1
Exhibit 10.29
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is
made and entered into as of this 20th day of August, 1998, by and between
STAFFMARK, INC., a Delaware corporation (the "Borrower"), the undersigned
lenders and any other lenders hereafter becoming a party to this Agreement (the
"Lenders"), THE FIRST NATIONAL BANK OF CHICAGO, as syndication agent on behalf
of Lenders (in such capacity, the "Syndication Agent") and MERCANTILE BANK
NATIONAL ASSOCIATION, as administrative agent on behalf of Lenders (in such
capacity, the "Administrative Agent" and collectively with the Syndication Agent
referred to herein as the "Agents").
WITNESSETH:
WHEREAS, the Borrower and the Lenders heretofore entered into
that certain Credit Agreement dated October 4, 1996, as amended by that certain
First Amendment to Credit Agreement dated as of December 18, 1996, and that
certain Second Amendment to Credit Agreement dated as of May 30, 1997, as
amended and restated by that certain Amended and Restated Credit Agreement dated
March 9, 1998 as amended by that certain First Amendment to Amended and Restated
Credit Agreement dated March 16, 1998 (as so amended, the "Prior Credit
Agreement"); and
WHEREAS, the Borrower has applied for an additional
$75,000,000.00 in loans; and
WHEREAS, the Borrower, Agents and Lenders desire to amend and
restate the Prior Credit Agreement to, among other things, increase the
aggregate principal amount of loans available thereunder from $175,000,000.00 to
$250,000,000.00 and to eliminate the scheduled reductions to the revolving
credit facility, upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby mutually amend and restate the Prior
Credit Agreement so that in its entirety it reads as follows:
SECTION 1. TERM.
The "Term" of this Agreement shall commence on the date hereof
and shall end on August 20, 2003, unless earlier terminated pursuant to Section
3.12 or by acceleration or otherwise upon the occurrence of an Event of Default
under this Agreement, in which case the Term hereof shall end on such earlier
date.
SECTION 2. DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement
or in any Exhibit or Schedule hereto, when used in this Agreement, the following
terms shall have the following meanings (such meanings shall be equally
applicable to the singular and plural forms of the terms used, as the context
requires):
Acceptable Acquisition shall mean any Acquisition of an
ongoing business similar to or consistent with the Borrower's current line of
business where each of the following are true: (a) such Acquisition has been:
(i) in the event a corporation or its assets is the subject of such Acquisition,
either (x) approved by the Board of Directors of the corporation which is the
subject of such Acquisition or (y) recommended by such Board of Directors to the
shareholders of such corporation, (ii) in the event a partnership is the subject
of such Acquisition, approved by a majority (by percentage of voting power) of
the partners of the partnership which is the subject of such Acquisition or as
otherwise required by any applicable partnership agreement, (iii) in the event
an organization or entity other than a corporation or partnership is the subject
of such Acquisition, approved by a majority (by percentage of voting power) of
the governing body, if any, or by a majority (by percentage of ownership
interest) of the owners of the organization or entity which is the subject of
such Acquisition or (iv) in the event the corporation, partnership or other
organization or entity which is the subject of such Acquisition is in
1
2
bankruptcy, approved by the bankruptcy court or another court of competent
jurisdiction; (b) Borrower has given Administrative Agent at least ten (10)
Business Days prior written notice of such Acquisition if Lenders' consent is
required under the succeeding clause (c) or three (3) Business Days prior
written notice of such Acquisition if Lenders' consent is not required under the
succeeding clause (c); (c) if (i) the sum of: (x) the principal amount of any
Loan requested in connection with such Acquisition, plus (y) the then
outstanding principal balance of all Loans plus the undrawn face amount of any
issued and outstanding Letters of Credit, exceeds $100,000,000.00, and the
portion of the purchase price for such Acquisition payable by Borrower in cash
(whether payable at closing or at any time or times after closing on the
Acquisition, and if payable after closing and not determinable prior to closing,
as reasonably estimated by Borrower, and in any event including the amount of
any Indebtedness assumed by Borrower or any Subsidiary of Borrower as a part of
such Acquisition) exceeds $20,000,000.00, or (ii) the portion of the purchase
price for such Acquisition payable by Borrower in cash (whether payable at
closing or at any time or times after closing on the Acquisition, and if payable
after closing and not determinable prior to closing, as reasonably estimated by
Borrower, and in any event including the amount of any Indebtedness assumed by
Borrower or any Subsidiary of Borrower as a part of such Acquisition) exceeds
the lesser of $30,000,000.00 or 15% of Shareholders' Equity, Borrower has
obtained the prior written consent of the Required Lenders and the
Administrative Agent; and (d) Borrower or a wholly-owned subsidiary of Borrower
is the surviving entity (including reverse triangular mergers); provided,
however, that no Acquisition shall be an Acceptable Acquisition unless both as
of the date of any such Acquisition and immediately following such Acquisition
the Borrower is, and on a pro forma basis projects that it will continue to be,
in compliance with the terms, covenants and conditions contained in this
Agreement and the other Transaction Documents, and Borrower has provided to
Administrative Agent such financial information, statements and projections as
reasonably requested demonstrating such continuing compliance with the financial
covenants of Section 7.1(i) herein.
Acquisition shall mean any transaction or series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any corporation, partnership or other
organization or entity, whether through purchase of assets, merger or otherwise
or (b) directly or indirectly acquires (in one transaction or as of the most
recent transaction in a series of transactions) at least (i) a majority (in
number of votes) of the stock and/or other securities of a corporation having
ordinary voting power for the election of directors (other than stock and/or
other securities having such power only by reason of the happening of a
contingency), (ii) a majority (by percentage of voting power) of the outstanding
partnership interests of a partnership or (iii) a majority of the ownership
interests in any organization or entity other than a corporation or partnership.
Administrative Agent shall mean Mercantile Bank National
Association and its successors and assigns.
Applicable Margin shall mean, with respect to each type of
Loan or fee, the rate of interest shown in the applicable column below for the
type of Loan or fee specified for each such column:
Level I Level II Level III Level IV Level V Level VI
------- -------- --------- -------- ------- --------
IF RATIO OF CONSOLIDATED ADJUSTED TOTAL FUNDED >3.50 <3.50 <3.00 <2.50 <2.00 >1.50
-
DEBT TO CONSOLIDATED PROFORMA EBITDA CASH FLOW >3.00 >2.50 >2.00 >1.50
- - - -
IS
LIBOR Loans 1.500% 1.250% 1.000% 0.875% 0.750% 0.625%
Base Rate Loans 0.000% 0.000% 0.000% 0.000% 0.000% 0.000%
Commitment Fee 0.300% 0.250% 0.250% 0.250% 0.200% 0.1875%
For the period from the date hereof until September 30, 1998, the Applicable
Margins shall mean Three-Fourths of One Percent (0.750%) with respect to any
LIBOR Loan, and Zero Percent (0.000%) with respect to any Base Rate Loan, and
the Commitment Fee shall be set at One-Fifth of One Percent (0.200%).
Thereafter, on each January 1, April 1, July 1 and October 1 during the Term
hereof, commencing with the quarter beginning October 1, 1998, the ratio of
Consolidated Adjusted Total Funded Debt to Consolidated Proforma EBITDA Cash
Flow for the fiscal quarter preceding the fiscal quarter then ended shall be
computed by Administrative Agent following delivery to Administrative Agent of
the Borrower's consolidated financial statements for such fiscal quarter-end
pursuant to Section 7.1(a)(ii) herein (i.e., for the fiscal quarter beginning
October 1, 1998 using the ratio for the fiscal quarter ended June 30, 1998), and
the Applicable Margins adjusted as of such
2
3
subsequent January 1, April 1, July 1 and October 1 date in accordance with the
levels set forth above. Such new Applicable Margins shall continue in effect
until the next such adjustment, if any, on the following January 1, April 1,
July 1 and October 1 in accordance with the preceding sentence. Each
determination by Administrative Agent of the Applicable Margins shall be deemed
prima facie correct. All such adjustments shall become effective as to LIBOR
Loans outstanding on the first day of any quarter upon the expiration of the
then current applicable Interest Periods for such Loans.
Assignment Agreement shall have the meaning ascribed thereto
in Section 10.12.
Attorneys' Fees shall mean the reasonable value of the
services (and costs, charges and expenses related thereto) of the attorneys (and
all paralegals employed by such attorneys) employed by any of the Agents or any
of the Lenders from time to time (i) in connection with the documentation,
negotiation, execution, delivery, administration and enforcement of this
Agreement and/or any of the other Transaction Documents, (ii) to represent any
of the Agents or any of the Lenders in any litigation, contest, dispute, suit or
proceeding, or to commence, defend or intervene in any litigation, contest,
dispute, suit or proceeding, or to file any petition, complaint, answer, motion
or other pleading or to take any other action in or with respect to any
litigation, contest, dispute, suit or proceeding (whether instituted by any of
the Agents, any of the Lenders, the Borrower or any other Person and whether in
bankruptcy or otherwise) in any way or respect relating to any of the
Collateral, any Third Party Collateral, this Agreement or any of the other
Transaction Documents, the Borrower, any Subsidiary of the Borrower or any other
Obligor, (iii) to protect, collect, lease, sell, take possession of or liquidate
any of the Collateral or any Third Party Collateral, (iv) to attempt to enforce
any security interest in or other Lien upon any of the Collateral or any Third
Party Collateral or to give any advice with respect to such enforcement and (v)
to enforce any of any Agent's or any Lender's rights to collect any of the
Borrower's Obligations.
Base Rate shall mean for any day the greater of (i) the Prime
Rate in effect for such day, or (ii) the Fed Funds Rate in effect for such day
plus One-Half of One Percent (0.50%).
Base Rate Loan shall mean a Loan bearing interest at the Base
Rate plus the Applicable Margin.
Borrower's Obligations shall mean any and all indebtedness
(principal, interest, fees and other amounts), liabilities and obligations of
the Borrower to any of the Agents or any of the Lenders evidenced by or arising
under the Notes, this Agreement, the Pledge Agreements, any of the other
Transaction Documents or any other agreement, document or instrument heretofore,
now or hereafter executed and delivered by the Borrower to Administrative Agent,
Syndication Agent or any of the Lenders, in each case whether now existing or
hereafter arising, absolute or contingent, joint and/or several, secured or
unsecured, direct or indirect, expressed or implied in law, contractual or
tortious, liquidated or unliquidated, at law or in equity, or otherwise, and
whether created directly or acquired by Administrative Agent, Syndication Agent
or any of the Lenders by assignment or otherwise, and any and all costs of
collection and/or Attorneys' Fees incurred or to be incurred in connection
therewith.
Business Day shall mean any day except a Saturday, Sunday or
legal holiday observed by any of the Lenders or by commercial banks in St.
Louis, Missouri.
Capital Expenditure shall mean any expenditure which, in
accordance with generally accepted accounting principles consistently applied,
is or should be capitalized on the balance sheet of the Person making the same.
Capitalized Lease shall mean any lease which, in accordance
with generally accepted accounting principles consistently applied, is or should
be capitalized on the balance sheet of the lessee.
Code shall mean the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed to also refer to any successor sections.
Collateral shall mean any Property or assets of the Borrower
or any Subsidiary which now or at any time hereafter secure the payment or
performance of any of the Borrower's Obligations.
Commitment Fee shall have the meaning ascribed thereto in
Section 3.13.
3
4
Consolidated Adjusted Total Funded Debt shall mean as of any
fiscal quarter-end the sum of (a) the outstanding principal amount of all Loans
on any such fiscal quarter-end date, plus (b) the undrawn face amount of all
issued and outstanding Letters of Credit or any other letters of credit issued
for the account of Borrower or its Consolidated Subsidiaries as of any such
fiscal quarter-end date, plus (c) all of the Borrower's and its Consolidated
Subsidiaries' other borrowed money Indebtedness outstanding on any such fiscal
quarter-end date, including, without limitation, amounts due under any
Capitalized Leases, plus (d) the cash portion of each Deferred Payment
Obligation outstanding as of any such fiscal quarter-end date.
Consolidated Fixed Charges shall mean the sum of all of the
Borrower's and its Consolidated Subsidiaries' expenses under any operating
leases within the specified period of any such calculation, plus interest paid
during such specified period, including, without limitation, interest charges
during such period under any Capitalized Leases, plus all income taxes paid
during the specified period of such calculation, plus all payments of principal
made on any Subordinated Debt as permitted to be paid pursuant to the terms of
the subordination and standby agreement or intercreditor agreement made between
Administrative Agent and the holder of any such Subordinated Debt, plus Capital
Expenditures made during the specified period of any such calculation, excluding
any expenditures for capital assets acquired by Borrower and its Consolidated
Subsidiaries in an Acceptable Acquisition. The calculation of Consolidated Fixed
Charges of Borrower and its Consolidated Subsidiaries shall include all such
fixed charges described above for the specified period of any such calculation
paid or made by any Subsidiary acquired by Borrower or its Consolidated
Subsidiary during the specified period.
Consolidated Proforma EBITDA Cash Flow shall mean on any date
the Borrower's and its Consolidated Subsidiaries' net income (exclusive of any
extraordinary gains or losses) plus interest expense, plus expenses for income
taxes, plus depreciation, plus amortization, all for the twelve month period
included in any such calculation and ending on the date of any such calculation,
all as determined on a consolidated basis in accordance with generally accepted
accounting principles, consistently applied. The calculation of Consolidated
Proforma EBITDA Cash Flow of Borrower and its Consolidated Subsidiaries shall
include all net income and other such amounts for the full twelve month period
preceding the date of such calculation earned by or incurred or accrued by any
Subsidiary acquired by Borrower or its Consolidated Subsidiaries during the
preceding twelve months, but shall exclude from such calculation any officer
compensation expenses or other expenses which Administrative Agent determines
are non-recurring expenses paid or incurred by Borrower or a Consolidated
Subsidiary in connection with any such Acquisition.
Consolidated Proforma Operating Cash Flow shall mean on any
date the Borrower's and its Consolidated Subsidiaries' net income (exclusive of
any extraordinary gains or losses) plus interest expense, plus expenses for
income taxes, plus depreciation, plus amortization, plus all expenses incurred
by Borrower or any of its Consolidated Subsidiaries under any operating leases,
all for the twelve month period included in any such calculation and ending on
the date of any such calculation, all as determined on a consolidated basis in
accordance with generally accepted accounting principles, consistently applied.
The calculation of Consolidated Proforma Operating Cash Flow of Borrower and its
Consolidated Subsidiaries shall include all net income and other such amounts
for the full twelve month period preceding the date of such calculation earned
by or incurred or accrued by any Subsidiary acquired by Borrower or its
Consolidated Subsidiaries during the preceding twelve months, but shall exclude
from such calculation any officer compensation expenses or other expenses which
Administrative Agent determines are non-recurring expenses paid or incurred by
Borrower or a Consolidated Subsidiary in connection with any such Acquisition.
Consolidated Subsidiary shall mean with respect to any Person
at any date, any Subsidiary or other entity the assets and liabilities of which
are or should be consolidated with those of such Person in its consolidated
financial statements as of such date in accordance with generally accepted
accounting principles consistently applied.
Conversion Notice shall have the meaning ascribed thereto in
Section 3.3(b).
Default shall mean any event or condition the occurrence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default as defined in Section 8 hereof.
4
5
Deferred Payment Obligation shall mean the cash portion of the
purchase price to be paid by Borrower or any of its Consolidated Subsidiaries in
connection with any Acquisition at a time (whether in installments or a lump
sum) after closing on the Acquisition. If the cash portion percentage of the
purchase price to be paid by Borrower is to be determined by the payee at a time
after closing, the cash portion shall be calculated as the maximum possible
percentage. Further, if all or any portion of the amount of such deferred
payment is contingent upon the performance of the company acquired during a
period after closing, for purposes of this Agreement the portion of the Deferred
Payment Obligation based on such future performance will be calculated based on
such company's historical performance for an equal period of time ending on the
beginning date of any historical period on which the purchase price is based and
if the purchase price is not based on any historical performance, then ending on
the closing date.
Distribution in respect of any corporation shall mean (i)
dividends or other distributions on capital stock of the corporation; and (ii)
the redemption, repurchase or other acquisition of such stock or of warrants,
rights or other options to purchase such stock (except when solely in exchange
for such stock).
Domestic Subsidiary shall mean any Subsidiary created or
organized in the United States or under the law of the United States or of any
State in the United States.
Environmental Laws shall mean the Resource Conservation and
Recovery Act of 1987, the Comprehensive Environmental Response, Compensation and
Liability Act, any so-called "Superfund" or "Superlien" law, the Toxic
Substances Control Act and any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability or standards of conduct concerning any Hazardous Materials or
any other hazardous, toxic or dangerous waste, substance or constituent or other
substance, whether solid, liquid or gas, as now or at any time hereafter in
effect.
Environmental Lien shall have the meaning ascribed thereto in
Section 7.1(k)(vi).
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, together with
the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed to also refer to any
successor sections.
ERISA Affiliate shall mean any corporation, trade or business
that is, along with the Borrower, a member of a controlled group of corporations
or a controlled group of trades or businesses, as described in Sections 414(b)
and 414(c), respectively, of the Code.
Event of Default shall have the meaning ascribed thereto in
Section 8.
Fed Funds Rate shall mean a rate per annum equal to the rate
determined by Administrative Agent as of the opening of business on each
Business Day as the effective rate charged to the Administrative Agent for
purchasing overnight federal funds in the national market between member banks
of the Federal Reserve System, which rate shall change from day to day as and
when said overnight federal funds rate shall change.
Foreign Subsidiary shall mean any Subsidiary which is not a
Domestic Subsidiary.
Guarantee by any Person shall mean any obligation, contingent
or otherwise, of such Person guaranteeing any Indebtedness of any other Person
or in any manner providing for the payment of any Indebtedness of any other
Person or otherwise protecting the holder of such Indebtedness against loss
(whether by agreement to keep-well, to purchase assets, goods, securities or
services, or to take-or-pay or otherwise); provided that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb shall have a correlative
meaning.
Guarantor shall mean each Subsidiary of Borrower now or
hereafter executing a Subsidiary Guaranty of all of Borrower's Obligations, and
Guarantors shall mean any or all of them.
Hazardous Materials shall mean any hazardous substance or
pollutant or contaminant defined as such in (or for the purposes of) any
Environmental Law and shall include, without limitation, petroleum, including
crude oil or any fraction thereof which is liquid at standard conditions of
5
6
temperature or pressure (60 degrees fahrenheit and 14.7 pounds per square inch
absolute), any radioactive material, including, without limitation, any source,
special nuclear or byproduct material as defined in 42 U.S.C. Section 2011 et
seq., as amended or hereafter amended, and asbestos in any form or condition.
Indebtedness of any Person shall mean and include, without
duplication, any and all indebtedness (principal, interest, fees and other
amounts), liabilities and obligations of such Person which in accordance with
generally accepted accounting principles, consistently applied are or should be
classified upon a balance sheet of such Person as liabilities of such Person,
and in any event shall include all (i) obligations of such Person for borrowed
money or which have been incurred in connection with the acquisition of
Property, (ii) obligations secured by any Lien or other charge upon any Property
owned by such Person, provided that if such Person has not assumed or become
liable for the payment of such obligations, such obligations shall still be
included in Indebtedness but the determination of the amount of Indebtedness
evidenced by such obligations shall be limited to the book value of such
Property, (iii) obligations created or arising under any conditional sale or
other title retention agreement with respect to any Property acquired by such
Person, provided that if the rights and remedies of the seller, lender or lessor
in the event of default under such agreement are limited solely to repossession
or sale of such Property, such obligations shall still be included in
Indebtedness but the determination of the amount of Indebtedness evidenced by
such obligations shall be limited to the book value of such Property, (iv) all
Guarantees and other contingent indebtedness, liabilities and obligations of
such Person whether or not reflected on the balance sheet of such Person and (v)
all obligations of such Person as lessee under any Capitalized Lease.
Interest Period shall mean with respect to each LIBOR Loan:
(i) Initially, the period commencing on the date of
such Loan and ending 1, 2, 3 or 6 months thereafter (or such other
period agreed upon in writing by the Borrower and all of the Lenders),
as the Borrower may elect pursuant to Section 3.3(a); and
(ii) Thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Loan and
ending 1, 2, 3 or 6 months thereafter (or such other period agreed upon
in writing by the Borrower and all of the Lenders), as the Borrower may
elect pursuant to Section 3.3(b);
provided that:
(iii) For purposes of determining an Interest Period,
a month means a period starting on one day in a calendar month and
ending on a numerically corresponding day in the next calendar month,
provided, however, if an Interest Period begins on the last day of a
month and if there is no numerically corresponding day in the month in
which an Interest Period is to end, then such Interest Period shall end
on the last Business Day of such month;
(iv) Subject to clauses (v), (vi) and (vii) below, if
any Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the immediately
following Business Day, except that if such immediately following
Business Day is in a different month, such Interest Period shall end on
the immediately preceding Business Day;
(v) No Interest Period with respect to any LIBOR Loan
shall extend beyond the last day of the Term hereof; and
(vi) Any Interest Period which includes a date on
which a payment of principal is required to be made on the applicable
Loan(s) shall end on such date.
Letter of Credit and Letters of Credit shall have the meanings
ascribed thereto in Section 3.4(a).
Letter of Credit Application shall mean an application and
agreement for irrevocable standby letter of credit in the form of Exhibit D
attached hereto and incorporated herein by reference or an application and
agreement for irrevocable commercial letter of credit in the form of Exhibit E
attached hereto and incorporated herein by reference, and in either
6
7
attached hereto and incorporated herein by reference, and in either case
executed by Borrower, as account party, and delivered to Administrative Agent
pursuant to Section 3.4(a) as the same may from time to time be amended,
modified, extended or renewed.
Letter of Credit Commitment Fee shall have the meaning
ascribed thereto in Section 3.4(c)(ii).
Letter of Credit Issuance Fee shall have the meaning ascribed
thereto in Section 3.4(c)(i).
Lien shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner of the
Property, whether such interest is based on common law, statute or contract,
including, without limitation, any security interest, mortgage, deed of trust,
pledge, hypothecation, judgment lien or other lien or encumbrance of any kind or
nature whatsoever, any conditional sale or trust receipt and any lease,
consignment or bailment for security purposes. The term "Lien" shall include
reservations, exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases and other title exceptions and encumbrances
affecting Property.
LIBOR Base Rate means, for an Interest Period, (a) the LIBOR
Index Rate for such Interest Period, if such rate is available, and (b) if the
LIBOR Index Rate cannot be determined, the arithmetic average of the rates of
interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
at which deposits in U.S. dollars in immediately available funds are offered to
Administrative Agent at 11:00 a.m. (St. Louis time) two (2) Business Days before
the beginning of such Interest Period by two (2) or more major banks in the
interbank eurodollar market selected by Administrative Agent for a period equal
to such Interest Period and in an amount equal or comparable to the principal
amount of the LIBOR Loan scheduled to be made available by Lenders. As used
herein, "LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one ten-thousandth of a
percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Dow Jones Markets (Telerate) Page 3750 as
of 9:00 a.m. (St. Louis time) on the day two Business Days before the
commencement of such Interest Period.
LIBOR Loan shall mean any Loan bearing interest at the LIBOR
Rate.
LIBOR Rate shall mean (a) the quotient of (i) the LIBOR Base
Rate divided by (ii) one minus the LIBOR Reserve Percentage, plus (b) the
Applicable Margin.
LIBOR Reserve Percentage shall mean for any day the reserve
percentage (including any supplemental percentage applied on a marginal basis or
any other reserve requirement having a similar effect), expressed as a decimal,
which is in effect on the first day of the applicable Interest Period, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) under Regulation D (or any other applicable regulation of the Board
of Governors (or any successor)) with respect to "Eurocurrency Liabilities." The
LIBOR Rate shall be adjusted automatically on and as of the effective date of
any change in the LIBOR Reserve Percentage.
Loan shall mean each Revolving Credit Loan, whether made as a
Base Rate Loan or a LIBOR Loan, and each Swing Loan, and Loans shall mean any or
all of the foregoing.
Loan Commitment for each Lender shall mean the total of the
Revolving Credit Commitment and the Swing Line Commitment, if any, of each such
Lender.
Mercantile shall mean Mercantile Bank National Association
solely in its capacity as a Lender hereunder, and its successors and assigns.
Multiemployer Plan shall mean a "multi-employer plan" as
defined in Section 4001(a) (3) of ERISA which is maintained for employees of the
Borrower, any ERISA Affiliate or any Subsidiary of the Borrower.
Notes shall mean any or all of the Revolving Credit Notes and
the Swing Line Note.
Obligor shall mean the Borrower and each other Person who is
or shall at any time hereafter become primarily or secondarily liable on any of
the Borrower's Obligations or who grants any of the Agents or any of the Lenders
a Lien upon any of the Property or assets of such Person as security for any of
the Borrower's Obligations.
7
8
Occupational Safety and Health Laws shall mean the
Occupational Safety and Health Act of 1970, as amended, and any other federal,
state or local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of conduct concerning
employee health and/or safety, as now or at any time hereafter in effect.
PBGC shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
Pension Plan shall mean a "pension plan," as such term is
defined in Section 3(2) of ERISA, which is established or maintained by the
Borrower, any ERISA Affiliate or any Subsidiary of the Borrower, other than a
Multiemployer Plan.
Permitted Investments shall mean any investment by Borrower or
any Subsidiary in any of the following:
(a) Direct obligations of the United States of
America or any instrumentality or agency thereof, the payment of which is
unconditionally guaranteed by the United States of America or any
instrumentality or agency thereof (all of which Investments must mature within
twelve (12) months from the time of acquisition thereof);
(b) Investments in readily marketable
commercial paper which, at the time of acquisition thereof by Borrower or any
Subsidiary, is rated A-1 or better by Standard & Poor's or P-1 or better by
Moody's Investment Service and which matures within 270 days from the date of
acquisition thereof, provided that the issuer of such commercial paper shall, at
the time of acquisition of such commercial paper, have a senior long-term debt
rating of at least A by Standard & Poor's and Moody's Investment Service;
(c) Negotiable certificates of deposit or
negotiable bankers acceptances issued by any of the Lenders or any other bank or
trust company organized under the laws of the United States of America or any
state thereof, which bank or trust company (other than the Lenders to which such
restrictions shall not apply) is a member of both the Federal Deposit Insurance
Corporation and the Federal Reserve System and is rated B or better by Thompson
Bank Watch Service (all of which Permitted Investments must mature within twelve
(12) months from the time of acquisition thereof);
(d) Repurchase agreements, which shall be
collateralized for at least 100% of face value, issued by any of the Lenders or
any other bank or trust company organized under the laws of the United States or
any state thereof, which bank or trust company (other than the Lenders to which
such restrictions shall not apply) is a member of both the Federal Deposit
Insurance Corporation and the Federal Reserve System and is rated B or better by
Thompson Bank Watch Service (all of which Permitted Investments must mature
within twelve (12) months from the time of acquisition thereof);
(e) Investments in mutual funds the investments
of which are limited to domestic securities; and
(f) Investments in Acceptable Acquisitions.
Person shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, institution, limited liability company, entity or government
(whether national, federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
Pledge Agreements shall mean those certain General Pledge and
Security Agreements executed and to be executed by Borrower and delivered to
Administrative Agent for the benefit of each of the Lenders, pledging all of the
issued and outstanding capital stock of each of Borrower's Domestic Subsidiaries
and pledging Sixty-Five Percent (65%) of the issued and outstanding capital
stock of each of Borrower's Foreign Subsidiaries, together with all collateral
schedules, stock powers, original stock certificates and other agreements to be
delivered in connection therewith pursuant to Section 5.1, all as the same may
be from time to time amended.
8
9
Prime Rate shall mean the interest rate announced from time to
time by Administrative Agent as its "prime rate" on commercial loans (which rate
shall fluctuate as and when said prime rate shall change).
Pro Rata Share shall mean, with respect to each Lender, such
Lender's percentage of the aggregate amount of Revolving Credit Loans then
outstanding, determined by dividing the aggregate principal amount of all
Revolving Credit Loans of such Lender then outstanding by the aggregate amount
of all Revolving Credit Loans of all Lenders then outstanding, or, if no
Revolving Credit Loans are then outstanding, such Lender's percentage of the
Total Revolving Credit Commitment of all of the Lenders, determined by dividing
the sum of such Lenders' Revolving Credit Commitment by the aggregate sum of the
Total Revolving Credit Commitment of all of the Lenders.
Property shall mean any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible. Properties
shall mean the plural of Property. For purposes of this Agreement, the Borrower
and each Subsidiary of the Borrower shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security purposes.
Revolving Credit Commitment shall mean, subject to termination
or reduction as set forth in Section 3.12, for each Lender the amount set forth
as the Revolving Credit Commitment of such Lender next to its name on the
signature pages hereof or on the signature pages of any subsequent Assignment
Agreement to which such Lender is a party.
Revolving Credit Loan shall have the meaning ascribed thereto
in Section 3.1.
Revolving Credit Notes shall mean each of the Revolving Credit
Notes of the Borrower to be executed and delivered to each of the Lenders
pursuant to Section 3.1 or pursuant to an Assignment Agreement, as the same may
from time to time be amended, modified, extended or renewed.
Related Party shall mean any Person (i) which directly or
indirectly through one or more intermediaries controls, or is controlled by or
is under common control with, the Borrower or any Subsidiary of the Borrower,
(ii) which beneficially owns or holds ten percent (10%) or more of the equity
interest of the Borrower, (iii) ten percent (10%) or more of the equity interest
of which is beneficially owned or held by the Borrower or a Subsidiary of the
Borrower, or (iv) who is a director, officer or employee of the Borrower or any
Subsidiary of the Borrower. The term "control" shall mean the possession,
directly or indirectly, of the power to vote ten percent (10%) or more of the
capital stock of any Person or the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
Reportable Event shall have the meaning given to such term in
ERISA.
Required Lenders shall mean at any time Lenders having 67% of
the Total Revolving Credit Commitment of all of the Lenders or, if the Total
Revolving Credit Commitment has been terminated, 67% of the sum of (a) the
aggregate amount of Loans then outstanding, and (b) participations in the
undrawn face amount of Letters of Credit issued hereunder and unpaid
reimbursement obligations with respect thereto.
Shareholders Equity shall mean on any date the total assets
minus total liabilities of Borrower and its Subsidiaries, all determined on a
consolidated basis in accordance with generally accepted accounting principles,
consistently applied.
Subordinated Debt shall mean any borrowed money Indebtedness
of Borrower which has been duly subordinated by the holder thereof to all of
Borrower's Obligations to the Lenders and Agents pursuant to a subordination and
standby agreement or intercreditor agreement in form and substance satisfactory
to the Agents and the Required Lenders.
Subsidiary shall mean, with respect to any Person, any
corporation of which fifty percent (50%) or more of the issued and outstanding
capital stock entitled to vote for the election of directors (other than by
reason of default in the payment of dividends) is at the time owned directly or
indirectly by such Person.
9
10
Subsidiary Guaranties shall mean those certain guaranties of
Borrower's Obligations executed respectively by Borrower's Domestic Subsidiaries
in existence as of the date hereof and the guaranties of any subsequently
created or acquired Domestic Subsidiary of Borrower executed and delivered to
Administrative Agent hereafter pursuant to Section 4.2 or Section 7.2(e), all as
the same may from time to time be amended.
Subsidiary Pledge Agreements shall mean those certain general
pledge and security agreements executed respectively by Borrower's Subsidiaries
in existence as of the date hereof which own shares of stock or other equity
interests in any other Subsidiary and the general pledge and security agreements
of any Subsidiary of Borrower which hereafter owns shares of stock or other
equity interests in any other Subsidiary which are required to be executed and
delivered to Administrative Agent hereafter pursuant to Section 4.2 or Section
7.2(e), all as the same may from time to time be amended.
Swing Loan shall have the meanings ascribed thereto in Section
3.2.
Swing Line Note shall have the meaning ascribed thereto in
Section 3.2.
Swing Line Commitment shall mean the commitment of Mercantile
to make Swing Loans as set forth herein in an aggregate amount not to exceed
$5,000,000.00 at any one time outstanding.
Syndication Agent shall mean The First National Bank of
Chicago and its successors and assigns.
Term shall have the meaning ascribed thereto in Section 1.
Third Party Collateral shall mean any Property or assets of
any Obligor other than the Borrower which now or at any time hereafter secure
the payment or performance of any of the Borrower's Obligations.
Total Revolving Credit Commitment shall have the meaning
ascribed thereto in Section 3.1.
Transaction Documents shall mean this Agreement, the Notes,
the Pledge Agreements, any Letter of Credit Application, the Subsidiary
Guaranties, the Subsidiary Pledge Agreements and all other agreements, documents
and instruments heretofore, now or hereafter delivered to Administrative Agent,
Syndication Agent or any of the Lenders with respect to or in connection with or
pursuant to this Agreement, any Loans made or Letters of Credit issued hereunder
or any other of the Borrower's Obligations, and executed by or on behalf of the
Borrower or any of its Subsidiaries, all as the same may from time to time be
amended, modified, extended or renewed.
Year 2000 Compliant shall mean, with respect to any Person,
that all software, embedded microchips and/or other computer and/or processing
capabilities utilized by such Person, and/or included in any software, products,
goods and/or services sold and/or leased by such Person, are able to correctly
and properly recognize, interpret, process, calculate, compare, sequence and
manipulate data and date-sensitive functions on and involving all calendar dates
(including, without limitation, dates in and after the year 2000).
SECTION 3. THE LOANS.
3.1 Revolving Credit Commitment of Lenders.
(a) Subject to the terms and conditions hereof,
during the Term of this Agreement, each Lender hereby severally agrees to make
such loans (individually, a "Revolving Credit Loan," and collectively, the
"Revolving Credit Loans"), to the Borrower as the Borrower may from time to time
request pursuant to Section 3.3(a). The aggregate principal amount of Revolving
Credit Loans which Lenders, cumulatively, shall be required to have outstanding
hereunder at any one time, plus the outstanding principal amount of the Swing
Loans then outstanding under Section 3.2, plus the undrawn face amount of
Letters of Credit issued by Administrative Agent and then outstanding under
Section 3.4, shall not exceed Two Hundred Fifty Million Dollars
($250,000,000.00) (subject to reduction as provided in Section 3.12, the "Total
Revolving Credit Commitment"). The amount each Lender shall be required to have
outstanding hereunder as Revolving Credit Loans plus its
10
11
undivided Pro Rata Share of each Swing Loan made by Mercantile under Section 3.2
plus its undivided Pro Rata Share participation interest in each Letter of
Credit issued by Administrative Agent under Section 3.4, shall not exceed, in
the aggregate at any one time outstanding, the amount of such Lender's Revolving
Credit Commitment. Each Revolving Credit Loan under this Section 3.1 shall be
made by the Lenders ratably in proportion to their respective Revolving Credit
Commitments. The Revolving Credit Loans shall be evidenced on the date of this
Agreement by the Revolving Credit Notes of the Borrower, each dated the date
hereof and payable by the Borrower to the respective orders of each of the
Lenders in the aggregate original principal amount of Two Hundred Fifty Million
Dollars ($250,000,000.00) and otherwise in the form attached hereto as Exhibit A
and incorporated herein by reference (as the same may from time to time be
amended, restated, modified, extended or renewed, the "Revolving Credit Notes").
The Revolving Credit Notes shall mature on August 20, 2003, unless earlier
terminated by acceleration or otherwise upon the occurrence of an Event of
Default under this Agreement. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow the amounts available
under this Section 3.1.
(b) Each Lender shall record in its books and
records, and prior to any transfer of its Revolving Credit Note shall endorse on
the schedules forming a part thereof, appropriate notations to evidence the date
and amount of each Revolving Credit Loan made by it during the Term hereof,
whether such Revolving Credit Loan is then a Base Rate Loan or a LIBOR Loan, and
the date and amount of each payment of principal made by Borrower with respect
thereto. Each Lender is hereby irrevocably authorized by Borrower so to endorse
its Revolving Credit Note and to attach to and make a part of any such Revolving
Credit Note a continuation of any such schedule as and when required; provided,
however that the obligation of Borrower to repay each Revolving Credit Loan made
hereunder shall be absolute and unconditional, notwithstanding any failure of
any Lender to endorse or any mistake by any Lender in connection with
endorsement on the schedules attached to their respective Revolving Credit
Notes. The books and records of each Lender (including, without limitation, the
schedules attached to the Revolving Credit Notes) showing the account between
such Lender and Borrower shall be admissible in evidence in any action or
proceeding and shall constitute prima facie proof of the items therein set
forth.
3.2 The Swing Line . Subject to all of the terms and
conditions hereof and so long as no Default or Event of Default under this
Agreement has occurred and is continuing, Mercantile agrees to make loans to
Borrower under a Swing Line ("Swing Loans") during the Term of this Agreement
which shall not in the aggregate at any time outstanding exceed the lesser of
(i) the Swing Line Commitment, or (ii) the difference between the Revolving
Credit Commitments of all of the Lenders and the amount of the Revolving Credit
Loans and the undrawn face amount of Letters of Credit then outstanding
hereunder at the time of computation. The Swing Line Commitment shall be
available to Borrower and may be availed of by Borrower from time to time, and
borrowings thereunder may be repaid and used again during the period ending on
the last day of the Term hereof. All Swing Loans shall be made hereunder only as
Base Rate Loans. All advances made by Mercantile to Borrower under the Swing
Line shall be evidenced by the Swing Line Note of Borrower dated as of the date
hereof (the "Swing Line Note") payable to the order of Mercantile in the amount
of the Swing Line Commitment and being in the form attached hereto as Exhibit B.
3.3 Procedure for Borrowing.
(a) Revolving Credit Loan Advances. Subject to
the terms and conditions hereof, Lenders shall cause the Revolving Credit Loans
to be made to the Borrower at any time and from time to time during the Term
hereof upon Borrower's application to Administrative Agent in writing signed by
the authorized representative of the Borrower and received by Administrative
Agent not later than 11:00 a.m. (St. Louis time) three (3) Business Days prior
to the date on which such Revolving Credit Loan is being borrowed, specifying:
(i) if the proceeds of the Revolving Credit Loan will be used to finance an
Acceptable Acquisition, (A) the target business to be acquired by Borrower in an
Acceptable Acquisition with the proceeds of such Revolving Credit Loan (which
business must be in a similar line of business to Borrower and its
Subsidiaries), (B) the affidavit of any one of the President, Chief Financial
Officer, Chief Operating Officer, or any Executive Vice President of Borrower
attesting that the Acceptable Acquisition contemplated will not cause Borrower
or any of its Subsidiaries to violate any provision of the Transaction Documents
and including Borrower's financial projections showing that post-acquisition
Borrower and its Subsidiaries will be in proforma compliance with the financial
covenants set forth in Section 7.1(i) of this Agreement, (C) the desired amount
of the new Revolving Credit Loan, which shall not exceed the cash purchase price
for the target business, and (D) the date on which the Loan proceeds are to be
made available to the Borrower, which shall be a Business Day, and (ii) if the
proceeds of the Revolving Credit Loan will be used for any purpose permitted by
this Agreement other than to finance an Acceptable Acquisition, (A) the desired
amount of the new Revolving
11
12
Credit Loan and (B) the date on which the Loan proceeds are to be made available
to Borrower, which shall be a Business Day. In addition, not later than two (2)
Business Days prior to the date of funding of any such requested Revolving
Credit Loan, Borrower shall further notify Administrative Agent in writing of:
(y) the applicable interest rate option being selected, and (z) if a LIBOR Loan
is requested, the Interest Period, which in no event shall extend beyond the
last day of the Term hereof. Each application for a Revolving Credit Loan
hereunder the proceeds of which will be used to finance an Acceptable
Acquisition shall include a copy of the letter of interest, purchase agreement
or other documents signed by and between Borrower and the target business
disclosing the terms of the Acceptable Acquisition. Revolving Credit Loans made
hereunder to fund Acceptable Acquisitions shall not require the prior written
consent of the Administrative Agent or the Required Lenders except as required
in subpart (c) of the definition of Acceptable Acquisition. A Revolving Credit
Loan requested to fund any Acceptable Acquisition shall be funded in a single
advance. Upon receipt of notice of an Acquisition as provided in subpart (b) of
the definition of Acceptable Acquisition, the Administrative Agent promptly
shall deliver a copy of such notice to each Lender. Upon receipt of an
application for a Revolving Credit Loan, the Administrative Agent shall deliver
a copy of such information to each Lender on the date of receipt and shall
notify each Lender of such Lender's Pro Rata Share of such new Revolving Credit
Loan. An application for a Revolving Credit Loan, once issued, shall not be
revocable by the Borrower. Not later than 2:00 p.m. (St. Louis time) on the date
of each new Revolving Credit Loan, each Lender shall make available its Pro Rata
Share of such Revolving Credit Loan, in federal or other funds immediately
available in St. Louis, Missouri, to the Administrative Agent at its address
specified in or pursuant to Section 10.7. Administrative Agent shall not be
required to make any amount available to Borrower hereunder except to the extent
it shall have received such amounts from the Lenders as set forth herein,
provided, however, that unless the Administrative Agent shall have been notified
by a Lender prior to the date a Revolving Credit Loan is to be made hereunder
that such Lender does not intend to make its Pro Rata Share of such Revolving
Credit Loan available to the Administrative Agent, the Administrative Agent may
assume that such Lender has made such Pro Rata Share available to the
Administrative Agent on such date, and the Administrative Agent may in reliance
upon such assumption make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender and the Administrative Agent has made such amount available
to the Borrower, the Administrative Agent shall be entitled to receive such
amount from such Lender forthwith upon its demand, together with interest
thereon in respect of each day during the period commencing on the date such
amount was made available to the Borrower and ending on but excluding the date
the Administrative Agent recovers such amount from the Lender at a rate per
annum equal to the Fed Funds Rate for each day as determined by the
Administrative Agent (or in the case of a day which is not a Business Day, then
for the preceding day). Subject to the terms and conditions hereof, provided
that Administrative Agent has received a timely application from Borrower as
required in this Section 3.3(a), Administrative Agent shall (unless
Administrative Agent determines that any applicable condition specified in
Sections 4.1 or 4.2 has not been satisfied) make the funds so received from the
Lenders available to Borrower by wiring or otherwise transferring the proceeds
of such Loan not later than 2:30 p.m. (St. Louis time) on the Business Day
specified by Borrower in its application in accordance with any instructions for
such disbursement received from the Borrower. The Borrower hereby authorizes
Agents and Lenders to rely on telephonic, telegraphic, telecopy, telex or
written instructions of any Person identifying himself or herself as a Person
authorized to request a Loan or to make a repayment hereunder, and on any
signature which any of the Agents or any of the Lenders believes to be genuine,
and the Borrower shall be bound thereby in the same manner as if such Person
were actually authorized or such signature were genuine. Borrower also hereby
agrees to indemnify Agents and Lenders and hold Agents and Lenders harmless from
and against any and all claims, demands, damages, liabilities, losses, costs and
expenses (including, without limitation, attorneys' fees and expenses) relating
to or arising out of or in connection with the acceptance of instructions for
making Revolving Credit Loans or making repayments hereunder unless such
acceptance results from the gross negligence or willful misconduct of an Agent
or a Lender as determined by a court of competent jurisdiction.
(b) Interest Rate Conversions. Subject to the
terms and conditions hereof, Lenders shall permit the Borrower to convert
outstanding Revolving Credit Loans from a Base Rate Loan to a LIBOR Loan or from
a LIBOR Loan to a Base Rate Loan, and Lenders shall permit the Borrower to
request a new Interest Period for any existing LIBOR Loan at the end of its then
current Interest Period, upon timely notice ("Conversion Notice") to
Administrative Agent, in writing signed by the authorized representative of the
Borrower (including any such notice by facsimile transmission) specifying: (1)
the amount of the outstanding Revolving Credit Loan being converted to a new
interest rate basis, or the amount of the LIBOR Loan being continued as a LIBOR
Loan for a new Interest Period, (2) the applicable interest rate option being
selected, (3) if a LIBOR Loan is requested, the Interest Period, which in no
event shall extend beyond the last day of the Term hereof, and (4) the effective
date, which shall be a Business Day, and if pertaining to an existing LIBOR
Loan, shall also be the last day of the then current Interest Period. Each
Conversion Notice must be received
12
13
by Administrative Agent not later than 11:00 a.m. (St. Louis time) on the
Business Day on which a conversion to a Base Rate Loan is to be made, and not
later than 11:00 a.m. (St. Louis time) on the second Business Day prior to the
Business Day on which a conversion to a LIBOR Loan is to be made. Each
Conversion Notice for extension of an existing LIBOR Loan for a new Interest
Period must be received by Administrative Agent not later than 11:00 a.m. (St.
Louis time) on the second Business Day prior to the last day of the then current
Interest Period. Upon receipt of a Conversion Notice given to it, the
Administrative Agent shall notify each Lender by 12:00 noon (St. Louis time) on
the date of receipt of such Conversion Notice by the Administrative Agent of the
contents thereof. Unless the Borrower shall have otherwise requested
Administrative Agent to notify the Lenders to continue an existing LIBOR Loan
for a new Interest Period in a timely Conversion Notice, upon the expiration of
the current Interest Period any LIBOR Loan made in relation to such Interest
Period and then outstanding shall bear interest at the Prime Rate plus
Applicable Margin from and after the expiration of such Interest Period unless
and until subsequently converted in accordance with the terms of this Section
3.3(b). A Conversion Notice shall not be revocable by the Borrower. Subject to
the terms and conditions hereof, provided that Administrative Agent has received
the timely Conversion Notice, Lenders shall (unless Administrative Agent
determines that any applicable condition specified in Section 4 has not been
satisfied) convert the interest rate on the portion of the outstanding Revolving
Credit Loan, as directed by the Borrower in the Conversion Notice, or Lenders
shall extend any LIBOR Loan for a new Interest Period as directed by the
Borrower in the Conversion Notice, at 2:30 p.m. (St. Louis time) on the Business
Day specified in said Conversion Notice; provided, however, that notwithstanding
the foregoing, in addition to and without limiting the rights and remedies of
the Agents and the Lenders under Section 8 hereof, so long as any Default or
Event of Default under this Agreement has occurred and is continuing, Borrower
shall not be permitted to renew any LIBOR Loan as a LIBOR Loan or to convert any
Base Rate Loan into a LIBOR Loan. The Borrower hereby authorizes Agents and the
Lenders to rely on telephonic, telegraphic, telecopy, telex or written
instructions of any person identifying himself or herself as a Person authorized
to request a conversion of a Revolving Credit Loan, or to continue a LIBOR Loan
hereunder, and on any signature which any of the Agents or any of the Lenders
reasonably believe to be genuine, and the Borrower shall be bound thereby in the
same manner as if such Person were actually authorized or such signature were
genuine. The Borrower also hereby agrees to indemnify the Agents and the Lenders
and hold the Agents and the Lenders harmless from and against any and all
claims, demands, damages, liabilities, losses, costs and expenses (including,
without limitation, attorneys' fees and expenses) relating to or arising out of
or in connection with the acceptance of instructions for converting Revolving
Credit Loans to a new interest rate basis or continuing LIBOR Loans hereunder
unless such acceptance results from the gross negligence or willful misconduct
of an Agent or a Lender as determined by a court of competent jurisdiction. A
Conversion Notice shall not be required in connection with a Base Rate Loan
pursuant to Section 3.7, 3.8 or 3.9.
(c) Swing Loan Advances. With respect to each
Swing Loan, Borrower shall give Mercantile prior notice (which may be written or
oral but which must be given prior to 2:00 p.m. St. Louis time on the date of
the Swing Loan) of the amount and date of each Swing Loan and, subject to all of
the terms and conditions hereof, the proceeds of such Swing Loan shall be made
available to Borrower on the date of request at the offices of the
Administrative Agent in St. Louis, Missouri. Borrower hereby authorizes and
directs Mercantile, without further authorization or instructions from it, to
make Borrower a Swing Loan each Business Day in an amount equal to the
difference, if any, between (i) the amount which Mercantile determines is
necessary to pay items clearing on such day, and (ii) the balance of available
(as customarily determined by Mercantile) funds in Borrower's general account
with Mercantile as of such day, and if the amount determined pursuant to clause
(ii) above is in excess of the amount determined pursuant to clause (i), then
Mercantile is irrevocably authorized and instructed to apply such excess to the
reduction of the outstanding balance of the Swing Loans without further
instruction from Borrower. Anything contained in the foregoing to the contrary
notwithstanding, (i) the obligation of Mercantile to make Swing Loans shall be
subject to all of the terms and conditions of this Agreement, (ii) Mercantile
shall not be obligated to make more than one Swing Loan to Borrower during any
day, and (iii) Mercantile shall make the determination of the amount to be
borrowed or repaid pursuant to the immediately preceding sentence as of a cutoff
hour to be determined by Mercantile, and Mercantile shall incur no liability to
Borrower for any interruptions or errors made in connection with the foregoing
procedures not caused by the gross negligence or willful misconduct of
Mercantile.
3.4 Letters of Credit.
(a) Subject to the terms and conditions of this
Agreement, during the Term of this Agreement, and so long as no Default or Event
of Default under this Agreement has occurred and is continuing and the
conditions set forth in Section 4.2 have been met (provided, however, that
Administrative Agent shall have no liability to any
13
14
of the Lenders for issuing a Letter of Credit after the occurrence of any
Default or Event of Default under this Agreement or without a condition of
Section 4.2 having been satisfied unless Administrative Agent has previously
received notice in writing to Administrative Agent by Borrower or any of the
other Lenders of the occurrence of such Default or Event of Default or of the
failure to meet any such condition), Administrative Agent hereby agrees to issue
irrevocable standby and commercial letters of credit for the account of Borrower
(individually, a "Letter of Credit" and collectively, the "Letters of Credit")
in an amount and for the term specifically requested by Borrower by application
in writing to Administrative Agent in the form of Exhibit D in the case of a
standby Letter of Credit or in the form of Exhibit E in the case of a commercial
Letter of Credit, each as attached hereto and incorporated herein by reference
(a "Letter of Credit Application") at least three (3) Business Days prior to the
requested issuance thereof; provided, however, that:
(i) Borrower shall have executed and delivered to
Administrative Agent a Letter of Credit Application with respect to
such Letter of Credit;
(ii) the term of any such Letter of Credit shall not
extend beyond the earlier of (A) the last day of the Term hereof, or
(B) three hundred sixty-five (365) days from the issuance thereof,
provided, however, that any such Letter of Credit may be renewable on
terms satisfactory to the Administrative Agent;
(iii) the aggregate undrawn face amount of all
outstanding Letters of Credit shall not at any one time exceed Ten
Million Dollars ($10,000,000.00) and the aggregate undrawn face amount
of all outstanding Letters of Credit plus the outstanding principal
amount of all Revolving Credit Loans plus the outstanding principal
amount of all Swing Loans shall not at any one time exceed the Total
Revolving Credit Commitment; and
(iv) the text of any such Letter of Credit is
provided to Administrative Agent no less than three (3) Business Days
prior to the requested issuance date, which text must be acceptable to
Administrative Agent in its sole and absolute discretion.
(b) The payment of drafts under each Letter of Credit
shall be made in accordance with the terms thereof and, in that connection,
Administrative Agent shall be entitled to honor any drafts and accept any
documents presented to it by the beneficiary of such Letter of Credit in
accordance with the terms of such Letter of Credit and believed by
Administrative Agent to be genuine. Administrative Agent shall not have any duty
to inquire as to the accuracy or authenticity of any draft or other drawing
document that may be presented to it other than the duties contemplated by the
applicable Letter of Credit Application. If Administrative Agent shall have
received documents that in its judgment constitute all of the documents that are
required to be presented before payment or acceptance of a draft under a Letter
of Credit, it shall be entitled to pay such draft provided such documents
conform on their face to the requirements of such Letter of Credit.
(c) In the event of any payment by
Administrative Agent of a draft presented or accepted under a Letter of Credit,
Borrower agrees to pay to Administrative Agent in immediately available funds at
the time of such drawing an amount equal to the sum of such drawing plus
Administrative Agent's negotiation, processing and other fees related thereto.
Borrower hereby authorizes Administrative Agent to charge or cause to be charged
Borrower's bank accounts at Administrative Agent to the extent there are
balances of immediately available funds therein, in an amount equal to the sum
of such drawing plus Administrative Agent's negotiation, processing and other
fees related thereto, and Borrower agrees to pay the amount of any such drawing
(and/or Administrative Agent's negotiation, processing and other fees related
thereto) not so charged prior to the close of business of Administrative Agent
on the day of such drawing. In the event any payment under a Letter of Credit is
made by Administrative Agent prior to receipt of payment from Borrower, such
payment by Administrative Agent shall constitute a request by Borrower for a
Revolving Credit Loan as a Base Rate Loan under Section 3.1(a) above.
(i) Borrower shall also pay to Administrative Agent,
for its own account, with respect to each Letter of Credit, a
nonrefundable issuance fee in the amount of One Hundred Twenty-Five
Dollars ($125.00) (the "Letter of Credit Issuance Fee"), which Letter
of Credit Issuance Fee shall be due and payable on the date of issuance
of each Letter of Credit, and such other fees as Administrative Agent
14
15
may from time to time customarily charge in accordance with
Administrative Agent's published schedule of fees in effect from time
to time, which fees shall be due and payable on demand by
Administrative Agent; and
(ii) Borrower shall pay to Administrative Agent for
the ratable account of the Lenders with respect to each Letter of
Credit for the period during which such Letter of Credit is
outstanding, a nonrefundable Letter of Credit Commitment Fee in an
amount per annum equal to the Applicable Margin for LIBOR Loans in
effect for each such fiscal quarter (calculated on an actual day,
360-day year basis) times the face amount (taking into account any
scheduled increases or decreases therein during the fiscal quarter in
question) of each Letter of Credit issued hereunder ("Letter of Credit
Commitment Fee"), which Letter of Credit Commitment Fee shall be due
and payable on the date of issuance for each Letter of Credit issued by
Administrative Agent hereafter, in each case prorated for the remainder
of the then current quarter, and such Letter of Credit Commitment Fee
shall also be payable thereafter for all outstanding Letters of Credit
quarterly in advance on each April 1, July 1, October 1, and January 1
during the Term hereof.
(d) Upon the issuance of a Letter of Credit by
Administrative Agent, an undivided participation interest therein (including,
without limitation, an undivided participation interest in the reimbursement
risk relating to such Letter of Credit and in all payments and Revolving Credit
Loans made in connection with such Letter of Credit) shall automatically be
granted by Administrative Agent to and accepted by each of the other Lenders in
an amount based on each such other Lender's Pro Rata Share of the face amount of
such Letter of Credit, which participation shall be evidenced by a single Letter
of Credit Participation Certificate executed by Administrative Agent in favor of
such Lender in the form attached hereto as Exhibit F and incorporated herein by
reference. Administrative Agent agrees to provide each Lender with a copy of
each Letter of Credit issued hereunder. If Administrative Agent shall make
payment on any draft presented or accepted under a Letter of Credit,
Administrative Agent shall give notice of such payment to the other Lenders, and
each of the other Lenders hereby authorizes and requests Administrative Agent to
advance for their respective accounts, pursuant to the terms hereof, their
respective shares of any such payment based upon their respective Pro Rata
Shares. If a Default has occurred hereunder and if such drawing is not paid by
Borrower in immediately available funds prior to the close of business of
Administrative Agent on the date of such drawing, Administrative Agent shall
promptly so notify the other Lenders and each of the other Lenders agrees to
immediately reimburse Administrative Agent in immediately available funds for
its Pro Rata Share of the amount of such drawing, plus interest calculated on
its Pro Rata Share of such amount at a rate per annum equal to the Fed Funds
Rate calculated from the date of such payment by Administrative Agent to but
excluding the date of reimbursement by such other Lender and on an actual-day,
360-day year basis. Each of the other Lenders will be entitled to its Pro Rata
Share of any Letter of Credit Commitment Fees paid by Borrower, but such other
Lenders shall have no right to share in any Letter of Credit Issuance Fees or
any other fees paid by Borrower to Administrative Agent in connection with any
of the Letters of Credit.
(e) Notwithstanding any provision contained in
this Agreement or any of the Letter of Credit Applications to the contrary, upon
the occurrence of any Event of Default under this Agreement, at Administrative
Agent's option and without demand or further notice to Borrower, an amount equal
to the aggregate undrawn face amount of all Letter(s) of Credit then outstanding
shall be deemed (as between Administrative Agent and Borrower) to have been paid
or disbursed by Administrative Agent (notwithstanding that such amounts may not
in fact have been so paid or disbursed by Administrative Agent), and which
amount shall be immediately due and payable. In lieu of the foregoing, at the
election of the Required Lenders upon the occurrence of any Event of Default
under this Agreement, Borrower shall, upon the Required Lenders' demand, deliver
to Administrative Agent cash, or other collateral acceptable to the Required
Lenders in their sole and absolute discretion, having a value, as determined by
the Required Lenders, at least equal to the aggregate undrawn face amount of all
outstanding Letters of Credit. Any such collateral and/or any amounts received
by Administrative Agent for such Letters of Credit shall be held by
Administrative Agent in a separate account at Administrative Agent appropriately
designated as a cash collateral account in relation to this Agreement and the
Letters of Credit and retained by Administrative Agent as collateral security
for the payment of Borrower's Obligations hereunder. Cash amounts delivered to
Administrative Agent pursuant to the foregoing requirements of this Section
shall be invested, at the request and for the account of Borrower, in
investments of a type and nature and with a term acceptable to the Required
Lenders. Such amounts, including in the case of cash amounts invested in the
manner set forth above, any interest realized thereon, may be applied to
reimburse Administrative Agent and/or any of the Lenders for drawings or
payments under or pursuant to the Letters of Credit which
15
16
Administrative Agent has paid, or if no such reimbursement is required to the
payment of such other of Borrower's Obligations as the Required Lenders shall
determine. Any amounts remaining in any cash collateral account established
pursuant to this Section after the payment in full of all of Borrower's
Obligations and the expiration or cancellation of all of the Letters of Credit
shall be returned to Borrower (after deduction of Administrative Agent's
expenses, if any).
3.5 Interest Rates and Payments.
(a) Each Revolving Credit Loan shall bear
interest prior to maturity at a rate per annum equal to such of the following as
the Borrower, at its option, shall select in accordance with Section 3.3: (i)
the Base Rate plus Applicable Margin, which rate shall fluctuate as and when
said Base Rate or said Applicable Margin shall change, or (ii) the LIBOR Rate
plus Applicable Margin, determined in the case of LIBOR Loans as of the date of
the commencement of the applicable Interest Period. Each Swing Loan shall bear
interest prior to maturity at a rate per annum equal to the Base Rate plus
Applicable Margin, which rate shall fluctuate as and when said Base Rate or said
Applicable Margin shall change. Accrued interest on all Base Rate Loans shall be
payable quarterly in arrears on the first day of each calendar quarter,
commencing on the first such date after such Loan is made. Accrued interest on
all LIBOR Loans shall be payable in arrears on the last day of the Interest
Period applicable to each such LIBOR Loan, and if any such Interest Period
exceeds three months, all accrued and unpaid interest shall be due and payable
on the date three months following the commencement of such Interest Period as
well. In addition, all accrued interest on all Loans shall be payable on the
last day of the Term hereof, whether by reason of acceleration or otherwise.
(b) After the occurrence of an Event of Default,
the principal balance of and, to the extent permitted by law, any overdue
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid, at a rate per annum equal to Two Percent (2.00%) over and above
the Base Rate, fluctuating as and when said Base Rate shall change. After the
occurrence of an Event of Default, the principal balance of and, to the extent
permitted by law, any overdue interest on any LIBOR Loan shall bear interest,
payable on demand, for each day during the applicable Interest Period until
paid, at a rate per annum equal to the sum of Two Percent (2.00%) plus the LIBOR
Rate plus Applicable Margin for such LIBOR Loan, and after the expiration of
such Interest Period, such Loan shall thereafter bear interest at the default
rate applicable to Base Rate Loans under the preceding sentence. From and after
the maturity of the Notes, whether by reason of acceleration or otherwise, the
unpaid principal balance of each Loan shall bear interest until paid, payable on
demand, at a rate per annum equal to Two Percent (2.00%) over and above the Base
Rate, fluctuating as aforesaid.
(c) Interest shall be computed with respect to all
Loans on an actual day, 360-day year basis. Each Revolving Credit Loan which is
a Base Rate Loan shall be for a principal amount of One Million Dollars
($1,000,000.00) or any larger multiple of One Hundred Thousand Dollars
($100,000.00). Each LIBOR Loan shall be for a principal amount of Two Million
Five Hundred Thousand Dollars ($2,500,000.00) or any larger multiple of Five
Hundred Thousand Dollars ($500,000.00). The Borrower shall be permitted to have
no more than twelve (12) LIBOR Loans outstanding at any one time.
(d) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder as selected by Borrower pursuant
to Section 3.3. The Administrative Agent shall give prompt notice to Borrower
and the Lenders by telephone, telecopy, telex or cable of each rate of interest
so determined, and its determination thereof shall be conclusive in the absence
of manifest error.
3.6 Prepayment; Funding Losses. The Borrower shall be
privileged to prepay all at any time or any portion from time to time of the
unpaid principal balance of any Loan, provided, however, that any LIBOR Loan may
be prepaid only at the expiration of the applicable Interest Period. If the
Borrower makes any payment with respect to any LIBOR Loan on any day other than
the last day of the Interest Period applicable thereto (whether by reason of
acceleration, a required prepayment under this Agreement or otherwise), or if
the Borrower converts any LIBOR Loan or portion thereof to a Base Rate Loan on
any day other than the last day of the Interest Period applicable thereto
(whether by reason of Section 3.8, 3.9 or otherwise), or if the Borrower fails
to borrow any LIBOR Loan after a request for such a Loan has been given to
Administrative Agent pursuant hereto, the Borrower shall reimburse any of the
Lenders on demand for any resulting losses and expenses incurred by any such
Lender, including, without limitation, any losses incurred in obtaining,
liquidating or employing deposits from third parties, including loss of margin
for the period after such payment or conversion, provided that such Lender shall
have delivered to the Borrower a certificate, with supporting calculations, as
to the amount of such losses and expenses, which certificate shall be conclusive
in the absence of manifest error. All prepayments shall be applied solely to the
payment of principal.
16
17
3.7 Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(a) Deposits in dollars (in the applicable
amounts) are not being offered to any Lender in the relevant market for such
Interest Period, or
(b) Any Lender determines that the LIBOR Rate as
determined pursuant to the definition thereof will not adequately and fairly
reflect the cost to such Lender of maintaining or funding the LIBOR Loans for
such Interest Period,
such Lender shall forthwith give notice thereof to the Borrower, which notice
shall set forth in detail the basis for such notice, whereupon until such Lender
notifies the Borrower that the circumstances giving rise to such suspension no
longer exist, (a) the obligations of such Lender to make LIBOR Loans shall be
suspended, and (b) the Borrower shall convert all of its then outstanding LIBOR
Loans from such Lender on the last day of the then current Interest Period
applicable to each such LIBOR Loan, to a Base Rate Loan in an equal principal
amount. Interest accrued on such LIBOR Loan prior to such conversion shall be
due and payable on the date of such conversion.
3.8 Illegality. If, after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental or regulatory authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any request or directive (whether or not having the force of law) of any
such governmental or regulatory authority, central bank or comparable agency
shall make it unlawful or impossible for such Lender to make, maintain or fund
its LIBOR Loans to the Borrower, such Lender shall forthwith give notice thereof
to the Borrower. Upon receipt of such notice, the Borrower shall convert all of
their then outstanding LIBOR Loans from such Lender on either (a) the last day
of the then current Interest Period applicable to such LIBOR Loan if such Lender
may lawfully continue to maintain and fund such LIBOR Loan to such day or (b)
immediately if such Lender may not lawfully continue to fund and maintain such
LIBOR Loan to such day, to a Base Rate Loan in an equal principal amount.
Interest accrued on such LIBOR Loan prior to such conversion shall be due and
payable on the date of such conversion together with any funding losses and
other amounts due under Section 3.6.
3.9 Increased Cost.
(a) If (i) Regulation D of the Board of
Governors of the Federal Reserve System, as amended, or (ii) after the date
hereof, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental or regulatory authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any request or directive (whether or not having the force of law) of any
such governmental or regulatory authority, central bank or comparable agency (a
"Regulatory Change"):
(i) shall subject any such Lender to any tax, duty or
other charge with respect to its LIBOR Loans, the Notes or the
obligation to make LIBOR Loans, or shall change the basis of taxation
of payments to any such Lender of the principal of or interest on its
LIBOR Loans or any other amounts due under this Agreement in respect of
its LIBOR Loans or its obligation to make LIBOR Loans (except for taxes
on or changes in the rate of tax on the overall net income of such
Lender); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System), special deposit,
capital or similar requirement against assets of, deposits with or for
the account of, or credit extended or committed to be extended by, any
such Lender or shall, with respect to such Lender impose, modify or
deem applicable any other condition affecting such Lender's LIBOR
Loans, the Notes or such Lender's obligation to make LIBOR Loans;
17
18
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D, to impose a cost on or increase the cost to) such Lender
of making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by such Lender under this Agreement or under any of the
Notes with respect thereto, by an amount deemed by such Lender to be material,
and if such Lender is not otherwise fully compensated for such increase in cost
or reduction in amount received or receivable by virtue of the inclusion of the
reference to "LIBOR Reserve Percentage" in the calculation of the LIBOR Rate,
then upon notice by such Lender to the Borrower, which notice shall set forth
such Lender's supporting calculations and the details of the Regulatory Change,
the Borrower shall pay such Lender, as additional interest, such additional
amount or amounts as will compensate Lenders for such increased cost or
reduction. The determination by any Lender under this Section of the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount or amounts, the Lenders may use
any reasonable averaging and attribution methods.
(b) If any Lender demands compensation under this
Section, the Borrower may at any time, upon at least one (1) Business Day's
prior notice to such Lender, convert their then outstanding LIBOR Loans to Base
Rate Loans in an equal principal amount. Interest accrued on such LIBOR Loan
prior to such conversion shall be due and payable on the date of such conversion
together with any funding losses and other amounts due under Section 3.6.
3.10 Base Rate Loans Substituted for Affected LIBOR Loans. If
notice has been given by any Lender pursuant to Section 3.7 or 3.8 or by the
Borrower pursuant to Section 3.9 requiring LIBOR Loans to be repaid or
converted, then, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such repayment or conversion no longer apply, all
Loans which would otherwise be made by such Lender to the Borrower as LIBOR
Loans shall be made instead as Base Rate Loans. Any such Lender shall notify the
Borrower if and when the circumstances giving rise to such repayment no longer
apply. All indemnities and all provisions relating to reimbursement to any
Lender of amounts sufficient to protect the yield to such Lender with respect to
the Loans, including, without limitation, Sections 3.6, 3.7, 3.8, and 3.9
hereof, shall survive the payment of the Notes and the termination of this
Agreement.
3.11 Place and Manner of Payment. Both principal and interest
on the Loans and all fees due hereunder and under any of the other Transaction
Documents payable to any Lender shall be paid in lawful currency of the United
States, in federal or other immediately available funds, at Administrative
Agent's banking office at 721 Locust Street, St. Louis, Missouri 63101. The
Administrative Agent will promptly distribute to each Lender in immediately
available funds its ratable share of each such payment received by the
Administrative Agent pursuant to the terms of this Agreement for the account of
such Lenders. Whenever any payment of principal of, or interest on, the Loans or
of fees shall be due on a day which is not a Business Day, the date for payment
thereof shall be extended to the next succeeding Business Day, except as
required by clauses (iii) or (iv) of the definition of Interest Period. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon, at the then applicable rate, shall be payable for such
extended time.
3.12 Termination or Reduction of Revolving Credit Commitments.
The Borrower may, upon three (3) Business Days' prior written notice to
Administrative Agent, terminate entirely at any time, or proportionately reduce
from time to time on a pro rata basis among the Lenders based on their
respective Revolving Credit Commitments, by an aggregate amount of $5,000,000.00
or any larger multiple of $5,000,000.00, the unused portions of the Revolving
Credit Commitments as specified by Borrower in such notice to Administrative
Agent; provided, however, that (i) at no time shall the Revolving Credit
Commitments be reduced to a figure less than the total of the outstanding
principal amount of all Revolving Credit Loans plus the outstanding principal
amount of all Swing Loans plus the face amount of all outstanding Letters of
Credit, (ii) at no time shall the Revolving Credit Commitments be reduced to a
figure greater than zero but less than $100,000,000.00, and (iii) any such
termination or reduction shall be permanent and the Borrower shall have no right
to thereafter reinstate or increase, as the case may be, the Revolving Credit
Commitment, as the case may be, of any Lender.
3.13 Commitment Fee. From the date hereof to but excluding the
last day of the Term hereof, the Borrower shall pay to the Administrative Agent,
for distribution to the Lenders in accordance with their Pro Rata Shares, a
quarterly nonrefundable commitment fee (the "Commitment Fee") equal to the
percentage per annum equal to the then current Applicable Margin, multiplied by
the average daily unused portion of the Total Revolving Credit Commitment. The
unused portion of the Total Revolving Credit Commitment shall be calculated as
(i) the sum of the amounts each day during any such fiscal quarter equal to the
Total Revolving Credit Commitment minus (x) the outstanding principal balance of
all Revolving Credit Loans on each such day and (y) the outstanding principal
balance of all Swing Loans on each such day and
18
19
(z) the face amount of all issued and outstanding Letters of Credit on each such
day, divided by (ii) 90, or by such lesser number of days in any partial fiscal
quarter for which such Revolving Credit Commitment was available. Such
commitment fee shall be payable quarterly in arrears on each April 1, July 1,
October 1 and January 1 during the Term hereof and on the last day of the Term
hereof, and shall be calculated on an actual day, 360-day year basis.
3.14 Facility Fee. Borrower shall pay to the Administrative
Agent on the date hereof, for distribution to the Lenders in accordance
herewith, a nonrefundable facility fee (the "Facility Fee") equal to the
following:
(a) For each Lender (other than those Lenders
which are also Agents hereunder) which had a Revolving Credit Commitment under
the Prior Credit Agreement (its "Prior Commitment"), an amount equal to
seventy-five thousandths of one percent (0.075%) times the lesser of such
Lender's Revolving Credit Commitment hereunder or such Lender's Prior
Commitment; plus
(b) For each Lender (including Lenders which are
Agents hereunder), an amount equal to
fifteen hundredths of one percent (0.15%) times the amount by which each such
Lender's Revolving Credit Commitment hereunder exceeds such Lender's Prior
Commitment, if any.
3.15 Maturity. All principal, interest and other amounts
outstanding with respect to the Revolving Credit Loans and the Swing Loans which
are not paid prior thereto shall be due and payable on the last day of the Term
hereof, whether by reason of the expiration thereof, acceleration or otherwise.
3.16 Voluntary Prepayments.
(a) Borrower may, upon notice to Administrative
Agent specifying that it is paying its Base Rate Loans, pay its Base Rate Loans
in whole at any time, or from time to time in part in amounts aggregating
$100,000.00 or any larger multiple of $100,000.00, by paying the principal
amount to be paid together with all accrued and unpaid interest thereon to and
including the date of payment; provided, however, that in no event may the
Borrower make a partial payment of Base Rate Loans which results in the total
outstanding Revolving Credit Loans which are Base Rate Loans being greater than
zero but less than $2,500,000.00.
(b) Borrower may, upon at least three (3) Business
Days' notice to Administrative Agent specifying that it is paying LIBOR Loans,
pay on the last day of any Interest Period its LIBOR Loans to which such
Interest Period applies, in whole, or in part in amounts aggregating $500,000.00
or any larger multiple of $500,000.00, by paying the principal amount to be paid
together with all accrued and unpaid interest thereon to and including the date
of payment; provided, however, that in no event may the Borrower make a partial
payment of LIBOR Loans which results in the total outstanding LIBOR Loans with
respect to which a given Interest Period applies being greater than zero but
less than $2,500,000.00.
(c) Upon receipt of a notice of payment pursuant
to Sections 3.16(a) or (b) above, the Administrative Agent shall promptly notify
each Lender of the contents thereof and of such Lender's Pro Rata Share of such
payment and such notice shall not thereafter be revocable by Borrower.
(d) Borrower may, upon notice to the Administrative
Agent specifying that it is paying its Swing Loans, pay without penalty or
premium such Swing Loans in whole at any time, or in part from time to time.
3.17 Discretion of Lender as to Manner of Funding.
Notwithstanding any provision contained in this Agreement to the contrary, each
of the Lenders shall be entitled to fund and maintain its funding of all or any
part of its LIBOR Loans in any manner it elects, it being understood, however,
that for purposes of this Agreement all determinations hereunder (including,
without limitation, the determination of each Lender's funding losses and
expenses under Section 3.6) shall be made as if such Lender had actually funded
and maintained each LIBOR Loan through the purchase of deposits having a
maturity corresponding to the maturity of the applicable Interest Period
relating to the applicable LIBOR Loan and bearing an interest rate equal to the
applicable LIBOR Rate. Each Lender may, at its option, elect to make, fund or
maintain its Loans hereunder at the branches or offices specified on the
signature pages hereof or on any Assignment Agreement executed and delivered
pursuant to Section 10.12 hereof or at such other of its branches or offices as
such Lender may from
19
20
time to time elect, provided that the Borrower shall not be required to
reimburse any Lender under any of the provisions of Section 3.6 for any cost
which such Lender would not have incurred but for changing its lending or
funding branch unless Borrower consents to such change.
3.18 Swing Loan Settlement After Default . Upon the occurrence
of any Event of Default, Administrative Agent shall promptly so notify the other
Lenders pursuant to Section 8 herein and of the amount of the Swing Loans from
Mercantile then outstanding, and each of the other Lenders agrees to immediately
purchase from Mercantile with immediately available funds its Pro Rata Share of
the amount of all such Swing Loans, plus accrued and unpaid interest calculated
on such Pro Rata Share of such principal amount at a rate per annum equal to the
Base Rate plus Applicable Margin. Following such advance by each Lender to
Mercantile of its Pro Rata Share of any such Swing Loans pursuant to the
preceding sentence, each such Lender shall thereafter receive its Pro Rata Share
of all principal payments, interest payments, fees and other amounts due with
respect to such Swing Loans when paid by the Borrower to the Administrative
Agent hereunder. Such Loans shall thereafter be evidenced by the Revolving
Credit Notes of each of the Lenders.
SECTION 4. PRECONDITIONS TO LOANS.
4.1 Initial Revolving Credit Loan, Swing Loan or Letter of
Credit. Notwithstanding any provision contained herein to the contrary, Lenders
shall have no obligation to make any Loan hereunder, and Administrative Agent
shall have no obligation to issue any Letter of Credit, unless Agents and
Lenders shall have received the following:
(a) This Agreement and the Notes, each executed
by a duly authorized officer of the Borrower;
(b) A Consent of Guarantors (the "Consent of
Guarantors") consenting to the execution, delivery and performance of this
Agreement and the Notes by Borrower, executed and delivered by a duly authorized
officer of each Guarantor;
(c) The Subsidiary Guaranties of any Domestic
Subsidiary in existence on the date hereof which has not heretofore provided a
Subsidiary Guaranty to Administrative Agent, executed and delivered by a duly
authorized officer of each of such respective Subsidiaries of Borrower;
(d) A Pledge Agreement, together with such collateral
schedules, stock powers (signed in
blank) and other documents as Administrative Agent may reasonably require under
Section 5.1 relating to all of the stock of any Domestic Subsidiary or 65% of
the stock of any Foreign Subsidiary in existence on the date hereof not covered
by any Pledge Agreement heretofore provided by Borrower to Administrative Agent,
each executed by a duly authorized officer of the Borrower;
(e) The Subsidiary Pledge Agreements, together with
such collateral schedules, stock powers (signed in blank) and other documents as
Administrative Agent may reasonably require under Section 5.2 relating to the
stock of any Subsidiary (100% of such stock if a Domestic Subsidiary or 65% if a
Foreign Subsidiary) of a Subsidiary of Borrower in existence on the date hereof
not covered by any Subsidiary Pledge Agreement heretofore provided by Borrower
to Administrative Agent, each executed by a duly authorized officer of the
Borrower;
(f) A copy of resolutions of the Board of Directors
of Borrower, duly adopted, which authorize the execution, delivery and
performance of this Agreement, the Notes, the Pledge Agreement, and the other
Transaction Documents to be executed by Borrower, certified by the President and
Secretary of Borrower;
(g) A copy of resolutions of the Boards of Directors
of each of the Guarantors, each duly adopted, authorizing the execution and
delivery of the Consent of Guarantors of each of the Subsidiaries described in
(b) above, and a copy of resolutions of the Boards of Directors of each of the
other Subsidiaries described in (c) or (e) above, each duly adopted, authorizing
the execution, delivery and performance by each such Subsidiary of its
Subsidiary Guaranty, its Subsidiary Pledge Agreement and any other Transaction
Documents to be executed by such Subsidiary, certified by the Vice President and
Assistant Secretary, respectively, of such Subsidiary;
20
21
(h) Copies of the Articles of Incorporation
of each of Borrower's Subsidiaries not previously provided to Administrative
Agent, including any amendments thereto, certified by the Secretary of State of
each of their respective states of incorporation;
(i) Copies of the Bylaws of each of Borrower's
Subsidiaries not previously provided to Administrative Agent, including
amendments thereto, certified respectively by the corporate Secretary of
Borrower and each such Subsidiary;
(j) Incumbency certificates, executed
respectively by the Secretaries of the Borrower and of each Subsidiary of the
Borrower, which shall identify by name and title and bear the signatures of all
of the officers of the Borrower or each such Subsidiary executing any of the
Transaction Documents;
(k) A certificate of corporate good standing of
Borrower and each of its Subsidiaries issued by the Secretary of State of their
respective states of incorporation;
(l) An opinion of counsel of Wright, Lindsey &
Jennings, LLP, independent counsel to the Borrower and its Subsidiaries, in the
form of Exhibit I attached hereto and incorporated herein by reference;
(m) Payment of the Facility Fee required by
Section 3.14 herein; and
(n) Such other agreements, documents,
instruments and certificates as Agents or Lendersmay reasonably request.
4.2 Subsequent Revolving Credit Loans and Letters of Credit.
Notwithstanding any provision contained herein to the contrary, Lenders shall
have no obligation to make any subsequent Revolving Credit Loan or Swing Loan
hereunder, and Administrative Agent shall have no obligation to issue any
subsequent Letter of Credit hereunder, unless:
(a) Administrative Agent and each of the
Lenders shall have received the current quarter-end financial statements and the
quarter-end compliance certificate as required by Sections 7.1(a)(ii) and (iii);
(b) Administrative Agent shall have received a
complete application for such Revolving Credit Loan as required by Section
3.3(a) or a Letter of Credit Application for such Letter of Credit, as the case
may be;
(c) Any Subsidiary created or acquired by
Borrower in connection with the Acceptable Acquisition shall have executed and
delivered:
(i) A Subsidiary Guaranty (if such Subsidiary is a
Domestic Subsidiary) executed and delivered by a duly authorized
officer of such new Domestic Subsidiary of Borrower;
(ii) A Subsidiary Pledge Agreement (if such
Subsidiary owns stock or other equity interests in any other
Subsidiary) pledging all such stock or other equity interests in any
Domestic Subsidiary and 65% of such stock or other equity interests in
any Foreign Subsidiary, together with such financing statements,
collateral schedules, stock powers (signed in blank) and other
documents as Administrative Agent may reasonably require under Section
5.2, each executed by a duly authorized officer of such new Subsidiary;
(iii) A copy of resolutions of the Board of Directors
of such new Subsidiary, duly adopted, authorizing the execution,
delivery and performance by such Subsidiary of its Subsidiary Guaranty
(if any), its Subsidiary Pledge Agreement (if any) and any other
Transaction Documents to be executed by such Subsidiary, certified by
the President and Secretary of such Subsidiary;
(iv) A copy of the Articles of Incorporation of such
new Subsidiary, certified by the Secretary of State of its state of
incorporation;
21
22
(v) A copy of the Bylaws of such new Subsidiary,
certified by the corporate Secretary of such Subsidiary;
(vi) An incumbency certificate, executed by the
Secretary of such new Subsidiary, which shall identify by name and
title and bear the signatures of all of the officers of such Subsidiary
executing any of the Transaction Documents; and
(vii) A certificate of corporate good standing of
such Subsidiary, issued by the Secretary of State of its state of
incorporation.
(viii) An opinion of counsel of Wright, Lindsey &
Jennings, LLP, independent counsel to the Borrower and such Subsidiary
in form and substance satisfactory to the Agents and the Lenders.
(d) Borrower shall have delivered to
Administrative Agent for the benefit of each of the Lenders, the original stock
certificate of such newly created or acquired Subsidiary, together with such
collateral schedules, stock powers, and other documents Administrative Agent may
reasonably require;
(e) On the date of and immediately after such
Revolving Credit Loan, Swing Loan or Letter of Credit, no Default or Event of
Default under this Agreement shall have occurred and be continuing;
(f) On the date of and immediately after such
Revolving Credit Loan, Swing Loan or Letter of Credit, no material adverse
change in the business, financial position or results of operations of the
Borrower or any of its Subsidiaries shall have occurred since the date of this
Agreement and be continuing;
(g) All of the representations and warranties
of the Borrower contained in this Agreement, including any pertaining to the new
Subsidiary created or acquired as a result of the Acceptable Acquisition, shall
be true and correct on and as of the date of such Revolving Credit Loan, Swing
Loan or Letter of Credit, as if made on the date of such Revolving Credit Loan,
Swing Loan or Letter of Credit.
Each request for a Revolving Credit Loan, Swing Loan or Letter
of Credit by the Borrower hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Revolving Credit Loan, Swing Loan
or Letter of Credit as to the facts specified in clauses (e), (f) and (g) of
this Section 4.2.
SECTION 5. COLLATERAL.
5.1 Pledge Agreement. In order to further secure the payment
when due of the Borrower's Obligations, the Borrower has pledged to
Administrative Agent for the benefit of each of the Lenders all of the issued
and outstanding capital stock of each present Domestic Subsidiary of the
Borrower and 65% of the issued and outstanding capital stock of each present
Foreign Subsidiary of the Borrower, and if any such Subsidiary is created or
acquired subsequent to the date hereof, on the date of any such acquisition or
formation, Borrower shall pledge and deliver to Administrative Agent for the
benefit of each of the Lenders all of the issued and outstanding stock of any
such future Domestic Subsidiary of the Borrower and 65% of the issued and
outstanding stock of any such future Foreign Subsidiary of the Borrower. Said
pledge is more fully described and evidenced by that certain General Pledge and
Security Agreement dated October 4, 1996 and executed by the Borrower in favor
of Administrative Agent for the benefit of each of the Lenders and each of the
other General Pledge and Security Agreements heretofore or hereafter executed
and delivered by Borrower to Administrative Agent for the benefit of each of the
Lenders (as the same may from time to time be amended, modified, extended or
renewed, collectively, the "Pledge Agreements"). The Borrower covenants and
agrees to execute any and all collateral schedules, stock powers and such other
documents as may from time to time be requested by Administrative Agent or any
Lender in order to create, perfect and maintain the pledge created by the Pledge
Agreements and to deliver all original stock certificates for any such present
or future Subsidiaries evidencing the pledged portion of the capital stock
thereof. Upon demand, the Borrower shall pay to Administrative Agent or to any
other party designated by Administrative Agent, all filing fees or transfer fees
incurred by Administrative Agent in the perfection and administration of the
pledge contemplated hereby. Lenders shall have no obligation to make any Loan
hereunder or to convert any Loan hereunder to a new interest rate basis unless
and until the Borrower has fully satisfied these requirements.
22
23
5.2 Subsidiary Pledge Agreements. In order to further secure
the payment when due of the Borrower's Obligations, the Borrower heretofore has
caused and hereafter shall cause each of its Subsidiaries to pledge to
Administrative Agent for the benefit of each of the Lenders all of the issued
and outstanding capital stock of each present Domestic Subsidiary and 65% of the
issued and outstanding capital stock of each present Foreign Subsidiary of such
Subsidiary of Borrower, and if any such Subsidiary is created or acquired
subsequent to the date hereof, on the date of any such acquisition or formation,
Borrower shall cause each of its Subsidiaries to pledge and deliver to
Administrative Agent for the benefit of each of the Lenders all of the issued
and outstanding stock of any such future Domestic Subsidiary and 65% of the
issued and outstanding stock of any such future Foreign Subsidiary. Each such
pledge is or shall be evidenced by a General Pledge and Security Agreement
executed, respectively, by each such Subsidiary of the Borrower in favor of
Administrative Agent for the benefit of each of the Lenders in form and
substance acceptable to Administrative Agent (as the same may from time to time
be amended, modified, extended or renewed, the "Subsidiary Pledge Agreements").
The Borrower covenants and agrees to cause each of its Subsidiaries to execute
any and all collateral schedules, stock powers and such other documents as from
time to time may be requested by Administrative Agent or any Lender in order to
create, perfect and maintain the pledges created by the Subsidiary Pledge
Agreements and to deliver all original stock certificates for any such present
or future Subsidiaries. Upon demand, the Borrower shall pay to Administrative
Agent or to any other party designated by Administrative Agent, all filing fees
or transfer fees incurred by Administrative Agent in the perfection and
administration of the pledges contemplated hereby. Lenders shall have no
obligation to make any Loan hereunder or to convert any Loan hereunder to a new
interest rate basis unless and until the Borrower has fully satisfied these
requirements.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Agents and Lenders that:
6.1 Corporate Existence and Power. Borrower: (a) is duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware; (b) has all requisite corporate powers and all governmental and
regulatory licenses, authorizations, consents and approvals required to carry on
its business as now conducted; and (c) is duly qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure to so qualify would have a material
adverse effect on its business, financial condition or operations.
6.2 Authorization. The execution, delivery and performance by
the Borrower of this Agreement, the Notes, the Pledge Agreements and the other
Transaction Documents are within the corporate powers of Borrower, and have been
duly authorized by all necessary action of the board of directors of said
corporation.
6.3 Binding Effect. This Agreement, the Notes, the Pledge
Agreements and the other Transaction Documents have been duly executed and
delivered by the Borrower and constitute the legal, valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights in general.
6.4 Financial Statements. The Borrower has furnished the
Agents and the Lenders with the following financial statements, identified by
the principal financial officer of the Borrower: (i) consolidated and
consolidating balance sheets as of December 31, 1997 and corresponding
statements of income, retained earnings and cash flows of Borrower and each of
its Consolidated Subsidiaries for the fiscal year ending December 31, 1997,
prepared in accordance with generally accepted accounting principles
consistently applied and audited by Arthur Andersen LLP, Borrower's independent
certified public accountants, and (ii) consolidated and consolidating balance
sheets as of June 30, 1998 and corresponding statements of income, retained
earnings and cash flows of Borrower and each of its Consolidated Subsidiaries
for the fiscal quarter ending June 30, 1998, certified by the principal
financial officer of the Borrower as being true and correct to the best of his
knowledge and as being prepared in accordance with generally accepted accounting
principles consistently applied. The Borrower further represents and warrants to
each of the Agents and each of the Lenders that: (1) said balance sheets and
their accompanying notes fairly present the condition of Borrower and its
Consolidated Subsidiaries as of the dates thereof; (2) there has been no
material adverse change in the condition or operation, financial or otherwise,
of any of the Borrower or its Consolidated Subsidiaries since June 30, 1998; and
(3) neither the Borrower nor any of its Subsidiaries has any direct or
contingent liabilities which are not disclosed on said financial statements.
23
24
6.5 Litigation. Except as disclosed on Schedule 6.5 attached
hereto, there is no action or proceeding pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary of the
Borrower before any court, arbitrator or any governmental, regulatory or
administrative body, agency or official which could result in any material
adverse change in the condition or operation, financial or otherwise, of the
Borrower or any Subsidiary of the Borrower, and neither the Borrower nor any
Subsidiary of the Borrower is in default with respect to any order, writ,
injunction, decision or decree of any court, arbitrator or any governmental,
regulatory or administrative body, agency or official, a default under which
could have a material adverse effect on the condition or operation, financial or
otherwise, of the Borrower or any Subsidiary of the Borrower.
6.6 Pension and Welfare Plans. Each Pension Plan complies with
all applicable statutes and governmental rules and regulations; no Reportable
Event has occurred and is continuing with respect to any Pension Plan; neither
the Borrower nor any ERISA Affiliate nor any Subsidiary of the Borrower has
withdrawn from any Multiemployer Plan in a "complete withdrawal" or a "partial
withdrawal" as defined in Sections 4203 or 4205 of ERISA, respectively; no steps
have been instituted by the Borrower, any ERISA Affiliate or any Subsidiary of
the Borrower to terminate any Pension Plan; no condition exists or event or
transaction has occurred in connection with any Pension Plan or Multiemployer
Plan which could result in the incurrence by the Borrower, any ERISA Affiliate
or any Subsidiary of the Borrower of any material liability, fine or penalty;
and neither the Borrower nor any ERISA Affiliate nor any Subsidiary of the
Borrower is a "contributing sponsor" as defined in Section 4001(a)(13) of ERISA
of a "single-employer plan" as defined in Section 4001(a)(15) of ERISA which has
two or more contributing sponsors at least two of whom are not under common
control. Except as disclosed on Schedule 6.6 attached hereto, neither the
Borrower nor any Subsidiary of the Borrower has any contingent liability with
respect to any "employee welfare benefit plan", as such term is defined in
Section 3(a) of ERISA, which covers retired employees and their beneficiaries.
6.7 Tax Returns and Payment. The Borrower and each Subsidiary
of the Borrower has filed all federal, state and local income tax returns and
all other tax returns which are required to be filed and has paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any Subsidiary of the Borrower, except for the filing of such returns, if
any, in respect of which an extension of time for filing is in effect and except
for such taxes, if any, as are being contested in good faith by appropriate
proceedings being diligently conducted and as to which adequate reserves in
accordance with generally accepted accounting principles consistently applied
have been provided. The charges, accruals and reserves on the books of the
Borrower and each Subsidiary of the Borrower in respect of any taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
6.8 Subsidiaries. The Borrower's Subsidiaries are as listed in
Schedule 6.8 attached hereto, which schedule sets forth each such Subsidiary's
past and present names, their current principal places of business and all
locations of any inventory or equipment owned by such Subsidiaries.
6.9 Compliance With Other Instruments; None Burdensome.
Neither the Borrower nor any Subsidiary of the Borrower is a party to any
contract or agreement or subject to any charter or other corporate restriction
which materially and adversely affects its business, Property or financial
condition and which is not disclosed on the Borrower's financial statements
heretofore submitted to the Agents and the Lenders; none of the execution and
delivery by the Borrower of the Transaction Documents, the consummation of the
transactions therein contemplated or the compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower, or any of the provisions of Borrower's
Articles of Incorporation or Bylaws or any of the provisions of any indenture,
agreement, document, instrument or undertaking to which the Borrower is a party
or subject, or by which it or its Property is bound, or conflict with or
constitute a default thereunder or result in the creation or imposition of any
Lien pursuant to the terms of any such indenture, agreement, document,
instrument or undertaking (other than in favor of Administrative Agent for the
benefit of Lenders pursuant to the Transaction Documents). No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by, any governmental, regulatory, administrative
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, the execution, delivery or
performance of, or the legality, validity, binding effect or enforceability of,
any of the Transaction Documents.
24
25
6.10 Other Loans and Guarantees. Except as disclosed on
Schedule 6.10 attached hereto, neither the Borrower nor any Subsidiary of the
Borrower is a party to any loan transaction or Guarantee other than this
Agreement and the Subsidiary Guaranties.
6.11 Title to Property. The Borrower, and each Subsidiary of
the Borrower, is the sole and absolute owner of, or has the legal right to use
and occupy, all Property it claims to own or which is necessary for the Borrower
or such Subsidiary of the Borrower to conduct its business. Neither the Borrower
nor any Subsidiary of the Borrower has signed any financing statements, security
agreements or chattel mortgages with respect to any of its Property, has granted
or permitted any Liens with respect to any of its Property or has any knowledge
of any Liens with respect to any of its Property, except in favor of
Administrative Agent for the benefit of Lenders or as otherwise disclosed on
Schedule 6.11 attached hereto.
6.12 Multi-Employer Pension Plan Amendments Act of 1980.
Neither the Borrower nor any Subsidiary of the Borrower is a party to any
Multiemployer Plan.
6.13 Patents, Licenses, Trademarks, Etc. The Borrower, and
each Subsidiary of the Borrower, possesses all necessary patents, licenses,
trademarks, trademark rights, trade names, trade name rights and copyrights to
conduct its business without conflict with any patent, license, trademark, trade
name or copyright of any other Person.
6.14 Environmental and Safety and Health Matters. Except as
disclosed on Schedule 6.14 attached hereto: (i) the operations of the Borrower
and each Subsidiary of the Borrower comply with (A) all applicable Environmental
Laws and (B) all applicable Occupational Safety and Health Laws; (ii) none of
the operations of the Borrower or any Subsidiary of the Borrower is subject to
any judicial, governmental, regulatory or administrative proceeding alleging the
violation of any Environmental Law or Occupational Safety and Health Law; (iii)
none of the operations of the Borrower or any Subsidiary of the Borrower is the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to (A) any spillage, disposal or release into the
environment of any Hazardous Material or any other hazardous, toxic or dangerous
waste, substance or constituent or other substance, or (B) any unsafe or
unhealthful condition at any premises of the Borrower or such Subsidiary of the
Borrower; (iv) neither the Borrower nor any Subsidiary of the Borrower has filed
any notice under any Environmental Law or Occupational Safety and Health Law
indicating or reporting (A) any past or present spillage, disposal or release
into the environment of, or treatment, storage or disposal of, any Hazardous
Material or any other hazardous, toxic or dangerous waste, substance or
constituent or other substance or (B) any unsafe or unhealthful condition at any
premises of the Borrower or such Subsidiary of the Borrower; and (v) neither the
Borrower nor any Subsidiary of the Borrower has any known contingent liability
in connection with (A) any spillage, disposal or release into the environment
of, or otherwise with respect to, any Hazardous Material or any other hazardous,
toxic or dangerous waste, substance or constituent or other substance or (B) any
unsafe or unhealthful condition at any premises of the Borrower or such
Subsidiary of the Borrower.
6.15 Other Corporate or Fictitious Names. The Borrower has
not, during the preceding five (5) years, been known by or used any corporate or
fictitious name other than "StaffMark, Inc." or "One Source Staffing, Inc.," and
no Subsidiary of Borrower has used any such other corporate or fictitious name
during the preceding five (5) years other than those listed in Schedule 6.15
attached hereto.
6.16 Year 2000 Compliance. Borrower and each of its
Subsidiaries has (a) undertaken a detailed inventory, review and assessment of
all areas within its business and operations that could be adversely affected by
the failure of Borrower or such Subsidiary, as the case may be, to be Year 2000
Compliant on or before January 1, 2000, (b) developed a detailed plan and
timeline for becoming Year 2000 Compliant on or before January 1, 2000 and (c)
to date, implemented such plan in accordance with such timetable in all material
respects. Borrower reasonably anticipates that it and each of its Subsidiaries
will be Year 2000 Compliant on or before January 1, 2000, except to the extent
such noncompliance could not reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Subsidiary of the Borrower is aware that
any of its key suppliers, vendors or customers will not be Year 2000 Compliant
on or before January 1, 2000, except to the extent such noncompliance could not
reasonably be expected to have a material adverse effect on the Properties,
assets, liabilities, business, operations, prospects, income or condition
(financial or otherwise) of such Person. For purposes of this Section 6.16, "key
suppliers, vendors and customers" refers to those
25
26
suppliers, vendors and customers of Borrower or of any such Subsidiary, as the
case may be, whose business failure could reasonably be expected to have a
material adverse effect on the Borrower, its Subsidiaries or their Properties,
assets, liabilities, business, operations, prospects, income or condition
(financial or otherwise).
SECTION 7. COVENANTS.
7.1 Affirmative Covenants of the Borrower. The Borrower
covenants and agrees that, so long as Lenders have any obligation to make any
Loan hereunder or any of the Borrower's Obligations remain unpaid or any Letter
of Credit remains outstanding:
(a) Information. The Borrower will deliver to
Administrative Agent and each of the Lenders:
(i) As soon as available and in any event within one
hundred twenty (120) days after the end of each fiscal year of
Borrower, the consolidated and consolidating balance sheets of Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated and consolidating statements of income,
retained earnings and cash flows for such fiscal year, setting forth in
each case, in comparative form, the figures for the previous fiscal
year, all such financial statements to be prepared in accordance with
generally accepted accounting principles consistently applied and
audited by independent certified public accountants selected by the
Borrower and acceptable to the Agents, together with (1) the
unqualified opinion of such accountants (except with respect to
consistency qualifications arising from new accounting principles), and
(2) a letter from such accountants authorizing the Agents and Lenders
to receive and rely on such audited financial statements of Borrower as
if in privity of contract with such accountants or such other agreement
of normal acceptance in the accounting profession as may be used in the
future to permit lenders to rely on financial statements of a borrower
in making credit decisions;
(ii) As soon as available and in any event within
forty-five (45) days after the end of each fiscal quarter, consolidated
and consolidating balance sheets of Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
and consolidating statements of income for such quarter and for the
portion of the Borrower's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form, the figures for the
corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year and the figures for such quarter and such portion
of Borrower's current fiscal year from Borrower's budget for such year,
all certified (subject to normal year-end adjustments) as to fairness
of presentation, generally accepted accounting principles and
consistency by the principal financial officer of Borrower;
(iii) Simultaneously with the delivery of each set of
quarter end and fiscal year end financial statements referred to in
clauses (i) and (ii) above, a certificate of the principal financial
officer of Borrower in the form attached hereto as Exhibit C and
incorporated herein by reference;
(iv) Promptly upon receipt thereof, any reports
submitted to the Borrower or any Consolidated Subsidiary of the
Borrower (other than reports previously delivered pursuant to Sections
7.1(a)(i) and (ii) above) by independent accountants in connection with
any annual, interim or special audit made by them of the books of the
Borrower or any Consolidated Subsidiary of the Borrower;
(v) Promptly upon any filing thereof, and in any
event within ten (10) days after the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on form S-8 or its equivalent) and annual,
quarterly or monthly reports which Borrower shall file with the
Securities and Exchange Commission;
(vi) Promptly upon the mailing thereof to the
shareholders of Borrower generally, and in any event within ten (10)
days after such mailing, copies of all financial statements, reports,
proxy statements and other material and information so mailed;
26
27
(vii) Within ninety (90) days of the beginning of
each fiscal year of the Borrower, the Borrower's annual budget and
quarterly projections for such fiscal year;
(viii) Not less than ten (10) Business Days, if
Lenders' consent is required, or three (3) Business Days if Lenders'
consent is not required, under clause (c) of the definition of
Acceptable Acquisition in Section 2 of this Agreement, prior to the
closing of any Acceptable Acquisition, the following documents and
information with respect to such Acceptable Acquisition: (A) a copy of
the letter of intent signed by all parties or if no letter of intent
has been signed, a detailed summary of the terms and conditions upon
which the Acquisition is being negotiated, including Borrower's
rationale for pursuing the Acquisition, (B) historical financial
statements of the target company and any other documents reasonably
requested by any Lender received by Borrower in performing its due
diligence; (C) a copy of the financial models run or projections made
of the Borrower that include the target company; and (D) such other
information and documents reasonably requested by any Lender with
respect to such Acceptable Acquisition.
(ix) Within forty-five (45) days after the end of
each fiscal quarter, a schedule of all Deferred Payment Obligations of
Borrower and its Consolidated Subsidiaries which remain outstanding as
of the end of such quarter, certified by the principal financial
officer of Borrower; and
(x) With reasonable promptness, such further
information regarding the business, affairs and/or financial condition
of Borrower or any Subsidiary of Borrower as any of the Agents or any
of the Lenders may from time to time reasonably request.
Each of the Agents and each of the Lenders are hereby
authorized to deliver a copy of any financial statement or other information
made available by the Borrower to any proposed assignee or participant in any
portion of any Lender's Loans and Revolving Credit Commitment hereunder and to
any regulatory authority having jurisdiction over any such Agent or any such
Lender, pursuant to any request therefor.
(b) Payment of Indebtedness. The Borrower and each
Subsidiary of the Borrower will (i) pay any and all Indebtedness payable or
Guaranteed by the Borrower or such Subsidiary of the Borrower, as the case may
be, and any interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) in accordance
with the agreement, document or instrument relating to such Indebtedness or
Guarantee and (ii) faithfully perform, observe and discharge all covenants,
conditions and obligations which are imposed upon the Borrower or such
Subsidiary of the Borrower, as the case may be, by any and all agreements,
documents and instruments evidencing, securing or otherwise relating to such
Indebtedness or Guarantee.
(c) Consultations and Inspections. The Borrower will
permit, and will cause each Subsidiary of the Borrower to permit, Agents and
Lenders (and any Person appointed by any of the Agents or any of the Lenders to
whom the Borrower does not reasonably object) to discuss the affairs, finances
and accounts of the Borrower and each Subsidiary of the Borrower with the
officers of the Borrower and each Subsidiary of the Borrower, all at such
reasonable times and as often as any of the Agents or any of the Lenders may
reasonably request. The Borrower will also permit, and will cause each
Subsidiary of the Borrower to permit, inspection of its Properties, books and
records and the Collateral by Agents and Lenders, upon reasonable advance
notice, during normal business hours or at other reasonable times. Prior to the
occurrence of an Event of Default, Borrower shall pay all reasonable costs and
expenses incurred by Agents and the Lenders for one such inspection in each
fiscal year (not to exceed $15,000.00 in any fiscal year for inspections
conducted prior to an Event of Default), provided, that after the occurrence of
an Event of Default, Borrower shall pay all reasonable costs and expenses
incurred by any such Agent or any such Lender in connection with any such
inspections.
(d) Payment of Taxes; Corporate Existence;
Maintenance of Properties; Maintenance of Collateral; Insurance. The Borrower
and each Subsidiary of the Borrower will:
(i) Duly file all federal, state and local income tax
returns and all other tax returns and reports of the Borrower and each
Subsidiary of the Borrower which are required to be filed and duly pay
and discharge promptly all taxes, assessments and other governmental
charges imposed upon it or any
27
28
of its income, Property or assets; provided, however, that neither the
Borrower nor any Subsidiary of the Borrower shall be required to pay
any such tax, assessment or other governmental charge the payment of
which is being contested in good faith and by appropriate proceedings
diligently conducted and for which adequate reserves in form and amount
satisfactory to Administrative Agent in its reasonable discretion have
been provided, except that the Borrower and each Subsidiary of the
Borrower shall pay or cause to be paid all such taxes, assessments and
governmental charges forthwith upon the commencement of proceedings to
foreclose any Lien which is attached as security therefor, unless such
foreclosure is stayed by the filing of an appropriate bond in a manner
satisfactory to Administrative Agent;
(ii) Do all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchise and
to be duly qualified to do business in all jurisdictions where the
nature of its business requires such qualification;
(iii) Maintain and keep its Properties as a whole in
good repair, working order and condition; provided, however, that
nothing in this subsection (iii) shall prevent any abandonment of any
Property which is not disadvantageous in any material respect to
Lenders and which, in the good faith opinion of the management of the
Borrower, is in the best interests of the Borrower or such Subsidiary
of the Borrower, as the case may be;
(iv) Insure with financially sound and reputable
insurers acceptable to Lenders, all Property of the Borrower and each
Subsidiary of the Borrower of the character usually insured by
corporations engaged in the same or similar businesses similarly
situated, against loss or damage of the kind customarily insured
against by such corporations or partnerships, unless higher limits or
coverage are reasonably required in writing by Administrative Agent,
and carry adequate liability insurance and other insurance of a kind
and in an amount generally carried by corporations engaged in the same
or similar businesses similarly situated, unless higher limits or
coverage are reasonably required in writing by Administrative Agent,
and in each case naming Administrative Agent as loss payee, as
mortgagee or as an additional insured, as appropriate, in such policies
for the benefit of each of the Lenders. All such insurance may be
subject to reasonable deductible amounts. Promptly upon any Lender's
request therefor, the Borrower shall provide such Lender with evidence
that the Borrower maintains, and that each Subsidiary of the Borrower
maintains, the insurance required under this Section 7.1(d)(iv), and
evidence of the payment of all premiums therefor.
(e) Accountants. The Borrower shall give Agents and
each of the Lenders prompt notice of any change of the Borrower's independent
certified public accountants and a statement of the reasons for such change. The
Borrower shall at all times utilize independent certified public accountants
reasonably acceptable to Agents and Lenders.
(f) ERISA Compliance. If the Borrower or any
Subsidiary of the Borrower shall have any Pension Plan, the Borrower and such
Subsidiary or Subsidiaries of the Borrower shall comply with all requirements of
ERISA relating to such plan. Without limiting the generality of the foregoing,
neither the Borrower nor any Subsidiary of the Borrower shall:
(i) permit any Pension Plan maintained by it to
engage in any nonexempt "prohibited transaction," as such term is
defined in Section 4975 of the Code;
(ii) permit any Pension Plan maintained by it to
incur any "accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, 29 U.S.C. ss. 1082, whether or not waived;
(iii) terminate any such Pension Plan in a manner
which could result in the imposition of a Lien on any Property of the
Borrower or any Subsidiary of the Borrower pursuant to Section 4068 of
ERISA, 29 U.S.C. ss. 1368; or
(iv) take any action which would constitute a
complete or partial withdrawal from a Multiemployer Plan within the
meaning of Sections 4203 and 4205 of Title IV of ERISA.
28
29
Notwithstanding any provision contained in this Section 7.1(f)
to the contrary, an act by the Borrower or any Subsidiary of the Borrower shall
not be deemed to constitute a violation of subparagraphs (i) through (iv) hereof
unless Administrative Agent determines in good faith that said action,
individually or cumulatively with other acts of the Borrower and the
Subsidiaries of the Borrower, does have or is likely to cause a significant
adverse financial effect upon the Borrower or any such Subsidiary of the
Borrower.
Borrower shall have the affirmative obligation hereunder to
report to Administrative Agent any of those acts identified in subparagraphs (i)
through (iv) hereof, regardless of whether said act does or is likely to cause a
significant adverse financial effect upon the Borrower or any Subsidiary of the
Borrower, and failure by the Borrower to report such act promptly upon the
Borrower's becoming aware of the existence thereof shall constitute an Event of
Default hereunder.
(g) Maintenance of Books and Records. The
Borrower and each Subsidiary of the Borrower will maintain its books and records
in accordance with generally accepted accounting principles consistently applied
and in which true, correct and complete entries will be made of all of its
dealings and transactions.
(h) Further Assurances. The Borrower will
execute any and all further agreements, documents and instruments, and take any
and all further actions which may be required under applicable law, or which any
Agent or any of the Lenders may from time to time reasonably request, in order
to effectuate the transactions contemplated by this Agreement, the Notes, the
Pledge Agreements, the Letter of Credit Applications and the other Transaction
Documents.
(i) Financial Covenants. The Borrower will:
(i) Fixed Charges Coverage Ratio. Maintain on a
consolidated basis as of each fiscal quarter-end during the Term hereof
a ratio of Consolidated Proforma Operating Cash Flow to Consolidated
Fixed Charges determined for the 12-month period ending as of each such
fiscal quarter-end of not less than (a) 1.25 to 1.0 for each fiscal
quarter ending on or before June 30, 2000, and (b) 1.50 to 1.0 for each
fiscal quarter-end thereafter during the Term hereof.
(ii) Consolidated Adjusted Total Funded Debt to
Consolidated Proforma EBITDA Cash Flow. Maintain on a consolidated
basis at each fiscal quarter-end during the Term hereof, a ratio of
Consolidated Adjusted Total Funded Debt to Consolidated Proforma EBITDA
Cash Flow (determined for the twelve-month period ending on the date of
any such calculation) of not more than: (a) 4.00 to 1.0 for each
quarter-end occurring on or before June 30, 2000, and (b) 3.50 to 1.0
for quarters ending after June 30, 2000 through the remainder of the
Term hereof.
(iii) Consolidated Shareholders' Equity. Maintain on
a consolidated basis determined as of each fiscal quarter-end during
the Term hereof, Consolidated Shareholders' Equity of at least the sum
of (x) $185,000,000.00, plus (y) fifty percent (50%) of the after tax
net income for each fiscal quarter of Borrower in which net income is
earned (but zero percent (0%) of any after tax net loss for any fiscal
quarter of Borrower in which a net loss is incurred) as shown on
Borrower's financial statements delivered pursuant to Section 7.1(a)(i)
and (ii), commencing with the addition of any net income for the fiscal
quarter ending March 31, 1998, with such required increases to be
cumulative for each fiscal quarter thereafter during the Term hereof,
plus (z) one hundred percent (100%) of the net proceeds received by
Borrower or any of its consolidated Subsidiaries from capital stock
issued by Borrower or such Subsidiary subsequent to December 31, 1997,
including without limitation, the value received in exchange for
capital stock in an Acceptable Acquisition accounted for using the
purchase method of accounting and the book value of equity received in
exchange for capital stock in an Acceptable Acquisition accounted for
using the pooling of interest method of accounting.
(iv) Deliver a certificate of the principal financial
officer of the Borrower containing the financial ratio calculations
required in clauses (i), (ii) and (iii) above simultaneously with the
financial statements referred to in Sections 7.1(a)(i) and (ii).
29
30
(j) Compliance with Law. The Borrower will,
and will cause each Subsidiary of the Borrower to, comply with any and all laws,
ordinances and governmental and regulatory rules and regulations to which it is
subject and obtain any and all licenses, permits, franchises and other
governmental and regulatory authorizations necessary to the ownership of its
Properties or to the conduct of its business, which violation or failure to
obtain might materially adversely affect the condition or operation, financial
or otherwise, of the Borrower or any Subsidiary of the Borrower.
(k) Notices. The Borrower will notify Administrative
Agent and the Lenders in writing of any of the following immediately upon
learning of the occurrence thereof, describing the same and, if applicable, the
steps being taken by the Person(s) affected with respect thereto:
(i) Default. The occurrence of any Default or Event
of Default under this Agreement or any default or event of default by
the Borrower, any other Obligor or any Subsidiary of the Borrower under
any note, indenture, loan agreement, mortgage, deed of trust, security
agreement, lease or other similar agreement, document or instrument to
which the Borrower, any other Obligor or any Subsidiary of the
Borrower, as the case may be, is a party or by which it is bound or to
which it is subject;
(ii) Litigation. The institution of any litigation,
arbitration proceeding or governmental or regulatory proceeding
affecting the Borrower, any other Obligor, any Subsidiary of the
Borrower, any Collateral or any Third Party Collateral, whether or not
considered to be covered by insurance, provided that if such action is
an action for money damages, that the damages sought are in excess of
$1,000,000.00 or if more than one such action has been instituted, in
excess of $5,000,000.00 in the aggregate;
(iii) Judgment. The entry of any judgment or decree
against the Borrower, any other Obligor or any Subsidiary of the
Borrower in excess of $1,000,000.00 or if more than one such judgment
or decree has been entered, in excess of $5,000,000.00 in the
aggregate;
(iv) Pension Plans. The occurrence of a Reportable
Event with respect to any Pension Plan; the filing of a notice of
intent to terminate a Pension Plan by the Borrower, any ERISA Affiliate
or any Subsidiary of the Borrower; the institution of proceedings to
terminate a Pension Plan by the PBGC or any other Person; the
withdrawal in a "complete withdrawal" or a "partial withdrawal" as
defined in Sections 4203 and 4205, respectively, of ERISA by the
Borrower, any ERISA Affiliate or any Subsidiary of the Borrower from
any Multiemployer Plan; or the incurrence of any material increase in
the contingent liability of the Borrower or any Subsidiary of the
Borrower with respect to any "employee welfare benefit plan" as defined
in Section 3(1) of ERISA which covers retired employees and their
beneficiaries;
(v) Change of Name. Any change in the name of the
Borrower, any other Obligor or any Subsidiary of the Borrower;
(vi) Environmental Matters. Receipt of any notice
that the operations of the Borrower, any other Obligor or any
Subsidiary of the Borrower are not in full compliance with any of the
requirements of any applicable Environmental Law or Occupational Safety
and Health Law; receipt of notice that the Borrower, any other Obligor
or any Subsidiary of the Borrower is subject to any federal, state or
local investigation evaluating whether any remedial action is needed to
respond to the release of any Hazardous Materials or any other
hazardous or toxic waste, substance or constituent or other substance
into the environment; or receipt of notice that any of the Properties
or assets of the Borrower, any other Obligor or any Subsidiary of the
Borrower are subject to an Environmental Lien. For purposes of this
Section 7.1(k)(vi), "Environmental Lien" shall mean a Lien in favor of
any governmental or regulatory agency, entity, authority or official
for (1) any liability under Environmental Laws or (2) damages arising
from or costs incurred by any such governmental or regulatory agency,
entity, authority or official in response to a release of any Hazardous
Materials or any other hazardous or toxic waste, substance or
constituent or other substance into the environment;
30
31
(vii) Material Adverse Change. The occurrence of
any material adverse change in the business, operations or condition,
financial or otherwise, of the Borrower, any other Obligor or any
Subsidiary of the Borrower;
(viii) Change in Management or Line(s) of Business.
Any material change in the directors and executive officers of the
Borrower or any Subsidiary of the Borrower as listed in Schedule
7.1(k)(viii) attached hereto, or any change in the Borrower's or any
Subsidiary of the Borrower's line(s) of business; and
(ix) Other Notices. Any notices required to be
provided pursuant to other provisions of this Agreement and notice of
the occurrence of such other events as Administrative Agent may from
time to time reasonably specify.
(l) Year 2000 Compliance. Borrower will, and it will
cause each of its Subsidiaries to, take any and all actions necessary to assure
that Borrower and each of its Subsidiaries will be Year 2000 Compliant as soon
as reasonably practical, except to the extent such noncompliance could not
reasonably be expected to have a material adverse effect on Borrower, its
Subsidiaries or their Properties, assets, liabilities, business, operations,
prospects, income or condition (financial or otherwise). Borrower and each of
its Subsidiaries will be Year 2000 Compliant by January 1, 2000, except to the
extent such noncompliance could not reasonably be expected to have a material
adverse effect on Borrower, its Subsidiaries or their Properties, assets,
liabilities, business, operations, prospects, income or condition (financial or
otherwise). At the request of Administrative Agent, Borrower will from time to
time provide Agents and the Lenders with written reports in form and detail
reasonably satisfactory to Agents and the Lenders on the status of the efforts
of Borrower and its Subsidiaries to be Year 2000 Compliant.
7.2 Negative Covenants of the Borrower. The Borrower covenants
and agrees that, so long as Lenders have any obligation to make any Loan
hereunder or any of the Borrower's Obligations remain unpaid or any Letter of
Credit remains outstanding, unless the prior written consent of the Required
Lenders is obtained:
(a) Limitation on Indebtedness. Neither the
Borrower nor any Subsidiary of the Borrower will incur or be obligated on any
Indebtedness, either directly or indirectly, by way of Guarantee, suretyship or
otherwise, other than:
(i) Indebtedness evidenced by the Notes;
(ii) Unsecured trade accounts payable and normal
accruals incurred in the ordinary course of business which are not yet
due and payable;
(iii) Indebtedness incurred in the ordinary course of
business in connection with the acquisition of Property by Borrower
(excluding Indebtedness assumed on any capital assets acquired pursuant
to an Acceptable Acquisition) which shall not exceed at any one time
Ten Million Dollars ($10,000,000.00), provided that any such
Indebtedness shall not exceed the value of the Property so acquired;
(iv) The following categories of Indebtedness, all of
which, in the aggregate, together with the payments permitted by
Section 7.2(l) (Operating Leases) shall not exceed at any one time
Twenty-Five Million Dollars ($25,000,000.00):
(A) Indebtedness incurred in the ordinary
course of business in connection with the sale by Borrower of
unsecured corporate notes, bonds or other unsecured commercial
paper in any public or private offering; and
31
32
(B) Other unsecured Indebtedness assumed by
Borrower or a Subsidiary in connection with an Acceptable
Acquisition or any other unsecured Indebtedness incurred in
the ordinary course of business.
(v) Subordinated Debt (y) incurred in connection with
one or more Acceptable Acquisitions not to exceed in the aggregate
$20,000,000.00 and (z) incurred other than in connection with an
Acceptable Acquisition not to exceed in the aggregate $150,000,000.00
less any Subordinated Debt incurred in connection with an Acceptable
Acquisition, provided that all such Subordinated Debt is unsecured, and
the holder of such Subordinated Debt has executed a Subordination and
Standby Agreement in favor of Agents and the Lenders substantially in
the form of Exhibit H attached hereto, which Subordination and Standby
Agreement shall, among other things: (A) (1) if such Subordinated Debt
was incurred in connection with an Acceptable Acquisition,
notwithstanding any terms of the subordinated debt to the contrary,
allow for permitted payments of accrued interest and scheduled
principal (but no prepayments or accelerated payments) on such
Subordinated Debt prior to notice from Administrative Agent of the
occurrence of an Event of Default on a schedule no faster than a three
year, straight line amortization of principal of the Subordinated Debt
or (2) if such Subordinated Debt was incurred other than in connection
with an Acceptable Acquisition, notwithstanding any terms of the
subordinated debt to the contrary, allow for permitted payments of
accrued interest only (and no principal payments, prepayments or
accelerated payments) on such Subordinated Debt prior to notice from
Administrative Agent of the occurrence of an Event of Default, and (B)
after notice from Administrative Agent of the occurrence of an Event of
Default, terminate all payments of principal and interest on the
Subordinated Debt until Borrower's Obligations are paid in full and
shall otherwise prohibit the holder of such Subordinated Debt from
taking any action to enforce the Subordinated Debt obligations against
Borrower or any other Obligor for a one year period following such
notice.
(b) Limitations on Liens. The Borrower will not
create, incur, assume or suffer to exist, and will not cause or permit any
Subsidiary of the Borrower to create, incur, assume or suffer to exist, any Lien
on any of its Property, assets or revenues other than:
(i) Liens presently in existence which are
described on Schedule 6.11 attached hereto;
(ii) Pledges or deposits in connection with or to
secure workmen's compensation, unemployment insurance, pension or other
employee benefits;
(iii) Purchase money Liens incurred to secure
Indebtedness permitted under Section 7.2(a)(iii), provided that such
Lien shall attach only to the Property acquired in connection with such
Indebtedness;
(iv) Any Lien renewing, extending or refunding any
Lien permitted hereunder, provided that the principal amount of
Indebtedness secured by such Lien is not increased and such Lien is not
extended to cover any other Property or assets of the Borrower or any
Subsidiary of the Borrower;
(v) Subject to Section 7.1(d)(i), Liens for taxes,
assessments or governmental charges or levies on the income, Property
or assets of the Borrower or any Subsidiary of the Borrower if the same
are not yet due and payable or are being contested in good faith and by
appropriate proceedings diligently conducted and for which adequate
reserves in form and amount satisfactory to Agents and the Lenders are
provided; and
(vi) Statutory liens for amounts not yet due and
payable or which are being contested in good faith and by appropriate
proceedings diligently conducted and for which adequate reserves in
form and amount satisfactory to Agents and the Lenders are provided.
32
33
(c) Sale of Property. Neither the Borrower nor
any Subsidiary of the Borrower will sell, lease, transfer or otherwise dispose
of any Property or assets of the Borrower or such Subsidiary of the Borrower, as
the case may be, except in the ordinary course of business.
(d) Mergers and Consolidations. Neither the
Borrower nor any Subsidiary of the Borrower will merge or consolidate with any
other Person or sell, transfer or convey all or a substantial part of its
Property or assets to any Person, except for Acquisitions permitted under
Section 7.2(e).
(e) Acquisitions; Subsidiaries. The Borrower
will not, and will not cause or permit any Subsidiary to, make or suffer to
exist any Acquisition of any Person, except Acceptable Acquisitions. If at any
time after the date hereof Borrower shall create any new Subsidiary, whether in
connection with an Acceptable Acquisition or otherwise, Borrower shall give
Lenders fifteen (15) Business Days' prior written notice thereof, and Borrower
shall (x) if such Subsidiary is a Domestic Subsidiary, cause such Subsidiary to
execute and deliver to Administrative Agent for the benefit of each of the
Lenders a Subsidiary Guaranty of all of Borrower's Obligations, (y) cause such
Subsidiary to pledge all of the issued and outstanding stock owned by such
Subsidiary in any Domestic Subsidiary and 65% of the issued and outstanding
stock owned by such Subsidiary in any Foreign Subsidiary to Administrative Agent
for the benefit of each of the Lenders pursuant to a Subsidiary Pledge
Agreement, and deliver to Administrative Agent collateral schedules, stock
powers and other pledge documents in form and substance satisfactory to
Administrative Agent and the Required Lenders, and (z) pledge all, if such
Subsidiary is a Domestic Subsidiary, or 65%, if such Subsidiary is a Foreign
Subsidiary, of the issued and outstanding stock of such Subsidiary to
Administrative Agent for the benefit of each of the Lenders pursuant to a Pledge
Agreement, and deliver to Administrative Agent collateral schedules, stock
powers and other pledge documents in form and substance satisfactory to
Administrative Agent and the Required Lenders. Borrower further agrees to
execute or cause any such Subsidiary to execute such amendments to this
Agreement and to the other Transaction Documents or such additional agreements
as may be required by Agents and the Lenders to satisfy such obligations.
(f) Fiscal Year. Neither Borrower nor any
Subsidiary of the Borrower will change its fiscal year.
(g) Stock Redemptions and Distributions. The
Borrower will not make or declare or incur any liability to make any
Distribution in respect of the capital stock of the Borrower, and Borrower will
not permit any Subsidiary to make, declare or incur any liability to make any
Distribution in respect of the capital stock of such Subsidiary, except to the
Borrower.
(h) Transactions with Related Parties. Except
as disclosed in Schedule 7.2(h) attached hereto, neither Borrower nor any
Subsidiary of the Borrower will, directly or indirectly, engage in any material
transaction, in the ordinary course of business or otherwise, with any Related
Party unless such transaction is upon fair market terms, is not disadvantageous
in any material respect to the Lenders and has been approved by a majority of
the disinterested directors of the Borrower or such Subsidiary of the Borrower,
as the case may be (or, if none of such directors are disinterested, by a
majority of the directors), as being in the best interests of the Borrower or
such Subsidiary of the Borrower, as the case may be. In addition, neither the
Borrower nor any Subsidiary of the Borrower shall (i) transfer any Property or
assets to any Related Party for other than its fair market value or (ii)
purchase or sign any agreement to purchase any stock or other securities of any
Related Party (whether debt, equity or otherwise), underwrite or Guarantee the
same, or otherwise become obligated with respect thereto.
(i) Advancing or Guaranteeing Credit. Neither
Borrower nor any Subsidiary of the Borrower will become or be a guarantor or
surety of, or otherwise become or be responsible in any manner with respect to,
any undertaking of another except for the Subsidiary Guaranties of Borrower's
Obligations.
(j) Loans and Investments. Neither Borrower nor
any Subsidiary of the Borrower will make any loans or advances or extensions of
credit to purchase any stocks, bonds, notes, debentures or other securities of,
make any expenditures on behalf of, or in any manner assume liability (direct,
contingent or otherwise) for the Indebtedness of any Person, except for
Permitted Investments, and except for loans to employees of Borrower and its
Subsidiaries not to exceed $1,000,000.00 in the aggregate to enable such
employees to make investments in Borrower's stock option plan; provided,
however, Loans to employees existing on the books of a newly acquired Subsidiary
as an Acceptable Acquisition, in order to grant key employees an equity interest
in such Subsidiary (i.e. when the employee loan is a non-cash item and is offset
on the balance sheet by a corresponding deferred compensation liability for the
same amount) shall be excluded from this limitation.
33
34
(k) Dissolution or Liquidation. Borrower will
not seek or permit the dissolution or liquidation of the Borrower in whole or in
part.
(l) Operating Leases. Neither Borrower nor
any Subsidiary of the Borrower will enter into or permit to remain in effect any
agreements to rent or lease (as lessee) any real or personal property (other
than Capitalized Leases) for initial terms (including options to renew or extend
any term, whether or not exercised) of more than one (1) year which in the
aggregate (for the Borrower and all Subsidiaries of the Borrower) provide for
payments, which at any time when added to all of the then existing indebtedness
of the categories described in Section 7.2(a)(iv) are in excess of
$25,000,000.00 during any consecutive twelve-month (12-month) period.
(m) Change in Nature of Business. Neither
Borrower nor any Subsidiary of the Borrower will make any material change in the
nature of its business.
(n) Pension Plans. Neither Borrower nor any
Subsidiary of Borrower shall (a) permit any condition to exist in connection
with any Pension Plan which might constitute grounds for the PBGC to institute
proceedings to have such Pension Plan terminated or a trustee appointed to
administer such Pension Plan or (b) engage in, or permit to exist or occur, any
other condition, event or transaction with respect to any Pension Plan which
could result in the incurrence by Borrower or any Subsidiary of the Borrower of
any material liability, fine or penalty. Neither Borrower nor any Subsidiary of
the Borrower shall become obligated to contribute to any Pension Plan or
Multiemployer Plan other than any such plan or plans in existence on the date
hereof.
(o) Management Fees. Neither Borrower nor any
Subsidiary of Borrower will pay any management fees, consulting fees or similar
fees to any Related Parties without the prior written consent of the Required
Lenders, except that Borrower or its Subsidiaries may pay consulting fees or
other similar fees incurred in connection with Acceptable Acquisitions provided
no Default or Event of Default is then existing or would occur on a pro forma
basis as the result of Borrower's or any such Subsidiary's payment or agreement
to pay such amounts and further provided that such fees shall not exceed the
lesser of $250,000.00 in the aggregate for any single Acceptable Acquisition or
$750,000.00 in the aggregate for all Acceptable Acquisitions in any fiscal year.
7.3 Use of Proceeds.
(a) The Borrower agrees that the proceeds of the
Revolving Credit Loans and the Swing Loans hereunder will be used solely to
refinance Borrower's existing liabilities, indebtedness and obligations under
the Prior Credit Agreement, for the Borrower's working capital and general
corporate purposes and for financing Acceptable Acquisitions; and
(b) None of such proceeds will be used in
violation of any applicable law or regulation or to purchase or carry "margin
stock" within the meanings of Regulation U of The Board of Governors of the
Federal Reserve System, as amended, or to extend credit to others for the
purpose of purchasing or carrying margin stock, or to refund or repay
indebtedness originally incurred for such purpose.
SECTION 8. EVENTS OF DEFAULT.
If any of the following (each of the following herein
sometimes called an "Event of Default") shall occur and be continuing:
8.1 Borrower shall fail to pay any of the Borrower's
Obligations when the same shall become due and payable, whether by reason of
demand, acceleration, mandatory prepayment or otherwise;
34
35
8.2 Any representation or warranty of the Borrower or any
Subsidiary made in this Agreement, in any other Transaction Document or in any
certificate, agreement, instrument or statement furnished or made or delivered
pursuant hereto or thereto or in connection herewith or therewith, shall prove
to have been untrue or incorrect in any material respect when made or effected;
8.3 Borrower shall fail to perform or observe any term,
covenant or provision contained in Section 7.1(a), Section 7.1(c), Section
7.1(i), Section 7.2 or Section 7.3;
8.4 Borrower shall fail to perform or observe any term or
provision contained in Section 7.1(l) and such failure shall remain unremedied
for five (5) days after written notice thereof shall have been given to the
Borrower by any of the Agents or any of the Lenders;
8.5 Borrower shall fail to perform or observe any other term,
covenant or provision contained in this Agreement and any such failure shall
remain unremedied for thirty (30) days after written notice thereof shall have
been given to the Borrower by any of the Agents or any of the Lenders;
8.6 This Agreement or any of the other Transaction Documents
shall at any time for any reason cease to be in full force and effect or shall
be declared to be null and void by a court of competent jurisdiction, or if the
validity or enforceability thereof shall be contested or denied by the Borrower,
or if the transactions completed hereunder or thereunder shall be contested by
the Borrower or if the Borrower shall deny that it has any or further liability
or obligation hereunder or thereunder;
8.7 Borrower, any Subsidiary of the Borrower or any other
Obligor shall (i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code or any other federal,
state or foreign bankruptcy, insolvency, receivership, liquidation or similar
law, (ii) consent to the institution of, or fail to contravene in a timely and
appropriate manner, any such proceeding or the filing of any such petition,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator or similar official of itself, himself or herself or of a
substantial part of its, his or her Property or assets, (iv) file an answer
admitting the material allegations of a petition filed against itself, himself
or herself in any such proceeding, (v) make a general assignment for the benefit
of creditors, (vi) become unable, admit in writing its, his or her inability or
fail generally to pay its, his or her debts as they become due or (vii) take any
corporate or other action for the purpose of effecting any of the foregoing;
8.8 An involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of the Borrower, any Subsidiary of the Borrower or any
other Obligor, or of a substantial part of the Property or assets of the
Borrower, any Subsidiary of the Borrower or any other Obligor, under Title 11 of
the United States Code or any other federal, state or foreign bankruptcy,
insolvency, receivership, liquidation or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar official of the Borrower,
any Subsidiary of the Borrower or any other Obligor or of a substantial part of
the Property or assets of the Borrower, any Subsidiary of the Borrower or any
other Obligor or (iii) the winding-up or liquidation of the Borrower, any
Subsidiary of the Borrower or any other Obligor; and such proceeding or petition
shall continue undismissed for sixty (60) consecutive days or an order or decree
approving or ordering any of the foregoing shall continue unstayed and in effect
for sixty (60) consecutive days;
8.9 Any "Event of Default" (as defined therein) shall
occur under or within the meaning of any Pledge Agreement;
8.10 Any event of default shall occur under the terms of
any Letter of Credit Application;
8.11 Any of the Subsidiary Guaranties shall at any time for
any reason cease to be in full force and effect or shall be declared to be null
and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested by or denied by the Domestic
Subsidiary executing any such Subsidiary Guaranty, or if any such Domestic
Subsidiary shall deny that it has any further liability or obligation
thereunder;
35
36
8.12 Any "Event of Default" (as defined therein) shall occur
under or within the meaning of any of the Subsidiary Pledge Agreements;
8.13 Borrower, any Subsidiary of the Borrower or any other
Obligor shall be declared by any of the Agents or any of the Lenders to be in
default (beyond any applicable cure or grace period, if any) on, or pursuant to
the terms of, (1) any other present or future obligation to any of the Agents or
any of the Lenders, including, without limitation, any other loan, line of
credit, revolving credit, guaranty or letter of credit reimbursement obligation,
or (2) any other present or future agreement purporting to convey to any such
Lender or to any such Agent a Lien upon any Property or assets of the Borrower,
such Subsidiary of the Borrower or such other Obligor, as the case may be;
8.14 Borrower, any Subsidiary of the Borrower or any other
Obligor shall fail (and such failure shall not have been cured or waived) to
perform or observe any term, provision or condition of, or any other default or
event of default shall occur under, any agreement, document or instrument
evidencing, securing or otherwise relating to any outstanding Indebtedness of
the Borrower, such Subsidiary of the Borrower or such other Obligor, as the case
may be, for borrowed money (other than the Borrower's Obligations) in a
principal amount in excess of One Hundred Thousand Dollars ($100,000.00), if the
effect of such failure or default is to cause or permit such Indebtedness to be
declared to be due and payable or otherwise accelerated, or to be required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof;
8.15 A default or event of default shall occur and be
continuing under any of the terms of any agreement, whether executed now or
hereafter, to provide the Borrower with any interest rate swap, interest rate
cap or other interest hedge, including, but not limited to, any such agreements
to finance any such arrangement;
8.16 Borrower, any Subsidiary of the Borrower or any other
Obligor shall have a judgment entered against it, him or her by a court having
jurisdiction in the premises in an amount of One Hundred Thousand Dollars
($100,000.00) or more and such judgment shall not be appealed in good faith or
satisfied by the Borrower, such Subsidiary of the Borrower or such other
Obligor, as the case may be, within thirty (30) days after the entry of such
judgment;
THEN, and in each such event (other than an event described in
Sections 8.7 or 8.8), Administrative Agent may, or if requested in writing by
the Required Lenders shall, declare that the obligations of the Lenders to make
Loans and of the Administrative Agent to issue Letters of Credit under this
Agreement have terminated, whereupon such obligations of Administrative Agent
and Lenders shall be immediately and forthwith terminated, and Administrative
Agent may further, with the consent of the Required Lenders, or if requested in
writing by the Required Lenders shall further, declare on behalf of each of the
Lenders that the entire outstanding principal balance of and all accrued and
unpaid interest on the Notes and all of the other Borrower's Obligations are
forthwith due and payable, whereupon all of the unpaid principal balance of and
all accrued and unpaid interest on the Notes and all such other Borrower's
Obligations shall become and be immediately due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower, and Agents and the Lenders may exercise
any and all other rights and remedies which any of them may have under any of
the other Transaction Documents or under applicable law; provided, however, that
upon the occurrence of any event described in Sections 8.7 or 8.8, Lenders'
obligations to make Loans and Administrative Agent's obligation to issue Letters
of Credit under this Agreement shall automatically terminate and the entire
outstanding principal balance of and all accrued and unpaid interest on the
Notes issued under this Agreement and all other Borrower's Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower, and Agents and the Lenders may exercise any and all other
rights and remedies which any of them may have under any of the other
Transaction Documents or under applicable law. Following acceleration of
Borrower's Obligations hereunder as set forth above, Administrative Agent may,
or if requested in writing by the Required Lenders and provided with the
indemnity required under Section 9.6 shall, proceed to enforce any remedy then
available to any of the Agents or any of the Lenders under any applicable law,
including, without limitation, all rights granted to Administrative Agent
hereunder, under the Subsidiary Guaranties, the Pledge Agreements, any of the
Subsidiary Pledge Agreements, or any Letter of Credit Application, and the
rights and remedies available to a secured party under the Uniform Commercial
Code as in effect in the State of Missouri.
36
37
Upon the occurrence of any Event of Default, Administrative
Agent will have the right, in addition to all other rights and remedies
available to Agents and the Lenders under this Agreement or under the other Loan
Documents, after oral or written notice is sent to the Borrower, to take
possession of, preserve and care for any Collateral, to execute and/or endorse
as the Borrower's agent any bills of sale or documents, instruments or chattel
paper in or pertaining to the Collateral, to take control of all of the
Borrower's cash, to collect and receive funds generated by the Collateral,
including proceeds or refunds from insurance, or as a result of claims for the
damage, loss, or destruction of the Collateral, and use the same to reduce any
part of the obligations.
The Administrative Agent shall give notice of a Default to
Borrower promptly upon being requested to do so by any Lender and shall
thereupon notify all of the Lenders thereof.
Following any Default or Event of Default, all payments and
other amounts received by any of the Agents and/or any of the Lenders, whether
voluntary or involuntary, including but not limited to any proceeds of any
collateral, any right of offset or otherwise, shall be shared among the Lenders
in accordance with their Pro Rata Shares of the outstanding principal
indebtedness under all of the Revolving Credit Loans and Letter of Credit
obligations then outstanding of Borrower. Such application shall be made first,
to any costs or expenses of any of the Agents or any of the Lenders incurred in
connection with the collection of such proceeds, second, to any accrued and
unpaid fees due hereunder or under any of the other Transaction Documents,
third, to any and all accrued and unpaid interest on any of the Loans, fourth,
to collateralize any outstanding Letters of Credit pursuant to Section 3.4(e)
herein, and fifth, to the unpaid principal amounts of any of the Loans
outstanding hereunder and under the other Transaction Documents.
SECTION 9. THE AGENTS
9.1 Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the Notes and the
other Transaction Documents as are delegated to the Administrative Agent by the
terms hereof or thereof, together with all such powers as may be reasonably
incidental thereto. Each Lender irrevocably appoints and authorizes the
Syndication Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement, the Notes and the other Transaction Documents
as are delegated to the Syndication Agent by the terms hereof or thereof,
together with all such powers as may be reasonably incidental thereto.
9.2 Agents and Affiliates. The Administrative Agent and the
Syndication Agent shall each have the same rights and powers under this
Agreement as any other Lender and may exercise or refrain from exercising the
same as though they were not an Agent hereunder, and either of the
Administrative Agent and its affiliates or the Syndication Agent and its
affiliates may accept deposits from, lend money to and generally engage in any
kind of business with Borrower or any of its Subsidiaries or Affiliates as if it
were not an Agent hereunder.
9.3 Actions by Agents. The obligations of the Administrative
Agent and of the Syndication Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing, neither the
Administrative Agent nor the Syndication Agent shall be required to take any
action with respect to any Default or Event of Default, except as expressly
provided in Section 8.
9.4 Consultation with Experts. The Agents may consult with
legal counsel, independent certified public accountants and other experts
selected by them and shall not be liable for any action taken or omitted to be
taken by them in good faith in accordance with the advice of such counsel,
accountants or other experts.
9.5 Liability of Agents. Neither the Administrative Agent, the
Syndication Agent nor any of their respective directors, officers, employees,
agents or advisors shall be liable for any action taken or not taken by them in
connection herewith (i) with the consent or at the request of the requisite
percentage in interest of the Lenders set forth herein or (ii) in the absence of
such Agent's or other Person's own gross negligence or willful misconduct as
determined by a court of competent jurisdiction. Neither the Administrative
Agent, the Syndication Agent nor any of their respective directors, officers,
employees, agents or advisors shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any Loan hereunder; (ii) the
performance or observance of any of the covenants or agreements of Borrower;
(iii) the satisfaction of any condition specified in Section 4, except receipt
of items required to be delivered to any such Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any of the other
Transaction Documents. Neither Agent shall incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex, telecopy or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
37
38
9.6 Indemnification. Notwithstanding any other provision
contained in this Agreement to the contrary, to the extent Borrower fails to
reimburse either Agent pursuant to Section 10.3, Section 10.4 or Section 10.5,
or if any Default or Event of Default shall occur under this Agreement, the
Lenders shall ratably in accordance with their respective Pro Rata Shares,
indemnify each such Agent and hold it harmless from and against any and all
liabilities, losses, costs and/or expenses, including, without limitation, any
liabilities, losses, costs and/or expenses arising from the failure of any
Lender to perform its obligations hereunder or in respect of this Agreement, and
also including, without limitation, reasonable attorneys' fees and expenses,
which any such Agent may incur, directly or indirectly, in connection with this
Agreement, the Notes or any of the other Transaction Documents, or any action or
transaction related hereto or thereto; provided only that no such Agent shall be
entitled to such indemnification for any losses, liabilities, costs and/or
expenses directly and solely resulting from its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction. This indemnity
shall be a continuing indemnity, contemplates all liabilities, losses, costs and
expenses related to the execution, delivery and performance of this Agreement,
the Notes and the other Transaction Documents, and shall survive the
satisfaction and payment of the Loans and the termination of this Agreement.
9.7 Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon either of the Agents or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon either of the Agents or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under this
Agreement.
9.8 Resignation of Agents. The Administrative Agent and/or the
Syndication Agent may resign at any time by giving written notice thereof to the
Lenders and Borrower. Upon any such resignation, Lenders shall have the right to
appoint a successor Administrative Agent or Syndication Agent with the prior
consent of Borrower, which consent shall not be unreasonably withheld, and which
successor Administrative Agent or Syndication Agent shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $100,000,000.00. If no
successor Agent shall have been so appointed by Lenders, and shall have accepted
such appointment, within thirty (30) days after any retiring Agent's giving of
notice of resignation, then the other Agent shall, on behalf of all of the
Lenders, appoint a successor Administrative Agent or Syndication Agent, as the
case may be, with the prior consent of Borrower, which consent shall not be
unreasonably withheld, and which successor Agent shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $100,000,000.00. Upon the
acceptance of any appointment as an Agent hereunder by a successor
Administrative Agent or Syndication Agent, such successor Administrative Agent
or Syndication Agent shall thereupon succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Administrative Agent
or Syndication Agent, as the case may be, and the retiring Administrative Agent
or Syndication Agent shall be discharged from all of its duties and obligations
under this Agreement. After any retiring Agent's resignation as an Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was an Agent under this Agreement.
9.9 Removal of Agents. The Administrative Agent or the
Syndication Agent may be removed at any time, for or without cause, by an
instrument or instruments in writing executed by the Required Lenders and
delivered to the Administrative Agent with a copy to Borrower, specifying the
removal and the date when it shall take effect. Upon any such removal, Lenders
shall have the right to appoint a successor Administrative Agent or Syndication
Agent, as the case may be, with the prior consent of Borrower, which consent
shall not be unreasonably withheld, and which successor Agent shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$100,000,000.00. If no successor Agent shall have been so appointed by Lenders,
and shall have accepted such appointment, within thirty (30) days after the date
of removal of any Agent, then the Required Lenders shall, on behalf of all of
the Lenders, appoint a successor Agent with the prior consent of Borrower, which
consent shall not be unreasonably withheld, and which successor Agent shall be a
commercial bank organized under the laws of the United States of America or of
any state thereof and having a combined capital and surplus of at least
$100,000,000.00. Upon the acceptance of any appointment as an Agent hereunder by
a successor Administrative Agent or Syndication Agent, as the case may be, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the removed Administrative Agent or
Syndication Agent, as the case
38
39
may be, and the removed Agent shall be discharged from all of its duties and
obligations under this Agreement. After any such removal, the provisions of this
Section 9 shall inure to such former Agent's benefit as to any actions taken or
omitted to be taken by it while it was an Agent under this Agreement.
SECTION 10. GENERAL.
10.1 No Waiver. No failure or delay by any of the Agents or
any of the Lenders in exercising any right, remedy, power or privilege hereunder
or under any other Transaction Document shall operate as a waiver thereof; nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The remedies provided herein and in the other Transaction Documents are
cumulative and not exclusive of any remedies provided by law. Nothing herein
contained shall in any way affect the right of any of the Agents or any of the
Lenders to exercise any statutory or common law right of banker's lien or
setoff.
10.2 Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default, each of the Lenders is hereby authorized at
any time and from time to time, without notice to the Borrower (any such notice
being expressly waived by the Borrower) and to the fullest extent permitted by
law, to setoff and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by any such Lender and any and
all other indebtedness at any time owing by any such Lender to or for the credit
or account of the Borrower against any and all of the Borrower's Obligations
irrespective of whether or not any Agent or any such Lender shall have made any
demand hereunder or under any of the other Transaction Documents and although
such obligations may be contingent or unmatured. Such Lender agrees to promptly
notify Borrower after any such setoff and application made by such Lender,
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of Lenders under this
Section 10.2 are in addition to any other rights and remedies (including,
without limitation, other rights of setoff) which Lenders may have. Nothing
contained in this Agreement or any other Transaction Document shall impair the
right of each of the Lenders to exercise any right of setoff or counterclaim
they may have against the Borrower and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower unrelated to this
Agreement or the other Transaction Documents.
10.3 Cost and Expenses. Borrower agrees, whether or not any
Loan is made hereunder, to pay upon demand (i) all reasonable out-of-pocket
costs and expenses and all Attorneys' Fees of each of the Agents in connection
with the preparation, documentation, negotiation, execution and administration
of this Agreement, the Notes and the other Transaction Documents, (ii) all
reasonable recording, filing and search fees incurred by the Administrative
Agent in connection with this Agreement and the other Transaction Documents,
(iii) all reasonable out-of-pocket costs and expenses and all Attorneys' Fees of
each of the Agents and each of the Lenders in connection with the preparation of
any waiver or consent hereunder or any amendment hereof or any Event of Default
or alleged Event of Default hereunder, (iv) if an Event of Default occurs, all
out-of-pocket costs and expenses and all Attorneys' Fees incurred by each of the
Agents and each of the Lenders in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom and (v) all
other Attorneys' Fees incurred by each of the Agents and each of the Lenders
relating to or arising out of or in connection with this Agreement or any of the
other Transaction Documents subsequent to the date hereof. The Borrower further
agrees to pay or reimburse Agents and each of the Lenders for any stamp or other
taxes which may be payable with respect to the execution, delivery, recording
and/or filing of this Agreement, the Notes, the Pledge Agreement, the Subsidiary
Guaranties or any of the other Transaction Documents. All of the obligations of
the Borrower under this Section 10.3 shall survive the satisfaction and payment
of the Borrower's Obligations and the termination of this Agreement. In the
event any Agent or any Lender claims any amounts pursuant to this Section 10.3,
such Agent or such Lender, as the case may be, shall provide to Borrower an
itemized statement of amounts claimed.
10.4 Environmental Indemnity. The Borrower hereby agrees to
indemnify each of the Agents and each of the Lenders and hold each of the Agents
and each of the Lenders harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses and claims of any and every kind
whatsoever (including, without limitation, court costs and attorneys' fees and
expenses) which at any time or from time to time may be paid, incurred or
suffered by, or asserted against, any of the Agents or any of the Lenders for,
with respect to or as a direct or indirect result of the violation by the
Borrower or any Subsidiary of the Borrower of any Environmental Laws; or with
respect to, or as a direct or indirect result of
39
40
the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission or release from, properties utilized by the Borrower and/or any
Subsidiary of the Borrower in the conduct of its businesses into or upon any
land, the atmosphere or any watercourse, body of water or wetland, of any
Hazardous Materials or any other hazardous or toxic waste, substance or
constituent or other substance (including, without limitation, any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or arising
under the Environmental Laws); and the provisions of and undertakings and
indemnification set out in this Section 10.4 shall survive the satisfaction and
payment of the Borrower's Obligations and the termination of this Agreement.
10.5 General Indemnity. In addition to the payment of expenses
pursuant to Section 10.3, whether or not the transactions contemplated hereby
shall be consummated, the Borrower hereby agrees to indemnify, pay and hold each
of the Agents, each of the Lenders and any other holder(s) of the Notes, and the
officers, directors, employees, agents and affiliates of any of them
(collectively, the "Indemnitees") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitees
shall be designated a party thereto), that may be imposed on, incurred by or
asserted against the Indemnitees, in any manner relating to or arising out of
this Agreement, any of the other Transaction Documents or any other agreement,
document or instrument executed and delivered by the Borrower or any other
Obligor in connection herewith or therewith, the statements contained in any
commitment letters delivered by any of the Agents or any of the Lenders, the
Lenders' agreements to make the Loans hereunder or the use or intended use of
the proceeds of any Loan hereunder (collectively, the "indemnified
liabilities"); provided that the Borrower shall have no obligation to an
Indemnitee hereunder with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnitees or any of them. The provisions of the
undertakings and indemnification set out in this Section 10.5 shall survive
satisfaction and payment of the Borrower's Obligations and the termination of
this Agreement.
10.6 Authority to Act. Agents and the Lenders shall be
entitled to act on any notices and instructions (telephonic or written) believed
by any such Agent or any such Lender to have been delivered by any Person
authorized to act on behalf of the Borrower pursuant hereto, regardless of
whether such notice or instruction was in fact delivered by a Person authorized
to act on behalf of the Borrower, and the Borrower hereby agrees to indemnify
each of the Agents and each of the Lenders and hold each of the Agents and each
of the Lenders harmless from and against any and all losses and expenses, if
any, ensuing from any such action, other than for such losses or expenses
directly caused by the gross negligence or willful misconduct of such Agent or
such Lender, as determined by a court of competent jurisdiction.
10.7 Notices. Any notice, request, demand, consent,
confirmation or other communication hereunder shall be in writing and delivered
in person or sent by telegram, telex, telecopy or registered or certified mail,
return receipt requested and postage prepaid, if to the Borrower, in care of
StaffMark, Inc. at 302 East Millsap Road, Fayetteville, Arkansas 72702,
Attention: Terry C. Bellora, Chief Financial Officer, if to Administrative
Agent, at 721 Locust Street, St. Louis, Missouri 63101, Attention: Jeffrey A.
Nelson, Vice President, if to Syndication Agent, at One First National Plaza,
Suite 0324, Chicago, Illinois 60670, Attention: Jenny Gilpin, Vice President, or
if to Lenders, at their respective addresses or telecopy numbers set forth on
the signature pages of this Agreement, or at such other address as any party may
designate as its address for communications hereunder by notice so given. Such
notices shall be deemed effective on the day on which delivered or sent if
delivered in person or sent by telegram, telex or telecopy, or on the third
(3rd) Business Day after the day on which mailed, if sent by registered or
certified mail.
10.8 CONSENT TO JURISDICTION. BORROWER IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF ANY MISSOURI STATE COURT OR ANY UNITED STATES
OF AMERICA COURT SITTING IN THE EASTERN DISTRICT OF MISSOURI, AS AGENT MAY
ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT TO THE EXTENT SUBJECT MATTER
JURISDICTION EXISTS. THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT TO SUCH SUIT, ACTION OR PROCEEDING MAY BE
40
41
HELD AND DETERMINED IN ANY OF SUCH COURTS. THE BORROWER IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THE BORROWER MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT, AND THE BORROWER FURTHER IRREVOCABLY WAIVES ANY CLAIM
THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. THE BORROWER HEREBY EXPRESSLY WAIVES ALL RIGHTS OF ANY
OTHER JURISDICTION WHICH THE BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF ITS
PRESENT OR SUBSEQUENT DOMICILE. THE BORROWER AUTHORIZES THE SERVICE OF PROCESS
UPON THE BORROWER BY REGISTERED MAIL SENT TO THE BORROWER AT ITS ADDRESS SET
FORTH IN SECTION 10.7.
10.9 Agents' and Lenders' Books and Records. Agents' and
Lenders' books and records showing the account between the Borrower and any such
Agent or any of the Lenders shall be admissible in evidence in any action or
proceeding and shall constitute prima facie proof thereof.
10.10 Governing Law; Amendments and Waivers. This Agreement,
the Notes, the Pledge Agreement, the Subsidiary Guaranties and all of the other
Transaction Documents shall be governed by and construed in accordance with the
internal laws of the State of Missouri. Any provision of this Agreement, the
Notes, the Pledge Agreement, the Subsidiary Guaranties or any of the other
Transaction Documents may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by Borrower and the Required Lenders (and,
if the rights or duties of the Administrative Agent in its capacity as
Administrative Agent or of the Syndication Agent in its capacity as Syndication
Agent are affected thereby, by the Administrative Agent or the Syndication
Agent, as the case may require); provided that no such amendment or waiver
shall, unless signed by all of the Lenders, (i) increase the Revolving Credit
Commitment of any Lender, (ii) reduce the principal amount of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder, (iv)
release any collateral security or any guaranty for any Loan hereunder, (v)
amend or waive any Event of Default, (vi) change the percentage in the
definition of Required Lenders, or (vii) amend this Section 10.10.
10.11 Successors and Assigns; Participations.
(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, except that Borrower may not assign or otherwise
transfer any of its rights or delegate any of its obligations under this
Agreement. Any of the Lenders may sell participations in its Notes and its
rights under this Agreement, the other Transaction Documents and in the
Collateral in whole or in part to any commercial bank organized under the laws
of the United States or any state thereof without the prior consent of Borrower
so long as each agreement pursuant to which any such participation is granted
provides that no such participant shall have any rights under this Agreement or
any other Transaction Document (the participants' rights against the Lender
granting its participation to be those set forth in the Participation Agreement
between the participant and such Lender), and such selling Lender shall retain
the sole right to approve or disapprove any amendment, modification or waiver of
any provision of this Agreement or any of the other Transaction Documents. Each
such participant shall be entitled to the benefits of the yield protection
provisions hereof to the extent any Lender would have been so entitled had not
such participation been sold or assignment made.
(b) Any Lender which, in accordance with Section
10.11(a), grants a participation in any of its rights under this Agreement or
its Notes shall give prompt notice describing the details thereof to the Agents
and Borrower.
(c) Unless otherwise agreed to by Borrower in
writing, no Lender shall, as between Borrower and that Lender, be relieved of
any of its obligations under this Agreement as a result of such Lender's
granting of a participation in all or any part of such Lender's Notes or all or
any part of such Lender's rights under this Agreement.
10.12 Assignment Agreements. Each Lender may, upon prior
notice to and consent of Borrower and Administrative Agent, which consent shall
not be unreasonably withheld and which consent of Borrower shall not be required
after the occurrence of a Default or an Event of Default hereunder, from time to
time sell or assign a pro rata part of all of the indebtedness evidenced by the
Notes then owed by it together with an equivalent proportion of its obligation
to make Loans hereunder and the credit risk incidental to the Letters of Credit
pursuant to an Assignment Agreement
41
42
substantially in the form of Exhibit G attached hereto, executed by the
assignor, the assignee and the Borrower, which agreements shall specify in each
instance the portion of the indebtedness evidenced by the Notes which is to be
assigned to each such assignor and the portion of the Loan Commitments of the
assignor and the credit risk incidental to the Letters of Credit (which portions
shall be equivalent) to be assumed by it (the "Assignment Agreements"), provided
that nothing herein contained shall restrict, or be deemed to require any
consent as a condition to, or require payment of any fee in connection with, any
sale, discount or pledge by any Lender of any Note or other obligation hereunder
to a federal reserve bank. Any such portion of the indebtedness assigned by any
Lender pursuant to this Section 10.12 shall not be less than $5,000,000.00. Upon
the execution of each Assignment Agreement by the assignor, the assignee and the
Borrower and consent thereto by the Administrative Agent (i) such assignee shall
thereupon become a "Lender" for all purposes of this Agreement with Loan
Commitments in the amount set forth in such Assignment Agreement and with all
the rights, powers and obligations afforded a Lender hereunder, (ii) the
assignor shall have no further liability for funding the portion of its Loan
Commitments assumed by such other Lender and (iii) the address for notices to
such Lender shall be as specified in the Assignment Agreement, and the Borrower
shall, in exchange for the cancellation of the Notes held by the assignor
Lender, execute and deliver Notes to the assignee Lender in the amount of its
Loan Commitments and new Notes to the assignor Lender in the amount of its Loan
Commitments after giving effect to the reduction occasioned by such assignment,
all such Notes to constitute "Notes" for all purposes of this Agreement, and
there shall be paid to the Administrative Agent, as a condition to such
assignment, an administration fee of $3,500.00 plus any out-of-pocket costs and
expenses incurred by it in effecting such assignment, such fee to be paid by the
assignor or the assignee as they may mutually agree, but under no circumstances
shall any portion of such fee be payable by or charged to the Borrower.
10.13 References; Headings for Convenience. Unless otherwise
specified herein, all references herein to Section numbers refer to Section
numbers of this Agreement, all references herein to Exhibits A, B, C, D, E, F,
G, H and I refer to annexed Exhibits A, B, C, D, E, F, G, H and I which are
hereby incorporated herein by reference and all references herein to Schedules
6.5, 6.6, 6.8, 6.10, 6.11, 6.14, 6.15, 7.1(k)(viii) and 7.2(h) refer to annexed
Schedules 6.5, 6.6, 6.8, 6.10, 6.11, 6.14, 6.15, 7.1(k)(viii) and 7.2(h) which
are hereby incorporated herein by reference. The Section headings are furnished
for the convenience of the parties and are not to be considered in the
construction or interpretation of this Agreement.
10.14 Subsidiary Reference. Any reference herein to a
Subsidiary or Consolidated Subsidiary of the Borrower, and any financial
definition, ratio, restriction or other provision of this Agreement which is
stated to be applicable to the Borrower and its Subsidiaries or Consolidated
Subsidiaries or which is to be determined on a "consolidated" or "consolidating"
basis, shall apply only to the extent the Borrower has any Subsidiaries or
Consolidated Subsidiaries and, where applicable, to the extent any such
Subsidiaries are consolidated with the Borrower for financial reporting
purposes.
10.15 Binding Agreement. This Agreement shall be binding upon
and inure to the benefit of the Borrower and its successors and each of the
Agents and each of the Lenders and their respective successors and assigns. The
Borrower may not assign or delegate any of its rights or obligations under this
Agreement.
10.16 NO ORAL AGREEMENTS; ENTIRE AGREEMENT. ORAL AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT, INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE.
TO PROTECT THE BORROWER, AGENTS AND LENDERS FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS REACHED BY THE BORROWER, AGENTS AND LENDERS
COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS, WHICH AGREEMENT AND OTHER TRANSACTION DOCUMENTS ARE A COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENTS BETWEEN THE BORROWER, AGENTS AND LENDERS,
EXCEPT AS THE BORROWER, AGENTS AND LENDERS MAY LATER AGREE IN WRITING TO MODIFY
THEM. THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES HERETO AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR
WRITTEN) RELATING TO THE SUBJECT MATTER HEREOF.
42
43
10.17 Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein that may be given effect without the invalid, illegal or
unenforceable provision shall not in any way be affected or impaired thereby.
10.18 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.19 Resurrection of the Borrower's Obligations. To the
extent that any of the Agents or any of the Lenders receives any payment on
account of any of the Borrower's Obligations, and any such payment(s) or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, subordinated and/or required to be repaid to a trustee,
receiver or any other Person under any bankruptcy act, state or federal law,
common law or equitable cause, then, to the extent of such payment(s) received,
the Borrower's Obligations or part thereof intended to be satisfied and any and
all Liens upon or pertaining to any Property or assets of the Borrower and
theretofore created and/or existing in favor of Administrative Agent for the
benefit of the Lenders as security for the payment of the Borrower's Obligations
shall be revived and continue in full force and effect, as if such payment(s)
had not been received by such Agent or any such Lender and applied on account of
the Borrower's Obligations.
10.20 U. S. Dollars. All currency references set forth herein,
in any other Transaction Documents and in any transactions referenced herein or
therein shall be denominated in Dollars of the United States of America.
[Signatures begin on next page]
IN WITNESS WHEREOF, the parties have executed this Second
Amended and Restated Credit Agreement as of this 20th day of August, 1998.
STAFFMARK, INC.
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Revolving Credit Commitment: MERCANTILE BANK
$35,000,000.00 NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 721 Locust Street
St. Louis, Missouri 63101
Attention: Mid America Group
Telecopy No: 314-425-3859
43
44
Revolving Credit Commitment: DEPOSIT GUARANTY NATIONAL BANK
$15,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:210 E. Capital Street
Suite 1180
Jackson, Mississippi 39201
Attention: Ronald L. Hendrix, VP
Telecopy No. 601-354-8412
Revolving Credit Commitment: THE FIRST NATIONAL BANK OF CHICAGO
$35,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 10th Floor
Mail Suite 0324
Chicago, Illinois 60670-0324
Attention: Jenny A. Gilpin, VP
Telecopy No. (312)732-2991
Revolving Credit Commitment: FIRST UNION NATIONAL BANK
$30,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: One First Union Center
301 South College Street, DC5
Charlotte, North Carolina 28288-0737
Attention: Henry R. Biedrzycki, VP
Telecopy No. (704)374-3300
44
45
Revolving Credit Commitment: LASALLE NATIONAL BANK
$20,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: One Metropolitan Square
211 North Broadway
Suite 2140
St. Louis, Missouri 63102
Attention: Tom Harmon, AVP
Telecopy No. (314)621-1612
Revolving Credit Commitment: BANK OF AMERICA NATIONAL TRUST
$30,000,000.00 AND SAVINGS ASSOCIATION
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 231 S. LaSalle Street
6th Floor
Chicago, Illinois 60697
Attention: Steven Standbridge, VP
Telecopy No. (312)828-1974
Revolving Credit Commitment: FLEET NATIONAL BANK
$30,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: One Federal Street
4th Floor
Boston, Massachusetts 02110
Attention: Deborah Lawrence, SVP
Telecopy No. (617)346-4667
45
46
Revolving Credit Commitment: COMERICA BANK
$20,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 4100 Spring Valley Road
Suite 900
Dallas, Texas 75244
Attention: Mark Grover
Telecopy No.(214)818-2550
Revolving Credit Commitment: CREDIT LYONNAIS
$20,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 2200 Ross Avenue
Dallas, Texas 75201
Attention: Robert Smith
Telecopy No. (214)220-2323
Revolving Credit Commitment: HIBERNIA NATIONAL BANK
$15,000,000.00
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 313 Carondelet
12th Floor
New Orleans, Louisiana 70130
Attention: Angela Bentley
Telecopy No. (504)533-5344
MERCANTILE BANK NATIONAL
ASSOCIATION, AS ADMINISTRATIVE AGENT
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 721 Locust Street
St. Louis, Missouri 63101
Attention: Mid America Group
46
47
THE FIRST NATIONAL BANK OF
CHICAGO, AS SYNDICATION AGENT
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: One First National Plaza
10th Floor
Mail Suite 0324
Chicago, Illinois 60670-0324
Attention: Jenny A. Gilpin, VP
Telecopy No. (312)732-2991
47