Bank $55,000,000
- --------------------------------------------------- -------------------------------------------
Bank of America, N.A. $40,000,000
- --------------------------------------------------- -------------------------------------------
Wachovia Bank, National Association $27,500,000
- --------------------------------------------------- -------------------------------------------
Branch Banking and Trust Company $27,500,000
- --------------------------------------------------- -------------------------------------------
Regions Bank $25,000,000
- --------------------------------------------------- -------------------------------------------
Wells Fargo Bank, N.A. $20,000,000
- --------------------------------------------------- -------------------------------------------
Comerica Bank $20,000,000
- --------------------------------------------------- -------------------------------------------
Fifth Third Bank, N.A. $20,000,000
- --------------------------------------------------- -------------------------------------------
Mercantile-Safe Deposit & Trust Company $15,000,000
- --------------------------------------------------- -------------------------------------------
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
None.
SCHEDULE 4.14
SUBSIDIARIES
Subsidiaries of RPC, Inc.
Name Ownership Interest Jurisdiction of Type
Incorporation
Cudd Pressure Control, Inc. 100% Delaware. C Corporation
Patterson Services, Inc. 100% Delaware. C Corporation
Bronco Oilfield Services, Inc. 100% Delaware. C Corporation
Cudd Pumping Services, Inc. 100% Delaware. C Corporation
Thru Tubing Solutions, Inc. 100% Delaware. C Corporation
RPC Energy International, Inc. 100% Delaware. C Corporation
RPC Waste Management Services, Inc. 100% Georgia. C Corporation
Patterson Truck Line, Inc. 100% Louisiana. C Corporation
New PharmaThera, Inc. 100% Georgia. C Corporation
International Training Services, Inc. 100% Georgia. C Corporation
RPC Crane Liquidation, LLC 100% Texas. Limited Liability
Corporation
SUBSIDIARIES OF RPC ENERGY INTERNATIONAL, INC.
NAME OWNERSHIP JURISDICTION OF INCORPORATION TYPE
INTEREST
RPC Energy Services of Canada, Ltd. 100% New Brunswick, Canada. Corporation
Well Control School de Venezuela, SA 100% Venezuela. Corporation
RPC Energy de Mexico 100% Ciudad del Carmen, Mexico Corporation
RPC Energy Services (Chengdu) Ltd. 100% Chengdu, Sichuan P.R. China. Corporation
SUBSIDIARIES OF INTERNATIONAL TRAINING SERVICES, INC.
NAME OWNERSHIP INTEREST JURISDICTION OF INCORPORATION TYPE
RPC Investment Company 100% Delaware. Corporation
SUBSIDIARIES OF CUDD PRESSURE CONTROL, INC.
NAME OWNERSHIP INTEREST JURISDICTION OF TYPE
INCORPORATION
Cudd Pressure Control Algeria, E.U.R.L. 100% Hassai Messaoud, Algeria. Unipersonal Limited
Liability Company
Servicios de Perforaciones, SA 50% Venezuela. Corporation
Red Adair - Cudd Well Control, LLC 50% Delaware. Limited Liability Company
SCHEDULE 7.1
OUTSTANDING INDEBTEDNESS
As of July 31, 2006 Amounts in $
DESCRIPTION AMOUNT
Capitalized Lease between Pitney Bowes Credit Corporation as Lessor $22,135
and Patterson Services, Inc. as Lessee, dated 7/20/06. Lease term
is 48 months. Leased equipment is a Pitney Bowes postage meter,
model number M0B0, Serial Number 4218628
SCHEDULE 7.2
EXISTING LIENS
As of July 31, 2006
Liens filed in relation to an operating lease between GE Capital Corporation as
lessor and Cudd Pumping Services, Inc. as lessee, dated June 9, 2004. The lease
expires on March 1, 2009.
The liens relates to the following property:
Logging Perforating Wire Line Unit VIN# 2FZHAWAK13AL08499
Tadem Pumper/Blender Unit VIN # 1XKDPBEX72S966307
Data Control Van VIN# 1FDAF57F32EC76524
Iron Crane Unit VIN# 1XKDPBEX82S966638
Tadem Field Sand Carrier Unit VIN# 2FZHAWAKX3AL08498
SCHEDULE 7.4
EXISTING INVESTMENTS
As of July 31, 2006
Amounts in $
DESCRIPTION MARKET VALUE
Lehman short term repurchase agreement, dated 7/31/06, maturing 8/1/06
$3,435,000.00
Wilmington Trust Prime Money Market Fund 3,514.33
Accrued Interest 589.37
---------------------
Total Market Value $3,439,103.70
=====================
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
[$___________] Atlanta, Georgia
September 8, 2006
FOR VALUE RECEIVED, the undersigned, RPC, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to [name of Lender] (the "Lender") or its
registered assigns, at the office of SunTrust Bank ("SunTrust") at 303 Peachtree
St., N.E., Atlanta, Georgia 30308, on the Revolving Commitment Termination Date
(as defined in the Revolving Credit Agreement, dated as of September 8, 2006, as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Borrower, the lenders from time to
time party thereto and SunTrust, as administrative agent for the lenders, the
lesser of the principal sum of [amount of such Lender's Revolving Commitment]
and the aggregate unpaid principal amount of all Revolving Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, in lawful money of the
United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement. In addition, should
legal action or an attorney-at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys' fees of the Lender actually incurred.
Upon the occurrence of an Event of Default, the Borrower promises to pay
interest, on demand, at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled to
the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified.
A-1
THIS REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
RPC, INC.
By: ______________________________
Name:
Title:
[SEAL]
A-2
LOANS AND PAYMENTS
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
UNPAID PRINCIPAL NAME OF PERSON
AMOUNT AND PAYMENTS OF BALANCE OF MAKING
DATE TYPE OF LOAN PRINCIPAL NOTE NOTATION
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
- ---------------- ------------------------------- -------------------- ------------------ -----------------------------
A-3
EXHIBIT B
FORM OF SWINGLINE NOTE
$20,000,000 Atlanta, Georgia
September 8, 2006
FOR VALUE RECEIVED, the undersigned, RPC, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to SUNTRUST BANK (the "Swingline Lender") or
its registered assigns, at the office of SunTrust Bank ("SunTrust") at 303
Peachtree St., N.E., Atlanta, Georgia 30308, on the Revolving Commitment
Termination Date (as defined in the Revolving Credit Agreement dated as of
September 8, 2006 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto and SunTrust, as administrative agent
for the lenders, the lesser of the principal sum of TWENTY MILLION AND NO/100
DOLLARS ($20,000,000,000) and the aggregate unpaid principal amount of all
Swingline Loans made by the Swingline Lender to the Borrower pursuant to the
Credit Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs
of collection, including the reasonable attorneys' fees of the Swingline Lender
actually incurred.
Upon the occurrence of an Event of Default, the Borrower promises to pay
interest, on demand, at a rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events, for optional and mandatory prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified.
B-1
THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
RPC, INC.
By: ______________________________
Name:
Title:
[SEAL]
B-2
LOANS AND PAYMENTS
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
DATE AMOUNT AND PAYMENTS OF UNPAID PRINCIPAL NAME OF PERSON
BALANCE OF MAKING
TYPE OF LOAN PRINCIPAL NOTE NOTATION
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
- -------------- --------------------------------- -------------------- ------------------ -----------------------------
B-3
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
[DATE TO BE SUPPLIED]
Reference is made to the Revolving Credit Agreement dated as of September
8, 2006 (as amended and in effect on the date hereof, the "Credit Agreement"),
among RPC, Inc., a Delaware corporation, the lenders from time to time party
thereto and SunTrust Bank, as Administrative Agent for such lenders. Terms
defined in the Credit Agreement are used herein with the same meanings.
The [name of assignor] (the "Assignor") hereby sells and assigns, without
recourse, to [name of assignee] (the "Assignee"), and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth below, the interests set forth below (the "Assigned
Interest") in the Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth below in the Revolving
Commitment of the Assignor on the Assignment Date and Revolving Loans owing to
the Assignor which are outstanding on the Assignment Date, together with the
participations in the LC Exposure and the Swingline Exposure of the Assignor on
the Assignment Date, but excluding accrued interest and fees to and excluding
the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.21(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (ii) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby, and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
C-1
The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.1 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor 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 the Credit Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are
required to be performed by it as a Lender.
CHOOSE IN THE ALTERNATIVE [ALTERNATIVE A: From and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.] [ALTERNATIVE B: From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to, on or after the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.]
This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Georgia.
Assignment Date:
Legal Name of Assignor:
C-2
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("EFFECTIVE DATE"):
PERCENTAGE ASSIGNED OF REVOLVING
COMMITMENT (SET FORTH, TO AT LEAST 8
DECIMALS, AS A PERCENTAGE OF THE
PRINCIPAL AMOUNT AGGREGATE REVOLVING COMMITMENTS OF ALL
FACILITY ASSIGNED LENDERS THEREUNDER)
Revolving Loans: $ %
The terms set forth above are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By: ______________________________
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By: ______________________________
Name:
Title:
C-3
The undersigned hereby consents to the within assignment(1):
RPC, Inc. SunTrust Bank, as Administrative Agent:
By: ___________________________ By: ______________________________
Name: Name:
Title: Title:
SunTrust Bank, as Issuing Bank:
By: ______________________________
Name:
Title:
______________________
(1) Consents to be included to the extent required by Section 10.4(b) of the
Credit Agreement.
C-4
EXHIBIT 2.3
FORM OF NOTICE OF REVOLVING BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of September
8, 2006 (as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the lenders from time to time party thereto,
and SunTrust Bank, as Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes a
Notice of Revolving Borrowing, and the Borrower hereby requests a Revolving
Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Revolving Borrowing
requested hereby:
(A) Aggregate principal amount of Revolving Borrowing(2):
___________________
(B) Date of Revolving Borrowing (which is a Business Day):
__________________
(C) Interest Rate basis(3): ___________________
(D) Interest Period(4): ______________________
(E) Location and number of Borrower's account to which proceeds of
Revolving Borrowing are to be disbursed: ___________________
___________________________
(2) Not less than $5,000,000 and an integral multiple of $1,000,000 (or the
remaining amount of the Aggregate Revolving Commitment Amount, if less) for
a Eurodollar Borrowing or not less than $1,000,000 and an integral multiple
of $100,000 (or the remaining amount of the Aggregate Revolving Commitment
Amount, if less) for a Base Rate Borrowing.
(3) Eurodollar Borrowing or Base Rate Borrowing.
(4) Which must comply with the definition of "Interest Period" and end not
later than the Revolving Commitment Termination Date.
Exhibit 2.3-1
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
RPC, INC.
By: ______________________________
Name:
Title:
Exhibit 2.3-2
EXHIBIT 2.4
FORM OF NOTICE OF SWINGLINE BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of September
8, 2006 (as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the Lenders named therein, and SunTrust
Bank, as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This notice constitutes a Notice of Revolving
Borrowing, and the Borrower hereby requests a Revolving Borrowing under the
Credit Agreement, and in that connection the Borrower specifies the following
information with respect to the Revolving Borrowing requested hereby:
(A) Principal amount of Swingline Loan(1): ____________________
(B) Date of Swingline Loan (which is a Business Day) ____________________
(C) Location and number of Borrower's account to which proceeds of
Swingline Loan are to be disbursed: ____________________
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
RPC, INC.
By: ______________________________
Name:
Title:
_____________________
(1) Not less than $100,000 and an integral multiple of $50,000, or such other
minimum amounts agreed to by Swingline Lender and Borrower.
Exhibit 2.4-1
EXHIBIT 2.6
FORM OF CONVERSION/CONTINUATION
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement dated as of September
8, 2006 (as amended and in effect on the date hereof, the "Credit Agreement"),
among the undersigned, as Borrower, the lenders named therein, and SunTrust
Bank, as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This notice constitutes a Notice of
Conversion/Continuation and the Borrower hereby requests the conversion or
continuation of a Revolving Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to the
Revolving Borrowing to be converted or continued as requested hereby:
(A) Revolving Borrowing to which this request applies:
(B) Principal amount of Revolving Borrowing to be converted/continued:
______________________
(C) Effective date of election (which is a Business Day):
______________________
(D) Interest rate basis: ______________________
(E) Interest Period: ______________________
Very truly yours,
RPC, INC.
By: ______________________________
Name:
Title:
Exhibit 2.6-1
EXHIBIT 3.1(B)(IV)
FORM OF SECRETARY'S CERTIFICATE OF RPC, INC.
Reference is made to the Revolving Credit Agreement dated as of September
8, 2006 (the "Credit Agreement"), among RPC, Inc. (the "Borrower"), the lenders
named therein, and SunTrust Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings. This certificate is
being delivered pursuant to Section 3.1 of the Credit Agreement.
I, ______________________, Secretary of the Borrower, DO HEREBY CERTIFY
that:
(a) there have been no amendments or supplements to, or restatements of,
the certificate of incorporation of the Borrower delivered pursuant to Section
3.1 of the Credit Agreement;
(b) no proceedings have been instituted or are pending or contemplated with
respect to the dissolution, liquidation or sale of all or substantially all the
assets of the Borrower or threatening its existence or the forfeiture or any of
its corporate rights;
(c) annexed hereto as Exhibit A is a true and correct copy of the Bylaws of
the Borrower as in effect prior to the date of the resolutions referred to in
clause (d) and at all times thereafter through the date hereof;
(d) annexed hereto as Exhibit B is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of the Borrower pursuant to
unanimous consent resolutions of said Board of Directors duly adopted on [date],
which resolutions are the only resolutions adopted by the Board of Directors of
the Borrower or any committee thereof relating to the Credit Agreement and the
other Loan Documents to which the Borrower is a party and the transactions
contemplated therein and have not been revoked, amended, supplemented or
modified and are in full force and effect on the date hereof;
(e) there are no consents, approvals, authorizations, registrations and
filings and orders required or advisable to be made or obtained under any
Requirement of Law, or by any Contractual Obligation of the Borrower or any of
its Subsidiaries, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the transactions
contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and all
applicable waiting periods shall have expired; and
(f) each of the persons named below is and has been at all times since
prior to the date of the resolutions referred to in clause (d) a duly elected
and qualified officer of the Borrower holding the respective office set forth
opposite his or her name and the signature set forth opposite of each such
person is his or her genuine signature:
Name Title Specimen Signature
[Include all officers who are signing the
Credit Agreement or any other Loan
Documents.]
- ------------------------------------------- -------------------------- -----------------------------------
Secretary
- ------------------------------------------- -------------------------- -----------------------------------
- ------------------------------------------- -------------------------- -----------------------------------
- ------------------------------------------- -------------------------- -----------------------------------
- ------------------------------------------- -------------------------- -----------------------------------
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
September, 2006.
----------------------------------
Name
Secretary
I, ________________________, [_______________________] of the Borrower, do
hereby certify that ________________________ has been duly elected, is duly
qualified and is the [Assistant] Secretary of the Borrower, that the signature
set forth above is [his/her] genuine signature and that [he/she] has held such
office at all times since prior to the date of the resolutions referred to in
clause (d) above.
------------------------------------
Name:
Title:
Exhibit 3.(b)(iv)-2
EXHIBIT A
[Bylaws]
Exhibit 3.(b)(iv)-3
EXHIBIT B
[Resolutions]
Exhibit 3.(b)(iv)-3
EXHIBIT 3.1(B)(VII)
FORM OF OFFICER'S CERTIFICATE
Reference is made to the Revolving Credit Agreement dated as of September
8, 2006 (the "Credit Agreement"), among RPC, Inc. (the "Borrower"), the lenders
from time to time party thereto, and SunTrust Bank, as Administrative Agent.
Terms defined in the Credit Agreement are used herein with the same meanings.
This certificate is being delivered pursuant to Section 3.1(b)(vii) of the
Credit Agreement.
I, ________________________, [_______________________] of the Borrower, DO
HEREBY CERTIFY that:
(a) the representations and warranties of the Borrower set forth in the
Credit Agreement are true and correct on and as of the date hereof;
(b) no Default or Event of Default has occurred and is continuing at the
date hereof; and
(c) since December 31, 2005, which is the date of the most recent financial
statements described in Section 5.1(a) of the Credit Agreement, there has been
no change which has had or would reasonably be expected to have a Material
Adverse Effect.
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
September, 2006.
------------------------------------
Name:
Title:
Exhibit 3.(b)(iv)-3
EXHIBIT 5.1(C)
FORM OF COMPLIANCE CERTIFICATE
To: SunTrust Bank, as Administrative Agent
303 Peachtree St., N.E.
Atlanta, GA 30308
Attention: _____________
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement dated as of
September 8, 2006 (as amended and in effect on the date hereof, the "Credit
Agreement"), among RPC, Inc. (the "Borrower"), the lenders named therein, and
SunTrust Bank, as Administrative Agent. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement.
We, __________________ and ____________________, being the duly elected and
qualified, and acting in our capacities as chief executive officer and chief
financial officer of the Borrower, respectively, hereby certify to the
Administrative Agent and each Lender as follows:
1. The consolidated financial statements of the Borrower and its
Subsidiaries attached hereto for the fiscal [QUARTER][YEAR] ending
____________________ fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as at the end of such fiscal
[QUARTER][YEAR] on a consolidated basis, and the related statements of income
cash flows of the Borrower and its Subsidiaries for such fiscal [QUARTER][YEAR],
in accordance with generally accepted accounting principles consistently applied
(subject, in the case of such quarterly financial statements, to normal year-end
audit adjustments and the absence of footnotes).
2. The calculations set forth in Attachment 1 are computations of the
financial covenants set forth in Article VI of the Credit Agreement calculated
from the financial statements referenced in clause 1 above in accordance with
the terms of the Credit Agreement.
3. The Borrower and its Subsidiaries have complied with all the terms and
provisions of Section 3.02(a) of the Sarbanes-Oxley Act as in effect on the date
hereof.
4. Based upon a review of the activities of Borrower and its Subsidiaries
and the financial statements attached hereto during the period covered thereby,
as of the date hereof, there exists no Default or Event of Default.
____________________________
Name: _____________________
Title: Chief Executive Officer
Exhibit 5.1(c)-1
____________________________
Name: _____________________
Title: Chief Financial Officer
Exhibit 5.1(c)-2
Attachment to Compliance Certificate
Exhibit 5.1(c)-3