EXHIBIT 10.22
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
CASH AMERICA INTERNATIONAL, INC.,
AS THE BORROWER,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT, AN L/C ISSUER
AND
SWING LINE LENDER,
JPMORGAN CHASE BANK, N.A.
AS SYNDICATION AGENT
AND
U. S. BANK NATIONAL ASSOCIATION,
KEYBANK NATIONAL ASSOCIATION AND UNION BANK OF CALIFORNIA, N.A.,
AS CO-DOCUMENTATION AGENTS
AND
THE OTHER LENDERS PARTY HERETO
Dated as of February 24, 2005
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Lead Arranger and Joint Book Runner
J. P. MORGAN SECURITIES INC.,
as Co-Lead Arranger and Joint Book Runner
TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.................................................................................. 1
1.02 Other Interpretive Provisions.................................................................. 24
1.03 Accounting Terms............................................................................... 24
1.04 Rounding....................................................................................... 24
1.05 References to Agreements and Laws.............................................................. 24
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans................................................................................ 25
2.02 Borrowings, Conversions and Continuations of Loans............................................. 25
2.03 Letters of Credit.............................................................................. 26
2.04 Swing Line Loans............................................................................... 34
2.05 Prepayments.................................................................................... 36
2.06 Reduction or Termination of Revolving Commitments.............................................. 37
2.07 Repayment of Loans............................................................................. 38
2.08 Interest....................................................................................... 38
2.09 Fees........................................................................................... 38
2.10 Computation of Interest and Fees............................................................... 39
2.11 Evidence of Debt............................................................................... 39
2.12 Payments Generally............................................................................. 40
2.13 Sharing of Payments............................................................................ 41
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.......................................................................................... 42
3.02 Illegality..................................................................................... 44
3.03 Inability to Determine Rates................................................................... 44
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans......... 44
3.05 Funding Losses................................................................................. 45
3.06 Matters Applicable to all Requests for Compensation............................................ 46
3.07 Survival....................................................................................... 46
ARTICLE IV. CONDITIONS PRECEDENT TO Credit Extensions
4.01 Conditions of Initial Credit Extension......................................................... 46
4.02 Conditions to all Credit Extensions and Conversions and Continuations.......................... 48
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws....................................... 48
5.02 Authorization; No Contravention................................................................ 49
5.03 Governmental Authorization..................................................................... 49
5.04 Binding Effect................................................................................. 49
5.05 Financial Statements; No Material Adverse Effect............................................... 49
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5.06 Litigation..................................................................................... 49
5.07 No Default..................................................................................... 50
5.08 Ownership of Property; Liens................................................................... 50
5.09 Environmental Compliance....................................................................... 50
5.10 Insurance...................................................................................... 50
5.11 Taxes.......................................................................................... 50
5.12 ERISA Compliance............................................................................... 50
5.13 Subsidiaries................................................................................... 51
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................. 51
5.15 No Financing of Corporate Takeovers............................................................ 51
5.16 Insider........................................................................................ 51
5.17 Disclosure..................................................................................... 52
5.18 Intellectual Property; Licenses, Etc........................................................... 52
5.19 Businesses..................................................................................... 52
5.20 Common Enterprise.............................................................................. 52
5.21 Solvent........................................................................................ 52
ARTICLE VI. AFFIRMATIVE COVENANTS
6.01 Financial Statements........................................................................... 53
6.02 Certificates; Other Information................................................................ 53
6.03 Notices........................................................................................ 55
6.04 Payment of Obligations......................................................................... 55
6.05 Preservation of Existence, Etc................................................................. 55
6.06 Maintenance of Properties...................................................................... 56
6.07 Maintenance of Insurance....................................................................... 56
6.08 Compliance with Laws........................................................................... 56
6.09 Books and Records.............................................................................. 56
6.10 Inspection Rights.............................................................................. 56
6.11 Compliance with ERISA.......................................................................... 57
6.12 Use of Proceeds................................................................................ 57
6.13 Further Assurances............................................................................. 57
6.14 Notice of Formation of Subsidiary.............................................................. 57
6.15 New Domestic Subsidiaries...................................................................... 57
6.16 Opinions Regarding Obligations of Guarantors................................................... 57
6.17 Interest Rate Protection....................................................................... 58
ARTICLE VII. NEGATIVE COVENANTS
7.01 Liens.......................................................................................... 58
7.02 Indebtedness................................................................................... 58
7.03 Investments.................................................................................... 60
7.04 Fundamental Changes............................................................................ 61
7.05 Dispositions................................................................................... 61
7.06 Restricted Payments............................................................................ 62
7.07 ERISA.......................................................................................... 62
7.08 Change in Nature of Business................................................................... 62
7.09 Transactions with Affiliates................................................................... 63
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7.10 Burdensome Agreements.......................................................................... 63
7.11 Use of Proceeds................................................................................ 63
7.12 Amendment of Organization Documents and Fiscal Year............................................ 63
7.13 Amendment of Subordinated Debt................................................................. 63
7.14 Sale and Leaseback............................................................................. 63
7.15 Alteration of Material Agreements.............................................................. 64
7.16 Strict Compliance.............................................................................. 64
7.17 Guaranties..................................................................................... 64
7.18 Financial Covenants............................................................................ 64
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.............................................................................. 64
8.02 Remedies Upon Event of Default................................................................. 66
8.03 Application of Proceeds........................................................................ 67
ARTICLE IX. ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.......................................... 68
9.02 Delegation of Duties........................................................................... 68
9.03 Liability of Administrative Agent.............................................................. 69
9.04 Reliance by Administrative Agent............................................................... 69
9.05 Notice of Default.............................................................................. 70
9.06 Credit Decision; Disclosure of Information by Administrative Agent............................. 70
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT........................................................ 70
9.08 Administrative Agent in its Individual Capacity................................................ 71
9.09 Successor Administrative Agent................................................................. 71
9.10 Guaranty Matters............................................................................... 72
9.11 Administrative Agent May File Proofs of Claim.................................................. 72
9.12 Related Obligations............................................................................ 73
9.13 Other Agents; Arrangers and Managers........................................................... 74
ARTICLE X. MISCELLANEOUS
10.01 Amendments, Etc................................................................................ 74
10.02 Notices and Other Communications; Facsimile Copies............................................. 75
10.03 No Waiver; Cumulative Remedies................................................................. 77
10.04 Attorney Costs, Expenses and Taxes............................................................. 77
10.05 INDEMNIFICATION BY THE BORROWER................................................................ 77
10.06 Payments Set Aside............................................................................. 79
10.07 Successors and Assigns......................................................................... 79
10.08 Confidentiality................................................................................ 82
10.09 Set-off........................................................................................ 83
10.10 Interest Rate Limitation....................................................................... 83
10.11 Counterparts................................................................................... 83
10.12 Integration.................................................................................... 84
10.13 Survival of Representations and Warranties..................................................... 84
10.14 Severability................................................................................... 84
10.15 Foreign Lenders................................................................................ 84
10.16 Removal and Replacement of Lenders............................................................. 85
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10.17 Exceptions to Covenants........................................................................ 86
10.18 Governing Law.................................................................................. 86
10.19 Waiver of Right to Trial by Jury............................................................... 86
10.20 USA Patriot Act Notice......................................................................... 87
10.21 Amendment, Restatement, Extension, Renewal and Increase........................................ 87
10.22 Entire Agreement............................................................................... 87
SIGNATURES....................................................................................................... S-1
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SCHEDULES
1.01 Subsidiary Groups (for Definitions)
2.01 Revolving Commitments and Pro Rata Shares
2.03 Existing Letters of Credit
5.13 Subsidiaries and Other Equity Investments
7.03(j) Existing Investments
10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Assignment and Acceptance
B Compliance Certificate
C Guaranty
D Revolving Loan Note
E Revolving Loan Notice
F Swing Line Note
G Swing Line Loan Notice
H Officer's Certificate
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of February 24, 2005, among CASH AMERICA INTERNATIONAL, INC., a Texas
corporation (the "Borrower"), each lender from time to time party hereto
(collectively, the "Lenders" and individually, a "Lender"), WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Administrative Agent, an L/C Issuer and Swing Line
Lender, JPMORGAN CHASE BANK, N.A., as Syndication Agent, and U. S. BANK NATIONAL
ASSOCIATION, KEYBANK NATIONAL ASSOCIATION and UNION BANK OF CALIFORNIA, N.A., as
Co-Documentation Agents.
The Borrower, various financial institutions and Wells Fargo Bank,
National Association, as the administrative agent, are parties to that certain
Credit Agreement, dated as of August 14, 2002, as heretofore amended, modified,
and supplemented from time to time (the "Existing Credit Agreement").
The parties hereto have agreed, subject to the terms hereof, to amend and
restate the Existing Credit Agreement so as to, among other things, (a) increase
the amount of the revolving credit facility to $250,000,000, (b) amend the
pricing, certain covenants and various other provisions of the Existing Credit
Agreement and (c) revise the composition of the lender group.
In consideration of the mutual covenants and agreements herein contained,
the Existing Credit Agreement is amended and restated in its entirety and the
parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Accounting Firm" has the meaning specified in Section 6.01(b) hereof.
"Acquisition" means the acquisition by any Person of (a) a majority of the
Capital Stock of another Person, (b) all or substantially all of the assets of
another Person or (c) all or substantially all of a line of business of another
Person, in each case whether or not involving a merger or consolidation with
such other Person.
"Acquisition Consideration" means the consideration given by the Borrower
or any of its Subsidiaries for an Acquisition, including but not limited to the
sum of (without duplication) (a) the fair market value of any cash, property
(including Redeemable Stock) or services given, plus (b) consideration paid with
proceeds of Indebtedness permitted pursuant to this Agreement, plus (c) the
amount of any Indebtedness assumed, incurred or guaranteed (to the extent not
otherwise included) in connection with such Acquisition by the Borrower or any
of its Subsidiaries.
"Act" has the meaning set forth in Section 10.20 hereof.
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"Additional Senior Debt" means any Indebtedness of the Borrower (other
than Subordinated Debt) incurred after the Closing Date, the terms of which
shall be reasonably satisfactory to the Required Lenders.
"Adjusted EBITDA" means, with respect to any period, EBITDA for such
period adjusted to (a) exclude any non-cash gain or loss recognized on the
income statement from derivative and currency value fluctuations during such
period, and (b) upon the acquisition of any assets or Persons permitted by
Section 7.03 hereof which generate EBITDA (whether positive or negative) or the
disposition of any assets or Persons permitted by Section 7.05 hereof which
prior to such disposition generated EBITDA (whether positive or negative),
include the actual trailing 12 month EBITDA of the acquired assets or Person, or
exclude the actual trailing 12 month EBITDA of the disposed assets or Person, as
the case may be, with adjustments as provided in Article 11, Regulation S-X of
the Securities Act of 1933 during such period.
"Adjusted Funded Debt" means, as of any date of determination, the sum of
(a) Funded Debt as of such date, minus (b) Cash on Hand as of such date.
"Adjustment Date" means, for purposes of the Applicable Rate, the date of
receipt by the Administrative Agent of the financial statements required to be
delivered pursuant to Section 6.01 hereof, and the Compliance Certificate
required pursuant to Section 6.02(a) hereof.
"Administrative Agent" means Wells Fargo in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the Voting Shares (on a fully diluted basis) of such
Person; or (b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Affiliated IRP Agreement" means an Interest Rate Protection Agreement
entered into between the Borrower and a Lender or an Affiliate of a Lender,
provided that such Lender was a Lender hereunder at the time such Interest Rate
Protection Agreement was entered into.
"Agent Fee Letters" has the meaning specified in Section 2.09(b) hereof.
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Revolving Commitments" means the aggregate amount of Revolving
Commitments of the Lenders, which initially shall be $250,000,000, as the same
may be reduced from time to time pursuant to the terms of this Agreement.
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"Agreement" means this First Amended and Restated Credit Agreement.
"Applicable Law" means (a) in respect of any Person, all provisions of
Laws applicable to such Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions to which the Person in question is a party
and (b) in respect of contracts made or performed in the State of Texas,
"Applicable Law" shall also mean the laws of the United States of America,
including, without limitation the foregoing, 12 USC Sections 85 and 86, as
amended to the date hereof and as the same may be amended at any time and from
time to time hereafter, and any other statute of the United States of America
now or at any time hereafter prescribing the maximum rates of interest on loans
and extensions of credit, and the laws of the State of Texas.
"Applicable Rate" means the following percentages per annum:
APPLICABLE RATE APPLICABLE APPLICABLE RATE
PRICING FOR EURODOLLAR RATE FOR BASE FOR COMMITMENT
LEVEL LEVERAGE RATIO RATE LOANS RATE LOANS FEE
- ------- ----------------------------------------------- --------------- ------------- ---------------
1 Less than 1.00 to 1 0.875 0.00 0.25
2 Greater than or equal to 1.00 to 1 but less 1.125 0.00 0.25
than 1.50 to 1
3 Greater than or equal to 1.50 to 1 but less 1.375 0.00 0.25
than 2.00 to 1
4 Greater than or equal to 2.00 to 1 but less 1.625 0.00 0.30
than 2.25 to 1
5 Greater than or equal to 2.25 to 1 1.875 0.00 0.30
The Applicable Rate shall be adjusted on each Adjustment Date as
tested by using the Leverage Ratio set forth on the Compliance Certificate
on each Adjustment Date. If the financial statements required pursuant to
Section 6.01 hereof and the related Compliance Certificate required
pursuant to Section 6.02(a) hereof are not received by the Administrative
Agent by the date required, the Applicable Rate shall be determined using
Pricing Level 5 until such time as such financial statements and
Compliance Certificate are received. Notwithstanding the foregoing, the
Applicable Rate in effect from and after the Closing Date through the date
on which another Pricing Level would otherwise be in effect based on the
receipt of the Company's Compliance Certificate for the period ending
March 31, 2005 shall be Level 3.
"Approved Fund" has the meaning specified in Section 10.07(g) hereof.
"Assets" means, as of any date, the assets which would be reflected on a
balance sheet of the Borrower and its Subsidiaries on a combined and
consolidated basis prepared as of such date in accordance with GAAP.
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"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit A.
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2003 and the related consolidated statements of income, stockholders' equity
and cash flows for such fiscal year of the Borrower.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the Prime Rate in
effect for such day. Any change in such rate announced by Wells Fargo shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" has the meaning set forth in the introductory paragraph hereto.
"Borrowing" means a Revolving Borrowing or a Swing Line Borrowing, as the
context may require.
"British Pounds Sterling" and "(pound)" means the lawful currency of
England.
"Business Day" means any day other than a Saturday, Sunday, or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
applicable offshore Dollar interbank market.
"Capital Lease" means, as of any date, any lease of property, real or
personal, which would be capitalized on a balance sheet of the lessee prepared
as of such date, in accordance with GAAP, together with any other lease by such
lessee which is in substance a financing lease, including without limitation,
any lease under which (a) such lessee has or will have an option to purchase the
property subject thereto at a nominal amount or an amount less than a reasonable
estimate of the fair market value of such property as of the date such lease is
entered into or
4
(b) the term of the lease approximates or exceeds the expected useful life of
the property leased thereunder.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
in any Person that is a corporation, each class of partnership interest in any
Person that is a partnership, and each class of membership interest in any
Person that is a limited liability company, and any right to subscribe for or
otherwise acquire any such equity interests.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of each of the L/C Issuers and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and each L/C Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term shall have corresponding meaning.
The Borrower hereby grants the Administrative Agent, for the benefit of each L/C
Issuer and the Lenders, a Lien on all such cash and deposit account balances.
Cash collateral shall be maintained in blocked, interest bearing deposit
accounts at Wells Fargo.
"Cash on Hand", as of any date of determination, is the amount equal to
the amount of cash and cash equivalents, determined in accordance with GAAP, as
it appears on the consolidated balance sheet of the Borrower and the
Consolidated Subsidiaries, in each case as of such date of determination.
"Cashland Seller Note" means that certain subordinated promissory note of
the Borrower payable to the order of Schear Financial Services, LLC in the
principal amount of $2,500,000 dated February 1, 2004, the terms of which shall
at all times be subordinated to the Obligations pursuant to terms reasonably
satisfactory to the Required Lenders.
"Change of Control" means, with respect to any Person, an event or series
of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting
in its capacity as trustee, agent or other fiduciary or administrator of
any such plan) becomes the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such person
or group has the right to acquire (such right, an "option right"), whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 50% or more of the equity securities of such
Person entitled to vote for members of the board of directors or
equivalent governing body of such Person on a fully-diluted basis (and
taking into account all such securities that such person or group has the
right to acquire pursuant to any option right); or
(b) during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person ceases to be composed of individuals (i) who were members of
that board or equivalent governing
5
body on the first day of such period, (ii) whose election or nomination to
that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the election
or removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of
the board of directors).
"Closing Date" means the first date all the conditions precedent in
Section 4.01 hereof are satisfied or waived in accordance with Section 4.01
hereof (or, in the case of Section 4.01(b) hereof, waived by the Person entitled
to receive the applicable payment).
"Code" means the Internal Revenue Code of 1986.
"Commercial Letter of Credit" means, any documentary Letter of Credit
which is drawable upon presentation of documents evidencing the sale or shipment
of goods purchased by the Borrower in the ordinary course of its business.
"Commitment Fee" has the meaning specified in Section 2.09(a) hereof.
"Communications" has the meaning specified in Section 10.02(c) hereof.
"Compensation Period" has the meaning specified in Section 2.12(d)(ii)
hereof.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit B.
"Consequential Loss" means, with respect to the Borrower's payment of all
or any portion of the then outstanding principal amount of a Lender's Eurodollar
Rate Loan on a day other than the last day of the Interest Period related
thereto, any loss, cost or expense incurred by such Lender as a result of the
timing of such payment or in redepositing such principal amount, including any
expense or penalty incurred by such Lender on redepositing such principal
amount, but excluding any loss of the Applicable Rate on the relevant Eurodollar
Rate Loans.
"Consolidated Subsidiaries" means, all Subsidiaries of the Borrower which
are included in the consolidated financial statements of the Borrower.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: (a) a Revolving Borrowing,
(b) a Swing Line Borrowing, and (c) an L/C Credit Extension.
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"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the passage
of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Eurodollar Rate Loan plus 2% per
annum, in each case to the fullest extent permitted by Applicable Law.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction, but excluding a
Dividend) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.
"Dividends" in respect of any Person, means (a) cash distributions or any
other distributions of property, or otherwise, on, or in respect of, any class
of Capital Stock of such Person (other than dividends or distributions payable
solely in common stock of such Person, or options, warrants or other rights to
purchase common stock of such Person), and (b) any and all funds, cash or other
payments made in respect of the redemption, repurchase or acquisition of such
Capital Stock (specifically including, without limitation, a Treasury Stock
Purchase, but excluding, purchases under employee benefit plans), unless such
Capital Stock shall be redeemed or acquired through the exchange of such Capital
Stock with Capital Stock of the same class or options or warrants to purchase
such Capital Stock.
"Dollar" and "$" means lawful money of the United States of America.
"Dollar Equivalent" means, on any date, the amount of Dollars into which
an amount of applicable foreign currency may be converted on such date.
"Domestic Subsidiary" means any Subsidiary of the Borrower other than a
Foreign Subsidiary.
"EBITDA" means, with respect to any period, (a) Net Income for such
period, plus (b) without duplication and to the extent deducted in determining
Net Income for such period, (i) Interest Expense for such period, (ii) federal,
state, local and foreign income and franchise taxes of the Borrower and its
Subsidiaries for such period, (iii) depreciation and amortization expenses of
the Borrower and its Subsidiaries for such period and other non-cash charges of
the Borrower and its Subsidiaries, minus (c) without duplication and to the
extent included in determining Net Income for such period, any extraordinary
gains and extraordinary non-cash credits of the Borrower and its Subsidiaries
for such period.
"Eligible Assignee" has the meaning specified in Section 10.07(g) hereof.
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"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974 and any
regulations issued pursuant thereto.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Sections 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan
or Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA with respect to a Pension Plan, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan (rounded upward to the next 1/16th of 1%):
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
8
(c) if the rates referenced in the preceding subsections (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by
Wells Fargo and with a term equivalent to such Interest Period would be
offered by Wells Fargo's London Branch to major banks in the offshore
Dollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Revolving Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" means any of the events or circumstances specified in
Section 8.01.
"Evergreen Letter of Credit" has the meaning specified in Section
2.03(b)(iii) hereof.
"Exchange Act" means the Securities Exchange Act of 1934.
"Existing Credit Agreement" has the meaning set forth in the second
paragraph hereto.
"Existing Foreign Investments" means the 80,400,000 SEK Loan Note issued
on September 8, 2004 by Svensk Pantbelaning Holdings AB (f/k/a Guldskalen D 409
AB) and made payable to Borrower and the 13,400,000 SEK Convertible Debenture
Certificate issued on September 8, 2004 by Svensk Pantbelaning Holdings AB
(f/k/a Guldskalen D 409 AB) to Borrower, each of which is in existence as of the
date hereof.
"Existing Letters of Credit" means the letters of credit set forth on
Schedule 2.03.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Wells Fargo on such day on such
transactions as determined by the Administrative Agent.
"Fixed Charge Coverage Ratio" means, as of any date of determination, the
ratio of (a) the sum of (i) Adjusted EBITDA plus (ii) rent and lease expense, in
each case for the period of four consecutive fiscal quarters ending on such date
to (b) the sum of (i) Interest Expense, plus (ii) all scheduled payments on
Funded Debt (specifically excluding any unscheduled mandatory prepayments and
any optional prepayments on Funded Debt), plus (iii) rent and lease expense, in
each case for the four consecutive fiscal quarters ending on such date.
"Foreign Lender" has the meaning specified in Section 10.15 hereof.
9
"Foreign Plan" means any pension plan or other deferred compensation plan,
program or arrangement maintained by a Foreign Subsidiary which, under
applicable local law, is required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" means (a) each Subsidiary of the Borrower or any
ERISA Affiliate which is organized under the laws of a jurisdiction other than
the United States of America or any State thereof, if any, and (b) each
Subsidiary of the Borrower or any ERISA Affiliate of which a majority of the
revenues, earnings or other total assets (determined on a consolidated basis
with its Subsidiaries) are located or derived from operations outside of the
United States of America, if any.
"Fund" has the meaning specified in Section 10.07(g) hereof.
"Funded Debt" means, as to the Borrower and its Subsidiaries at a
particular time, all of the following (without duplication):
(a) all obligations for borrowed money and all obligations evidenced
by bonds, debentures, notes, loan agreements or other similar instruments;
(b) obligations in respect of earnout or similar payments deemed
earned and payable in cash or which may be payable in cash at the seller's
or obligee's option and to the extent the same appears on the Borrower's
consolidated balance sheet;
(c) obligations in respect of Capital Leases and Synthetic Lease
Obligations;
(d) any Receivables Facility Attributed Indebtedness; and
(e) obligations in respect of any Redeemable Stock.
"GAAP" means generally accepted accounting principles as in effect in the
United States as set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a substantial segment of the
accounting profession, that are applicable to the circumstances as of the date
of determination, consistently applied. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Required Lenders shall so request,
the Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders
such approval not to be unreasonably withheld and no amendment fee will be
payable to the Lenders in connection with such amendment); provided that, until
so amended, (a) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (b) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
10
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means, collectively, each Domestic Subsidiary.
"Guaranty" means the Guaranty made by one or more of the Guarantors,
substantially in the form of Exhibit C.
"Guaranty Obligation" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligees in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligees against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person;
provided, however, that the term "Guaranty Obligation" shall not include (x) the
purchase of instruments in respect of Investments otherwise permitted by Section
7.03(a) and (y) endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guaranty Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guaranty
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guarantying Person
in good faith.
"Highest Lawful Rate" at the particular time in question the maximum rate
of interest which, under Applicable Law, any Lender is then permitted to charge
on the Obligations. If the maximum rate of interest which, under Applicable Law,
any Lender is permitted to charge on the Obligations shall change after the date
hereof, the Highest Lawful Rate shall be automatically increased or decreased,
as the case may be, from time to time as of the effective time of each change in
the Highest Lawful Rate without notice to the Borrower. For purposes of
determining the Highest Lawful Rate under Applicable Law, the indicated rate
ceiling shall be the lesser of (a)(i) the "weekly ceiling", as such ceiling is
computed in Section 303.003 of the Texas Finance Code, as amended, or (ii) if
available in accordance with the terms thereof and at the Administrative Agent's
option after notice to the Borrower and otherwise in accordance with the terms
of Section 303.103 of the Texas Finance Code, as amended, the "annualized
ceiling", as such ceiling is determined in accordance with Section 303.009 of
the Texas Finance Code, as
11
amended, and (b)(i) if the amount outstanding under this Agreement is less than
$250,000, twenty-four percent (24%), or (ii) if the amount outstanding under
this Agreement is equal to or greater than $250,000, twenty-eight percent (28%)
per annum.
"Honor Date" has the meaning specified in Section 2.03(c)(i) hereof.
"ICC" has the meaning specified in Section 2.03(h) hereof.
"Indebtedness" means, as to any Person at a particular time, all of the
following:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) any direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), banker's
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations under any Interest Rate Protection Agreement in
an amount equal to (i) if such Interest Rate Protection Agreement has been
closed out, the unpaid Termination Value thereof, or (ii) if such Interest
Rate Protection Agreement has not been closed out, the mark-to-market
value thereof determined on the basis of readily available quotations
provided by any recognized dealer in such Interest Rate Protection
Agreement;
(d) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(e) accrued obligations in respect of earnout or similar payments
payable in cash or which may be payable in cash at the seller's or
obligee's option;
(f) Capital Lease and Synthetic Lease Obligations;
(g) any Redeemable Stock of such Person;
(h) any Receivables Facility Attributed Indebtedness; and
(i) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person except for customary exceptions reasonably
acceptable to the Required Lenders. The amount of any Capital Lease or
12
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05
hereof.
"Indemnitees" has the meaning set forth in Section 10.05 hereof.
"Information" has the meaning set forth in Section 10.08 hereof.
"Interest Expense" means, with respect to any period, interest expense,
whether paid or accrued (including the interest component of Capital Leases), of
the Borrower and its Subsidiaries, all as determined in conformity with GAAP, as
it appears on the consolidated income statement of the Borrower and its
Consolidated Subsidiaries as of such date of determination.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan (including a Swing Line Loan), the first Business Day of each
Quarterly Date and the Maturity Date.
"Interest Period" means as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date 7 or 14 days or one,
two, three or six months thereafter, as selected by the Borrower in its
Revolving Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Rate Loan, such Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(ii) any Interest Period of one month or more pertaining to a
Eurodollar Rate Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the scheduled Maturity
Date.
"Interest Rate Protection Agreement" means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, any cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing, or any other similar transactions or any
13
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Interest Rate Protection Obligations" means any and all obligations of
the Borrower to any Lender or an Affiliate of a Lender under any Affiliated IRP
Agreement.
"Investment" means, as to any Person, any acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution (including a contribution of property) to, Guaranty
Obligation with respect to the debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person, or (c) the purchase
or other acquisition (in one transaction or a series of transactions) of assets
of another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means any Lender in its capacity as an issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
14
"L/C Obligations" means, as of any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes each L/C Issuer and the Swing Line
Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a Commercial
Letter of Credit or a Standby Letter of Credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a letter of credit in the form from time to time in use
by any L/C Issuer.
"Letter of Credit Expiration Date" means (a) with respect to Standby
Letters of Credit, the earlier of (i) the day that is ten days prior to the
Maturity Date (or, if such day is not a Business Day, the next preceding
Business Day) and (ii) one year after the date of issuance of such Letter of
Credit (or, if such day is not a Business Day, the next preceding Business Day)
and (b) with respect to Commercial Letters of Credit, the earlier of (i) the day
that is 120 days after the date of issuance of such Letter of Credit (or, if
such day is not a Business Day, the next preceding Business Day) and (ii) the
day that is ten days prior to the Maturity Date (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$20,000,000 and (b) the Aggregate Revolving Commitments. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments.
"Leverage Ratio" means, as of any date of determination, for the Borrower
and its Subsidiaries on a consolidated basis, the ratio of (a) Adjusted Funded
Debt as of such date to (b) Adjusted EBITDA for the period of the four
consecutive fiscal quarters ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment as security
for Indebtedness, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Laws of any jurisdiction), including the
interest of a purchaser of accounts receivable.
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation by or before any Governmental Authority, including, without
limitation, proceedings, claims, lawsuits, and/or investigations under or
pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, tax or other Law, or under or pursuant to any
contract, agreement or other instrument.
15
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Notes, the Agent Fee Letters,
each Guaranty, each Request for Credit Extension, each Compliance Certificate,
and any other agreement executed, delivered or performable by any Loan Party in
connection herewith or as security for the Obligations.
"Loan Parties" means, collectively, the Borrower and each Guarantor.
"Material Adverse Effect" means any act or circumstance or event which (a)
causes an Event of Default or causes a Default which could reasonably be
expected to become an Event of Default, (b) otherwise is material and adverse to
the consolidated financial condition or business operations of the Borrower and
its Subsidiaries and which could reasonably be expected to result in a Default
or an Event of Default, (c) in any manner whatsoever materially and adversely
affects the validity or enforceability of any of the Loan Documents in a manner
that impairs the ability of the Lenders to exercise their remedies under this
Agreement or (d) impairs the ability of the Borrower or any of its Subsidiaries
to perform its obligations under any of the Loan Documents to which it is a
party.
"Maturity Date" means (a) February 24, 2010, or (b) such earlier date upon
which the Revolving Commitments may be terminated in accordance with the terms
hereof.
"Moody's" means Moody's Investors Services, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding three
calendar years, has made or been obligated to make contributions.
"Negative Pledge" means any agreement, contract or other arrangement
whereby the Borrower or any of its Subsidiaries is prohibited from, or would
otherwise be in default as a result of, creating, assuming, incurring or
suffering to exist, directly or indirectly, any Lien on any of its assets.
"Net Income" means, with respect to any period, the net income or loss of
the Borrower and its Subsidiaries on a consolidated basis for such period,
determined in accordance with GAAP; provided that there shall be excluded the
income or loss of any Person (other than a Subsidiary) of which the Borrower or
any Subsidiary owns Capital Stock, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of the
Subsidiaries during such period.
"Net Proceeds" means, with respect to the Disposition of any Asset
(including Capital Stock) by or of, or the issuance of Indebtedness to, any
Person, the proceeds received by such Person in connection with such transaction
after deducting therefrom the aggregate, without duplication, of the following
amounts to the extent properly attributable to such transaction or to any asset
that may be the subject thereof: (i) reasonable brokerage commissions, legal
fees, finder's fees, financial advisory fees, fees for solvency opinions,
fairness opinions, accounting
16
fees, underwriting fees, investment banking fees, survey, title insurance,
appraisals, notaries and other similar commissions and fees and expenses, in
each case, to the extent paid, payable or reimbursed by such Person; (ii)
filing, recording or registration fees or charges or similar fees or charges
paid by such Person; (iii) taxes paid or payable by such Person or any
shareholder, partner or member of such Person to governmental taxing authorities
as a result of such sale or other disposition (after taking into account any
available tax credits or deductions or any tax sharing arrangements to the
extent actually utilized); and (iv) payment of the outstanding principal amount
of, premium or penalty, if any, and interest on any Indebtedness (other than the
Obligations) that is secured by a Lien on or otherwise related or attributable
to the stock or asset in question, to the extent required or permitted pursuant
to the documentation evidencing such Indebtedness. To the extent that any note
is obtained in such Disposition, the proceeds received in respect thereof shall
be deemed to be the value of such note as determined in accordance with GAAP. To
the extent that any securities are obtained in any such sale, lease, transfer or
other disposition, the proceeds received in respect thereof shall be deemed to
be the fair market value of such securities as of the date of such disposition.
"Net Worth" means, as of any date, the total shareholder's equity
(including Capital Stock, additional paid-in capital, and retained earnings
after deducting treasury stock) which would appear on a balance sheet of the
Borrower and its Subsidiaries on a combined and consolidated basis prepared as
of such date in accordance with GAAP, but excluding all other comprehensive
income or losses resulting from foreign currency translation adjustments or
derivative value fluctuation.
"Non-renewal Notice Date" has the meaning specified in Section
2.03(b)(iii) hereof.
"Note Agreements" means, collectively, (a) that certain Note Agreement
dated July 7, 1995, entered into by and between the Borrower and Teachers, as
amended to the date of this Agreement and such other further amendments not
otherwise prohibited by Section 7.15 hereof; (b) that certain Note Agreement
dated December 1, 1997 among the Borrower and the "Purchasers" named therein, as
amended to the date of this Agreement and such other further amendments not
otherwise prohibited by Section 7.15 hereof; and (c) that certain Note Agreement
dated as of August 12, 2002 entered into by and between the Borrower and the
"Purchasers" named therein, as amended to the date of this Agreement and such
other further amendments not otherwise prohibited by Section 7.15 hereof..
"Notes" means, collectively, the Revolving Loan Notes and the Swing Line
Note.
"Notice" has the meaning set forth in Section 10.02(c) hereof.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising. Without
limiting the generality of the foregoing, "Obligations" includes all amounts
which would be owed by any Loan Party or any other Person (other than
Administrative Agent or Lenders) to Administrative Agent, Lenders or any
Affiliate of a Lender under any Loan Document, but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Loan Party or any other
Person
17
(including all such amounts which would become due or would be secured but for
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding of any other Loan Party or any other Person
under any Debtor Relief Law).
"Officer's Certificate" means a certificate signed by the chief executive
officer of the Borrower substantially in the form of Exhibit H.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws; (b) with respect to any
limited liability company, the articles of formation and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement of
formation and any agreement, instrument, filing or notice with respect thereto
filed in connection with its formation with the secretary of state or other
department in the state of its formation, in each case as amended from time to
time.
"Other Taxes" has the meaning set forth in Section 3.01(b) hereof.
"Outstanding Amount" means (i) with respect to Revolving Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Revolving Loans
and Swing Line Loans, as the case may be, occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Permitted Liens" means: (a) Liens (if any) granted in favor of the
Lenders to secure payment of the Obligations and other Indebtedness of the
Borrower specifically approved by the Lenders in writing; (b) pledges or
deposits made to secure payment of worker's compensation (or to participate in
any fund in connection with worker's compensation), unemployment insurance,
pensions or social security programs, other than any Lien imposed by ERISA; (c)
Liens imposed by mandatory provisions of law such as for materialmen's,
mechanics, warehousemen's and other like Liens arising in the ordinary course of
business, securing Indebtedness whose payment is not yet due and payable or if
the same are being contested in good faith and as to which adequate reserves
have been provided; (d) Liens for taxes, assessments and governmental charges or
levies imposed upon a Person or upon such Person's income or profits or
property, if the same are not
18
yet due and payable or if the same are being contested in good faith and as to
which adequate reserves have been provided; (e) good faith deposits in
connection with tenders, leases, real estate bids or contracts (other than
contracts involving the borrowing of money), pledges or deposits to secure
public or statutory obligations, deposits to secure (or in lieu of) surety,
stay, appeal or customs bonds and deposits to secure the payment of taxes,
assessments, customs duties or other similar charges; (f) encumbrances
consisting of zoning restrictions, easements, or other restrictions on the use
of real Property, provided that such do not impair the use of such Property for
the uses intended, and none of which is violated by existing or proposed
structures or land use; (g) Liens securing purchase money Indebtedness, but only
to the extent that (i) such Indebtedness is permitted pursuant to Section
7.02(b) hereof, (ii) any such Lien secures the indebtedness incurred to purchase
the asset encumbered thereby and (iii) such Indebtedness does not exceed the
cost of such asset, (h) Liens against Temporary Cash Investments, to the extent
that such Liens secure short-term indebtedness permitted under Section 7.02(j)
hereof; (i) Liens arising by operation of law in connection with judgments being
appealed to the extent such Liens would not otherwise result in an Event of
Default under Section 8.01(j); and (j) landlord's liens arising in the ordinary
course of the Borrower's or the Subsidiaries' leasing activities.
"Person" means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture or
Governmental Authority.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Platform" has the meaning set forth in Section 10.02(c) hereof.
"Prime Rate" means, at any time, the rate of interest most recently
announced within Wells Fargo at its principal office in San Francisco as its
Prime Rate, with the understanding that Wells Fargo's Prime Rate is one of its
base rates and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto, and is evidenced by the
recording thereof after its announcement in such internal publication or
publications as Wells Fargo may designate. Any change in such rate announced
within Wells Fargo shall take effect on the opening of business on the day such
change is announced within Wells Fargo.
"Private Placement Debt" means the indebtedness of the Borrower (and
Guaranty of Domestic Subsidiaries) in the aggregate original principal amount of
(a) $20,000,000 under its senior notes designated "8.14% Senior Notes Due 2007",
each payable in accordance with the respective terms of such notes and the Note
Agreement entered into with respect thereto; (b) $30,000,000 under its senior
notes designated "7.10% Senior Notes Due January 2, 2008," each payable in
accordance with the respective terms of such notes and the Note Agreement
entered into with respect thereto; and (c) $42,500,000 under its senior notes
designated "7.25% Senior Notes Due 2009", each payable in accordance with the
respective terms of such notes and the Note Agreement entered into with respect
thereto.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments
set forth opposite the name of such Lender on Schedule 2.01, as such share may
be adjusted as contemplated herein.
19
"Property" means any investment in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
"Quarterly Date" means the first Business Day of each January, April, July
and October during the term of this Agreement.
"Receivables Facility Attributed Indebtedness" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction other than a purchase.
"Redeemable Stock" means the portion of any Capital Stock of the Borrower
or any of its Subsidiaries which prior to the Maturity Date is or may be (a)
unilaterally redeemable (by seeking final or similar payments or otherwise) upon
the occurrence of certain events or otherwise; (b) redeemable at the option of
the holder thereof or (c) convertible into Indebtedness.
"Register" has the meaning set forth in Section 10.07(c) hereof.
"Release Date" shall mean the date upon which all Obligations and all
Interest Rate Protection Obligations are paid in full and the Revolving
Commitments are terminated.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Revolving
Borrowing, a Revolving Loan Notice, (b) with respect to an L/C Credit Extension,
a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, two or more
Lenders whose Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, corporate controller, treasurer, vice president of finance or
corporate secretary of a Loan Party. Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means, collectively, (a) Dividends, and (b) any
payment or prepayment of principal, interest, premium or penalty on any
Subordinated Debt or any defeasance, redemption, purchase, repurchase or other
acquisition or retirement for value, in whole or in part, of any Subordinated
Debt (including, without limitation, the setting aside of assets or the deposit
of funds therefor).
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and having the same Interest Period made by
each of the Lenders pursuant to Section 2.01 hereof.
20
"Revolving Commitment" means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01 hereof, (b)
purchase participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule 2.01,
as such amount may be reduced, increased or adjusted from time to time in
accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01 hereof.
"Revolving Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit D.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b) a
conversion of Revolving Loans from one Type to the other, or (c) a continuation
of Revolving Loans as the same Type, pursuant to Section 2.02(a) hereof, which,
if in writing, shall be substantially in the form of Exhibit E.
"SEK" means lawful currency of Sweden.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Solvent" means, with respect to any Person, that the fair value of the
assets of such Person (both at fair valuation and at present fair saleable value
on a going concern basis) is, on the date of determination, greater than the
total amount of liabilities (including contingent and unliquidated liabilities)
of such Person as of such date and that, as of such date, such Person is able to
pay all liabilities of such Person as such liabilities mature and such Person
does not have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person.
"Standby Letter of Credit" means a Letter of Credit that is not a
Commercial Letter of Credit.
"Subordinated Debt" means any Indebtedness of the Borrower or any
Subsidiary which is subordinated to the Obligations at all times pursuant to
terms reasonably satisfactory to the Required Lenders.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person. Unless otherwise specified,
all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Borrower.
21
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04 hereof.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan.
"Swing Line Lender" means Wells Fargo in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a) hereof.
"Swing Line Note" means a promissory note made by the Borrower in favor of
the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit F.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b) hereof, which, if in writing, shall be substantially in the
form of Exhibit G.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning set forth in Section 3.01(a) hereof.
"Teachers" means Teachers Insurance and Annuity Association of America.
"Temporary Cash Investment" means any of the following investments: (a)
investments in open market investment grade commercial paper (rated at least A-1
or P-1), maturing within one hundred eighty (180) days after acquisition
thereof, (b) investments in marketable obligations, maturing within one hundred
eighty (180) days after acquisition thereof, issued or unconditionally
guaranteed by the United States of America or an instrumentality or agency
thereof and entitled to the full faith and credit of the United States of
America, (c) investments in money market funds that invest solely in the types
of investments permitted under clauses (a) and (b) hereof, (d) investments in
repurchase agreements of a domestic office of any of the Lenders which are fully
secured by securities described in clause (b) hereof, (e) short-term investments
in investment grade auction preferred stock, (f) certificates of deposit and
time deposits (including Eurodollar deposits) maturing within one hundred eighty
(180) days from the date of deposit thereof, with a domestic office of any of
the Lenders or any bank which is a national bank organized under the laws of the
United States of America and (i) having capital, surplus and undivided profits
of at least $100,000,000 or (ii) so long as all such deposits are federally
insured, and (g) investments, certificates of deposit and time deposits
(including Eurodollar deposits) of the types described above (but without the
grade classification required above) of or with a Lender.
22
"Termination Value" means, in respect of any one or more Interest Rate
Protection Agreements, after taking into account the effect of any legally
enforceable netting agreement relating to such Interest Rate Protection
Agreements, (a) for any date on or after the date such Interest Rate Protection
Agreements have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a) the amount(s) determined as the mark-to-market
value(s) for such Interest Rate Protection Agreements, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Interest Rate Protection Agreements (which may include
any Lender).
"Treasury Stock Purchase" means any purchase, redemption, retirement,
cancellation, defeasance or other acquisition (including any sinking fund or
similar deposit for such purpose) by the Borrower or any Subsidiary of its
Capital Stock or any warrants, rights or options to acquire such Capital Stock.
"Type" means with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i)
hereof.
"Voting Percentage" means, as to any Lender, (a) at any time when the
Revolving Commitments are in effect, such Lender's Pro Rata Share and (b) at any
time after the termination of the Revolving Commitments, the percentage (carried
out to the ninth decimal place) which (i) the sum of (A) the Outstanding Amount
of such Lender's Revolving Loans, plus (B) such Lender's Pro Rata Share of the
Outstanding Amount of L/C Obligations, plus (C) such Lender's Pro Rata Share of
the Outstanding Amount of Swing Line Loans, then constitutes of (ii) the
Outstanding Amount of all Loans and L/C Obligations; provided, however, that if
any Lender has failed to fund any portion of the Revolving Loans, participations
in L/C Obligations or participations in Swing Line Loans required to be funded
by it hereunder, such Lender's Voting Percentage shall be deemed to be zero, and
the respective Pro Rata Shares and Voting Percentages of the other Lenders shall
be recomputed for purposes of this definition and the definition of "Required
Lenders" without regard to such failing Lender's Revolving Commitment or the
outstanding amount of its Revolving Loans, L/C Advances and funded
participations in Swing Line Loans, as the case may be.
"Voting Shares" of any Person means any class or classes of Capital Stock
having ordinary voting power for the election of at least a majority of the
members of the Board of Directors (or other governing bodies) of such Person,
other than Capital Stock having such power by reason of the happening of a
contingency.
"Wells Fargo" means Wells Fargo Bank, National Association.
23
1.02 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section, Exhibit
and Schedule references are to this Agreement.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced.
(c) In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including;" the words "to" and
"until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
(e) Except as otherwise provided herein, for the calculation of all
covenants and other provisions contained herein, any amounts included in such
calculation which are not Dollars shall be calculated according to its Dollar
Equivalent on the date of such calculation in accordance with GAAP.
1.03 ACCOUNTING TERMS. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan
24
Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 REVOLVING LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make revolving loans (each such loan, a
"Revolving Loan") to the Borrower from time to time on any Business Day during
the period from the Closing Date to the Maturity Date, in an aggregate amount
not to exceed at any time outstanding the amount of such Lender's Revolving
Commitment; provided, however, that after giving effect to any Revolving
Borrowing, (i) the aggregate Outstanding Amount of all Revolving Loans, Swing
Line Loans and L/C Obligations shall not exceed the Aggregate Revolving
Commitments and (ii) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender's Revolving Commitment. Within
the limits of each Lender's Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05 hereof, and reborrow under this Section 2.01. Revolving Loans
may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Loans as the same Type shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone or electronic mail. Each such notice must be received by the
Administrative Agent not later than 12:00 noon, Dallas, Texas time (i) two
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) one Business Day prior to the requested date
of any Borrowing of Base Rate Loans. Each such telephonic notice or electronic
mail must be confirmed promptly by delivery to the Administrative Agent of a
written Revolving Loan Notice appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Revolving Loan Notice
(whether telephonic, electronic or written), shall specify (i) whether the
Borrower is requesting a Borrowing, a conversion of Loans from one Type to the
other, or a continuation of Loans as the same Type, (ii) the requested date of
the Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed, converted or
continued, (iv) the Type of Loans to be borrowed or to which existing Loans are
to be converted or continued, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of
Loan in a Revolving Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Revolving Loans
shall be made or continued as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate
25
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Revolving Loan Notice, but fails to specify
an Interest Period, it will be deemed to have specified an Interest Period of
one month.
(b) Following receipt of a Revolving Loan Notice, the Administrative Agent
shall promptly notify each Lender of its Pro Rata Share of the applicable Loans,
and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Revolving Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 2:00 p.m.,
Dallas, Texas time, on the Business Day specified in the applicable Revolving
Loan Notice. Upon satisfaction of the applicable conditions set forth in Section
4.02 hereof (and, if such Borrowing is the initial Credit Extension, Section
4.01 hereof), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of the
Administrative Agent with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to the
Administrative Agent by the Borrower; provided, however, that if, on the date of
the Revolving Borrowing there are Swing Line Loans and/or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, second, to the payment in full of
any such Swing Line Loans, and third, to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default or Event of Default, no
Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders, and during the existence of an
Event of Default, the Required Lenders may demand that any or all of the then
outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than seven Interest Periods in effect with respect to all
Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each
L/C Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the 10th day prior to the
Maturity Date, to issue Letters of Credit for the account of the
26
Borrower or its Domestic Subsidiaries, and to amend or renew Letters of
Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued (or deemed
issued in respect of Existing Letters of Credit) for the account of the
Borrower; provided that no L/C Issuer shall be obligated to make any L/C
Credit Extension with respect to any Letter of Credit, and no Lender shall
be obligated to participate in, any Letter of Credit if as of the date of
such L/C Credit Extension, (x) the Outstanding Amount of all L/C
Obligations, Swing Line Loans and all Revolving Loans would exceed the
Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender's Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans would exceed such
Lender's Revolving Commitment, or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the
foregoing limits, and subject to the terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Existing Letters of Credit shall
be deemed to have been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and conditions
hereof.
(ii) No L/C Issuer shall be under any obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such L/C Issuer from issuing such Letter of Credit, or any
Law applicable to such L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or
request that such L/C Issuer refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which such L/C Issuer in good faith deems material to it;
(B) subject to Section 2.03(b)(iii) hereof, the expiry date of
such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such
expiry date; or
(C) such Letter of Credit is to be denominated in a currency
other than Dollars.
(iii) No L/C Issuer shall be under any obligation to amend any
Letter of
27
Credit if (A) such L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Evergreen
Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer of
such Letter of Credit (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and signed
by a Responsible Officer of the Borrower. Such L/C Application must be
received by each such L/C Issuer and the Administrative Agent not later
than 12:00 noon, Dallas, Texas time, at least three Business Days (or such
later date and time as such L/C Issuer may agree in a particular instance
in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to such L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case
of any drawing thereunder; and (G) such other matters as such L/C Issuer
may require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to such L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as such L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application,
each such L/C Issuer receiving such Letter of Credit Application will
confirm with the Administrative Agent (by telephone or in writing) that
the Administrative Agent has received a copy of such Letter of Credit
Application from the Borrower and, if not, such L/C Issuer will provide
the Administrative Agent with a copy thereof. Upon receipt by such L/C
Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, such L/C Issuer shall,
on the requested date, issue a Letter of Credit for the account of the
Borrower or one of its Subsidiaries or enter into the applicable
amendment, as the case may be, in each case in accordance with such L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer of such Letter of Credit a participation in such Letter of Credit
in an amount equal to the product of such Lender's Pro Rata Share times
the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, any L/C Issuer may, in it sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each,
an "Evergreen Letter of Credit"); provided that any such Evergreen Letter
of Credit must permit such L/C Issuer to prevent any such
28
renewal at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Non-renewal Notice Date")
in each such twelve-month period to be agreed upon at the time such Letter
of Credit is issued, such date to be at least forty-five (45) days prior
to the Letter of Credit Expiration Date of said Letter of Credit. Unless
otherwise directed by such L/C Issuer, the Borrower shall not be required
to make a specific request to such L/C Issuer for any such renewal. Once
an Evergreen Letter of Credit has been issued, the Lenders shall be deemed
to have authorized (but may not require) such L/C Issuer to permit the
renewal of such Letter of Credit at any time to a date not later than the
Letter of Credit Expiration Date; provided, however, that such L/C Issuer
shall not permit any such renewal if (A) such L/C Issuer would have no
obligation at such time to issue such Letter of Credit in its renewed form
under the terms hereof, or (B) it has received notice (which may be by
telephone, electronic mail or in writing) on or before the Business Day
immediately preceding the Non-renewal Notice Date from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 hereof is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer of such Letter of Credit
will also deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C Issuer of
such Letter of Credit shall notify the Borrower and the Administrative
Agent thereof. Promptly after any payment by a L/C Issuer under a Letter
of Credit (each such date, an "Honor Date"), the Borrower shall reimburse
such L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. Notice of a drawing shall be deemed to be a notice
of the Honor Date. If the Borrower fails to so reimburse such L/C Issuer
by 10:00 a.m., Dallas, Texas time, on the first Business Day after the
Honor Date, the Administrative Agent (provided it has been notified of
such a failure by the L/C Issuer) shall promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and such Lender's Pro Rata Share thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Borrowing of Base
Rate Loans to have been disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 hereof for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the
Aggregate Revolving Commitments. Any notice given by a L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(ii) Each Lender (including any Lender acting as a L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) hereof make funds available
to the Administrative Agent for the account of the L/C Issuer issuing such
Letter of Credit at the
29
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 12:00 noon, Dallas, Texas time, on
the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii) hereof, each
Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to such L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 hereof cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C
Issuer issuing such Letter of Credit an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear
interest at the Default Rate. In such event, each Lender's payment to the
Administrative Agent for the account of such L/C Issuer pursuant to
Section 2.03(c)(ii) hereof shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse a L/C Issuer for any amount
drawn under any Letter of Credit issued by such L/C Issuer, interest in
respect of such Lender's Pro Rata Share of such amount shall be solely for
the account of such L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C Advances
to reimburse each L/C Issuer for amounts drawn under Letters of Credit
issued by such L/C Issuer, as contemplated by this Section 2.03(c), shall
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against any L/C Issuer, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing. Any such reimbursement shall not relieve or otherwise impair
the obligation of the Borrower to reimburse each L/C Issuer for the amount
of any payment made by such L/C Issuer under any Letter of Credit issued
by such L/C Issuer, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of any L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.03(c)
by the time specified in Section 2.03(c)(ii) hereof, such L/C Issuer shall
be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect. A certificate of any L/C
Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing to such L/C Issuer under this clause (vi)
shall be conclusive absent manifest error.
30
(d) Repayment of Participations.
(i) At any time after any L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in respect of such payment in accordance with Section 2.03(c)
hereof, if the Administrative Agent receives for the account of such L/C
Issuer any payment related to such Letter of Credit (whether directly from
the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), or any payment of interest thereon,
the Administrative Agent will distribute to such Lender its Pro Rata Share
thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of any L/C Issuer pursuant to Section 2.03(c)(i) hereof is
required to be returned, each Lender shall pay to the Administrative Agent
for the account of such L/C Issuer its Pro Rata Share thereof on demand of
the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse each
L/C Issuer for each drawing under each Letter of Credit issued by such L/C
Issuer, and to repay each L/C Borrowing and each drawing under a Letter of
Credit issued by such L/C Issuer that is refinanced by a Borrowing of Revolving
Loans, shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower or any other Loan Party may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), such L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by such L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
such L/C Issuer under such Letter of Credit to any Person purporting to be
a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any
31
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or any other Loan Party, other than the L/C
Issuer's gross negligence, bad faith or willful misconduct.
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer of such Letter of Credit. The
Borrower shall be conclusively deemed to have waived any such claim against any
L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of a L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer issuing such Letter
of Credit shall not have any responsibility to obtain any document (other than
any sight draft, certificates and documents expressly required by such Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. No Agent-Related Person nor any of the respective correspondents,
participants or assignees of any L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence, bad faith or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective correspondents,
participants or assignees of any L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e)
hereof; provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against a L/C Issuer, and a L/C
Issuer may be liable to the Borrower, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by such L/C Issuer's willful
misconduct, bad faith or gross negligence or such L/C Issuer's willful failure
to pay under any Letter of Credit issued by such L/C Issuer after the
presentation to it by the beneficiary of a sight draft and certificate(s) and
documents strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, any L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and any L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit issued by such L/C Issuer or
the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason, except in the case
of gross negligence, bad faith, or willful misconduct on the part of such L/C
Issuer.
32
(g) Cash Collateral. Upon the occurrence of an Event of Default and demand
by the Administrative Agent pursuant to Section 8.02(c) hereof (except in the
case of an Event of Default specified in Section 8.01(g) or (h) hereof, without
demand or taking of any other action by the Administrative Agent or a Lender)
the Borrower shall immediately Cash Collateralize the then Outstanding Amount of
all L/C Obligations (in an amount equal to such Outstanding Amount).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by a
L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each Commercial Letter of Credit.
(i) Standby Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro
Rata Share a Letter of Credit fee for each Standby Letter of Credit on the
actual daily maximum amount available to be drawn under each Standby Letter of
Credit at a per annum percentage equal to the Applicable Rate for Eurodollar
Rate Loans as in effect from time to time. Such fee for each Standby Letter of
Credit shall be due and payable on each Quarterly Date, commencing with the
first Quarterly Date to occur after the issuance of such Standby Letter of
Credit, and ending on the Letter of Credit Expiration Date. If there is any
change in the Applicable Rate during any quarter, the actual daily amount of
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. In addition, the Borrower shall pay directly to each L/C Issuer for its
own account the customary fronting, issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of such L/C Issuer
relating to standby letters of credit issued by it as from time to time in
effect. Such fees and charges are due and payable on demand and are
nonrefundable.
(j) Commercial Letter of Credit Fees. The Borrower shall pay directly to
the Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share a Letter of Credit fee for each Commercial Letter of Credit,
equal to 1/5 of 1% per annum of the amount of such Commercial Letter of Credit
(but in no event less than $150), due and payable on the issuance thereof. In
addition, the Borrower shall pay directly to each L/C Issuer for its own account
the customary fronting, presentation, amendment and other processing fees, and
other standard costs and charges, of such L/C Issuer relating to commercial
letters of credit issued by it as from time to time in effect. Such fees and
charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
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2.04 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees to make loans (each such loan, a "Swing Line Loan")
to the Borrower from time to time on any Business Day during the period from the
Closing Date to the Maturity Date in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Outstanding Amount of
Revolving Loans of the Swing Line Lender in its capacity as a Lender of
Revolving Loans, may exceed the amount of such Lender's Revolving Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the
aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C
Obligations shall not exceed the Aggregate Revolving Commitments and, (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Revolving Commitment, and provided, that the
Swing Line Lender shall not make any Swing Line Loan to refinance an outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05 hereof, and reborrow under this Section 2.04. Each Swing Line Loan
shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan,
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone or electronic mail. Each such notice must
be received by the Swing Line Lender and the Administrative Agent not later than
2:00 p.m., Dallas, Texas time, on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and
(ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic or electronic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any telephonic or
electronically mailed Swing Line Loan Notice, the Swing Line Lender will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 3:00 p.m., Dallas, Texas time, on the date
of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a) hereof, or (B) that one or more
of the applicable conditions specified in Article IV is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 4:00 p.m., Dallas, Texas time, on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the Borrower at its office by crediting the account of the Borrower on the books
of the Swing Line Lender in immediately available funds; provided, however, that
this Section 2.04(b) shall
34
not apply if Swing Line Borrowings are made automatically pursuant to a credit
sweep in accordance with Swing Line Lender's treasury management system, if
available.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably requests the Swing Line Lender to act on its behalf in
connection with Swing Line Loans), that each Lender make a Base Rate Loan
in an amount equal to such Lender's Pro Rata Share of the amount of Swing
Line Loans then outstanding. Such request shall be made in accordance with
the requirements of Section 2.02 hereof, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans,
but subject to the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 4.02 hereof. The Swing
Line Lender shall furnish the Borrower with a copy of the applicable Loan
notice promptly after delivering such notice to the Administrative Agent.
Each Lender shall make an amount equal to its Pro Rata Share of the amount
specified in such Loan notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at
the Administrative Agent's Office not later than 12:00 noon, Dallas, Texas
time, on the day specified in such Loan notice, whereupon, subject to
Section 2.04(c)(ii) hereof, each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Revolving Borrowing cannot be requested
in accordance with Section 2.04(c)(i) hereof or any Swing Line Loan cannot
be refinanced by such a Revolving Borrowing, the Revolving Loan Notice
submitted by the Swing Line Lender shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its participation in the
relevant Swing Line Loan and each Lender's payment to the Administrative
Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) hereof shall be deemed payment in respect of such
participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i) hereof, the Swing Line
Lender shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to purchase
and fund participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have
35
against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default or Event
of Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing. Any such purchase of participations
shall not relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participation was outstanding
and funded) in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender, each Lender shall pay to the Swing Line Lender its
Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Loan or participation pursuant to this
Section 2.04 to refinance such Lender's Pro Rata Share of any Swing Line Loan,
interest in respect of such Pro Rata Share shall be solely for the account of
the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
2.05 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Revolving Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 12:00 noon, Dallas, Texas time, (A) two
Business Days prior to any date of prepayment of Eurodollar Rate Loans, and (B)
one Business Day prior to the date of prepayment of Base Rate Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000
or a whole multiple of $500,000 in excess thereof; and (iii) any prepayment of
Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of such Lender's Pro Rata Share of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment
36
amount specified in such notice shall be due and payable on the date specified
therein. Any voluntary or mandatory prepayment of a Eurodollar Rate Loan shall
be accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 3.05 hereof. Each such prepayment shall be
applied to the Revolving Loans of the Lenders in accordance with their
respective Pro Rata Shares. Any mandatory prepayment required pursuant to
Section 2.05(c) or (d) hereof shall not be subject to any notice or minimum
payment provisions of this Section 2.05(a).
(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 2:00 p.m., Dallas, Texas time, on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount
of $100,000. Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.
(c) If for any reason the Outstanding Amount of all Revolving Loans, Swing
Line Loans and L/C Obligations at any time exceeds the Aggregate Revolving
Commitments then in effect, the Borrower shall immediately prepay Revolving
Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess.
(d) Within 10 Business Days of the receipt of Net Proceeds from the
Disposition by the Borrower or any of its Subsidiaries of any Assets other than
any Dispositions permitted under clauses (a) through (e) of Section 7.05 hereof,
and clause (f) of Section 7.05 hereof to the extent that a prepayment under this
Section 2.05(d) is not required, the Borrower shall prepay Revolving Loans in an
aggregate principal amount equal to 50% of such Net Proceeds. Each such
mandatory prepayment shall be made and applied as provided in Section 2.06(c)
hereof.
2.06 REDUCTION OR TERMINATION OF REVOLVING COMMITMENTS.
(a) The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Revolving Commitments, or permanently reduce the Aggregate
Revolving Commitments to an amount not less than the then Outstanding Amount of
all Revolving Loans, Swing Line Loans and L/C Obligations; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m., five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, and (iii) if, after giving
effect to any reduction of the Aggregate Revolving Commitments, the Letter of
Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Revolving Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent shall promptly notify the
Lenders of any such notice of reduction or termination of the Aggregate
Revolving Commitments.
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(b) The Aggregate Revolving Commitments shall also be permanently reduced
by the amount of Revolving Loans required to be prepaid (whether or not any
Revolving Loans are then outstanding) pursuant to Section 2.05(d) hereof.
(c) Any reduction of the Aggregate Revolving Commitments shall be applied
to the Revolving Commitment of each Lender according to its Pro Rata Share. All
fees accrued until the effective date of any termination of the Aggregate
Revolving Commitments shall be paid on the effective date of such termination.
Once reduced in accordance with this Section, the Aggregate Revolving
Commitments may not be increased except pursuant to Section 2.14.
2.07 REPAYMENT OF LOANS.
(a) The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Revolving Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on the earlier to occur
of (i) the date ten days after such Swing Line Loan is made and (ii) the
Maturity Date.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the lesser of (y) the Highest
Lawful Rate or (z) the Eurodollar Rate for such Interest Period plus the
Applicable Rate for Eurodollar Rate Loans; and (ii) each Base Rate Loan
(including each Swing Line Loan) shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the lesser of (y) the Highest Lawful Rate or (z) the Base Rate plus the
Applicable Rate for Base Rate Loans.
(b) Upon the request of the Required Lenders, while any Event of Default
exists or after acceleration, the Borrower shall pay interest on the principal
amount of all outstanding Obligations at a fluctuating interest rate per annum
at all times equal to the lesser of (y) the Highest Lawful Rate or (z) the
Default Rate, to the fullest extent permitted by Applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a per annum
Commitment Fee (herein so called) equal to the Applicable Rate for Commitment
Fees times the actual daily amount by which the Aggregate Revolving Commitments
exceed the sum of (i) the Outstanding
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Amount of Revolving Loans, (ii) the Outstanding Amount of Swing Line Loans and
(iii) the Outstanding Amount of L/C Obligations. The Commitment Fee shall accrue
at all times from the Closing Date until the Maturity Date and shall be due and
payable quarterly in arrears on each Quarterly Date, commencing with the first
Quarterly Date to occur after the Closing Date, and on the Maturity Date. The
Commitment Fee shall be calculated quarterly in arrears and shall accrue at all
times, including at any time during which one or more of the conditions in
Article IV is not met.
(b) Agent Fee Letter. The Borrower shall pay to (i) the Administrative
Agent for the Administrative Agent's own account, the fees in the amounts and at
the times specified in the letter agreement, dated December 23, 2004 between the
Borrower and Wells Fargo, (ii) JPMorgan Chase Bank, N.A., for its own account,
the fees in the amounts and at the times specified in the letter agreement,
dated December 23, 2004, between the Borrower and JPMorgan Chase Bank, N.A.
(collectively, the "Agent Fee Letters"). Such fees shall be fully earned when
paid and shall be nonrefundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. Subject to Section 10.10 hereof,
computation of interest on Eurodollar Rate Loans shall be calculated on the
basis of a year of 360 days and the actual number of days elapsed. Computation
of all other types of interest and all fees shall be calculated on the basis of
a year of 365 or 366 days, as the case may be, and the actual number of days
elapsed. Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall bear interest for one day.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Loans and L/C
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of such Lender shall
control. Upon the request of any Lender made through the Administrative Agent,
such Lender's Loans may be evidenced by a Revolving Loan Note and/or a Swing
Line Note, as applicable, in addition to such accounts or records. Each Lender
may attach schedules to its Note(s) and endorse thereon the date, Type (if
applicable), amount and maturity of the applicable Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans. In the event
of any conflict between the accounts and records maintained
39
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control.
2.12 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m.,
Dallas, Texas time, on the date specified herein. The Administrative Agent will
promptly, and in any event within the same business day, distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m.,
Dallas, Texas time, shall be deemed received on the next succeeding Business Day
and any applicable interest or fee shall continue to accrue. The Borrower
authorizes the Administrative Agent to charge the account of the Borrower
maintained with Wells Fargo (as of the Closing Date, such account is number
#4761053503) for each payment of principal, interest and fees as it becomes due
hereunder.
(b) Subject to the definition of "Interest Period," if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If, at any time after an Event of Default (but prior to (A) the
exercise of remedies provided for in Section 8.02 or (B) the Loans becoming
automatically due and payable and the L/C Obligations becoming automatically
required to be cash collateralized as set forth in the proviso to Section 8.02),
insufficient funds under this Agreement are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender in respect of
this Agreement, (ii) second, toward repayment 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 (iii) third, toward
repayment of principal and L/C Borrowings then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and L/C
Borrowings then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
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(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds, at the Federal
Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to the Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Revolving Loan included in the applicable Borrowing. If such Lender does
not pay such amount forthwith upon the Administrative Agent's demand
therefore, the Administrative Agent may make a demand therefore upon the
Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Revolving Commitment or to prejudice any rights
which the Administrative Agent or the Borrower may have against any Lender
as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any amount
owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Credit Extension set forth
in Article IV are not satisfied or waived in accordance with the terms hereof,
the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Revolving Loan or
purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of any Loans made by it, or the
participations in L/C Obligations
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or in Swing Line Loans held by it, any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of its
ratable share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Administrative Agent of such fact, and (b) purchase
from the other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line Loans
held by them, as the case may be, as shall be necessary to cause such purchasing
Lender to share the excess payment in respect of such Loan or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefore, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09 hereof with
respect to such participation) as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments. Each Lender
that purchases a participation pursuant to this Section shall from and after
such purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it by the jurisdiction (or any political
subdivision thereof) under the Laws of which the Administrative Agent or such
Lender, as the case may be, is organized or maintains a lending office or any
other jurisdictions in which the Administrative Agent or such Lender transacts
business (all such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by any
Laws to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions,
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(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv) within
30 days after the date of such payment, the Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest on the Obligations is paid, such additional amount that such
Lender specifies as reasonably necessary to preserve the after-tax yield (after
factoring in all taxes, including taxes imposed on or measured by net income)
such Lender would have received if such Taxes or Other Taxes had not been
imposed, with the computation of such additional amount to be set forth in
writing, certified by such Lender, and delivered to the Borrower.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) hereof and (iii) any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Payment under this
subsection (d) shall be made within 30 days after the date the Lender or the
Administrative Agent makes a demand therefore.
(e) Each Lender (and the Administrative Agent with respect to payments to
the Administrative Agent for its own account) agrees that (i) it will take all
reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding taxes (whether available by
treaty, existing administrative waiver, or by virtue of the location of any
Lender's Lending Office) and (ii) otherwise cooperate with the Borrower to
minimize amounts payable by the Borrower under this Section 3.01; provided,
however, the Lenders and the Administrative Agent shall not be obligated by
reason of this Section 3.01(e) to contest the payment of any Taxes or Other
Taxes or to disclose any information regarding its tax affairs or tax
computation or reorder its tax or other affairs or tax or other planning.
Subject to the foregoing, to the extent the Borrower pays sums pursuant to this
Section 3.01 and the Lender or the Administrative Agent receives a refund of any
or all of such sums, such refund shall be applied to reduce any amounts then due
and owing under this Agreement or, to the extent that no amounts are due and
owing under this Agreement at the time such refunds are received, the party
receiving such refund shall promptly pay over all such refunded sums to the
Borrower, provided no Default or Event of Default is in existence at such time.
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3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, with the computation of such additional
amount to be set forth in writing, certified by such Lender, and delivered to
the Borrower, the Borrower shall, upon demand from such Lender (with a copy to
the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period thereof, if such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not lawfully continue
to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion,
the Borrower shall also pay interest then accrued on the amount so prepaid or
converted. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent determines
in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to banks in
the applicable offshore Dollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Rate for such Eurodollar Rate Loan, or (c)
the Eurodollar Rate for such Eurodollar Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Eurodollar Rate Loan, the
Administrative Agent will promptly notify the Borrower and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a
Revolving Borrowing, conversion or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Revolving Borrowing of Base Rate Loans in the amount specified therein, provided
that the Borrower shall not be liable for any Consequential Loss in connection
with any such deemed conversion.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 hereof shall govern), (ii) changes in the basis of taxation of overall net
income or overall gross income by the United
44
States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized or has its Lending
Office, and (iii) reserve requirements contemplated by Section 3.04(c) hereof),
then from time to time upon demand of such Lender (with a copy of such demand to
the Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction,
with the computation of such additional amount to be set forth in writing,
certified by such Lender, and delivered to the Borrower. The affected Lender
will as soon as practicable notify the Borrower of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section and designate a different Lending Office
if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the good faith judgment of such Lender, be
materially disadvantageous to such Lender.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender with respect to this Agreement as a consequence of such
Lender's obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on capital), then
from time to time upon demand of such Lender, with the computation of such
additional amount to be set forth in writing, certified by such Lender, and
delivered to the Borrower (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall be
required under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional costs on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be controlling, in absence of error),
which shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least 15 days' prior notice
(with a copy to the Administrative Agent) of such additional interest from such
Lender, with the computation of such additional amount to be set forth in
writing, certified by such Lender, and delivered to the Borrower. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such
notice.
(d) Notwithstanding anything to the contrary in this Section 3.04, the
Borrower shall not be liable with respect to any amounts that were incurred or
accrued more than (90) days prior to the date of the sending of the notice to
the Borrower under subsection (a), (b) or (c) of this Section 3.04, as the case
may be.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for the Consequential Loss incurred by it as a result of:
45
(a) any continuation, conversion, payment or prepayment of any Eurodollar
Rate Loan on a day other than the last day of the Interest Period for such
Eurodollar Rate Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any
Eurodollar Rate Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefore as a result of a request by the Borrower
pursuant to Section 10.16 hereof.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit
or other borrowing in the applicable offshore Dollar interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder and the detailed computation of such amount
or amounts shall be conclusive in the absence of manifest error. In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01,
3.02 or 3.04 hereof, the Borrower may remove or replace such Lender in
accordance with Section 10.16 hereof.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Revolving Commitments and payment in full of
all the other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with
respect to immaterial matters or items specified in clause (v) or (vi) below
with respect to which the Borrower has given assurances satisfactory to the
Administrative Agent that such items shall be delivered promptly following the
Closing Date), the Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date
46
before the Closing Date) and each in form and substance reasonably satisfactory
to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty,
sufficient in number for distribution to the Administrative Agent, each
Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each
Lender, each in a principal amount equal to such Lender's Revolving
Commitment;
(iii) a Swing Line Note executed by the Borrower in favor of the
Swing Line Lender in the principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require to establish the
identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection
with this Agreement and the other Loan Documents to which such Loan Party
is a party;
(v) such evidence as the Administrative Agent may reasonably require
to verify that each Loan Party is duly organized or formed, validly
existing, in good standing and qualified to engage in business in each
jurisdiction in which it is required to be qualified to engage in
business, including certified copies of each Loan Party's Organization
Documents, certificates of good standing and/or qualification to engage in
business and tax clearance certificates;
(vi) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
hereof have been satisfied, and (B) that there has been no event or
circumstance since the date of the Audited Financial Statements which has
or could be reasonably expected to have a Material Adverse Effect;
(vii) opinions of counsel to each Loan Party in form and substance
reasonably satisfactory to the Administrative Agent;
(viii) evidence that any Indebtedness not otherwise permitted
hereunder has been or concurrently with the Closing Date is being
terminated and all obligations thereunder have been or concurrently with
the Closing Date are being paid in full;
(ix) the Officer's Certificate executed by the chief executive
officer of the Borrower; and
(x) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, each L/C Issuer, the Swing Line
Lender or the Required Lenders reasonably may require.
(b) All fees under the Agent Fee Letters required to be paid on or before
the Closing Date shall have been paid.
47
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all Attorney Costs of the Administrative Agent to the extent invoiced at least
two days prior to the Closing Date, plus such additional amounts of Attorney
Costs as shall constitute its reasonable estimate of Attorney Costs incurred or
to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts between the
Borrower and the Administrative Agent).
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS AND CONVERSIONS AND
CONTINUATIONS. The obligation of each Lender to honor any Request for Credit
Extension is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in
Article V, or which are contained in any document furnished at any time under or
in connection herewith, shall be true and correct on and as of the date of such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 hereof shall be deemed to refer to the most recent financial
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01 hereof.
(b) No Default or Event of Default shall exist, or would result from such
proposed Credit Extension.
(c) After giving effect to any Request for Credit Extension, the aggregate
amount of outstanding Indebtedness of the Borrower and its Subsidiaries is
permitted under the Note Agreements.
(d) The Administrative Agent and, if applicable, a L/C Issuer or the Swing
Line Lender shall have received a Request for Credit Extension in accordance
with the requirements hereof.
Each Request for Credit Extension submitted by the Borrower shall be deemed to
be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) hereof have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party (a) is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all governmental licenses, authorizations, consents and
approvals necessary to (i) own its assets, carry on its business and (ii)
execute, deliver, and perform its obligations under the Loan Documents to which
it is a party, (c) is duly qualified and is licensed and in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such
48
qualification or license, and (d) is in compliance with all Laws (including,
without limitation, all federal and state registrations required by any
anti-money laundering Laws), except in each case referred to in clause (b)(i),
(c) or this clause (d), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) materially conflict with or result
in any breach or contravention of, or the creation of any Lien under, any
material Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such Person or
its property is subject; or (c) violate any Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party of
this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, subject as to enforcement of
remedies to (a) any Debtor Relief Laws and (b) general principles of equity,
whether applied by a court of law or equity.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness
in accordance with GAAP consistently applied throughout the period covered
thereby.
(b) Since the date of the Audited Financial Statements, there has been no
event or circumstance that has or could reasonably be expected to have a
Material Adverse Effect.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues which (a) purport to affect or pertain to this
49
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) individually or collectively, could reasonably be expected to
have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation which in the Borrower's
reasonable judgment would have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each Subsidiary has
good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or in the aggregate,
have a Material Adverse Effect. As of the Closing Date, the property of the
Borrower and its Subsidiaries will be subject to no Liens, other than Permitted
Liens.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that such Environmental Laws and claims would not, individually or in the
aggregate, have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with reputable national insurance companies, not Affiliates of the
Borrower, in such amounts (after giving effect to any self-insurance compatible
with the following standards), with such deductibles and covering such risks as
are customarily carried by companies of similar financial condition and strength
engaged in similar businesses and owning similar properties in localities where
the Borrower or its Subsidiaries operate.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding
50
waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan. Each Foreign Plan is in compliance
with applicable laws of any applicable foreign jurisdictions, except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could be reasonably expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
5.13 SUBSIDIARIES. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Schedule 1.01 and has no
equity investments in any other corporation or entity other than those
specifically disclosed in Schedule 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board), or extending
credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 NO FINANCING OF CORPORATE TAKEOVERS. No proceeds of any Credit
Extension will be used to acquire any security in any transaction which is
subject to Section 13 or 14 of the Exchange Act, including particularly (but
without limitation) Sections 13(d) and 14(d) thereof, except as otherwise
permitted pursuant to Section 7.03(f) hereof.
5.16 INSIDER. The Borrower is not, and no Person having "control" (as that
term is defined in 12 U.S.C. Section 375(b)(5) or in regulations promulgated
pursuant thereto) of the Borrower is, an "executive officer", "director", or
"person who directly or indirectly or in concert with one or more persons owns,
controls, or has the power to vote more than 10% of any class of voting
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securities" (as those terms are defined in 12 U.S.C. Section 375(b) or in
regulations promulgated pursuant thereto) of any Lender, of a bank holding
company of which any Lender is a subsidiary, or of any bank at which Lender
maintains a correspondent account.
5.17 DISCLOSURE. No statement, information, report, representation, or
warranty made by any Loan Party in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of any Loan Party in
connection with any Loan Document contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made and at the time at which they were made, not misleading. There is no fact
(excluding economic conditions not peculiar to the Borrower or any Subsidiary)
known to the Borrower or any of its Subsidiaries and not known to the public
generally which materially adversely affects its assets or in the future may
reasonably be expected to (so far as the Borrower or any of its Subsidiaries can
now foresee) result in a Material Adverse Effect, which has not been disclosed
to the Administrative Agent and the Lenders by or on behalf of the Borrower or
any of its Subsidiaries prior to the Closing Date in connection with the
transactions contemplated hereby.
5.18 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other rights that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person, except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.19 BUSINESSES. The Borrower is presently engaged directly or through
wholly-owned Subsidiaries in (a) the pawn shop business, (b) the business of
cashing checks and conducting related cash dispensing transactions, (c) the
business of making and collecting short term consumer loans, (d) the business of
offering money order, wire transfer and pre-paid card related services to its
customers and (e) other activities related to short term consumer financing and
general consumer financial services.
5.20 COMMON ENTERPRISE. The Borrower and its Subsidiaries are engaged in
the businesses set forth in Section 5.19 hereof as of the Closing Date, as well
as in certain other businesses. These operations require financing on a basis
such that the credit supplied can be made available from time to time to the
Borrower and various of its Subsidiaries, as required for the continued
successful operation of the Borrower and its Subsidiaries as a whole. The
Borrower has requested the Lender to make credit available hereunder primarily
for the purposes of financing the operations of the Borrower and its
Subsidiaries. The Borrower and each of its Subsidiaries expects to derive
benefit (and the Board of Directors of the Borrower and each of its Subsidiaries
has determined that such Subsidiary may reasonably be expected to derive
benefit), directly or indirectly, from the credit extended by the Lenders
hereunder, both in its separate capacity and as a member of the group of
companies, since the successful operation and condition of the Borrower and each
of its Subsidiaries is dependent on the continued successful performance of the
functions of the group as a whole.
5.21 SOLVENT. The Borrower is, and the Borrower and its Subsidiaries are
on a consolidated basis, Solvent.
52
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder, any
Loan or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding:
6.01 FINANCIAL STATEMENTS. The Borrower shall deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 45 days after the end of
each of the first three (3) quarterly fiscal periods of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal period, and consolidated statements of
income, retained earnings and cash flows of the Borrower and its Consolidated
Subsidiaries for that quarterly fiscal period and for that portion of the fiscal
year then ended, in each case setting forth in comparative form the figures for
the corresponding period of the preceding fiscal year, all in reasonable detail
and certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes; and
(b) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the close of such fiscal year, and
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Consolidated Subsidiaries for such fiscal year, in each case
setting forth in comparative form the figures for the preceding fiscal year, all
in reasonable detail and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders (the "Accounting Firm"), which report and
opinion shall be prepared in accordance with GAAP and shall not be subject to
any qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions not reasonably acceptable to the Required Lenders.
6.02 CERTIFICATES; OTHER INFORMATION. The Borrower shall deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b) hereof, a duly completed Compliance Certificate
signed by a Responsible Officer of the Borrower;
(b) promptly after requested by the Administrative Agent or any Lender,
copies of any detailed audit reports or management letters submitted to the
board of directors (or the audit committee of the board of directors) of the
Borrower by independent accountants in connection with the accounts or books of
the Borrower or any Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower,
53
and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the
Securities and Exchange Commission under Section 13 or 15(d) of the Exchange
Act, and not otherwise required to be delivered to the Administrative Agent
pursuant hereto;
(d) as soon as available, but in any event not later than the earlier of
(i) 90 days after the end of each fiscal year of the Borrower or (ii) promptly
after receiving board approval, projected annual consolidated balance sheets,
and statements of income of the Borrower and its Consolidated Subsidiaries for
the immediately succeeding fiscal year;
(e) simultaneously with the providing to Teachers or any other Person in
connection with the Note Agreements, or any of the "Loan Documents" as referred
to therein, or any Additional Senior Debt, of each notice of default or
potential default, and each request for amendment, consent or waiver, provide
the Lenders with a copy of such notice or request, together with any other
information reasonably requested by Administrative Agent or the Required Lenders
with respect thereto;
(f) concurrently with the delivery of the financial statements referred to
in Section 6.01(b), an Officer's Certificate signed by the chief executive
officer of the Borrower; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on the Borrower's behalf on
http://www.sec.gov; provided that: (i) the Borrower shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent (by telecopier or
electronic mail) of the posting of any such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(a) to the
Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
In addition, documents delivered by the Borrower to the Administrative
Agent pursuant to clauses (a), (b), and (d) through (f) of Section 6.02 may be
made available to the Lenders through the Platform in accordance with the
provisions of Section 10.02(c).
54
6.03 NOTICES. The Borrower shall promptly notify the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) any changes in its
consolidated financial condition or its business (ii) breach or non-performance
of, or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (iii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iv) the commencement of, or any material development in, any
litigation, investigation, or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of any litigation, investigation or proceeding affecting any Loan
Party in which the damages, penalties, fines or other sanctions could reasonably
be expected to exceed $5,000,000 (to the extent not covered by independent
third-party insurance);
(d) of the occurrence of any ERISA Event; and
(e) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) hereof
shall describe with particularity any and all provisions of this Agreement or
other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. The Borrower shall, and shall cause each of
its Subsidiaries to, pay and discharge as the same shall become due and payable,
all its material obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets; (b) all lawful claims which, if unpaid, would by law become a Lien upon
its property; and (c) all Indebtedness, as and when due and payable, but subject
to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness; provided, however, that the Borrower and each
Subsidiary shall not be required to pay any such amount if and so long as the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings and appropriate accruals and reserves therefor
have been established in accordance with GAAP.
6.05 PRESERVATION OF EXISTENCE, ETC. The Borrower shall, and shall cause
each of its Subsidiaries to, preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction
of its organization; take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except in a transaction permitted by Section
7.04 or 7.05 hereof or except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and preserve or renew
all of its registered patents, trademarks, trade names and
55
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. Except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect, the Borrower
shall, and shall cause each of its Subsidiaries to, (a) maintain, preserve and
protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear
excepted; (b) make all necessary repairs thereto and renewals and replacements
thereof; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain with reputable national insurance companies not
Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons of similar financial condition and strength engaged in the same or
similar business and owning similar properties in localities where the Borrower
or its Subsidiaries operate, of such types and in such amounts (it being
acknowledged by the Lenders that the Borrower maintains self-insurance with
respect to inventory which the Borrower has represented pursuant to Section 5.10
is compatible with the standards set forth herein) as are customarily carried
under similar circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. The Borrower shall, and shall cause each of its
Subsidiaries to, comply in all material respects with the requirements of all
Laws applicable to it or to its business or property (including, without
limitation, all federal and state registrations required by anti-money
laundering Laws), except in such instances in which (i) such requirement of Law
is being contested in good faith or a bona fide dispute exists with respect
thereto; or (ii) the failure to comply therewith could not be reasonably
expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. The Borrower shall, and shall cause each of its
Subsidiaries to, maintain books, records and accounts with respect to itself and
the Subsidiaries which, in reasonable detail, accurately and fairly reflect
their transactions and dispositions of their assets, and maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(a) transactions are executed in accordance with management's general or
specific authorization, (b) transactions are recorded as necessary (i) to permit
preparation of financial statements in accordance with GAAP, and (ii) to
maintain accountability for assets, (c) access to assets is permitted only in
accordance with management's general or specific authorization and (d) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
6.10 INSPECTION RIGHTS. The Borrower shall, and shall cause each of its
Subsidiaries to, subject to Section 10.08 hereof, permit representatives and
independent contractors of the Administrative Agent and each Lender to visit and
inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of the Lenders and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon request of the Required Lenders
56
or the Administrative Agent and reasonable advance notice to the Borrower;
provided, however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice.
6.11 COMPLIANCE WITH ERISA. The Borrower shall do, and cause each of its
ERISA Affiliates to do, each of the following: (a) maintain each Plan in
compliance in all material respects with the applicable provisions of ERISA, the
Code and other Federal or state law and maintain each Foreign Plan in compliance
in all material respects with all applicable laws; (b) preclude each Plan which
is qualified under Section 401(a) of the Code from being determined to be
disqualified in any final assessment by the IRS; (c) make all required
contributions to any Plan subject to Section 412 of the Code; and (d) make all
contributions required under its Foreign Plans, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.12 USE OF PROCEEDS. The Borrower shall use the proceeds of the Credit
Extensions (i) to consummate Acquisitions permitted hereunder, (ii) to refinance
certain existing indebtedness of the Borrower and (iii) for working capital and
other general corporate purposes not in contravention of any Law or of any Loan
Document.
6.13 FURTHER ASSURANCES. Upon the reasonable request of the Administrative
Agent, the Borrower will duly execute and deliver to the Administrative Agent
any and all such further instruments and documents (in form and substance
reasonably satisfactory to the Borrower) as may be necessary or advisable, in
the opinion of the Administrative Agent, to obtain the full benefits of the Loan
Documents.
6.14 NOTICE OF FORMATION OF SUBSIDIARY. Promptly upon the formation of any
Subsidiary and in any event within 30 days after such formation, the Borrower
shall give the Administrative Agent written notice thereof.
6.15 NEW DOMESTIC SUBSIDIARIES. The Borrower shall cause each Domestic
Subsidiary which the Borrower or any of its Subsidiaries forms or acquires
during the term of this Agreement to execute and deliver to the Administrative
Agent a Guaranty, together with a certified copy of a resolution of the board of
directors (or other authorizing document of the appropriate governing body or
Person) of such Domestic Subsidiary authorizing the execution and delivery of
the Guaranty and the performance of its terms, together with such other
opinions, certificates, and documents as the Administrative Agent may reasonably
request.
6.16 OPINIONS REGARDING OBLIGATIONS OF GUARANTORS. Within forty-five (45)
days after written request by the Required Lenders, which the Required Lenders
shall be entitled to make at any time, the Borrower shall obtain or cause to be
provided in favor of Lenders an opinion of local counsel satisfactory to the
Required Lenders for any of the Guarantors that opines (a) to such Guarantor's
(i) existence and good standing in its jurisdiction of formation, (ii) due
authority to execute the Guaranty, and (iii) due execution, delivery and
performance of the Guaranty and (b) to the enforceability of the Guaranty
against such Guarantor; provided that Borrower shall be obligated to provide no
more than one opinion of local counsel as to each Guarantor at any time during
the period in which this Agreement is in effect.
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6.17 INTEREST RATE PROTECTION. The Borrower shall maintain in effect at
all times after the Closing Date, one or more Interest Rate Protection
Agreements on such terms and with parties as shall be reasonably satisfactory to
the Administrative Agent, the effect of which (when taken together with the
other fixed rate debt and interest rate protection agreements) shall be to fix
or limit the interest cost to the Borrower with respect to at least 40% of the
outstanding Funded Debt of the Borrower.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Revolving Commitment hereunder, any
Loan or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding:
7.01 LIENS. The Borrower shall not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist, any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than (a)
Permitted Liens, and (b) Liens on assets securing Indebtedness permitted to be
assumed pursuant to Section 7.02(n) hereof, provided that such Liens are fully
paid and released within sixty (60) days after any such Acquisition. The
Borrower shall not, and shall not permit any Subsidiary to, become subject to a
Negative Pledge Agreement except pursuant to the Private Placement Debt, and any
Additional Senior Debt permitted by Section 7.02(l).
7.02 INDEBTEDNESS. The Borrower shall not, and shall not permit any
Subsidiary to, incur, create, contract, waive, assume, have outstanding,
guarantee or otherwise be or become liable, directly or indirectly, in respect
of any Indebtedness, except for
(a) the Obligations arising out of or in connection with this Agreement
and the other Loan Documents,
(b) Capital Leases and purchase money Indebtedness, provided that the
aggregate amount of such Indebtedness which is purchase money Indebtedness plus
the aggregate amount of Capital Leases shall not exceed $15,000,000 at any time,
(c) current liabilities for taxes and assessments incurred in the ordinary
course of business, and other liabilities for unpaid taxes being contested in
good faith by the Borrower or any Subsidiary for which sufficient reserves have
been established,
(d) current amounts payable or accrued for other claims (other than for
borrowed funds or purchase money obligations) incurred in the ordinary course of
business, provided that all such liabilities, accounts and claims shall be
promptly paid and discharged when due or in conformity with customary trade
terms, except for those being contested in good faith by the Borrower or a
Subsidiary for which sufficient reserves have been established,
(e) contingent liabilities resulting from the endorsement of negotiable
instruments in the ordinary course of business,
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(f) intercompany loans and advances, provided that the aggregate amount of
outstanding loans and advances by the Borrower and Domestic Subsidiaries to
Foreign Subsidiaries after the Closing Date shall not exceed $10,000,000 in
aggregate principal amount at any time, and provided further that such
intercompany loans and advances may exceed $10,000,000 in aggregate principal
amount so long as an amount equal to such excess amount is re-invested by one or
more Foreign Subsidiaries in the Borrower or a Guarantor within a maximum of 30
days after to the making of such loan or advance;
(g) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Interest Rate Protection Agreement,
provided that (i) such obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held
or reasonably anticipated by such Person, or changes in the value of securities
issued by such Person and not for purposes of speculation; and (ii) such
Interest Rate Protection Agreement does not contain any provision exonerating
the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party,
(h) Guaranty Obligations permitted under Section 7.17 hereof,
(i) the Private Placement Debt,
(j) with respect to Temporary Cash Investments, short term Indebtedness
not constituting "margin loans" and not exceeding $5,000,000 at any time in the
aggregate owed by the Borrower or a Consolidated Subsidiary to the broker or
investment firm which is holding assets for the account of the Borrower or a
Consolidated Subsidiary, but only to the extent that such Indebtedness is to be
repaid, in the ordinary course of business, by the collection or liquidation of
such assets at the maturity of such assets,
(k) Subordinated Debt, provided that prior to the issuance thereof, the
Borrower has delivered to the Administrative Agent a Compliance Certificate
which indicates that on a pro forma basis after taking into account the issuance
of such Subordinated Debt and the use of the proceeds thereof, there shall occur
no Default or Event of Default,
(l) Additional Senior Debt of the Borrower, provided that prior to the
incurrence thereof, the Borrower has delivered to the Administrative Agent a
Compliance Certificate which indicates that on a pro forma basis after taking
into account the incurrence of such Additional Senior Debt and the use of the
proceeds thereof, there shall occur no Default or Event of Default,
(m) intercompany payables for the purchase of goods and services in the
ordinary course of business,
(n) Indebtedness assumed in Acquisitions permitted pursuant to Section
7.03(f) hereof not to exceed $10,000,000 in aggregate principal amount, provided
(i) at the time of the assumption thereof and immediately thereafter after
giving effect thereto, no Default or Event of Default shall exist and (ii) such
Indebtedness shall be paid in full within sixty (60) days of such Acquisition,
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(o) Guaranty Obligations of the Borrower and the Subsidiaries in respect
of Indebtedness otherwise permitted under this Section 7.02,
(p) intercompany loans and advances among Foreign Subsidiaries,
(q) Indebtedness of the Borrower in respect of the Cashland Seller Note;
(r) obligations in respect of earnout or similar payments payable in cash
or which may be payable in cash at the seller's or obligee's option; and
(s) surety bonds delivered by the Borrower or any Subsidiary in the
ordinary course of business.
7.03 INVESTMENTS. The Borrower shall not, and shall not permit any
Subsidiary to, make or have outstanding Investments in or to any Person, except
for
(a) pawn transactions, pawn loans and other short-term consumer loans in
the ordinary course of its day to day business,
(b) ownership of Capital Stock of Domestic Subsidiaries which, promptly
after the formation or acquisition thereof, execute a Guaranty,
(c) ownership of Capital Stock of Foreign Subsidiaries, provided that the
aggregate amount of such Investments made after the Closing Date, and
Acquisitions made pursuant to Section 7.03(f) hereof, which are of assets or
entities which are outside the United States, shall not exceed 10% of Net Worth
in aggregate principal amount at any time,
(d) Temporary Cash Investments and such other "cash equivalent"
investments as the Required Lenders may from time to time approve,
(e) Investments for the purchase of real estate, provided that (x) such
Investments shall only be for the purpose of operating one or more of the types
of business permitted under clauses (a) through (c) of Section 5.19 located or
to be located on such real estate, (y) the cumulative amount of such Investments
made after the Closing Date, shall not exceed $15,000,000, and (z) clause (y)
immediately preceding notwithstanding, the maximum amount of such Investments
made for the purchase of real estate where one or more of the types of business
permitted under clauses (a) through (c) of Section 5.19 are not existing thereon
at the time of such purchase or cannot reasonably be expected to be established
thereon within twelve months following such purchase, shall not exceed
$7,500,000;
(f) Acquisitions, provided (i) at time of such Acquisition and after
giving effect thereto, no Default or Event of Default shall exist, (ii) the
assets, property or business being acquired shall be in one or more of the types
of businesses described in clauses (a) through (c) of Section 5.19 hereof, (iii)
such Acquisition shall not be opposed by the board of directors (or other
governing body) of the Person being acquired, (iv) promptly upon becoming
available and in any event within five (5) days prior to any proposed
Acquisition for which the aggregate Acquisition Consideration for such
Acquisition is equal to or greater than $15,000,000, the Administrative Agent
shall have received a pro forma Compliance Certificate setting forth the
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covenant calculations both immediately prior to and after giving effect to the
proposed Acquisition and certifying that no Default or Event of Default exists
or would occur as a result therefrom, and (v) the Acquisition Consideration for
any single Acquisition shall not exceed 17.5% of Net Worth immediately preceding
the Acquisition without the Required Lenders approval,
(g) Investments after the Closing Date by the Borrower in Domestic
Subsidiaries,
(h) intercompany receivables as a result of the transfer of goods and
property in the ordinary course of business, (i) other Investments permitted
under Section 7.04 hereof,
(j) Investments in existence as of the Closing Date, (including existing
loans to officers of the Borrower and Subsidiaries for the purchase of Capital
Stock of the Borrower to the extent not otherwise prohibited by Applicable Law),
and listed on Schedule 7.03(j),
(k) Investments as a result of intercompany loans and advances to Foreign
Subsidiaries permitted under Section 7.02(f) hereof;
(l) the Existing Foreign Investments; and
(m) other Investments in activities directly related to the types of
business permitted under Section 5.19 hereof, provided that such Investments
shall not exceed $7,500,000 in aggregate principal amount at any time.
7.04 FUNDAMENTAL CHANGES. The Borrower shall not, and shall not permit any
Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its Assets (whether now owned or hereafter acquired)
to or in favor of any Person, except that, so long as no Default or Event of
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, (ii) any Guarantor, or
(iii) in the case of any such Subsidiary that is a Foreign Subsidiary, any
Subsidiary;
(b) any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to a Guarantor; and
(c) the Borrower and any Subsidiary may make Dispositions permitted
pursuant to Section 7.05 hereof.
7.05 DISPOSITIONS. The Borrower shall not, and shall not permit any
Subsidiary to, make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
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(b) Dispositions of inventory and other property in the ordinary course of
business for fair consideration;
(c) Dispositions permitted under Section 7.04 and Dispositions to a
wholly-owned Domestic Subsidiary which is a Guarantor;
(d) Dispositions of Capital Stock of the Borrower and Dispositions of
Capital Stock of a Subsidiary to the Borrower or to another Subsidiary;
(e) Dispositions permitted under Section 7.14;
(f) Dispositions of Assets (including Capital Stock of a Subsidiary other
than to the Borrower or another Subsidiary) not otherwise permitted in clauses
(a) through (e) above, so long as (i) at the time of such Disposition and after
giving effect thereto, no Default or Event of Default shall exist and (ii) to
the extent the aggregate Net Proceeds of Dispositions during any fiscal year
exceed 7.5% of Net Worth as of the last day of the immediately preceding fiscal
year, the mandatory prepayments required pursuant to Section 2.05(d) hereof are
made; provided, however, notwithstanding anything in this Section 7.05(f) to the
contrary, in no event shall the aggregate Net Proceeds of Dispositions not
otherwise permitted in clauses (a) through (e) above during any fiscal year
exceed 15% of Net Worth as of the last day of the immediately preceding fiscal
year without the prior consent of the Required Lenders;
provided, however, that any Disposition pursuant to clauses (a) through (f)
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. The Borrower shall not, and shall not permit any
Subsidiary to, directly or indirectly pay any Restricted Payment; provided,
however, (a) any Subsidiary may declare and pay Dividends to or for the benefit
of the Borrower or any Guarantor, (b) the Borrower may (i) declare Dividends
(including the repurchase of Capital Stock of the Borrower), and (ii) make
regularly scheduled principal payments on Subordinated Debt in existence as of
the Closing Date in both cases taken together in an aggregate amount not to
exceed the sum of (A) $16,500,000 plus (B) 50% of cumulative Net Income after
the Closing Date, and (c) the Borrower may repay the Cashland Seller Note and
any repayments on the Cashland Seller Note shall not apply against the dollar
limitations set forth in (ii)(A) and (B) above; provided, further, the Borrower
shall make no Restricted Payments unless there shall exist no Default or Event
of Default prior to or after giving effect to any proposed Restricted Payment.
7.07 ERISA. The Borrower shall not, and shall not permit any Subsidiary
to, at any time engage in a transaction which could be subject to Section 4069
or 4212(c) of ERISA, or permit any Plan to (a) engage in any non-exempt
"prohibited transaction" (as defined in Section 4975 of the Code); (b) fail to
comply in any material respect with ERISA or any other applicable Laws; or (c)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), which, with respect to each event listed above, could be reasonably
expected to have a Material Adverse Effect.
7.08 CHANGE IN NATURE OF BUSINESS. The Borrower shall not, and shall not
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of
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business conducted by the Borrower and its Subsidiaries on the date hereof and
businesses reasonably related thereto.
7.09 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall not
permit any Subsidiary to, enter into any transaction of any kind with any
Affiliate of the Borrower, other than arm's-length transactions with Affiliates,
transactions otherwise permitted hereunder and transactions with Affiliates in
the ordinary course of business.
7.10 BURDENSOME AGREEMENTS. The Borrower shall not, and shall not permit
any Subsidiary to enter into any Contractual Obligation that limits the ability
of any Subsidiary to make Dividends or other Dispositions to the Borrower or to
otherwise transfer property to the Borrower.
7.11 USE OF PROCEEDS. The Borrower shall not, directly or indirectly, use
the proceeds of any Credit Extension, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the Board) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.
7.12 AMENDMENT OF ORGANIZATION DOCUMENTS AND FISCAL YEAR. The Borrower
shall not, and shall not permit any Subsidiary to, amend, modify, or waive any
of its rights under any Organization Documents in a manner adverse to the
Lenders. The Borrower shall not, and shall not permit any Subsidiary to, change
its fiscal quarters or fiscal year, except after providing 30 days prior written
notice to Lenders and provided such change does not have the effect of delaying
or otherwise curing a Default or Event of Default that would have otherwise
existed.
7.13 AMENDMENT OF SUBORDINATED DEBT. The Borrower shall not, and shall not
permit any Subsidiary to, change or amend (or take any action or fail to take
any action the result of which is an effective amendment or change) or accept
any waiver or consent with respect to, any document, instrument, or agreement
relating to any Subordinated Debt that would result in (a) an increase in the
principal, interest, overdue interest, fees or other amounts payable under any
Subordinated Debt, (b) an acceleration in any date fixed for payment or
prepayment of principal, interest, fees or other amounts payable under any
Subordinated Debt (including, without limitation, as a result of any
redemption), (c) a change in any of the subordination provisions of any
Subordinated Debt, (d) a change in any defined term, covenant, term or provision
in any Subordinated Debt which would result in such term or provision being more
restrictive than the existing terms of such Subordinated Debt or the terms of
this Agreement, or (e) a change in any term or provision of any Subordinated
Debt that could reasonably be expected to have a material adverse effect on the
interest of the Lenders.
7.14 SALE AND LEASEBACK. The Borrower shall not, and shall not permit any
Subsidiary to, enter any arrangement whereby it sells or transfers any of its
Assets, and thereafter rents or leases those Assets except for the sale and
leaseback of operating facilities so long as the aggregate amount of such sale
and leasebacks made after the Closing Date, shall not exceed $25,000,000.
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7.15 ALTERATION OF MATERIAL AGREEMENTS. The Borrower will not, and will
not permit any Subsidiary to, consent to or permit any alterations, amendments,
modifications, releases, waivers or terminations of any material agreement to
which it is a party, including but not limited to the Note Agreements, the
Private Placement Debt and the Additional Senior Debt, if such alterations,
amendments, modification, releases, waivers or terminations would have a
Material Adverse Effect.
7.16 STRICT COMPLIANCE. If any action or failure to act by the Borrower
violates any covenant or obligation of the Borrower contained herein, then such
violation shall not be excused by the fact that such action or failure to act
would otherwise be permitted by any covenant (or exception to any covenant)
other than the covenant violated.
7.17 GUARANTIES. The Borrower will not, and will not permit any Subsidiary
to, become or be liable in respect of any Guaranty Obligation, except for (i)
the Guaranty, (ii) guaranties of Indebtedness to extent such Indebtedness is
permitted pursuant to Section 7.02 hereof), and (iii) additional limited
guaranties of the Borrower, provided that the aggregate Indebtedness guaranteed
by such additional limited guaranties at any time shall not exceed $5,000,000,
and provided further that within five (5) days after the execution of each
guaranty by the Borrower for Indebtedness in excess of $2,500,000, the Borrower
shall provide each of the Lenders with a copy of such executed guaranty.
7.18 FINANCIAL COVENANTS.
(a) Maximum Leverage Ratio. The Borrower shall not permit the Leverage
Ratio as of the end of any fiscal quarter of the Borrower to be greater than
2.75 to 1.00:
(b) Minimum Fixed Charge Coverage Ratio. The Borrower shall not permit the
Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower
to be less than 1.75 to 1.00.
(c) Minimum Net Worth. The Borrower shall not permit Net Worth to be less
than the sum of (i) $270,000,000, plus (ii) 50% of Net Income (with no deduction
for net losses during any quarterly period) earned after September 30, 2004,
plus (iii) 100% of the Net Proceeds received by the Borrower and its
Subsidiaries from the issuance and sale of Capital Stock of the Borrower or any
Subsidiary (other than issuance to the Borrower or a wholly-owned Subsidiary),
including any conversion of debt securities of the Borrower into such Capital
Stock after September 30, 2004.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) The Borrower fails to pay when due (i) any principal of, or interest
on any Loan or any L/C Obligation or (ii) any fee, expense, reimbursement
obligation or any other amount due in connection herewith or with any other Loan
Document, and such failure with respect to clause (ii) shall have continued for
three (3) Business Days after receipt from the Administrative Agent of notice of
such failure on any Loan or on any L/C Obligation; or
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(b) Any representation or warranty made under this agreement, or any of
the other Loan Papers, or in any certificate or statement furnished or made to
the Lenders pursuant hereto or in connection herewith or with any Loan or L/C
Obligation hereunder, shall prove to be untrue or inaccurate in any material
respect as of the date on which such representation or warranty is made; or
(c) The Borrower or any Subsidiary fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03(a) or (b), 6.05, 6.10,
6.12, or Article VII hereof (but only to the extent that the failure to perform
or observe the covenants in Section 7.01, 7.02 and/or 7.03 involves an aggregate
amount in excess of $500,000); or
(d) The Borrower or any Subsidiary shall fail to perform or observe any
other term or covenant contained herein or in any of the Loan Documents (other
than those specified in subsection (a), or (c) above), on its part to be
performed or observed and such failure shall not be remedied within thirty (30)
days following the earlier of knowledge thereof by the Borrower or any
Subsidiary or written notice by the Administrative Agent to the Borrower; or
(e) (i) The Borrower or any Subsidiary (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or any Guaranty Obligation (other
than Indebtedness hereunder and Indebtedness under Interest Rate Protection
Agreements) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than $2,500,000, or (B) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of any Guaranty Obligation with respect to
such Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased or
redeemed (automatically or otherwise) or such Guaranty Obligation to become
payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Interest Rate Protection Agreement an Early Termination Date
(as defined in such Interest Rate Protection Agreement) resulting from (A) any
event of default (or, if such Interest Rate Protection Agreement is a forward
gold transaction, any event of default which has not been cured within five (5)
days after the occurrence of such event of default) under such Interest Rate
Protection Agreement as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Interest Rate Protection Agreement) or (B)
any Termination Event (as so defined) under such Interest Rate Protection
Agreement as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Termination Value owed by the Borrower or
such Subsidiary as a result thereof is greater than $1,000,000; or
(f) Any material portion of any Loan Document shall cease to be legal,
valid, binding agreements enforceable against any party executing the same in
accordance with the respective terms thereof or shall in any way be terminated
or become or be declared ineffective or inoperative or shall in any way
whatsoever cease to give or provide the respective rights, remedies, powers or
privileges intended to be created hereby; or
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(g) The Borrower or any Subsidiary institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or
(h) Any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of the Borrower or any Subsidiary, or any proceeding under any Debtor Relief Law
relating to the Borrower or any Subsidiary, or to all or any part of its
property is instituted without the consent of such Person, and such appointment
or proceeding shall remain undismissed and unstayed for a period of 60
consecutive days; or
(i) (i) The Borrower or any Subsidiary becomes unable or admits in writing
its inability or fails generally to pay its debts as they become due, or (ii)
any writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy;
or
(j) There is entered against the Borrower or any Subsidiary a final
judgment or order for the payment of money in an aggregate amount exceeding
$2,500,000, and such judgment shall not be satisfied, discharged or stayed (with
sufficient reserves having been set aside by the Borrower or such Subsidiary to
pay such judgment) at least ten (10) days prior to the date on which any of its
assets could be lawfully sold to satisfy such judgment; or
(k) (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $2,500,000,
(ii) the Borrower or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $2,500,000 or (iii) any Foreign Plan
shall be terminated or the Borrower or any Foreign Subsidiary shall become
obligated to pay any obligation with respect to any Foreign Plan which in either
case could reasonably be expected to have a Material Adverse Effect; or
(l) A Change of Control of the Borrower shall have occurred; or
(m) There shall occur any event which, in the reasonable opinion of the
Required Lenders, will have a Material Adverse Effect.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders,
(a) declare the commitment of each Lender to make Loans and any obligation
of any L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan
66
Document to be immediately due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by the
Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in
subsections (g) or (h) of Section 8.01 hereof, the obligation of each Lender to
make Loans and any obligation of a L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable, and the obligation of the Borrower to Cash Collateralize the
L/C Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
8.03 APPLICATION OF PROCEEDS. After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including Attorney Costs
and amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this
clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings in proportion to the
respective amounts described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of any applicable
L/C Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit;
Sixth, to payment of Interest Rate Protection Obligations, ratably
among the Guarantied Parties (as defined in the Guaranty) in proportion to
the respective amounts described in this clause Sixth held by them; and
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Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) Each L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the Administrative Agent may agree at the
request of the Required Lenders to act for such L/C Issuer with respect thereto;
provided, however, that each L/C Issuer shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by each such L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent" as used in this
Article IX included each L/C Issuer with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to each L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
(including counsel to any Loan Party) and other consultants or experts
concerning all matters pertaining to such duties. The
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Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, electronic mail, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Loan Party), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders or all the Lenders, if required hereunder, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and participants. Where this Agreement expressly
permits or prohibits an action unless the Required Lenders otherwise determine,
the Administrative Agent shall, and in all other instances, the Administrative
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01 hereof, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
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9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. WHETHER OR NOT THE
TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE LENDERS SHALL INDEMNIFY
UPON DEMAND EACH AGENT-RELATED PERSON (TO THE EXTENT NOT REIMBURSED BY OR ON
BEHALF OF ANY LOAN PARTY AND WITHOUT LIMITING THE OBLIGATION OF ANY LOAN PARTY
TO DO SO), PRO RATA, AND HOLD HARMLESS EACH AGENT-RELATED PERSON FROM AND
AGAINST ANY AND ALL INDEMNIFIED LIABILITIES INCURRED BY IT (WHETHER
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OR NOT ARISING OUT OF THE NEGLIGENCE OF SUCH AGENT-RELATED PERSON); PROVIDED,
HOWEVER, THAT NO LENDER SHALL BE LIABLE FOR THE PAYMENT TO ANY AGENT-RELATED
PERSON OF ANY PORTION OF SUCH INDEMNIFIED LIABILITIES RESULTING FROM SUCH
PERSON'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED, HOWEVER, THAT NO
ACTION TAKEN IN ACCORDANCE WITH THE DIRECTIONS OF THE REQUIRED LENDERS SHALL BE
DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT FOR PURPOSES OF THIS
SECTION. WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER SHALL REIMBURSE THE
ADMINISTRATIVE AGENT UPON DEMAND FOR ITS RATABLE SHARE OF ANY COSTS OR
OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEY COSTS) INCURRED BY THE ADMINISTRATIVE
AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION,
MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL
PROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS OR
RESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY DOCUMENT
CONTEMPLATED BY OR REFERRED TO HEREIN, TO THE EXTENT THAT THE ADMINISTRATIVE
AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY OR ON BEHALF OF THE BORROWER. THE
UNDERTAKING IN THIS SECTION SHALL SURVIVE TERMINATION OF THE REVOLVING
COMMITMENTS, THE PAYMENT OF ALL OBLIGATIONS HEREUNDER AND THE RESIGNATION OR
REPLACEMENT OF THE ADMINISTRATIVE AGENT. THE FOREGOING INDEMNITY SHALL APPLY TO
THE NEGLIGENCE OF THE AGENT-RELATED PERSON (BUT NOT THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE AGENT-RELATED PERSON).
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The Administrative
Agent, acting in any capacity other than pursuant to this Agreement, and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with each of
the Loan Parties and their respective Affiliates as though it were not the
Administrative Agent or one of the L/C Issuers hereunder and without notice to
or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, the Administrative Agent, acting in any capacity other than pursuant
to this Agreement, or its Affiliates may receive information regarding any Loan
Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, the Administrative
Agent, acting in its capacity as a Lender, shall have the same rights and powers
under this Agreement as any other Lender and may exercise such rights and powers
as though it were not the Administrative Agent or one of the L/C Issuers, and
the terms "Lender" and "Lenders" include the Administrative Agent in its
individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent (i) may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower and (ii) if the Administrative Agent, acting in its capacity as a
Lender, assigns all of its Revolving Commitments and Loans pursuant to Section
10.07(b), shall resign upon receiving a written request therefor from the
Borrower, with such resignation to be effectuated by the Administrative Agent
sending 30 days advance notice of such resignation to the Borrower and the
Lenders, such
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resignation notice to be delivered by the Administrative Agent to
the Borrower and the Lenders upon the Administrative Agent's receipt of the
above-described written notice from the Borrower requesting such resignation. If
the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor administrative agent for the
Lenders which successor administrative agent shall require the consent of the
Borrower at all times other than during the existence of an Event of Default
(which consent of the Borrower shall not be unreasonably withheld or delayed).
If no successor administrative agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.05 hereof shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
Any resignation by an Administrative Agent pursuant to this Section shall
also constitute its resignation as an L/C Issuer and Swing Line Lender. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender,
(b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring L/C Issuer to
effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit.
9.10 GUARANTY MATTERS. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Guarantor from its obligations under the Guaranty if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder. Upon request by the
Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent's authority to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 9.10.
9.11 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the
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Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 10.04)
allowed in such judicial proceedings; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04 hereof.
9.12 RELATED OBLIGATIONS. The benefit of the Loan Documents and of the
provisions of this Agreement and the Guaranty shall extend to and be available
in respect of any obligation arising under any Affiliated IRP Agreement or that
is otherwise owed to Persons other than the Administrative Agent and the Lenders
pursuant to the Loan Documents or the Affiliated IRP Agreements (collectively,
"Related Obligations") solely on the condition and understanding, as among the
Administrative Agent and the Lenders, that (a) the Related Obligations shall be
entitled to the benefit of the Loan Documents to the extent expressly set forth
in this Agreement and the other Loan Documents and to such extent the
Administrative Agent shall hold, and have the right and power to act with
respect to, the Guaranty on behalf and as agent for the holders of the Related
Obligations, but the Administrative Agent is otherwise acting solely as agent
for the Lenders and shall have no fiduciary duty, duty of loyalty, duty of care,
duty of disclosure or other obligation whatsoever to any holder of Related
Obligations; (b) all matters, acts and omissions relating in any manner to the
Guaranty shall be governed solely by the provisions of this Agreement and the
Guaranty and no separate Lien, right, power or remedy shall arise or exist in
favor of any Guarantied Party (as defined in the Guaranty) under any separate
instrument or agreement or in respect of any Related Obligation; (c) each
Guarantied Party shall be bound by all actions taken or omitted, in accordance
with the terms of this Agreement and the Guaranty, by the Administrative Agent
and the Required Lenders, each of whom shall be entitled to act at its sole
discretion and exclusively in its own interest given its own Revolving
Commitment and its own interest in the Loans, L/C Obligations and other
Obligations to it arising under this Agreement or the other Loan Documents,
without any duty or liability to any other Guarantied Party or as to any Related
Obligation and without regard to whether any Related Obligation remains
outstanding or is otherwise affected or put in jeopardy thereby; (d) no holder
of Related Obligations and no other Guarantied Party (except the Administrative
Agent and the Lenders, to
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the extent set forth in this Agreement) shall have any right to be notified of,
or to direct, require or be heard with respect to, any action taken or omitted
under this Agreement or the other Loan Documents; and (e) no holder of any
Related Obligation shall exercise any right of setoff, banker's lien or similar
right, except as expressly provided in Section 10.09 hereof.
9.13 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
manager," "arranger, " "lead arranger" or "co-arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as such.
Without limiting the foregoing none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) extend or increase the Revolving Commitment of any Lender (or
reinstate any Revolving Commitment terminated pursuant to Section 8.02 hereof)
or subject the Lenders to any additional obligations, without the written
consent of such Lender;
(b) postpone any scheduled date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder or
under any other Loan Document or waive any Event of Default occurring pursuant
to Section 8.01(a) hereof, without the written consent of each Lender directly
affected thereby;
(c) reduce or subordinate the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of
the proviso below) any fees or other amounts payable hereunder or under any
other Loan Document, or change the manner of computation of the Leverage Ratio
(including any change in any defined terms used therein) that would result in a
reduction of any interest rate on any Loan or fee payable hereunder, without the
written consent of each Lender directly affected thereby;
(d) change the percentage of the Aggregate Revolving Commitments or of the
aggregate unpaid principal amount of the Loans and L/C Obligations which is
required for the Lenders or any of them to take any action hereunder, without
the written consent of each Lender;
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(e) change the Pro Rata Share or Voting Percentage of any Lender, without
the written consent of each Lender;
(f) amend this Section, or any provision herein providing for consent or
other action by all the Lenders, without the written consent of each Lender; or
(g) release any Guarantor from any Guaranty or subordinate any obligation
of any Guarantor under any Guaranty, except as otherwise provided in Section
9.10 hereof, without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by each L/C Issuer in addition to the Required Lenders or all
the Lenders, as the case may be, affect the rights or duties of such L/C Issuer
under this Agreement or any Letter of Credit Application relating to any Letter
of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to the
Required Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Required Lenders or all the Lenders, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; and (iv) no Agent Fee Letter may be amended, or rights or
privileges thereunder waived, except in a writing executed by the parties to
such Agent Fee Letter. Notwithstanding anything to the contrary herein, any
Lender that has failed to fund any portion of the Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder shall not have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Pro Rata Share of such Lender may
not be increased without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower, the
Administrative Agent, each L/C Issuer or the Swing Line Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be designated
by such party in a notice to the Borrower, the Administrative Agent, each L/C
Issuer and the Swing Line Lender. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the intended recipient and (ii) (A) if delivered by hand or by
courier, when signed for by the intended recipient; (B) if delivered by
certified mail, three Business Days after deposit in the mails, postage prepaid
for certified delivery with return receipt requested; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent, each L/C Issuer
and the Swing Line Lender pursuant to Article II shall not be effective until
actually received by such Person. Any notice or other communication permitted to
be given, made or
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confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified on Schedule
10.02, it being understood and agreed that a voicemail message shall in no event
be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Other Communications. Notwithstanding anything in this Section 10.02
or elsewhere in this Agreement to the contrary, the Borrower agrees that the
Administrative Agent may make any material delivered by the Borrower to the
Administrative Agent, as well as any amendments, waivers, consents, and other
written information, documents, instruments and other materials relating to the
Borrower, any of its Subsidiaries, or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications") available to the Lenders by posting such
notices on an electronic delivery system (which may be provided by the
Administrative Agent, an Affiliate of the Administrative Agent, or any Person
that is not an Affiliate of the Administrative Agent), such as IntraLinks, or a
substantially similar electronic system (the "Platform"). The Borrower
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as is" and "as
available" and (iii) neither the Administrative Agent nor any of its Affiliates
warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of
the Communications posted on the Platform. The Administrative Agent and its
Affiliates expressly disclaim with respect to the Platform any liability for
errors in transmission, incorrect or incomplete downloading, delays in posting
or delivery, or problems accessing the Communications posted on the Platform and
any liability for any losses, costs, expenses or liabilities that may be
suffered or incurred in connection with the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Administrative Agent or any of its Affiliates in connection with the Platform.
Each Lender agrees that notice to it (as provided in the next sentence) (a
"Notice") specifying that any Communication has been posted to the Platform
shall for purposes of this Agreement constitute effective delivery to such
Lender of such information, documents or other materials comprising such
Communication. Each Lender agrees (i) to notify, on or before the date such
Lender becomes a party to this Agreement, the Administrative Agent in writing of
such Lender's e-mail address to which a Notice may be sent (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail
address for such Lender) and (ii) that any Notice may be sent to such e-mail
address.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic or electronically mailed Revolving Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified
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herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic or
electronically mailed notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, (b) to pay or
reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs, and (c) to pay or reimburse each Lender for all reasonable costs and
expenses incurred after an Event of Default in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and expenses shall
include all reasonable search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other reasonable out-of-pocket
expenses incurred by the Administrative Agent and the reasonable cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. The agreements in this Section shall survive
the termination of the Revolving Commitments and repayment of all the other
Obligations.
10.05 INDEMNIFICATION BY THE BORROWER.
(a) WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED,
THE BORROWER AGREES TO INDEMNIFY, SAVE AND HOLD HARMLESS EACH AGENT-RELATED
PERSON, EACH LENDER AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, COUNSEL, AGENTS AND ATTORNEYS-IN-FACT (COLLECTIVELY THE
"INDEMNITEES") FROM AND
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AGAINST: (a) ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION THAT MAY
AT ANY TIME (INCLUDING AT ANY TIME FOLLOWING REPAYMENT OF THE OBLIGATIONS AND
THE RESIGNATION OR REMOVAL OF THE ADMINISTRATIVE AGENT OR THE REPLACEMENT OF ANY
LENDER) BE ASSERTED OR IMPOSED AGAINST ANY INDEMNITEE, ARISING OUT OF, OR IN ANY
WAY CONNECTED WITH, OR AS A RESULT OF (1) THE EXECUTION OR PERFORMANCE OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, (2) ANY VIOLATION BY THE BORROWER OR ANY
OF ITS SUBSIDIARIES OR ANY AFFILIATES OF ANY LAWS, INCLUDING WITHOUT LIMITATION
ENVIRONMENTAL LAWS, OR ANY ENVIRONMENTAL CLAIM AGAINST ANY INDEMNITEE, (3) ANY
FAILURE BY THE BORROWER OR ANY OF ITS SUBSIDIARIES TO COMPLY WITH ANY COVENANT
OR AGREEMENT CONTAINED IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, (4) ANY
MISREPRESENTATION BY THE BORROWER OR ITS SUBSIDIARIES UNDER THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENTS OR (5) THE USE OR CONTEMPLATED USE OF THE PROCEEDS OF
ANY CREDIT EXTENSION; (b) ANY ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANY
GOVERNMENTAL AUTHORITY ARISING OUT OF OR RELATED TO A CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION DESCRIBED IN SUBSECTION (a) ABOVE; AND (c) ANY AND ALL
LIABILITIES (INCLUDING LIABILITIES UNDER INDEMNITIES), LOSSES, COSTS OR EXPENSES
(INCLUDING ATTORNEY COSTS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF
THE ASSERTION OF ANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
PROCEEDING, OR AS A RESULT OF THE PREPARATION OF ANY DEFENSE IN CONNECTION WITH
ANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING, IN ALL
CASES, WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF AN INDEMNITEE, AND,
WHETHER OR NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIM, DEMAND, ACTION, CAUSE OF
ACTION OR PROCEEDING (ALL THE FOREGOING, COLLECTIVELY, THE "INDEMNIFIED
LIABILITIES"); PROVIDED THAT NO INDEMNITEE SHALL BE ENTITLED TO INDEMNIFICATION
FOR (i) ANY CLAIM CAUSED BY ITS OWN GROSS NEGLIGENCE, BAD FAITH OR WILLFUL
MISCONDUCT, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION OR (ii) FOR ANY LOSS ASSERTED AGAINST IT BY ANOTHER INDEMNITEE. THE
FOREGOING INDEMNITY SHALL APPLY TO THE NEGLIGENCE OF THE INDEMNITEE (BUT NOT THE
GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF THE INDEMNITEE). THE
AGREEMENTS IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THE REVOLVING
COMMITMENTS AND REPAYMENT OF ALL THE OTHER OBLIGATIONS.
(b) EACH INDEMNITEE AGREES WITH RESPECT TO ANY ACTION AGAINST IT IN
RESPECT OF WHICH INDEMNITY MAY BE SOUGHT UNDER THIS SECTION 10.05, THAT SUCH
INDEMNITEE WILL GIVE WRITTEN NOTICE OF THE COMMENCEMENT OF SUCH ACTION TO THE
BORROWER WITHIN A REASONABLE TIME AFTER SUCH INDEMNITEE IS MADE A PARTY TO SUCH
ACTION. UPON RECEIPT OF ANY SUCH NOTICE BY THE BORROWER, THE BORROWER, UNLESS
SUCH INDEMNITEE SHALL BE ADVISED BY ITS COUNSEL THAT THERE ARE OR MAY BE LEGAL
DEFENSES AVAILABLE TO SUCH INDEMNITEE THAT ARE
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DIFFERENT FROM, IN ADDITION TO, OR IN CONFLICT WITH, THE DEFENSES AVAILABLE TO
THE BORROWER, MAY PARTICIPATE WITH THE INDEMNITEE IN THE DEFENSE OF SUCH
INDEMNIFIED MATTER, INCLUDING THE EMPLOYMENT OF COUNSEL CONSENTED TO BY SUCH
INDEMNITEE (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD); PROVIDED,
HOWEVER, NOTHING PROVIDED HEREIN SHALL (i) ENTITLE THE BORROWER TO ASSUME THE
DEFENSE OF SUCH INDEMNIFIED MATTER OR (ii) REQUIRE THE CONSENT OF THE BORROWER
FOR ANY SETTLEMENT OR ACTION IN RESPECT OF SUCH INDEMNIFIED MATTER, ALTHOUGH
EACH INDEMNITEE AGREES TO CONFER AND CONSULT WITH THE BORROWER BEFORE MAKING ANY
SETTLEMENT OF SUCH INDEMNIFIED MATTER.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a payment
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 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
each Lender (and any attempted assignment or transfer by the Borrower without
such consent 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 and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Commitment and the Loans (including for purposes of
this subsection (b), participations in L/C Obligations and in Swing Line Loans)
at the time owing to it); provided that (i) except in the case of an assignment
of the entire remaining amount of the assigning Lender's Revolving Commitment
and the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Revolving Commitment (which for this purpose
includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Acceptance with
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respect to such assignment is delivered to the Administrative Agent, shall not
be less than $5,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed), (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Loans or the Revolving Commitments assigned, except that this
clause (ii) shall not apply to rights in respect of outstanding Swing Line
Loans, (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 (provided no such fee shall be required for an
assignment to an Affiliate of a Lender) and (iv) in the case of an assignment to
an Affiliate of a Lender or to an Approved Fund, the assigning Lender shall
ensure that all of the Borrower's dealings with the assignee shall be conducted
through the same Lender. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Acceptance, the Eligible
Assignee thereunder shall be a party hereto 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 3.07 (which accrued to such Lender
prior to such assignment), 10.04 and 10.05 hereof). Upon request and at no
expense to the Borrower, the Borrower shall execute and deliver new or
replacement Notes to the assigning Lender and the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amount of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (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 Revolving
Commitments and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the
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Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
that would (i) postpone any date upon which any payment of money is scheduled to
be paid to such Participant, (ii) reduce the principal, interest, fees or other
amounts payable to such Participant, or (iii) release any Guarantor from the
Guaranty except as permitted under Section 9.10. Subject to subsection (e) of
this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 hereof to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b)
of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.09 hereof as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 hereof as though
it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01, 3.02 or 3.04 hereof than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
hereof unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 10.15 hereof as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Notes, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank, without the requirement for notice
to or consent of any Person or the payment of any fee; provided that no such
pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by the Administrative Agent, each L/C Issuer, the Swing Line
Lender and, unless (x) such Person is taking delivery of an assignment in
connection with physical settlement of a credit derivative transaction or
(y) an Event of Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed).
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
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"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, if at any
time the Administrative Agent, acting in its capacity as a Lender, assigns all
of its Revolving Commitment and Loans pursuant to subsection (b) above, the
Administrative Agent may, and shall if requested by the Borrower, (i) upon 30
days' notice to the Borrower and the Lenders, resign as a L/C Issuer and/or (ii)
upon five Business Days' notice to the Borrower and the Lenders, terminate the
Swing Line. In the event of any such termination of the Swing Line, the Borrower
shall be entitled to appoint from among the Lenders a successor Swing Line
Lender hereunder and upon acceptance of such appointment the Swing Line shall
automatically be reinstated and such appointed Lender shall automatically assume
all the rights and obligations of the Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall
affect the termination of the Swing Line, as the case may be. The resigning L/C
Issuer shall retain all the rights and obligations of a L/C Issuer hereunder
with respect to all Letters of Credit issued by it that are outstanding as of
the effective date of its resignation as a L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund participations in Unreimbursed Amounts pursuant to Section
2.03(c) hereof); provided that a successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such resignation or make other arrangement satisfactory to the retiring
L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit. If the resigning Administrative Agent, acting
in its capacity as a Swing Line Lender, terminates its Swing Line, it shall
retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date
of such termination, including the right to require the Lenders to make Base
Rate Loans or fund participations in outstanding Swing Line Loans pursuant to
Section 2.04(c) hereof.
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
required to keep such Information confidential) with respect to the monitoring
and administration of this Agreement or any other Loan Documents; (b) to the
extent required by any regulatory authority; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to obligations of the
Borrower; (g) with the written consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
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on a nonconfidential basis from a source other than the Borrower; or (i) only to
the extent required, to the National Association of Insurance Commissioners or
any other similar organization or any nationally recognized rating agency that
requires access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower, its Affiliates
or their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of disclosure as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligations to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential Information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special (except trust and escrow accounts), time or demand,
provisional, final or otherwise) at any time held by, and other indebtedness at
any time owing by, such Lender to or for the credit or the account of the
respective Loan Parties against any and all Obligations owing to such Lender,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other
Loan Document and although such Obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set-off and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the Highest Lawful Rate. If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Highest
Lawful Rate, the excess interest shall be applied to the principal of the Loans
or, if it exceeds such unpaid principal, refunded to the Borrower. In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment
that is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A counterpart hereof (or
signature page thereto) signed and transmitted by any Person party hereto to the
Administrative Agent (or its counsel) by facsimile machine, telecopier or
electronic mail is to be treated as an original. The signature of such Person
thereon, for
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purposes hereof, is to be considered as an original signature, and the
counterpart (or signature page thereto) so transmitted is to be considered to
have the same binding effect as an original signature on an original document.
10.12 INTEGRATION. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which the Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Person
by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Person by the Borrower
pursuant to this Agreement) or such other evidence satisfactory to the Borrower
and the Administrative Agent that such Person is entitled to an exemption from,
or reduction of, U.S. withholding tax. Thereafter and from time to time, each
such Person shall (a) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Borrower pursuant to this Agreement, (b) promptly
notify the Agent of any change in circumstances which
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would modify or render invalid any claimed exemption or reduction, and (c) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction. If any
Governmental Authority asserts that the Administrative Agent did not properly
withhold any tax or other amount from payments made in respect of such Person,
such Person shall indemnify the Administrative Agent therefore, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
10.16 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the Borrower
shall have the right to remove or replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative Agent, (i)
remove such Lender by terminating such Lender's Revolving Commitments or (ii)
replace such Lender by causing such Lender to assign its Revolving Commitments
(without payment of any assignment fee) pursuant to Section 10.07(b) hereof to
one or more other Lenders or Eligible Assignees procured by the Borrower;
provided, however, that if the Borrower elects to exercise such right with
respect to any Lender pursuant to Section 3.06(b) hereof, it shall be obligated
to remove or replace, as the case may be, all Lenders that have made similar
requests for compensation pursuant to Section 3.01, 3.02 or 3.04 hereof. In such
event, the Borrower shall (x) pay in full all principal, interest, fees and
other amounts owing to such Lender through the date of termination or assignment
(including any amounts payable pursuant to Section 3.05 hereof), (y) provide
appropriate assurances and indemnities (which may include letters of credit) to
each L/C Issuer and the Swing Line Lender as each may reasonably require with
respect to any continuing obligation to purchase participation interests in any
L/C Obligations or any Swing Line Loans then outstanding, and (z) release such
Lender from its obligations under the Loan Documents. Any Lender being replaced
shall execute and deliver an Assignment and Acceptance with respect to such
Lender's Revolving Commitments and outstanding Credit Extensions. The
Administrative Agent shall distribute an amended Schedule 2.01, which shall be
deemed incorporated into this Agreement, to reflect changes in the identities of
the Lenders and adjustments of their respective Revolving Commitments and/or Pro
Rata Shares resulting from any such removal or replacement.
(b) In order to make all the Lenders' interests in any outstanding Credit
Extensions ratable in accordance with any revised Pro Rata Shares after giving
effect to the removal or replacement of a Lender, the Borrower shall pay or
prepay, if necessary, on the effective date thereof, all outstanding Loans of
all Lenders, together with any amounts due under Section 3.05 hereof. The
Borrower may then request Loans from the Lenders in accordance with their
revised Pro Rata Shares. The Borrower may net any payments required hereunder
against any funds being provided by any Lender or Eligible Assignee replacing a
terminating Lender. The effect
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for purposes of this Agreement shall be the same as if separate transfers of
funds had been made with respect thereto.
(c) This Section shall supersede any provision in Section 10.01 hereof to
the contrary.
10.17 EXCEPTIONS TO COVENANTS. Neither the Borrower nor any Subsidiary
shall be deemed to be permitted to take any action or fail to take any action
which is permitted as an exception to any of the covenants contained herein or
which is within the permissible limits of any of the covenants contained herein
if such action or omission would result in the breach of any other covenant
contained herein.
10.18 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT EACH PARTY SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) The parties hereto agree that Chapter 346 (other than 346.004) of the
Texas Finance Code (which regulates certain revolving credit accounts and
revolving tri-party accounts) shall not apply to Loans under this Agreement.
(c) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING
IN DALLAS COUNTY, TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS (DALLAS DIVISION), AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER
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ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.20 USA PATRIOT ACT NOTICE. Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information required by
the Act or any regulation promulgated pursuant to the Act that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act
10.21 AMENDMENT, RESTATEMENT, EXTENSION, RENEWAL AND INCREASE. This
Agreement is an amendment, restatement, extension, renewal and increase of the
Existing Credit Agreement, and, as such, except for the "Obligations" as defined
in the Existing Credit Agreement (which shall survive to the extent renewed and
restated by the terms of this Agreement), all other terms and provisions of this
Agreement supersede in their entirety the Existing Credit Agreement.
10.22 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CASH AMERICA INTERNATIONAL, INC.
By: /s/ David J. Clay
----------------------------
David J. Clay
Vice President and Treasurer
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ Daniel T. Brown
--------------------------------
Name: Daniel T. Brown
--------------------------------
Title: Vice President
--------------------------------
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as an L/C Issuer, a Lender
and Swing Line Lender
By: /s/ Daniel T. Brown
--------------------------------
Name: Daniel T. Brown
--------------------------------
Title: Vice President
--------------------------------
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JPMORGAN CHASE BANK, N.A., as Syndication
Agent and a Lender
By: /s/ Robert Humphreys
--------------------------------
Name: Robert Humphreys
--------------------------------
Title: Vice President
--------------------------------
90
U. S. BANK NATIONAL ASSOCIATION, as a
Co-Documentation Agent and a Lender
By: /s/ John Holland
--------------------------------
Name: John Holland
--------------------------------
Title: Senior Vice President
--------------------------------
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KEYBANK NATIONAL ASSOCIATION, as a Co-
Documentation Agent and a Lender
By: /s/ Joanne Bramanti
--------------------------------
Name: Joanne Bramanti
--------------------------------
Title: Senior Vice President
--------------------------------
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UNION BANK OF CALIFORNIA, N.A., as a Co-
Documentation Agent and a Lender
By: /s/ Albert W. Kelley
--------------------------------
Name: Albert W. Kelley
--------------------------------
Title: Vice President
--------------------------------
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THE HUNTINGTON NATIONAL BANK, as a
Lender
By: /s/ Cheryl L. Razon
------------------------------------
Name: Cheryl L. Razon
------------------------------
Title: Assistant Vice President
-----------------------------
94
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/ Stephen R. Deaton
------------------------------------
Name: Stephen R. Deaton
------------------------------
Title: Senior Vice President
-----------------------------
95
SOUTHWEST BANK OF TEXAS, N.A., as a
Lender
By: /s/ Melinda N. Jackson
------------------------------------
Name: Melinda N. Jackson
------------------------------
Title: Senior Vice President
-----------------------------
96
BANK OF TEXAS, N.A., as a Lender
By: /s/ Eric L. Kraft
------------------------------------
Name: Eric L. Kraft
------------------------------
Title: Vice President
-----------------------------
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TEXAS CAPITAL BANK, N.A., as a Lender
By: /s/ Barry Kromann
------------------------------------
Name: Barry Kromann
------------------------------
Title: _____________________________
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