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Sample Business ContractsHome: Sample Business Contracts:
AMENDED AND RESTATED CREDIT AGREEMENT
Reference is hereby made to that certain Credit Agreement dated as of
December 27, 1994, executed by and between WHOLE FOODS MARKET, INC. (the
"Company"), the financial institutions which are currently parties to said
Credit Agreement (each of said financial institutions now or hereafter a party
to said Credit Agreement being hereinafter referred to collectively as "Banks"
and individually as a "Bank"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association now known as CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking association ("Chase"), in its capacity as agent
(the "Agent") for the Banks.
The Company, the Banks and the Agent have previously amended said
Credit Agreement pursuant to the terms of a First Amendment to Credit Agreement,
dated as of May 16, 1996 (the "First Amendment"), a Second Amendment to Credit
Agreement dated as of December 24, 1996 (the "Second Amendment"), a Third
Amendment to Credit Agreement dated as of March 24, 1997 (the "Third
Amendment"), a Fourth Amendment to Credit Agreement dated as of September 2,
1997 (the "Fourth Amendment"), and a Fifth Amendment to Credit Agreement dated
as of December 19, 1997 (the "Fifth Amendment"). Said Credit Agreement, as
previously amended by the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment, and the Fifth Amendment is referred to herein
as the "Original Agreement."
As a result of certain discussions between the Company, the Agent and
the Banks, and in connection with the increase of the Aggregate Commitment (as
defined in the Original Agreement), the parties to the Original Agreement, as
well as new Banks which are signatories hereto, now desire to amend and restate
the Original Agreement in its entirety. Accordingly, the Original Agreement is
hereby amended and restated in its entirety to hereafter be and read as follows:
THIS AMENDED AND RESTATED CREDIT AGREEMENT (together with all
amendments, modifications and supplements hereto and restatements hereof, this
"Agreement") is made and entered into as of June 28, 1999, by and among WHOLE
FOODS MARKET, INC. (the "Company"), a Texas corporation, EACH OF THE FINANCIAL
INSTITUTIONS WHICH IS A SIGNATORY HERETO OR WHICH MAY FROM TIME TO TIME BECOME A
PARTY HERETO (individually, a "Bank" and collectively, the "Banks") and CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION ("Chase"), a national banking association as
agent for the Banks (in such capacity, together with its successors in such
capacity, the "Agent").
W I T N E S S E T H:
THAT, in consideration of the mutual covenants, agreements and
undertakings herein contained, the parties hereto agree as follows:
<PAGE>
1. Definitions.
1.1. Certain Defined Terms. Unless a particular word or phrase is
otherwise defined or the context otherwise requires, capitalized words and
phrases used in the Loan Documents have the meanings provided below.
Accounts shall have the meaning assigned to it in the Texas Business
and Commerce Code in force on the date the document using such term was
executed.
Adjusted LIBOR Rate shall mean, with respect to each LIBOR Interest
Period, a rate per annum equal to the quotient (converted to a percentage) of
(a) the London Interbank Rate with respect to such LIBOR Interest Period divided
by (b) 1 minus the Eurocurrency Reserve Requirement in effect on the first day
of such LIBOR Interest Period.
Affiliate shall mean any Person controlling, controlled by or under
common control with any other Person; and with respect to an individual,
"Affiliate" shall also mean any other individual related to such individual by
blood or marriage. For purposes of this definition, "control" (including
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of securities,
partnership or other ownership interests, by contract or otherwise.
Aggregate Commitment shall mean, on any day, the aggregate of all of
the Commitments of the Banks on such day.
Aggregate Unused Commitment shall mean, on any day, the aggregate of
all of the Unused Commitments of the Banks on such day.
Alternate Base Rate shall mean for any day a rate per annum (rounded
upwards to the nearest 1/16 of 1%) equal to the lesser of (a) the sum of (1) the
greater of (A) the Prime Rate (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be) in effect on
such day, and (B) the Federal Funds Rate (computed on the basis of the actual
number of days elapsed over a 360-day year) in effect for such day plus 1/2 of
1%, plus (2) the Applicable Margin in effect on such day or (b) the Highest
Lawful Rate. For purposes of this Agreement any change in the Alternate Base
Rate due to a change in the Prime Rate or Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds Rate,
respectively. If for any reason the Agent shall have determined (which
determination shall be conclusive and binding, absent manifest error) that it is
unable to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in accordance
with the terms hereof, the Alternate Base Rate shall be the lesser of (a) the
Prime Rate plus the Applicable Margin or (b) the Highest Lawful Rate until the
circumstances giving rise to such inability no longer exist.
Alternate Base Rate Borrowing shall mean that portion of the principal
balance of the Loans at any time bearing interest at the Alternate Base Rate.
Annual Audited Financial Statements shall mean, with respect to each
fiscal year of the Company, the Company's 10-K Report filed with the Securities
Exchange Commission for such fiscal year, prepared in conformity with Generally
Accepted Accounting Principles and accompanied by a report and opinion of
independent certified public accountants with an accounting firm of national
standing and reputation, which shall state that such financial statements, in
the opinion of such accountants, present fairly, in all material respects, the
financial position of the Company and its Subsidiaries, on a consolidated basis,
as of the date thereof and the results of its operations and cash flows for the
period covered thereby in conformity with Generally Accepted Accounting
Principles.
Applicable Commitment Fee Percentage shall mean with respect to any
Unused Commitment, on any day occurring on or after (1) March 31 but prior to
June 30 of the applicable calendar year, the applicable per annum percentage
corresponding to the Leverage Ratio determined as of the end of the immediately
preceding first quarter of the Company's fiscal year, (2) June 30 but prior to
<PAGE>
September 30 of the applicable calendar year, the applicable per annum
percentage corresponding to the Leverage Ratio determined as of the end of the
immediately preceding second quarter of the Company's fiscal year, (3) September
30 but prior to December 31 of the applicable calendar year, the applicable per
annum percentage corresponding to the Leverage Ratio determined as of the end of
the immediately preceding third quarter of the Company's fiscal year, and (4)
December 31 but prior to March 31 of the applicable calendar year, the
applicable per annum percentage corresponding to the Leverage Ratio determined
as of the immediately preceding fiscal year of the Company, as provided below:
----------------------------------------------- -------------------------------
Per Annum
Leverage Ratio Percentage Rate
----------------------------------------------- -------------------------------
----------------------------------------------- -------------------------------
Less than 1.00x 0.20%
----------------------------------------------- -------------------------------
----------------------------------------------- -------------------------------
1.00x or greater, but less than 2.00x 0.25%
----------------------------------------------- -------------------------------
----------------------------------------------- -------------------------------
2.00x or greater 0.30%
----------------------------------------------- -------------------------------
Applicable Margin shall mean with respect to any Loan, on any day
occurring on or after (1) March 31 but prior to June 30 of the applicable
calendar year, the applicable per annum percentage corresponding to the Leverage
Ratio determined as of the end of the immediately preceding first quarter of the
Company's fiscal year, (2) June 30 but prior to September 30 of the applicable
calendar year, the applicable per annum percentage corresponding to the Leverage
Ratio determined as of the end of the immediately preceding second quarter of
the Company's fiscal year, (3) September 30 but prior to December 31 of the
applicable calendar year, the applicable per annum percentage corresponding to
the Leverage Ratio determined as of the end of the immediately preceding third
quarter of the Company's fiscal year, and (4) December 31 but prior to March 31
of the applicable calendar year, the applicable per annum percentage
corresponding to the Leverage Ratio determined as of the immediately preceding
fiscal year of the Company, as provided below:
<PAGE>
------------------------ ---------------------------- --------------------------
Per Annum Percentage Per Annum Percentage
for LIBOR Rate for Alternate Base
Leverage Ratio Borrowings Rate Borrowings
------------------------ ---------------------------- --------------------------
Less than 1.00x 0.75% 0.000%
------------------------ ---------------------------- --------------------------
1.00x or greater,
but less than 2.00x 1.00% 0.00%
------------------------ ---------------------------- --------------------------
2.00x or greater 1.25% 0.000%
------------------------ ---------------------------- --------------------------
Applications shall mean all applications and agreements for Letters of
Credit, or similar instruments or agreements, in Proper Form, now or hereafter
executed by any Person in connection with any Letter of Credit now or hereafter
issued or to be issued under the terms hereof at the request of any Person.
Business Day shall mean a day when the main office of the Agent is open
for business and banks in Houston, Texas are generally open for business.
Business Entity shall mean corporations, partnerships, joint ventures,
joint stock associations, business trusts and other business entities.
Capital Lease Obligations shall mean the obligations of the Company and
its Subsidiaries on a consolidated basis to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or personal
Property which obligations are required to be classified and accounted for as a
capital lease on a consolidated balance sheet of the Company and its
Subsidiaries under Generally Accepted Accounting Principles (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board, as amended) and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with Generally Accepted Accounting Principles (including such Statement No. 13).
Change of Control shall mean any change so that any Unrelated Person
(or any Unrelated Persons acting together which would constitute a Group)
together with any Affiliate or Related Persons of such Unrelated Person or
Unrelated Persons (in each case also constituting Unrelated Persons) shall at
any time after the date hereof either (i) Beneficially Own more than fifty
percent (50%) of the aggregate voting power of all classes of Voting Stock of
the Company, or (ii) succeed in having enough of its or their nominees elected
by the stockholders to the Board of Directors of the Company so as to constitute
a majority of the Board of Directors of the Company. As used herein, (a)
"Beneficially Own" shall mean "beneficially own" as defined in Rule 13d-3 of the
Securities and Exchange Act of 1934, as amended (the "34 Act") or any successor
provision thereto; (b) "Group" shall mean a "group" for purposes of Section
13(d) of the 34 Act or any successor provision; (c) "Unrelated Person" shall
mean any Person other than any trust for any employee stock ownership plan of
the Company or any Subsidiary of the Company; (d) "Related Person" shall mean as
to any Person, any other Person owning (1) five percent (5%) or more of the
outstanding common stock of such Person or (2) five percent (5%) or more of the
Voting Stock of such Person, and (e) "Voting Stock" shall mean as to any Person,
the Stock of such Person which ordinarily has voting power for the election of
directors (or persons performing similar functions) of such Person, whether at
all times or only so long as no senior class of securities has such voting power
by reason of any contingency.
Chapter 1D shall mean Chapter 1D of the Texas Finance Code, as in
effect on the date the document using such term was executed.
Code shall mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations, rulings and
interpretations thereof or thereunder by the Internal Revenue Service.
Commitment shall mean, as to any Bank, the obligation of such Bank to
make Loans and incur liability for the Letters of Credit Exposure Amount in an
<PAGE>
aggregate principal amount at any one time outstanding up to, but not exceeding,
the amount set forth opposite such Bank's name on the signature pages hereof
under the caption "Commitment" (as the same may be reduced from time to time
pursuant to Section 2.2 hereof).
Commitment Fee, with respect to any Bank, shall have the meaning
assigned to it in Section 2.2.
Commitment Percentage shall mean, with respect to any Bank, the ratio,
expressed as a percentage, of such Bank's Commitment to the Aggregate
Commitment.
Consequential Loss shall mean, with respect to (a) the Company's
payment of principal of a LIBOR Rate Borrowing on a day other than the last day
of the applicable LIBOR Interest Period, (b) the Company's failure to borrow a
LIBOR Rate Borrowing on the date specified by the Company for any reason, (c)
the Company's failure to make any prepayment of the Loans (other than Alternate
Base Rate Borrowings) on the date specified by the Company, or (d) any cessation
of the LIBOR Rate to apply to the Loans or any part thereof pursuant to Section
2.11 hereof, in each case whether voluntary or involuntary, any loss, expense,
penalty, premium or liability incurred by any of the Banks or the Agent,
including any interest paid by any of the Banks to lenders of funds borrowed by
it to make or carry the Loans. And "Consequential Loss" shall mean, with respect
to the termination or cancellation of any LIBOR Rate Borrowing pursuant to
Section 2.11 hereof, in each case whether voluntary or involuntary, any loss,
expense, penalty, premium or liability incurred by any of the Banks or the Agent
on account of any reduction resulting from such premature termination or
cancellation of such borrowing in such Person's margins or spreads between its
cost of funds and the interest earned on the principal of the borrowing so
terminated or canceled, including an amount equal to the excess (if any) of (x)
interest that would have accrued on any such borrowing during the remainder of
the applicable LIBOR Interest Period had such borrowing not been terminated or
canceled early, over (y) the interest actually accrued on the principal amount
of that terminated or canceled borrowing for such remainder of such LIBOR
Interest Period.
Consolidated Net Worth shall mean, at any time, shareholder's equity of
the Company as set forth in the most recent consolidated Annual Audited
Financial Statements of the Company and its Subsidiaries, determined in
accordance with Generally Accepted Accounting Principles, consistently applied.
Contingent Obligations shall mean, as to any Person, without
duplication, any obligation of such Person guaranteeing or intended to guarantee
the payment or performance of any Indebtedness, leases, dividends or other
obligations (collectively "primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including
without limitation, any obligation of the Person for whom Contingent Obligations
is being determined, whether or not contingent, (a) to purchase any such primary
obligation or other property constituting direct or indirect security therefor,
(b) assume or contingently agree to become or be secondarily liable in respect
of any such primary obligation, (c) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital for the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (d) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (e) otherwise to assure or hold harmless the owner
of such primary obligation against loss in respect thereof; provided, however,
that the term "Contingent Obligations" shall not include (x) endorsements of
checks or other negotiable instruments in the ordinary course of business, (y)
performance or payment guarantees by the Company of any Indebtedness of any of
its Subsidiaries of the type permitted in Section 6.1(f) hereof, and (z) the
obligations and liabilities of each Guarantor to the Agent and the Banks under
the Guaranties. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum anticipated liability in respect thereof (assuming the
Person for whom Contingent Obligations is being determined is required to
perform thereunder) as determined by the Agent in good faith.
Contribution Agreement shall mean that certain Contribution Agreement
of even date herewith, by and among the Company and the Current Guarantors, as
the same may be amended, modified, supplemented, restated and joined in pursuant
to a Joinder Agreement, from time to time.
Current Guarantors shall mean each of the Subsidiaries of the Company
listed on Schedule II attached hereto (other than Natrix International, LLC,
Amrion New Zealand Limited and Australian Naturalcare Products PTY LTD), and any
and all of their respective successors and assigns.
<PAGE>
Current Sum shall mean on any day, as to a particular Bank, the sum of
(a) the outstanding principal balance of such Bank's Note on such day plus (b)
the product of (i) such Bank's Commitment Percentage times (ii) the Letter of
Credit Exposure Amount on such day.
Discontinued Operations shall mean, as of any day, operations of the
Company or its Subsidiaries which have been discontinued, as reflected on the
most recent Form 10-K or 10-Q for the Company filed with the Security and
Exchange Commission, and which, as of such day, have been fully disposed of or
liquidated.
EBIT shall mean for any period for which EBIT is calculated, Net Income
of the Company and its Subsidiaries on a consolidated basis for such period plus
(a) non-recurring, non-cash charges of the Company and its Subsidiaries on a
consolidated basis for such period, (b) taxes of the Company and its
Subsidiaries on a consolidated basis for such period and (c) interest expense of
the Company and its Subsidiaries on a consolidated basis for such period. All
components of EBIT shall be determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
EBITDA shall mean for any period for which EBITDA is calculated, Net
Income of the Company and its Subsidiaries on a consolidated basis for such
period plus (a) taxes of the Company and its Subsidiaries on a consolidated
basis for such period (calculated after excluding any gain or loss attributable
to Discontinued Operations as of such day), (b) depreciation, depletion,
obsolescence and amortization of Property of the Company and its Subsidiaries on
a consolidated basis for such period (calculated after excluding any
depreciation, depletion, obsolescence and amortization applicable to
Discontinued Operations as of such day), (c) interest expense of the Company and
its Subsidiaries on a consolidated basis for such period (calculated after
excluding any interest expense paid in connection with Discontinued Operations
as of such day), and (d) non-recurring, non-cash charges of the Company and its
Subsidiaries on a consolidated basis for such period. All components of EBITDA
shall be determined in accordance with Generally Accepted Accounting Principles,
consistently applied.
Eligible Assignee shall mean (a) a commercial bank having total assets
in excess of $10,000,000,000 or (b) a finance company, insurance company, other
financial institution or fund, acceptable to the Agent and the Company, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $10,000,000,000.
Environmental Claim shall mean any third party (including any
Governmental Authority) action, lawsuit, claim or proceeding (including claims
or proceedings at common law) which seeks to impose or alleges liability for (i)
preservation, protection, conservation, pollution, contamination of, or releases
or threatened releases of Hazardous Substances into the air, surface water,
ground water or land or the clean-up, abatement, removal, remediation or
monitoring of such pollution, contamination or Hazardous Substances; (ii)
generation, recycling, reclamation, handling, treatment, storage, disposal or
transportation of Hazardous Substances or solid waste (as defined under the
Resource Conservation and Recovery Act and its regulations, as amended from time
to time); (iii) exposure to Hazardous Substances; (iv) the safety or health of
employees or other Persons in connection with any of the activities specified in
any other subclause of this definition; or (v) the manufacture, processing,
distribution in commerce, presence or use of Hazardous Substances. An
"Environmental Claim" includes a common law action, as well as a proceeding to
issue, modify or terminate an Environmental Permit, or to adopt or amend a
regulation to the extent that such a proceeding attempts to redress violations
of the applicable permit, license, or regulation as alleged by any Governmental
Authority.
Environmental Liabilities shall mean all liabilities arising from any
Environmental Claim, Environmental Permit or Requirement of Environmental Law
under any theory of recovery, at law or in equity, and whether based on
negligence, strict liability or otherwise, including: remedial, removal,
response, abatement, restoration (including natural resources) investigative, or
monitoring liabilities, personal injury and damage to property, natural
resources or injuries to persons, and any other related costs, expenses, losses,
damages, penalties, fines, liabilities and obligations, and all costs and
expenses necessary to cause the issuance, reissuance or renewal of any
Environmental Permit including attorney's fees and court costs. Environmental
Liability shall mean any one of them.
Environmental Permit shall mean any permit, license, approval or other
authorization under any applicable law, regulation and other requirement of the
<PAGE>
United States or of any state, municipality or other subdivision thereof
relating to pollution or protection of health or the environment, including
laws, regulations or other requirements relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants or Hazardous
Substances or toxic materials or wastes into ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, recycling, presence, use, treatment, storage, disposal, transport,
or handling of, wastes, pollutants, contaminants or Hazardous Substances.
Equipment shall have the meaning assigned to it in the Texas Business
and Commerce Code in force on the date the document using such term was
executed.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and all rules, regulations, rulings and
interpretations adopted by the Internal Revenue Service or the Department of
Labor thereunder.
Eurocurrency Reserve Requirement shall mean, on any day, for any LIBOR
Interest Period, the stated maximum rate (expressed as a decimal) for all
reserves (including basic, supplemental, marginal and emergency reserves)
required to be maintained during such LIBOR Interest Period under Regulation D
by any member bank of the Federal Reserve System against "Eurocurrency
liabilities," as currently defined in Regulation D, all as specified by any
Governmental Authority. Without limiting the effect of the foregoing, the
Eurocurrency Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks by reason of any Regulatory Change against (a)
any category of liabilities which includes deposits by reference to which the
Adjusted LIBOR Rate is to be determined as provided in the definition of "London
Interbank Rate" or (b) any category of extensions of credit or other assets
which include Eurocurrency Loans. Each determination of the Eurocurrency Reserve
Requirement by the Agent shall be conclusive and binding, absent manifest error,
and may be computed using any reasonable averaging and attribution method.
Event of Default shall mean any of the events specified in Section 7.1
hereof or otherwise specified as an Event of Default in any other Loan Document,
provided there has been satisfied any requirement in connection with such event
for the giving of notice, or the lapse of time, or the happening of any further
condition, event or act, and Default shall mean any of such events, whether or
not any such requirement has been satisfied.
Excess Interest Amount shall have the meaning attributed to such term
in Section 2.12 hereof.
FDIC Percentage shall mean, on any day, the annual rate (rounded
upwards, if not already a whole multiple of 1/100% to the next higher 1/100%)
most recently estimated by the Agent as the then current annual assessment that
will be employed in determining amounts payable by Chase to any Governmental
Authority (including the Federal Deposit Insurance Corporation) for insuring
time deposits made in United States dollars at Chase's main banking house and
maturing at the end of the relevant LIBOR Interest Period. Each estimate of the
FDIC Percentage by the Agent shall be binding and conclusive, absent manifest
error, and may be computed by using any reasonable averaging and attribution
method.
Federal Funds Rate shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Chase from three Federal funds brokers of recognized
standing selected by it.
Fixed Charge Coverage Ratio shall mean as of any day that the Fixed
Charge Coverage Ratio is being calculated, the ratio of (a) EBIT plus Operating
Lease Expense to (b) interest expense plus Operating Lease Expense. All
components of the Fixed Charge Coverage Ratio shall be computed for the Rolling
Four Quarters as of such day and determined for the Company and its Subsidiaries
on a consolidated basis in accordance with Generally Accepted Accounting
Principles, consistently applied.
Funded Indebtedness shall mean (a) all Indebtedness of the Company and
its Subsidiaries on a consolidated basis which by its terms matures more than
one year after the applicable date of calculation of Funded Indebtedness
(including without limitation, current maturities or scheduled principal
<PAGE>
payments of Funded Indebtedness for the applicable period for which Funded
Indebtedness is being calculated), and any Indebtedness of the Company and its
Subsidiaries on a consolidated basis maturing within one year from such date
which is renewable or extendable at the option of the obligor to a date beyond
one year from such date and (b) without duplication, Capital Lease Obligations
of the Company and its Subsidiaries on a consolidated basis. All components of
Funded Indebtedness shall be determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
Generally Accepted Accounting Principles shall mean, as to a particular
Person, those principles and practices (a) which are recognized as such by the
Financial Accounting Standards Board or successor organization, (b) which are
applied for all periods after the date hereof in a manner consistent with the
manner in which such principles and practices were applied to the most recent
audited financial statements of the relevant Person furnished to the Agent and
the Banks, and (c) which are consistently applied for all periods after the date
hereof so as to reflect properly the financial condition, and results of
operations and changes in financial position, of such Person.
Governmental Authority shall mean any foreign governmental authority,
the United States of America, any state of the United States and any political
subdivision of any of the foregoing, and any agency, instrumentality,
department, commission, board, bureau, central bank, authority, court or other
tribunal, in each case whether executive, legislative, judicial, regulatory or
administrative, having jurisdiction over the Agent, any of the Banks or the
Company, any of the Company's Subsidiaries or their respective Property.
Guaranties shall mean that certain Master Guaranty of even date
herewith by and among the Current Guarantors, as amended, supplemented,
modified, joined in pursuant to a Joinder Agreement and restated from time to
time, and each and every other guaranty executed by any or all of the Guarantors
from time to time.
Guarantors shall mean each and every Person executing a guaranty from
time to time guaranteeing the Indebtedness of the Company owing from time to
time to the Banks pursuant to this Agreement or the Notes, including the Current
Guarantors.
Hazardous Substance shall mean any hazardous or toxic waste, substance
or product or material defined or regulated from time to time by any applicable
law, rule, regulation or order described in the definition of "Requirements of
Environmental Law," including solid waste (as defined under RCRA or its
regulations, as amended from time to time), petroleum and any fraction thereof,
any radioactive materials and waste.
Highest Lawful Rate shall mean the maximum nonusurious rate of interest
permitted by whichever of applicable federal or Texas law from time to time
permits the higher maximum nonusurious interest rate stated as a rate per annum.
On each day, if any, that applicable Texas law establishes the Highest Lawful
Rate, the Highest Lawful Rate shall be the "weekly ceiling" (as defined in
Chapter 1D and ss. 303 of the Texas Finance Code, as amended, respectively) for
that day. The Agent may from time to time, as to then-current and future
balances, implement any other ceiling under Chapter 1D and the Texas Finance
Code and/or revise the index, formula or provision of law used to compute the
rate on such obligation, if and to the extent permitted by, and in the manner
provided in, Chapter 1D and the Texas Finance Code.
Incidental Liens shall mean (i) Liens for taxes, assessments, levies or
other governmental charges (but not Liens for clean up expenses arising pursuant
to Requirements of Environmental Law) not yet due (subject to applicable grace
periods) or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Company in accordance with Generally Accepted Accounting
Principles; (ii) carriers', warehousemen's, mechanics', landlords', vendors',
materialmen's, repairmen's, sureties' or other like Liens (other than Liens for
clean up expenses arising pursuant to Requirements of Environmental Law) arising
in the ordinary course of business (or deposits to obtain the release of any
such Lien) and securing amounts not yet due or which are being contested in good
faith and by appropriate proceedings if, in the case of such contested Liens,
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with Generally Accepted Accounting Principles; (iii)
pledges or deposits in connection with worker's compensation, unemployment
insurance and other social security legislation; (iv) deposits not in excess at
any time of $1,000,000 to secure insurance in the ordinary course of business,
the performance of bids, tenders, contracts (other than contracts for the
payment of money), leases, licenses, franchises, statutory obligations, surety
and appeal bonds and performance bonds and other obligations of a like nature
incurred in the ordinary course of business and Liens to secure progress or
partial payments made to the Company or any Subsidiary and other Liens of like
nature made in the ordinary course of business; (v) easements, rights-of-way,
covenants, reservations, exceptions, encroachments, zoning and similar
restrictions and other similar encumbrances or title defects incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount, and which do not in any case singly or in the aggregate materially
detract from the value or usefulness of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company
and its Subsidiaries, taken as a whole; (vi) bankers' liens arising by operation
of law; (vii) Liens arising pursuant to any order of attachment, distraint or
similar legal process arising in connection with any court proceeding the
payment of which is covered in full (subject to customary deductibles) by
insurance; (viii) inchoate Liens arising under ERISA to secure contingent
liabilities of the Company; and (ix) rights of lessees and sublessees in assets
leased by the Company or any Subsidiary not prohibited elsewhere herein.
Indebtedness shall mean, as to any Person, without duplication: (a) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of Property or services;
(b) any other indebtedness which is evidenced by a promissory note, bond,
debenture or similar instrument; (c) any obligation under or in respect of
outstanding letters of credit (including without limitation, the Letters of
Credit), acceptances and similar obligations created for the account of such
Person; (d) all Capital Lease Obligations of such Person; (e) all indebtedness,
liabilities, and obligations secured by any Lien on any Property owned by such
Person even though such Person has not assumed or has not otherwise become
liable for the payment of any such indebtedness, liabilities or obligations
secured by such Lien; and (f) net liabilities of such Person under interest rate
cap agreements, interest rate swap agreements, foreign currency exchange
agreements and other hedging agreements or arrangements (calculated on a basis
satisfactory to the Agent and in accordance with accepted practice); provided,
that such term shall not mean or include any Indebtedness in respect of which
monies sufficient to pay and discharge the same in full (either on the expressed
date of maturity thereof or on such earlier date as such Indebtedness may be
duly called for redemption and payment) shall be deposited with a depository,
agency or trustee acceptable to the Agent in trust for the payment thereof.
Interest Option shall have the meaning ascribed to it in Section
2.10(a) hereof.
Interest Payment Dates shall mean (a) for Alternate Base Rate
Borrowings, (1) at all times while the Notes are outstanding, the last Business
Day of each March, June, September and December, and (2) the Maturity Date; and
(b) for LIBOR Rate Borrowings, (1) if the LIBOR Interest Period applicable to
such LIBOR Rate Borrowing is equal to or less than three (3) months, the end of
such LIBOR Interest Period, and (2) in all other cases, on that day which is
three (3) calendar months following the first day of the applicable LIBOR
Interest Period (or, if there be no corresponding day, on the next succeeding
day which is a Business Day) and at the end of such LIBOR Interest Period.
Investment shall mean the purchase or other acquisition of any
securities or Indebtedness of, or the making of any loan, advance, transfer of
Property or capital contribution to, or the incurring of any liability,
contingently or otherwise, in respect of the Indebtedness of, any Person.
Issuer shall mean any Bank which is an issuer of a Letter of Credit.
The initial Issuer will be Chase.
Joinder Agreement shall mean any agreement, in Proper Form, executed by
a Subsidiary of the Company from time to time, pursuant to which such Subsidiary
joins in the execution and delivery of a Guaranty and the Contribution
Agreement.
Legal Requirement shall mean any law, statute, ordinance, decree,
requirement, order, judgment, rule, regulation (or interpretation of any of the
foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority.
Letter of Credit Advances shall mean all sums which may from time to
time be paid by any and all of the Banks pursuant to the Letters of Credit, or
any of them, together with all other sums, fees, reimbursements or other
obligations which may be due to any or all of the Banks pursuant to the Letters
of Credit, or any of them.
<PAGE>
Letter of Credit Exposure Amount shall mean at any time the sum of (i)
the aggregate undrawn amount of all Letters of Credit outstanding at such time
plus (ii) the aggregate amount of all Letter of Credit Advances for which the
Banks have not been reimbursed and which remain unpaid at such time.
Letter of Credit Fee Payment Date shall mean, with respect to any
Letter of Credit, the date of issuance thereof and the last day of each March,
June, September and December which occurs after the date of issuance, but prior
to the expiry date of said Letter of Credit.
Letter of Credit Termination Date shall mean a date which is three (3)
months prior to the Maturity Date.
Letters of Credit shall mean all irrevocable standby letters of credit
and all commercial letters of credit issued by the Issuer pursuant to the terms
set forth in this Agreement, including all outstanding letters of credit issued
by Chase prior to the date hereof for the account of the Company or any of its
Subsidiaries.
Leverage Ratio shall mean as of any day that the Leverage Ratio is
calculated, the ratio of Funded Indebtedness of the Company and its Subsidiaries
on a consolidated basis as of such day to EBITDA of the Company and its
Subsidiaries on a consolidated basis for the Rolling Four Quarters as of such
day.
LIBOR Business Day shall mean a Business Day on which transactions in
United States Dollar deposits between banks may be carried on in the London,
England interbank market.
LIBOR Interest Period shall mean, for each LIBOR Rate Borrowing, a
period commencing:
(a) on the date of such LIBOR Rate Borrowing, or
(b) on the last day of the immediately preceding LIBOR Interest
Period in the case of a roll-over to a successive LIBOR
Interest Period,
and ending on the numerically corresponding day one, two, three or (as
available) six months thereafter, as the Company shall elect in accordance
herewith; provided, (w) any LIBOR Interest Period which would otherwise end on a
day which is not a LIBOR Business Day shall be extended to the next succeeding
LIBOR Business Day, unless such LIBOR Business Day falls in another calendar
month, in which case such LIBOR Interest Period shall end on the next preceding
LIBOR Business Day; (x) any LIBOR Interest Period which begins on the last LIBOR
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR Interest
Period) shall end on the last LIBOR Business Day of the appropriate calendar
month; (y) no LIBOR Interest Period shall ever extend beyond the Maturity Date;
and (z) LIBOR Interest Periods shall be selected by the Company in such a manner
that the LIBOR Interest Period with respect to any portion of the Loans which
shall become due shall not extend beyond such due date.
LIBOR Rate shall mean, for the entire term of each LIBOR Interest
Period, a rate per annum equal to the lesser of (a) the sum of (1) the Adjusted
LIBOR Rate in effect on the first day of such LIBOR Interest Period plus (2) the
Applicable Margin from time to time in effect during such term, and (b) the
Highest Lawful Rate.
LIBOR Rate Borrowing shall mean each portion of the principal balance
of the Loans at any time bearing interest at the LIBOR Rate.
Lien shall mean any mortgage, pledge, charge, encumbrance, security
interest, collateral assignment or other lien or restriction of any kind,
whether based on common law, constitutional provision, statute or contract, and
shall include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions.
Loan Documents shall mean this Agreement, the Notes, the Guaranties,
the Contribution Agreement, the Joinder Agreements, the Letters of Credit, the
Applications, all instruments, certificates and agreements now or hereafter
executed or delivered to the Agent and/or the Banks pursuant to any of the
<PAGE>
foregoing, and all amendments, modifications, renewals, extensions, increases
and rearrangements of, and substitutions for, any of the foregoing.
Loans shall mean the advances of funds described in Section 2.1 hereof.
Loan shall mean any one of the Loans.
London Interbank Rate shall mean, for each applicable LIBOR Interest
Period, the rate of interest per annum quoted by the Agent as the average of the
rates per annum offered to the Agent by one or more prime banks in the London,
England interbank market of deposits in U.S. Dollars for delivery on the first
day of the applicable Interest Period, maturing on the last day of the Interest
Period and in an amount equal (or as nearly as equal as practicable) to the
related LIBOR Rate Borrowing. The average of the rates quoted to the Agent will
be rounded to the next higher multiple of 1/16% to determine the London
Interbank Rate. The Agent will select the prime banks for determining the London
Interbank Rate in its sole discretion, and the Agent will request rate
quotations in accordance with the then existing practice in the London, England
interbank market. The Agent will determine the London Interbank Rate at or
before 10:00 a.m., two (2) LIBOR Business Days prior to the first day of the
applicable LIBOR Interest Period, and each determination by the Agent of the
London Interbank Rate will be conclusive and binding, absent manifest error, and
may be computed using any reasonable averaging and attribution method.
Majority Banks shall mean two (2) or more Banks having 66-2/3% or
greater of the Aggregate Commitment.
Material Adverse Effect shall mean a material adverse effect on the
assets, liabilities, financial condition, business or affairs of the Company and
its Subsidiaries on a consolidated basis.
Maturity Date shall mean the earlier of (a) the date three (3) years
from the date hereof, (b) the date the Company terminates the Commitment
pursuant to Section 2.2 hereof, and (c) the date specified by the Agent pursuant
to Section 7.1 hereof.
Net Income shall mean gross revenues and other proper income credits,
less all proper income charges, including taxes on income, all determined in
accordance with Generally Accepted Accounting Principles; provided, that there
shall not be included in such revenues (i) any income representing the excess of
equity in any Subsidiary at the date of acquisition over the investment in such
Subsidiary, (ii) any equity in the undistributed earnings of any Person which is
not a Subsidiary, (iii) any earnings of any Subsidiary for any period prior to
the date such Subsidiary was acquired, except as may be permitted under
Generally Accepted Accounting Principles in connection with the pooling of
interest method of accounting, and (iv) any gains resulting from the write-up of
assets. Net Income shall be determined on a consolidated basis.
Net Proceeds Amount shall mean, with respect to any Permitted Asset
Dispositions and Permitted Stock Dispositions by the Company and/or any of its
Subsidiaries, an amount equal to the difference between (a) the aggregate
consideration paid to or received by the Company and/or any of its Subsidiaries
in connection with such Permitted Asset Dispositions and Permitted Stock
Dispositions and (b) all ordinary and reasonable out of pocket expenses actually
incurred by the Company and/or any of its Subsidiaries in connection with such
Permitted Asset Dispositions and Permitted Stock Dispositions.
Notes shall mean the promissory notes, each substantially in the form
of Exhibit A attached hereto, of the Company evidencing the Loans, payable to
the order of the respective Banks in the amount of said Bank's Commitment, and
all renewals, extensions, modifications, rearrangements and replacements thereof
and substitutions therefor. Note shall mean any one of them.
Note Purchase Agreements shall have the meaning given to such term in
Section 6.1(l) hereof.
Notice of Assumption shall mean a Notice of Assumption in favor of the
Agent, substantially in the form of Exhibit B attached hereto and otherwise in
Proper Form.
Officer's Certificate shall mean a certificate substantially in the
form of Exhibit C attached hereto.
<PAGE>
Operating Lease Expense shall mean for any period for which Operating
Lease Expense is calculated, the aggregate amount of fixed and contingent
rentals (exclusive of payments of Capital Lease Obligations) payable by the
Company and its Subsidiaries for such period with respect to leases of Property.
Operating Lease Expense shall be determined for the Company and its Subsidiaries
on a consolidated basis in accordance with Generally Accepted Accounting
Principles, consistently applied.
Organizational Documents shall mean, with respect to a corporation, the
certificate of incorporation, articles of incorporation and bylaws of such
corporation; with respect to a partnership, the partnership agreement
establishing such partnership; with respect to a joint venture, the joint
venture agreement establishing such joint venture, and with respect to a trust,
the instrument establishing such trust; in each case including any and all
modifications thereof as of the date of the Loan Document referring to such
Organizational Document and any and all future modifications thereof which are
consented to by the Agent.
Parties shall mean all Persons other than the Agent, any Bank, or the
Issuer executing any Loan Document.
Past Due Rate shall mean, on any day, the Alternate Base Rate plus
three percent (3%), not to exceed the Highest Lawful Rate in effect on such day.
Permitted Asset Dispositions shall have the meaning attributed to such
terms in Section 6.4(z) hereof.
Permitted Investment Securities shall mean: (1) readily marketable
securities issued or fully guaranteed by the United States of America or any
agency or wholly owned corporation thereof; (2) commercial paper rated "Prime 1"
by Moody's Investors Service, Inc. or A-1 by Standard and Poor's Corporation
with maturities of not more than one hundred eighty (180) days and short term
notes payable of any Business Entity where said notes are rated at least "Prime
1" by Moody's Investors Service, Inc. or "A-1" by Standard & Poor's Corporation
with maturities of not more than ninety (90) days; (3) certificates of deposit
or repurchase certificates issued by any Bank or any other financial institution
acceptable to the Agent, all of the foregoing not having a maturity of more than
one (1) year from the date of issuance thereof; (4) securities issued by
municipalities rated AA or better by Standard & Poor's Corporation not having a
maturity of more than one (1) year from the date of issuance thereof; and (5)
money market mutual funds having capital surplus of at least $1,000,000,000 and
deemed acceptable by the Agent, substantially all of the assets of which are
comprised of securities, commercial paper, certificates of deposit or repurchase
certificates of the type described in subclauses (1) through (4) above.
Permitted Stock Dispositions shall have the meaning attributed to such
terms in Section 6.4(z) hereof.
Person shall mean any individual, corporation, trust, unincorporated
organization, Governmental Authority or any other form of entity.
Plan shall mean any plan subject to Title IV of ERISA and maintained
for employees of the Company or of any member of a "controlled group of
corporations", as such term is defined in the Code, of which the Company or any
of its Subsidiaries it may acquire from time to time is a part, or any such plan
to which the Company or any of its Subsidiaries it may acquire from time to time
is required to contribute on behalf of its employees.
Prime Rate shall mean, for any day, the prime rate as determined from
time to time by Chase as being its prime rate for that day. Without notice to
the Company or any other Person, the Prime Rate shall automatically fluctuate
upward and downward as and in the amount by which said Prime Rate fluctuates,
with each change to be effective as of the date of each change in said Prime
Rate. The Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer, and Chase disclaims any
statement, representation, or warranty to the contrary. Chase may make
commercial loans or other loans at rates of interest at, above, or below the
Prime Rate.
<PAGE>
Principal Office shall mean the principal office of the Agent,
presently maintained at 712 Main Street, Houston, Texas, or at such other place
as the Agent may from time to time by notice to the Company designate.
Proper Form shall mean in form and substance satisfactory to the Agent.
Property shall mean any interest in any kind of property or asset,
whether real, personal or mixed, tangible or intangible.
Quarterly Unaudited Financial Statements shall mean, with respect to
each fiscal quarter of the Company (except for the last fiscal quarter), the
Company's 10-Q Report filed with the Securities Exchange Commission for such
fiscal quarter. All of the Quarterly Unaudited Financial Statements of the
Company are to be prepared in accordance with Generally Accepted Accounting
Principles and certified as true and correct by the chief executive officer,
president, chief operating officer or chief financial officer of the Company.
Ratable Portion shall mean an amount equal to the product of (a) the
Net Proceeds Amount attributable to the applicable Permitted Asset Dispositions
and Permitted Stock Dispositions multiplied by (b) a fraction, the numerator of
which is the outstanding principal balance of the Loans at such time and the
denominator of which is the aggregate principal amount of Funded Indebtedness
(including without limitation, the Notes) at such time of the Company and its
Subsidiaries on a consolidated basis.
Rate Selection Date shall mean that Business Day which is (a) in the
case of Alternate Base Rate Borrowings, the date of such borrowing or (b) in the
case of LIBOR Rate Borrowings, the date three (3) LIBOR Business Days preceding
the first day of any proposed LIBOR Interest Period.
Rate Selection Notice shall have the meaning ascribed to it in Section
2.10(b)(1) hereof.
Regulation D shall mean Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
Regulatory Change shall mean, with respect to any Bank, any change on
or after the date of this Agreement in any Legal Requirement (including
Regulation D) or the adoption or making on or after such date of any
interpretation, directive or request applying to a class of banks including such
Bank under any Legal Requirement (whether or not having the force of law) by any
Governmental Authority charged with the interpretation or administration
thereof.
Request for Extension of Credit and Certificate of No Default shall
mean a written request for extension of credit substantially in the form of
Exhibit D attached hereto.
Requirements of Environmental Law shall mean all requirements imposed
by any law (including The Resource Conservation and Recovery Act, The
Comprehensive Environmental Response, Compensation, and Liability Act, the Clean
Water Act, the Clean Air Act, and any state analogues of any of the foregoing),
rule, regulation, or order of any Governmental Authority now or hereafter in
effect which relate to (i) noise; (ii) pollution, protection or clean-up of the
air, surface water, ground water or land; (iii) solid, gaseous or liquid waste
or Hazard Substance generation, recycling, reclamation, release, threatened
release, treatment, storage, disposal or transportation; (iv) exposure of
Persons or property to Hazardous Substances; (v) the safety or health of
employees or other Persons or (vi) the manufacture, presence, processing,
distribution in commerce, use, discharge, releases, threatened releases,
emissions or storage of Hazardous Substances into the environment. Requirement
of Environmental Law shall mean any one of them.
Rolling Four Quarters shall mean the then most recently ended four (4)
consecutive fiscal quarters of the Company for which, as of such day, financial
statements are required to have been given to the Agent and Banks pursuant to
this Agreement.
<PAGE>
Stated Rate shall mean the effective weighted per annum rate of
interest applicable to the Loans.
Stock shall mean as to a Business Entity, all capital stock or other
indicia of equity rights issued by such Business Entity from time to time.
Subsidiary shall mean, as to a particular parent Business Entity, any
Business Entity of which more than fifty percent (50%) of the capital stock or
other indicia of equity rights issued by such Business Entity is at the time
directly or indirectly owned by, such parent Business Entity, or by one or more
of its Affiliates.
Taxes shall have the meaning ascribed to it in Section 2.11(b) hereof.
Unsecured Borrowed Debt shall mean all Indebtedness resulting from
borrowings of the Company (exclusive of intercompany borrowings) from time to
time owing to Persons which is not secured by any Liens (other than borrowings
from trade creditors in the ordinary course of business), including the
Indebtedness of the Company owing to the Banks or the Agent pursuant to this
Agreement.
Unused Commitment shall mean, as to a particular Bank, the daily
difference of such Bank's Commitment on such day less the Current Sum applicable
to such Bank on such day.
1.2. Accounting Terms and Determinations. Except where specifically
otherwise provided:
(a) The symbol "$" and the word "dollars" shall mean lawful money of
the United States of America.
<PAGE>
(b) Any accounting term not otherwise defined shall have the meaning
ascribed to it under Generally Accepted Accounting Principles.
(c) Unless otherwise expressly provided, any accounting concept and
all financial covenants shall be determined on a consolidated basis, and
financial measurements shall be computed without duplication.
(d) Wherever the term "including" or any of its correlatives appears
in the Loan Documents, it shall be read as if it were written "including
(by way of example and without limiting the generality of the subject or
concept referred to)".
(e) Wherever the word "herein" or "hereof" is used in any Loan
Document, it is a reference to that entire Loan Document and not just to
the subdivision of it in which the word is used.
(f) References in any Loan Document to Section numbers are references
to the Sections of such Loan Document.
(g) References in any Loan Document to Exhibits, Schedules, Annexes
and Appendices are to the Exhibits, Schedules, Annexes and Appendices to
such Loan Document, and they shall be deemed incorporated into such Loan
Document by reference.
(h) Any term defined in the Loan Documents which refers to a
particular agreement, instrument or document shall also mean, refer to and
include all modifications, amendments, supplements, restatements, renewals,
extensions and substitutions of the same; provided that nothing in this
subsection shall be construed to authorize any such modification,
amendment, supplement, restatement, renewal, extension or substitution
except as may be permitted by other provisions of the Loan Documents.
(i) All times of day used in the Loan Documents mean local time in
Houston, Texas.
(j) Defined terms may be used in the singular or plural, as the
context requires.
2. Loans; Letters of Credit; Payments; Prepayments; Interest Rates.
<PAGE>
2.1. Loans.
(a) Subject to the terms and conditions hereof, each Bank severally
agrees to make loans to the Company from time to time before the Maturity
Date, in an aggregate principal amount at any one time outstanding
(including its liability for the Letter of Credit Exposure Amount at such
time) up to but not exceeding such Bank's Commitment. Subject to the
conditions herein, any such Loan repaid prior to the Maturity Date may be
reborrowed pursuant to the terms of this Agreement. Each Loan which is not
made to repay a Letter of Credit Advance pursuant to Section 2.4 hereof
shall be in an amount of at least (i) $500,000 or (ii) the Unused
Commitment, whichever is less. Each repayment of the Loans shall be in an
amount of at least $500,000 or the principal balance of the Notes,
whichever is less. The Agent, the Banks and the Company agree that Chapter
346 of the Texas Finance Code shall not apply to this Agreement, any Note
or any Loan. The Loans shall be evidenced by the Notes.
(b) The Company shall give the Agent notice of a request for a Loan in
accordance with Section 3.1 hereof. Upon receipt of each such notice, the
Agent shall promptly give each of the Banks notice by telephone of receipt
thereof. Not later than 12:00 noon on the date specified for the making of
such Loan, each Bank shall make available to the Agent at the Principal
Office, such Bank's Commitment Percentage of such Loan in immediately
available funds for the account of the Company. The amount so received by
the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Company by depositing same, in immediately available
funds, in an account designated by the Company maintained with the Agent at
the Principal Office. If a requested Loan shall not occur on any date
specified by the Company as set forth in the applicable Request for
Extension of Credit and Certificate of No Default because all of the
conditions for such Loan set forth herein or in any of the other Loan
Documents shall have not been met, the Agent shall return the amounts so
received from the Banks in respect of such requested Loan to the applicable
Banks as soon as practicable; provided, however, if and to the extent that
the Agent fails to return any such amounts to any applicable Bank on the
date that the requested Loan was to have been made, the Agent shall pay
interest on such unreturned amounts for each date from such date that the
requested Loan was to have been made, to the date that such unreturned
amounts are returned to such Bank, such interest to accrue at the Federal
Funds Rate and to be payable upon written request from such Bank.
(c) The obligations of the Banks hereunder are several and not joint;
therefore, notwithstanding anything herein to the contrary, (i) no Bank
shall be required to make Loans at any one time outstanding in excess of
such Bank's Commitment Percentage, (ii) if a Bank fails to make a Loan as
and when required hereunder and the Company subsequently makes a repayment
on the Loans, such repayment shall be split among the non-defaulting Banks
in accordance with their respective Commitment Percentages until each Bank
has its Commitment Percentage of all of the outstanding Loans, then the
balance of such repayment shall be divided among all of the Banks in
accordance with their respective Commitments (it being understood that any
such repayment to a defaulting Bank shall not be deemed to relieve such
defaulting Bank from any liability to the Company resulting from such
defaulting Bank's failure to make a Loan as and when required hereunder)
and (iii) the failure of any Bank to make any Loan shall not in itself
relieve any other Bank of its obligation to lend hereunder (provided, that
no Bank shall be responsible for the failure of any other Bank to make a
Loan such other Bank is obligated to make hereunder).
2.2. Commitment Fees; Termination and Reductions. In consideration of
each Bank's Commitment, the Company agrees to pay to the Agent for the account
of each Bank a commitment fee (each a "Commitment Fee") (computed on the basis
of the actual number of days elapsed in a year composed of 360 days, subject to
the terms of Section 9.6 hereof) in an amount equal to the product of (A) the
Applicable Commitment Fee Percentage in effect for the period for which the
Commitment Fee is being computed times (B) such Bank's Unused Commitment. The
Commitment Fee shall be due and payable in arrears on the last Business Day of
each March, June, September and December prior to the Maturity Date and on the
Maturity Date, with each Commitment Fee to commence as of the date hereof and to
be effective as to any reduction in the Commitment or change in the Applicable
Commitment Fee Percentage as of the date of any such decrease or change, and
each Commitment Fee shall cease to accrue (except with respect to past due
interest on any unpaid portion thereof) on the Maturity Date. All past due
Commitment Fees shall bear interest at the Past Due Rate and shall be payable
upon demand by the Agent. The Aggregate Commitment may be permanently terminated
or reduced as follows, which such reductions shall be applied prorata:
<PAGE>
(a) the Company may, upon ten (10) Business Days' prior written notice to
the Agent, permanently terminate or reduce the Aggregate Commitment in
an amount of at least $5,000,000 or the amount of the Aggregate
Commitment at such time, whichever is less;
(b) any prepayment of the Loans and Letter of Credit Advances in accordance
with the provisions of Section 2.3(c)(3) hereof shall permanently and
automatically reduce the Aggregate Commitment in an amount equal to any
such prepayment; and
(c) if the ten percent (10%) of Consolidated Net Worth threshold discussed
in Section 2.3(c) hereof shall be reached in any fiscal year with
respect to Permitted Asset Dispositions and Permitted Stock
Dispositions, the Banks may, with the unanimous written consent of all
of the Banks, unilaterally reduce the Aggregate Commitment by an
amount up to, but not in excess of, the difference between (1) the
aggregate consideration paid to or received by the Company and/or its
Subsidiaries with respect to Permitted Assets Dispositions and
Permitted Stock Dispositions in excess of such ten percent (10%) of
Consolidated Net Worth threshold and (2) the amount that the Aggregate
Commitment is permanently reduced in accordance with the provisions of
subparagraph (b) above (with the effective date of any such permanent
reduction of the Aggregate Commitment in accordance with this
subparagraph (c) being the date upon which the Agent has provided the
Company with written notice of such permanent reduction of the
Commitment).
2.3 Mandatory Prepayments.
(a) If the Current Sum applicable to a Bank at any time exceeds such
Bank's Commitment, the Agent shall notify the Company in writing of the
deficiency by overnight priority delivery service provided by a nationally
recognized delivery service or, if the officer of the Agent providing such
notice to the Company is located in Austin, Texas, by hand delivery confirmed by
written receipt. Within three Business Days after the actual receipt of such
notice, the Company shall make a prepayment on such Bank's Note or otherwise
reimburse the Agent for Letter of Credit Advances or cause the one or more
Letters of Credit to be canceled and surrendered in an amount sufficient to
reduce such Current Sum to an amount no greater than such Commitment.
(b) If the aggregate consideration paid to the Company and/or any of
its Subsidiaries from all Permitted Asset Dispositions and all Permitted Stock
Dispositions during any fiscal year exceeds $20,000,000, but is less than or
equal to ten percent (10%) of the Consolidated Net Worth of the Company
determined as of the end of the Company's preceding fiscal year, within three
(3) Business Days after the consummation of the applicable Permitted Asset
Dispositions or Permitted Stock Dispositions, the Company shall make a
prepayment against the Loans and Letter of Credit Advances then outstanding in
an amount equal to the Net Proceeds Amount attributable to Permitted Asset
Dispositions and Permitted Stock Dispositions in excess of such $20,000,000
threshold.
(c) If the aggregate consideration paid to the Company and/or any of
its Subsidiaries from all Permitted Asset Dispositions and all Permitted Stock
Dispositions during any fiscal year exceeds ten percent (10%) of the
Consolidated Net Worth of the Company determined as of the end of the Company's
preceding fiscal year, the Company shall fully comply with each of the
following:
(1) within three (3) Business Days after the consummation of
Permitted Asset Dispositions and Permitted Stock Dispositions
in excess of the $20,000,000 threshold described in
subparagraph (b) above, but less than or equal to such ten
percent (10%) of Consolidated Net Worth threshold, the Company
shall make a prepayment against the Loans and Letter of Credit
Advances then outstanding in an amount equal to the Net
Proceeds Amount attributable to such Permitted Asset
Dispositions and Permitted Stock Dispositions;
(2) within six (6) months after the consummation of Permitted
Asset Dispositions and Permitted Stock Dispositions in excess
of the above-described ten percent (10%) of Consolidated Net
Worth threshold, the Company shall apply all of the Net
Proceeds Amount attributable to such Permitted Asset
Dispositions and Permitted Stock Dispositions as required
under Section 10.6 of the Note Purchase Agreements (including
without limitation, any prepayment of the Loans and Letter of
Credit Advances required pursuant to subparagraph (3) below);
and
<PAGE>
(3) within the six (6) month period described in subparagraph (2)
above, the Company shall make a prepayment against the Loans
and the Letter of Credit Advances then outstanding in an
amount equal to the Ratable Portion for such Loans and Letter
of Credit Advances outstanding hereunder (unless all of the
Banks elect in writing to not require any such prepayment
against the Loans and Letter of Credit Advances then
outstanding).
(d) If the Net Proceeds Amount otherwise payable to the Agent for the
ratable benefit of the Banks pursuant to Sections 2.3(b) or (c) above
exceeds the amount of Loans and Letter of Credit Advances then
outstanding, the Company shall be entitled to retain for its
unrestricted use any portion of such Net Proceeds Amount remaining
after the outstanding Loans and Letter of Credit Advances have been
fully paid.
(e) The Company shall have the right to extend for up to six months any
mandatory prepayment date provided for in Sections 2.3(b) and (c) as
necessary to avoid payment of any Consequential Loss, but only for the
applicable portion of any such prepayment that would otherwise be
applied to one or more LIBOR Rate Borrowings then outstanding as of the
date that such prepayment is otherwise required hereunder.
2.4. Letters of Credit.
(a) Subject to the terms and conditions contained herein, the
Company shall have the right to utilize the Aggregate Commitment from time to
time prior to the Letter of Credit Termination Date, by obtaining from the
Issuer one or more Letters of Credit for the account of the Company or any of
its Subsidiaries (with the Company being jointly and severally liable under the
terms of the applicable Application for any Letter of Credit issued for the
account of any of the Company's Subsidiaries) in such amounts and in favor of
such beneficiaries as the Company from time to time shall request; provided,
that in no event shall the Issuer have any obligation to issue any Letter of
Credit if (i) the face amount of such Letter of Credit plus the Letter of Credit
Exposure Amount at such time would exceed $10,000,000, (ii) the face amount of
such Letter of Credit plus the aggregate of each Bank's Current Sum at such
time, would exceed the Aggregate Commitment, (iii) such Letter of Credit would
have an expiry date later than the Maturity Date, (iv) either such Letter of
Credit is not in such form and does not contain such terms as shall be
satisfactory to the Agent and the Banks in their respective sole and absolute
discretion or the Company has not executed and delivered such Applications and
other instruments and agreements relating to such Letter of Credit as the Agent
shall have requested or (v) an event has occurred and is continuing which
constitutes a Default as provided in Section 7 of this Agreement. The Company
promises to pay to the order of the Issuer the amount of all Letter of Credit
Advances, together with accrued interest thereon (if any). Each Letter of Credit
Advance shall be considered for all purposes as a demand obligation owing by the
Company to the Issuer of the Letter of Credit to which it relates, and each
Letter of Credit Advance shall bear interest from the date thereof at the Past
Due Rate, without notice of presentment, demand, protest or other formalities of
any kind (said past due interest on such Letter of Credit Advance being payable
on demand). To effect repayment of any such Letter of Credit Advance and any
interest accrued thereon, the Agent may, but shall not be obligated to, at any
time deem that the Company has requested an Alternate Base Rate Borrowing under
the Notes to be made to satisfy such Letter of Credit Advance and any interest
accrued thereon (if any), and if the Agent deems that the Company has requested
an Alternate Base Rate Borrowing under the Notes to be made to satisfy such
letter of Credit Advance and any interest accrued thereon (if any), the Banks
shall satisfy such Letter of Credit Advance and any interest accrued thereon (if
any) by (subject to the terms and conditions of Section 2.1 hereof) making an
Alternate Base Rate Borrowing under the Notes, if such Letter of Credit Advance
is (and such Loan is to be) made prior to the Maturity Date. The Issuer will pay
to each Bank such Bank's Commitment Percentage of all amounts received from the
Company by the Issuer, if any, for application, in whole or in part, against the
Letter of Credit Advances in respect to any Letter of Credit, but only to the
extent such Bank has made its full pro rata payment of each drawing under the
Letter of Credit to which such Letter of Credit Advance relates. All rights,
powers, benefits and privileges of this Agreement with respect to the Notes, all
security therefor and guaranties thereof (including the Guaranties) and all
restrictions, provisions for repayment or acceleration and all other covenants,
warranties, representations and agreements of the Company contained in this
Agreement with respect to the Notes shall apply to each such Letter of Credit
Advance.
(b) In consideration of the issuance of each Letter of Credit
pursuant to the provisions of this Section 2.4, the Company agrees to pay
(subject to Section 9.6 hereof) to the Issuer a letter of credit fee in arrears
on each Letter of Credit Fee Payment Date equal to the product of (A) the
Applicable Margin then in effect for LIBOR Rate Borrowings times (B) the amount
available for drawings under such Letter of Credit on such Letter of Credit Fee
<PAGE>
Payment Date times (C) the number of days from, but not including, such Letter
of Credit Fee Payment Date through and including the next to occur Letter of
Credit Fee Payment Date (or expiry date, if sooner) applicable to such Letter of
Credit divided by 360; provided, that in no event shall the fee to be paid on
any Letter of Credit Fee Payment Date for any such Letter of Credit ever be less
than $500. In addition, with respect to each Letter of Credit, the Company shall
pay to the Issuer, for the benefit of the Issuer only, a fronting fee, in
advance, on such Letter of Credit, which shall be due and payable on each Letter
of Credit Fee Payment Date. The fronting fee amount so payable shall be equal to
the product of (A) one-eighth of one percent (1/8%) times (B) the amount
available for drawings under such Letter of Credit on such Letter of Credit Fee
Payment Date times (C) the number of days from, but not including, such Letter
of Credit Fee Payment Date through and including the next to occur Letter of
Credit Fee Payment Date (or expiry date, if sooner) applicable to such Letter of
Credit divided by 360.
The Issuer will pay to each Bank, as soon as practicable after receiving any
payment of letter of credit fees (other than any fronting fee payable only for
the benefit of the Issuer), an amount equal to the product of (A) such Bank's
Commitment Percentage times (B) the amount of such fees received (other than any
fronting fee payable only for the benefit of the Issuer). If the Issuer fails to
send to any Bank such Bank's pro-rata portion of any payment of letter of credit
fees timely received by the Issuer hereunder by the close of business on the
Business Day such payment was received by the Issuer, the Issuer shall pay to
such Bank interest on such Bank's pro-rata portion of the letter of credit fees
timely received by the Issuer from such date of receipt by the Issuer to the
date that such Bank receives its pro-rata portion of such payment, such interest
to accrue at the Federal Funds Rate and to be payable upon written request from
such Bank. The obligations of the Company under this Agreement in respect of the
Letters of Credit and Letter of Credit Advances shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including the following
circumstances:
(1) any lack of validity or enforceability of this Agreement, any
Letter of Credit or any Loan Document;
(2) any amendment or waiver of default under or any consent to
departure from the terms of this Agreement or any Letter of
Credit without the express prior written consent of the Agent and
the Issuer of such Letter of Credit;
(3) the existence of any claim, set-off, defense or other right which
any beneficiary or any transferee of any Letter of Credit (or any
entities for whom any such beneficiary or any such transferee may
be acting), or any Person (other than the Agent or the Banks) may
have, whether in connection with this Agreement, the Letters of
Credit, the transactions contemplated hereby or any unrelated
transaction;
(4) any statement, draft, certificate, or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever; provided that the Issuer will examine each document
presented under each Letter of Credit to ascertain that such
document appears on its face to comply with the terms thereof;
and
(5) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
In the event that any restriction or limitation is imposed upon or determined or
held to be applicable to the Agent, any Bank or the Company by, under or
pursuant to any Legal Requirement now or hereafter in effect or by reason of any
interpretation thereof by any Governmental Authority, which in the respective
sole judgment of the Agent or any Bank would prevent any Bank from legally
incurring liability under a Letter of Credit issued or proposed to be issued
hereunder, then the Agent shall give prompt written notice thereof to the
Company, whereupon the Banks shall have no obligation to issue any additional
Letters of Credit then or at any time thereafter. In addition, if as a result of
any Regulatory Change which imposes, modifies or deems applicable (x) any tax,
reserve, special deposit or similar requirement against letters of credit issued
or participated to by any Bank; (y) any fee, expense or assessment against
<PAGE>
Letters of Credit issued by the Issuer, the Agent or any Bank for deposit
insurance, or (z) any other charge, expense or condition which increases the
actual cost to the Issuer, the Agent or any Bank of issuing or maintaining the
Letters of Credit, or reduces any amount receivable by the Agent or any Bank
hereunder in respect of any Letter of Credit or any participation therein (which
increase in cost, or reduction in amount receivable, shall be the result of the
Issuer's, the Agent's or such Bank's reasonable allocation of the aggregate of
such increases or reductions resulting from such event), then the Company
(subject to Section 9.6 hereof) shall pay to the Issuer, the Agent or such Bank,
upon demand and from time to time, amounts sufficient to compensate such Person
for each such increase from the effective date of such increase to the date of
demand therefor. Each such demand shall be accompanied by a certificate setting
forth in reasonable detail the calculation of the amount then being demanded in
accordance with the preceding sentence and each such certificate shall be
conclusive absent manifest error.
<PAGE>
(c) THE COMPANY HEREBY INDEMNIFIES AND HOLDS HARMLESS THE
ISSUER, EACH BANK AND THE AGENT FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES,
LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH THE ISSUER, SUCH BANK OR THE AGENT
MAY INCUR (OR WHICH MAY BE CLAIMED AGAINST THE ISSUER, SUCH BANK OR THE AGENT BY
ANY PERSON WHATSOEVER) IN CONNECTION WITH THE EXECUTION AND DELIVERY OR TRANSFER
OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT, INCLUDING ANY
CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH THE ISSUER, THE
AGENT OR SUCH BANK, AS THE CASE MAY BE, MAY INCUR (WHETHER INCURRED AS A RESULT
OF ITS OWN NEGLIGENCE OR OTHERWISE) BY REASON OF OR IN CONNECTION WITH THE
FAILURE OF ANY OTHER BANK (WHETHER AS A RESULT OF ITS OWN NEGLIGENCE OR
OTHERWISE) TO FULFILL OR COMPLY WITH ITS OBLIGATIONS TO THE ISSUER, THE AGENT OR
SUCH BANK, AS THE CASE MAY BE, HEREUNDER (BUT NOTHING HEREIN CONTAINED SHALL
AFFECT ANY RIGHTS THE COMPANY MAY HAVE AGAINST SUCH DEFAULTING BANK); PROVIDED,
THAT THE COMPANY SHALL NOT BE REQUIRED TO INDEMNIFY THE ISSUER, ANY BANK OR THE
AGENT FOR ANY CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES TO THE
EXTENT, BUT ONLY TO THE EXTENT, CAUSED BY (I) THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION OR (II) THE ISSUER'S, SUCH
BANK'S OR THE AGENT'S (AS THE CASE MAY BE) FAILURE TO PAY UNDER ANY LETTER OF
CREDIT AFTER THE PRESENTATION TO IT OF A REQUEST REQUIRED TO BE PAID UNDER
APPLICABLE LAW. NOTHING IN THIS SECTION 2.4(C) IS INTENDED TO LIMIT THE
OBLIGATIONS OF THE COMPANY UNDER ANY OTHER PROVISION OF THIS AGREEMENT.
(d) The Company shall give the Agent the Application for a
Letter of Credit in accordance with the terms of Section 3.1 hereof. Upon
receipt of any such Application (which such Application, when so received by the
Agent, shall be deemed received by the Issuer), the Agent shall promptly notify
each Bank that a Letter of Credit has been requested in the amount reflected in
such Application and inform such Bank of the amount of its pro-rata portion of
such proposed Letter of Credit (based upon such Bank's Commitment Percentage).
(e) If at any time the Issuer shall have made a payment to a
beneficiary of a Letter of Credit in respect of a drawing or in respect of an
acceptance created in connection with a drawing under such Letter of Credit,
each other Bank will pay to the Issuer immediately upon demand by the Issuer at
any time during the period commencing after such payment until reimbursement
thereof in full by the Company, an amount equal to the product of (A) such
Bank's Commitment Percentage times (B) the amount of such payment made by the
Issuer to a beneficiary under such Letter of Credit, together with interest on
such amount for each day from the date of demand by the Issuer for such payment
(or, if such demand is made after 11:00 a.m. on such date, from the next
succeeding Business Day) to the date of payment by such Bank to the Issuer of
such amount at a rate of interest per annum equal to the Federal Funds Rate for
such period. Nothing herein shall be deemed to require any Bank to pay to the
Issuer any amount as reimbursement for any payment made by the Issuer to acquire
(discount) for its own account prior to maturity thereof any acceptance created
under a Letter of Credit.
(f) Simultaneously with the Issuer's issuance and delivery of
any Letter of Credit, the Issuer shall be deemed, without further action, to
have sold to each other Bank, and such other Bank shall be deemed, without
<PAGE>
further action by any party hereto, to have purchased from the Issuer, a
participation interest equal to such other Bank's Commitment Percentage at such
time in such Letter of Credit and all of the Letter of Credit Exposure Amount
related to such Letter of Credit; provided, that no such Bank shall be obligated
to participate in a particular Letter of Credit if such Letter of Credit was
issued or honored solely as a result of the Issuer's gross negligence or wilful
misconduct.
2.5. Payments. All sums payable by the Company to the Agent or the
Issuer hereunder or pursuant to Notes for its own account or the account of the
Banks shall be payable in United States dollars in immediately available funds
not later than 12:00 noon on the date such payment or prepayment is due and
shall be made without set-off, counterclaim or deduction of any kind. Any such
payment received and accepted by the Agent or the Issuer after such time shall
be considered for all purposes (including the payment of interest, to the extent
permitted by law) as having been made on the next succeeding Business Day. All
such payments shall be made at the Principal Office. If any payment or
prepayment becomes due and payable on a day which is not a Business Day, then
the date for the payment thereof shall be extended to the next succeeding
Business Day and interest shall be payable thereon at the then applicable rate
per annum during such extension.
44
<PAGE>
2.6. Prepayments of Loans.
(a) In addition to the mandatory prepayments required by
Section 2.3 hereof, the Company shall have the right, at its option, to prepay
the Loans in whole at any time or in part from time to time, without premium or
penalty, except as provided in this Section or subsections (a), (b) or (c) of
Section 2.11 hereof. Each partial prepayment under this subsection shall be an
integral multiple of $500,000. Each prepayment under this subsection shall be
applied to the prepayment of the aggregate unpaid principal amount of the Notes.
Prepayments under this Agreement shall be subject to the following additional
conditions:
(1) In giving notice of prepayment as hereinafter
provided, the Company shall specify, for the purpose
of paragraphs (2) and (3) immediately following, the
manner of application of such prepayment as between
any outstanding Alternate Base Rate Borrowings and
LIBOR Rate Borrowings; provided, that in no event
shall any LIBOR Rate Borrowing be partially prepaid.
(2) Prepayments applied to any LIBOR Rate Borrowing may
be made on any LIBOR Business Day, provided, that (i)
the Company shall have given the Agent at least five
(5) LIBOR Business Days' prior irrevocable written or
telecopied notice of such prepayment, specifying the
principal amount of the LIBOR Rate Borrowing to be
prepaid, the particular LIBOR Rate Borrowing to which
such prepayment is to be applied and the prepayment
date; and (ii) if such prepayment is made on any day
other than the last day of the LIBOR Interest Period
corresponding to the LIBOR Rate Borrowing to be
prepaid, the Company shall pay directly to the Agent
for the account of the Banks, on the last day of such
LIBOR Interest Period, the Consequential Loss as a
result of such prepayment.
(3) Prepayments applied to any Alternate Base Rate
Borrowing may be made on any Business Day, provided
that the Company shall have given the Agent at least
five (5) Business Days prior irrevocable written
notice or notice by telephone (which is to be
promptly confirmed in writing) of such prepayment,
specifying the principal amount of the Alternate Base
Rate Borrowing to be prepaid and the prepayment date.
(b) Notice of any prepayment having been given, the principal
amount specified in such notice, together with (in the case of any prepayment of
a LIBOR Rate Borrowing) interest thereon to the date of prepayment, shall be due
and payable on such prepayment date.
(c) Any Bank may, if it so elects, fulfill its obligation as
to any LIBOR Rate Borrowing by causing a branch, foreign or otherwise, or
Affiliate of such Bank to make such Loans and may transfer and carry such Loans
at, to or for the account of any branch office or Affiliate of such Bank;
provided, that in such event for the purposes of this Agreement such Loans shall
be deemed to have been made by such Bank and the obligation of the Company to
repay such Loans shall nevertheless be to such Bank and shall be deemed held by
it, to the extent of such portions of the Loan, for the account of such branch
or affiliate.
(d) Notwithstanding any provision of this Agreement to the
contrary, each Bank shall be entitled to fund and maintain its funding of all or
any part of the Loans hereunder in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all determinations hereunder
shall be made as if such Bank had actually funded and maintained its portion of
each LIBOR Rate Borrowing during each LIBOR Interest Period for the Loans
through the purchase of deposits having a maturity corresponding to such LIBOR
Interest Period and bearing an interest rate equal to the London Interbank Rate
for such LIBOR Interest Period.
(e) The Company's obligation to pay increased costs and
Consequential Loss with regard to each LIBOR Rate Borrowing as specified in this
Section 2.6 hereof shall survive termination of this Agreement.
2.7. Application of Payments and Prepayments. Prepayments on the Notes
shall be applied first to principal, the balance to accrued interest. Regular
payments on each Note shall be applied first to accrued interest, the balance to
<PAGE>
the principal. If the Agent receives funds on a date when payments are due under
the Notes and such funds are not sufficient to pay all of the obligations of the
Company hereunder then due, then such funds shall be applied (a) first to the
accrued interest on and, to the extent then due, principal of the Notes then
outstanding, and (b) then to the unpaid expenses of the Agent and the Banks
which are to be paid by the Company. Each payment received by the Agent
hereunder or under any Note for the account of a Bank shall be paid promptly to
such Bank, in immediately available funds. If the Agent fails to send to any
Bank the product of such Bank's Commitment Percentage times the aggregate amount
of any such payment timely received by the Agent for the account of all the
Banks by the close of business on the date such payment was received by the
Agent, the Agent shall pay to such Bank interest on such Bank's pro-rata portion
of such payment timely received by the Agent from such date of receipt by the
Agent to the date that such Bank receives its pro-rata portion of such payment,
such interest to accrue at the Federal Funds Rate and to be payable upon written
request from such Bank.
2.8. Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing from the Banks under Section 2.1 hereof shall be
made, each payment of commitment fees shall be made and applied for the account
of the Banks, and each termination or reduction of the Commitments of the Banks
under Section 2.2 hereof shall be applied, pro rata, according to each Bank's
Commitment Percentage; (b) each payment by the Company of principal of or
interest on Loans shall be made to the Agent for the account of the Banks pro
rata in accordance with the respective unpaid principal amounts of such Loans
held by the Banks; (c) each Letter of Credit will be issued for the account of
the Banks severally and ratably among the Banks in accordance with which their
respective Commitment Percentages, and (d) the Banks (other than the Issuer)
shall purchase from the Issuer participations in the Letters of Credit, to the
extent their respective Commitment Percentages.
2.9. Interest Payment Dates on the Loans. Subject to Section 9.6
hereof, accrued interest on the unpaid balance of the Loans shall be payable on
the Interest Payment Dates and at the Maturity Date, commencing with the first
of such dates to occur after the date hereof. After the Maturity Date, accrued
interest on the Loans shall be payable on demand.
2.10. Interest Options for Loans.
(a) Options Available. Subject to Section 9.6 hereof, the
Notes shall bear interest on their respective outstanding principal balances at
the Alternate Base Rate; provided, that (1) all past due principal and interest
shall bear interest at the Past Due Rate which shall be payable on demand, and
(2) subject to the provisions hereof, the Company shall have the option of
having all or any portion of the principal balance from time to time outstanding
under the Notes bear interest until their respective maturities at a rate per
annum equal to the LIBOR Rate (together with the Alternate Base Rate,
individually herein called an "Interest Option" and collectively called
"Interest Options"). The records of the Agent with respect to Interest Options,
LIBOR Interest Periods and the amounts of Loans to which they are applicable
shall be binding and conclusive, absent manifest error. Interest on the Loans
shall be calculated at the Alternate Base Rate except where it is expressly
provided pursuant to this Agreement that the LIBOR Rate is to apply.
(b) Designation and Conversion. The Company shall have the
right to designate or convert its Interest Options in accordance with the
provisions hereof. Provided no Default has occurred and is continuing and
subject to the provisions of the last sentence of Subsection 2.10(a) hereinabove
and of Section 2.11 hereof, the Company may elect to have the LIBOR Rate apply
or continue to apply to all or any portion of the principal balance of the
Notes. Each change in Interest Options shall be a conversion of the rate of
interest applicable to the specified portion of the Loans, but such conversion
alone shall not change the outstanding principal balance of the Notes and such
conversion alone shall not be construed to make this Agreement a revolving
credit facility. The Interest Options shall be designated or converted in the
manner provided below:
(1) The Company shall give the Agent notice by telephone,
promptly confirmed by written notice (the "Rate
Selection Notice") substantially in the form of
Exhibit E hereto. Each such telephone and written
notice shall specify the amount and type of
borrowings which are the subject of the designation,
<PAGE>
if any; the amount and type of borrowings into which
such borrowings are to be converted or for which an
Interest Option is designated; the proposed date for
the designation or conversion (which, in the case of
conversion of LIBOR Rate Borrowings, shall be the
last day of the LIBOR Interest Period applicable
thereto) and the LIBOR Interest Period or Periods, if
any, selected by the Company. Such notice by
telephone shall be irrevocable and shall be given to
the Agent no later than the applicable Rate Selection
Date. If (a) a new Loan is to be a LIBOR Rate
Borrowing, (b) an existing LIBOR Rate Borrowing is
maturing at the time that a new Loan is being
requested and the Company is electing to have such
existing portion of the outstanding principal balance
of the Notes going forward bear interest at the same
Interest Option and for the same LIBOR Interest
Period as the new Loan, or (c) a portion of the
Alternate Rate Borrowing is to be converted so as to
bear interest at the same Interest Option and for the
same LIBOR Interest Period as the new Loan, then the
Rate Selection Notice shall be included in the
Request for Extension of Credit and Certificate of No
Default applicable to the new Loan, which shall be
given to the Agent no later than the applicable Rate
Selection Date.
(2) No more than five (5) LIBOR Interest Periods shall be
in effect at any one time. Each LIBOR Rate Borrowing
shall be in the amount of at least $500,000.
(3) Principal included in any borrowing shall not be
included in any other borrowing which exists at the
same time.
(4) Each designation or conversion shall occur on a
Business Day (and, for LIBOR Rate Borrowings, on a
LIBOR Business Day).
(5) Except as provided in Section 2.11 hereof, no LIBOR
Rate Borrowing shall be converted on any day other
than the last day of the applicable LIBOR Interest
Period.
(c) Computations. Interest based on the Alternate Base Rate,
to the extent determined by reference to the Prime Rate, will be computed on the
basis of 365 (or 366) days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable. All other
interest and fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable, unless the effect of so computing
shall be to cause the rate of interest to exceed the Highest Lawful Rate.
2.11. Special Provisions Applicable to LIBOR Rate Borrowings.
(a) Options Unlawful. If, after the date of this Agreement,
the adoption of any applicable Legal Requirement or any change in any applicable
Legal Requirement or in the interpretation or administration thereof by any
Governmental Authority or compliance by the Agent or any Bank with any request
or directive (whether or not having the force of law) of any Governmental
Authority shall at any time make it unlawful or impossible for any Bank to
permit the establishment of or to maintain any LIBOR Rate Borrowing, the
commitment of the Banks to establish or maintain the LIBOR Rate affected by such
adoption or change shall forthwith be canceled and the Company shall forthwith,
upon demand by the Agent to the Company, (1) convert the LIBOR Rate with respect
to which such demand was made to the Alternate Base Rate; (2) pay all accrued
and unpaid interest to date on the amount so converted; and (3) pay any amounts
required to compensate the Agent and the Banks for any additional cost or
expense which the Agent or any Bank may incur as a result of such adoption of or
change in such Legal Requirement or in the interpretation or administration
thereof and any Consequential Loss which the Agent or any Bank may incur as a
result of such conversion to the Alternate Base Rate. If, when the Agent so
notifies the Company, the Company has given a Rate Selection Notice specifying
one or more borrowings of the type with respect to which such demand was made
but the selected LIBOR Interest Period or LIBOR Interest Periods has not yet
<PAGE>
begun, such Rate Selection Notice shall be deemed to be of no force and effect,
as if never made, and the balance of the Loans specified in such Rate Selection
Notice shall bear interest at the Alternate Base Rate until a different
available Interest Option shall be designated in accordance herewith.
(b) Increased Cost of Borrowings. If the adoption of any
applicable Legal Requirement or any change in any applicable Legal Requirement
or in the interpretation or administration thereof by any Governmental Authority
or compliance by the Agent or any Bank with any request or directive (whether or
not having the force of law) from any Governmental Authority shall at any time
as a result of any portion of the principal balance of the Notes being
maintained on the basis of the LIBOR Rate:
(1) subject any Bank (or make it apparent that any Bank
is subject) to any tax (including any United States
interest equalization tax), levy, impost, duty,
charge, fee (collectively, "Taxes"), or any deduction
or withholding for any Taxes on or from the payment
due under any LIBOR Rate Borrowing or other amounts
due hereunder, other than income and franchise taxes
of the United States and its political subdivisions;
or
(2) change the basis of taxation of payments due from the
Company to the Agent or any Bank under any LIBOR Rate
Borrowing (otherwise than by a change in the rate of
taxation of the overall net income of the Agent or
any Bank); or
(3) impose, modify, increase or deem applicable any
reserve requirement (excluding that portion of any
reserve requirement included in the calculation of
the Eurocurrency Reserve Requirement, special deposit
requirement or similar requirement (including state
law requirements and Regulation D) imposed, modified,
increased or deemed applicable by any Governmental
Authority against assets held by the Agent or any
Bank, or against deposits or accounts in or for the
account of the Agent or any Bank, or against loans
made by the Agent or any Bank, or against any other
funds, obligations or other Property owned or held by
the Agent or any Bank; or
(4) impose on the Agent or any Bank any other condition
regarding any LIBOR Rate Borrowing;
and the result of any of the foregoing is to increase the cost to any Bank of
agreeing to make or of making, renewing or maintaining such borrowing on the
basis of the LIBOR Rate, or reduce the amount of principal or interest received
by any Bank, then, upon demand by the Agent, the Company shall pay to the Agent,
from time to time as specified by the Agent, additional amounts which shall
compensate such Bank for such increased cost or reduced amount. The Agent will
promptly notify the Company in writing of any event, upon becoming actually
aware of it, which will entitle any Bank to additional amounts pursuant to this
paragraph. The Agent's determination of the amount of any such increased cost,
increased reserve requirement or reduced amount shall be conclusive and binding,
absent manifest error, provided that the calculation thereof is set forth in
reasonable detail in such notice.
The Company shall have the right, if it receives from the Agent any
notice referred to in the preceding paragraph, upon three (3) Business Days'
notice to the Agent, either (i) to repay in full (but not in part) any borrowing
with respect to which such notice was given, together with any accrued interest
thereon, or (ii) to convert the LIBOR Rate in effect with respect to such
borrowing to the Alternate Base Rate; provided, that any such repayment or
conversion shall be accompanied by payment of (x) the amount required to
compensate the appropriate Bank or Banks for the increased cost or reduced
amount referred to in the preceding paragraph; (y) all accrued and unpaid
interest to date on the amount so repaid or converted, and (z) any Consequential
Loss which may be incurred as a result of such repayment or conversion.
(c) Inadequacy of Pricing and Rate Determination. If for any
reason with respect to any LIBOR Interest Period the Agent shall have determined
(which determination shall be conclusive and binding upon the Company) that: (1)
the Agent is unable through its customary general practices to determine a rate
at which Chase is offered deposits in United States dollars by prime banks in
the interbank market in London, England in the appropriate amount for the
appropriate period, or by reason of circumstances affecting the interbank market
<PAGE>
in London, England, generally, prime banks are not being offered deposits in
United States dollars in the interbank market in London, England, for the
applicable LIBOR Interest Period and in an amount equal to the amount of the
LIBOR Rate Borrowing requested by the Company, or (2) the LIBOR Rate will not
adequately and fairly reflect the cost to any Bank of making and maintaining any
LIBOR Rate Borrowing hereunder for any proposed LIBOR Interest Period, then the
Agent shall give the Company notice thereof and thereupon, (A) any Rate
Selection Notice previously given by the Company designating a LIBOR Rate which
has not commenced as of the date of such notice from the Agent shall be deemed
for all purposes hereof to be of no force and effect, as if never given, and (B)
until the Agent shall notify the Company that the circumstances giving rise to
such notice from the Agent no longer exist, each Rate Selection Notice
requesting a LIBOR Rate shall be deemed a request for an Alternate Base Rate
Borrowing, and each outstanding LIBOR Rate Borrowing then in effect shall be
converted, without any notice to or from the Company, upon the termination of
the LIBOR Interest Period then in effect, to an Alternate Base Rate Borrowing.
(d) Indemnification. The Company shall indemnify the Agent and
each of the Banks against and hold each of them harmless from any loss or
expense which it may incur or sustain as a consequence of any untimely payment
(mandatory or optional) or default by the Company in the payment of any
principal amount of or interest on each Note, or any failure by the Company to
convert or to borrow any LIBOR Rate Borrowing on the date specified by the
Company, in each case including any interest payable by any Bank to the lenders
of the funds obtained by it in order to make or maintain any LIBOR Rate
Borrowing (or any portion thereof), and, to the extent not covered above, any
Consequential Loss. This agreement shall survive the payment of each Note. A
certificate as to any additional amounts payable pursuant to this paragraph
submitted by the Agent to the Company shall be conclusive and binding upon the
Company, absent manifest error, provided the calculation thereof is set forth in
reasonable detail in such notice.
(e) Rate Quotes and Lists of Business Days. If the Company
requests quotes of the LIBOR Rate for different LIBOR Interest Periods being
considered for election by the Company, the Agent will use reasonable efforts to
provide such quotes to the Company promptly. However, all such quotes provided
shall be representative only and shall not be binding on the Agent or any Bank,
nor shall they be determinative, directly or indirectly, of any LIBOR Rate or
any component of any such rate, nor will the Company's failure to receive or the
Agent's failure to provide any requested quote or quotes either (1) excuse or
extend the time for performance of any obligation of the Company or for exercise
of any right, option or election of the Company or (2) impose any duty or
liability on the Agent or any Bank. If the Company requests a list of the
Business Days or LIBOR Business Days in any calendar month, the Agent will use
reasonable efforts to provide such list promptly. However, any such list
provided shall be understood to identify only those days which the Agent
believes in good faith at the time such list is prepared will be the Business
Days or LIBOR Business Days for such month. The Agent shall have no liability
for any failure to provide, delay in providing, error or mistake in or omission
from, any such quote or list.
2.12. Recapture. If on any Interest Payment Date the Agent does not
receive for the account of the Banks payment in full of interest computed at the
Stated Rate (computed without regard to any limitation by the Highest Lawful
Rate) because the Stated Rate (so computed) exceeds or has exceeded the Highest
Lawful Rate, the Company shall pay to the Agent for the account of the Banks, in
addition to interest otherwise required, on each Interest Payment Date
thereafter, the Excess Interest Amount (calculated as of each such subsequent
Interest Payment Date); provided that in no event shall the Company be required
to pay, for any computation period, interest at a rate exceeding the Highest
Lawful Rate applicable to and effective during such period. As used herein, the
term "Excess Interest Amount" shall mean, on any day, the amount by which (a)
the amount of all interest which would have accrued prior to such day on the
outstanding principal of the Notes (had the Stated Rate at all times been in
effect without limitation by the Highest Lawful Rate) exceeds (b) the aggregate
amount of interest actually paid to the Agent for the account of the Banks on
the Notes on or prior to such day.
2.13. Payment Dates. Whenever any payment to be made hereunder or under
any Note shall be stated to be due on a day which is neither a Business Day nor
a LIBOR Business Day, such payment may be made on the next succeeding Business
Day, or, subject to the definition of LIBOR Interest Period in the case of any
payment of the Notes to which the LIBOR Rate applies, on the next succeeding
LIBOR Business Day, and such extension of time shall in each such case be
included in computing interest and commitment fees in connection with such
payment.
<PAGE>
2.14. Sharing of Payments, Etc. The Company agrees that, in addition to
(and without limitation of) any right of set-off, bankers' lien or counterclaim
a Bank may otherwise have, upon the occurrence and during the continuance of any
Event of Default, each Bank shall be entitled, at its option, to offset balances
held by it for the account of the Company at any of its offices against any
principal of or interest on any of such Bank's Loans to the Company hereunder,
such Bank's Commitment Percentage of the Letter of Credit Exposure Amount or any
other obligation of the Company hereunder, which is not paid (regardless of
whether such balances are then due to the Company), in which case it shall
promptly notify the Company and the Agent thereof, provided that such Bank's
failure to give such notice shall not affect the validity thereof. If a Bank
shall obtain payment of any principal of or interest on any Loan made by it
under this Agreement, any Letter of Credit Exposure Amount or other obligation
then due to such Bank hereunder, through the exercise of any right of set-off
(including, without limitation, any right of setoff or lien granted under
Section 9.19 hereof), banker's lien, counterclaim or similar right, or
otherwise, it shall promptly purchase from the other Banks participations in the
Loans made by, the Letter of Credit Exposure Amount of, or the other obligations
of the Company hereunder of, the other Banks in such amounts, and make such
other adjustments from time to time as shall be equitable to the end that all
the Banks shall share the benefit of such payment (net of any expenses which may
be incurred by such Bank in obtaining or preserving such benefit) pro rata in
accordance with their respective Commitment Percentages. To such end all the
Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Company agrees, to the fullest extent it may effectively do so
under applicable law, that any Bank so purchasing a participation in the Loans
made by, Letter of Credit Exposure Amount of, or other obligations hereunder of,
the other Banks may exercise, upon the occurrence and during the continuance of
any Event of Default, all rights of set-off, bankers' lien, counterclaim or
similar rights with respect to such participation as fully as if such Bank were
a direct holder of said Loans, Letter of Credit Exposure Amount or other
obligations in the amount of such participation. Nothing contained herein shall
require any Bank to exercise any such right or shall affect the right of any
Bank to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of the Company.
3. Conditions.
3.1. All Loans. The obligation of each Bank to make any Loan or issue
any Letter of Credit is subject to the accuracy of all representations and
warranties of the Company on the date of such Loan or issuance of such Letter of
Credit, to the performance by the Company of its obligations under the Loan
Documents and to the satisfaction of the following further conditions:
(a) the Agent shall have received the following, all of which
shall be duly executed and in Proper Form: (1) in the case of a Loan, other than
a Loan to be made to repay a Letter of Credit Advance pursuant to Section 2.4
hereof,
(A) by no later than 9:00 a.m. on the applicable
Rate Selection Date, notice by telephone
from the Company of the proposed date and
amount of such Loan, and
(B) no later than 11:00 a.m. on the applicable
Rate Selection Date, a Request for Extension
of Credit and Certificate of No Default,
signed by the chief executive officer,
president, chief operating officer or chief
financial officer of the Company,
or, in the case of issuance of a Letter of Credit, a completed Application (as
may be required by the Agent and Banks) signed by the chief executive |
