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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) SEPTEMBER 24, 1999
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DOSKOCIL MANUFACTURING COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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TEXAS 333-37081 75-1281683
(STATE OR OTHER JURISDICTION OF (COMMISSION FILE NUMBER) (IRS EMPLOYER
INCORPORATION) IDENTIFICATION NO.)
4209 BARNETT BOULEVARD 76017
ARLINGTON, TEXAS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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(817) 467-5116
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE
N/A
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
ADDITIONAL CREDIT FACILITY
On August 12, 1999, the Company entered into an additional credit facility (the
"Additional Credit Facility") with BankAmerica, N.A. (the "Additional Lender"),
which provides for up to $10 million of additional revolving credit facilities
to the Company. The Additional Credit Facility is a senior revolving credit
facility. Advances under the Additional Credit Facility may be made at the
option of the Company as a base rate advance or a LIBOR Advance. Base rate
advances bear interest at a per annum interest rate equal to the higher of (a)
the sum of (i) 0.50% plus (ii) the federal funds rate on the applicable day plus
(iii) an applicable base rate margin or (b) the sum of (i) the prime rate on
such date plus (ii) an applicable base rate margin. A LIBOR advance bears
interest at a rate based upon LIBOR plus 3.50 percent. The Additional Credit
Facility is scheduled to mature on February 1, 2000. Amounts outstanding under
the Additional Credit Facility are secured by liens in certain equipment and
other property of the Company that are junior in lien priority to the lien
securing the Company's Existing Credit Agreement (as defined below).
The financial covenants in the Company's Existing Credit Agreement are
incorporated by reference into the Additional Credit Facility except that the
financial covenants in the Existing Credit Agreement applicable prior to
September 30, 1999 are not incorporated and will not cause an event of default
under the Additional Credit Facility unless the lenders under the Existing
Credit Agreement accelerate their loans based on such covenants.
Loans under the Additional Credit Facility to date have been guaranteed by a
limited continuing guarantee by each of Westar Capital, a limited partnership,
and Westar Capital II L.L.C., a limited liability company, each of which
entities and related parties are principal shareholders of the Company. No
compensation was paid to Westar Capital or Westar Capital II L.L.C. for the
guarantees provided.
EXISTING CREDIT AGREEMENT
On September 17, 1997, the Company entered into a credit facility (the "Existing
Credit Agreement") with a syndicate of lending institutions party thereto (the
"Lenders"), which provides for an aggregate principal amount of loans of up to
$110 million consisting of a $27.5 million revolving credit facility and term
loans in an initial aggregate principal amount of $82.5 million ($ 78.1 million
after giving effect to principal payments thereon). The Existing Credit
Agreement was amended in February 1999, May 1999 and August 1999 and, as part of
the amendments in February and May, waivers of certain covenant defaults were
granted.
On September 10, 1999, the Company gave notice to the Lenders that the Company
may not be in compliance with the interest coverage ratio, fixed charge coverage
ratio, and the minimum EBITDA requirements of the Existing Credit Agreement. The
Company has obtained a forbearance from the Lenders pursuant to which the
Lenders have agreed not to accelerate the repayment of the indebtedness or take
any other remedies against the Company prior to October 15, 1999, absent a new
event of default after the effective date of forbearance. The Company has just
recently received a report from an independent financial advisor to the Lenders
requested in connection with their discussions with the Company concerning the
Existing Credit Agreement. The Company is in discussions with the Lenders to
amend further the Existing Credit Agreement and to obtain a waiver of the June
30, 1999 defaults.
A failure to comply with the obligations contained in the Existing Credit
Agreement, if not cured or waived, would permit acceleration of the related
indebtedness and acceleration of indebtedness under other instruments that
contain cross-acceleration or cross-defaults. Under the terms of the
forbearance, the Company may not borrow additional revolving loans or obtain
additional letters of credit under the Existing Credit Agreement.
DISPOSITION OF INDIANAPOLIS FACILITY
On August 27, 1999, the Company disposed of its facility located in
Indianapolis, Indiana for a purchase price of $4.0 million.
ITEM 7. EXHIBITS.
10.1 Credit Agreement, dated as of August 12, 1999, among the Company,
certain lenders named therein and Bank of America, N.A., as
administrative agent
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934,
THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, HEREUNTO DULY AUTHORIZED.
DATED: SEPTEMBER 24, 1999
/s/ JOHN J. CASEY
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JOHN J. CASEY
CHIEF FINANCIAL OFFICER
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INDEX OF EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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10.1 Credit Agreement, dated as of August 12, 1999, among the Company,
certain lenders named therein and Bank of America, N.A., as
administrative agent.
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EXHIBIT 10.1
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$10,000,000
CREDIT AGREEMENT
AMONG
DOSKOCIL MANUFACTURING COMPANY, INC.
CERTAIN LENDERS NAMED HEREIN
AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
August 12, 1999
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TABLE OF CONTENTS
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Page
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ARTICLE 1
Definitions
Section 1.1 Defined Terms..........................................................................1
Section 1.2 Amendments and Renewals...............................................................11
Section 1.3 Construction..........................................................................11
ARTICLE 2
Advances
Section 2.1 The Advances..........................................................................11
Section 2.2 Manner of Borrowing and Disbursement..................................................12
Section 2.3 Interest..............................................................................14
Section 2.4 Revolving Commitment Fee..............................................................15
Section 2.5 Prepayments...........................................................................15
Section 2.6 Reduction of Revolving Credit Commitment..............................................16
Section 2.7 Non-Receipt of Funds by the Administrative Agent......................................16
Section 2.8 Payment of Principal of Advances......................................................17
Section 2.9 Reimbursement.........................................................................17
Section 2.10 Manner of Payment.....................................................................17
Section 2.11 LIBOR Lending Offices.................................................................18
Section 2.12 Sharing of Payments...................................................................18
Section 2.13 Calculation of LIBOR Rate.............................................................18
Section 2.14 Taxes.................................................................................18
Section 2.15 Pari Passu............................................................................22
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to the Initial Advances..........................................22
Section 3.2 Conditions Precedent to All Advances..................................................24
Section 3.3 Conditions Precedent to Conversions and Continuations.................................25
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ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties........................................................25
Section 4.2 Survival of Representations and Warranties, etc.......................................27
ARTICLE 5
Indemnity
Section 5.1 Indemnity.............................................................................27
ARTICLE 6
Covenants
ARTICLE 7
Default
Section 7.1 Events of Default.....................................................................30
Section 7.2 Remedies..............................................................................31
ARTICLE 8
Changes in Circumstances
Section 8.1 LIBOR Basis Determination Inadequate..................................................32
Section 8.2 Illegality............................................................................32
Section 8.3 Increased Costs.......................................................................33
Section 8.4 Effect On Base Rate Advances..........................................................34
Section 8.5 Capital Adequacy......................................................................34
Section 8.6 Replacement Lender....................................................................35
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ARTICLE 9
Agreement Among Lenders
Section 9.1 Agreement Among Lenders...............................................................35
Section 9.2 Lender Credit Decision................................................................38
Section 9.3 Benefits of Article...................................................................38
ARTICLE 10
Miscellaneous
Section 10.1 Notices...............................................................................38
Section 10.2 Expenses..............................................................................39
Section 10.3 Waivers...............................................................................40
Section 10.4 Calculation by the Lenders Conclusive and Binding.....................................40
Section 10.5 Set-Off...............................................................................40
Section 10.6 Assignment............................................................................41
Section 10.7 Counterparts..........................................................................43
Section 10.8 Severability..........................................................................43
Section 10.9 Interest and Charges..................................................................43
Section 10.10 Headings..............................................................................43
Section 10.11 Amendment and Waiver..................................................................44
Section 10.12 Exception to Covenants................................................................44
Section 10.13 Confidentiality.......................................................................44
Section 10.14 GOVERNING LAW.........................................................................44
Section 10.15 WAIVER OF JURY TRIAL..................................................................45
Section 10.16 ENTIRE AGREEMENT......................................................................45
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Schedules and Exhibits
Schedule 1: LIBOR Lending Offices
Exhibit A: Revolving Credit Note
Exhibit B: Security Agreement
Exhibit C: Notice of Borrowing
Exhibit D: Pledge Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of August 12, 1999, among DOSKOCIL
MANUFACTURING COMPANY, INC., a Texas corporation (the "Borrower"), the Lenders
from time to time party hereto, and BANK OF AMERICA, N.A., a national banking
association, as administrative agent for the Lenders.
BACKGROUND
The Lenders have been requested to provide the Borrower funds to
finance the ongoing working capital and general corporate requirements of the
Borrower and its Subsidiaries (as hereinafter defined). The Lenders have agreed
to provide such financing, subject to the terms and conditions set forth below.
In consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. For purposes of this Agreement:
"Administrative Agent" means Bank of America, N.A., a national banking
association, as administrative agent for Lenders, or such successor
administrative agent appointed pursuant to Section 9.1(b) hereof.
"Advance" means any amount advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" means, as applied to any Person, any other Person that,
directly or indirectly, through one or more Persons, Controls or is Controlled
By or Under Common Control with, such Person.
"Agreement" means this Credit Agreement, as amended, modified,
supplemented or restated from time to time.
"Agreement Date" means the date of this Agreement.
"Applicable Base Rate Margin" means a rate per annum equal to 1.75%.
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"Applicable Law" means (a) in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and final orders of governmental
bodies or regulatory agencies applicable to such Person and its properties,
including, without limiting the foregoing, all orders and decrees of all
Tribunals in proceedings or actions to which the Person in question is a party,
and (b) in respect of contracts relating to interest or finance charges that are
made or performed in the State of Texas, "Applicable Law" shall mean the laws of
the United States of America, including without limitation 12 USC Sections 85
and 86, as amended from time to time, and any other statute of the United States
of America now or at any time hereafter prescribing the maximum rates of
interest on loans and extensions of credit, and the laws of the State of Texas.
"Applicable LIBOR Rate Margin" means a rate per annum equal to 3.50%.
"Assignees" means any assignee of a Lender pursuant to an Assignment
Agreement and shall have the meaning ascribed thereto in Section 10.6 hereof.
"Assignment Agreement" has the meaning specified in Section 10.6
hereof.
"Authorized Signatory" means such senior personnel of the Borrower as
may be duly authorized and designated in writing by the Borrower to execute
documents, agreements and instruments on behalf of the Borrower, and to request
Advances hereunder.
"Bank of America" means Bank of America, N.A., a national banking
association, in its capacity as a Lender.
"Base Rate Advance" means any Advance bearing interest at the Base Rate
Basis.
"Base Rate Basis" means, for any day, a per annum interest rate equal
to the higher of (a) the sum of (i) 0.50% plus (ii) the Federal Funds Rate on
such day plus (iii) the Applicable Base Rate Margin or (b) the sum of (i) the
Prime Rate on such day plus (ii) the Applicable Base Rate Margin. The Base Rate
Basis shall be adjusted automatically without notice as of the opening of
business on the effective date of each change in the Prime Rate or Federal Funds
Rate, as applicable, to account for such change.
"Basle Accord" means the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital Management
and Capital Standards" dated July 1988, as amended, modified, and supplemented
and in effect from time to time or any replacement thereof.
"Business Day" means a day on which commercial banks are open (a) for
the transaction of business in Dallas, Texas, and (b) with respect to any LIBOR
Advance, for the transaction of international business (including dealings in
U.S. Dollar deposits) in London, England.
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"Collateral" means any collateral hereafter granted by any Person to
the Administrative Agent for the benefit of the Lenders to secure the
Obligations.
"Collateral Document" means any document under which Collateral is
granted and any document related thereto.
"Credit Agreement Unused Portion" means an amount equal to the result
of (i) the Revolving Credit Commitment minus (ii) the outstanding Revolving
Credit Advances.
"Debtor Relief Laws" means any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar
debtor relief Laws affecting the rights of creditors generally from time to time
in effect.
"Default" means an Event of Default and/or any of the events specified
in Section 7.1, regardless of whether there shall have occurred any passage of
time or giving of notice that would be necessary in order to constitute such
event an Event of Default.
"Default Rate" means a simple per annum interest rate equal to (a) with
respect to Base Rate Advances the lesser of (i) the Highest Lawful Rate or (ii)
the Base Rate Basis then in effect plus 2.00% or (b) with respect to LIBOR
Advances, the lesser of (i) the Highest Lawful Rate or (ii) the LIBOR Basis then
in effect plus 2.00%.
"Determining Lenders" means, on any date of determination, any
combination of Lenders whose Revolving Credit Specified Percentages are more
than 50% of the Revolving Credit Commitment.
"Dollar" or "$" means the lawful currency of the United States of
America.
"Eligible Assignee" means (a) any Lender; (b) a commercial bank
organized under the laws of the United States, or any state thereof, and having
total assets in excess of $1,000,000,000; (c) a savings and loan association or
savings bank organized under the laws of the United States, or any state
thereof, having total assets in excess of $500,000,000, and not in receivership
or conservatorship; (d) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is described in this clause; and (e) the central bank of any
country which is a member of the Organization for Economic Cooperation and
Development; (f) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business and having a combined capital and surplus
or total assets of at least $100,000,000, (g) any other entity (other than a
natural person) that is an "accredited investor" (as defined in Regulation D
under the Securities Act of 1933) which extends credit or buys loans as one of
its
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businesses, and (h) any other entity approved by both the Borrower and the
Administrative Agent, provided that, no Affiliate of the Borrower shall qualify
as an Eligible Assignee.
"Event of Default" means any of the events specified in Section 7.1,
provided that any requirement for notice or lapse of time has been satisfied.
"Excluded Matters" has the meaning specified in Section 5.1(a) hereof.
"Existing Credit Agreement" means that certain Credit Agreement, dated
as of September 19, 1997, among the Borrower, the lenders named therein, and
Bank of America, N.A. (formerly known as Bank of America National Trust and
Savings Association, successor by merger to Bank of America, N.A., formerly
known as NationsBank, N.A., successor by merger to NationsBank of Texas, N.A.),
as amended, modified, supplemented or restated from time to time.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of Dallas on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"General Advance" means any Advance hereunder which is not a Purchase
Money Advance.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under Applicable Law, the Lenders are then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, the Lenders are permitted to charge on the Obligations
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to the Borrower.
"Indemnified Matters" has the meaning specified in Section 5.1(a)
hereof.
"Indemnitees" has the meaning specified in Section 5.1(a) hereof.
"Interest Period" means the period beginning on the day any LIBOR
Advance is made and ending one, two or three months thereafter (as the Borrower
shall select); provided, however, that all of the foregoing provisions are
subject to the following:
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless, with
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respect to a LIBOR Advance, the result of such extension would be to
extend such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
(ii) any Interest Period with respect to a LIBOR Advance that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month;
(iii) the Borrower may not select any Interest Period in
respect of LIBOR Advances having an aggregate amount less than
$500,000; and
(iv) there shall be outstanding at any one time no more than
five Interest Periods in the aggregate.
"Law" means any statute, law, ordinance, regulation, rule, order, writ,
injunction, or decree of any Tribunal.
"Lender" means each financial institution shown on the signature pages
hereof so long as such financial institution maintains a portion of the
Commitments or is owed any part of the Obligations (including the Administrative
Agent in its individual capacity), and each Assignee that hereafter becomes a
party hereto pursuant to Section 10.6 hereof, subject to the limitations set
forth therein.
"LIBOR Advance" means an Advance which the Borrower requests to be made
as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance with
the provisions of Section 2.2 hereof.
"LIBOR Basis" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, or (b) the sum of the LIBOR Rate plus the
Applicable LIBOR Rate Margin. The LIBOR Basis shall, with respect to LIBOR
Advances subject to reserve or deposit requirements, be subject to premiums for
such reserve or deposit requirements assessed by each Lender to the extent
incurred by such Lender, which are payable by the Borrower directly to each
Lender. Once determined, the LIBOR Basis shall remain unchanged during the
applicable Interest Period.
"LIBOR Lending Office" means, with respect to a Lender, the office
designated as its LIBOR Lending Office on Schedule 1 attached hereto, and such
other office of the Lender or any of its Affiliates hereafter designated by
notice to the Borrower and the Administrative Agent.
"LIBOR Rate" means, for any LIBOR Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "LIBOR
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Rate" shall mean, for any LIBOR Advance for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates.
"Lien" means, with respect to any property, any mortgage, lien, pledge,
collateral assignment, hypothecation, charge, security interest, title retention
agreement, levy, execution, seizure, attachment, garnishment or other similar
encumbrance of any kind in respect of such property, whether or not choate,
vested or perfected.
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation by or before any Tribunal, including, without limitation,
proceedings, claims, lawsuits, and/or investigations under or pursuant to any
environmental, occupational, safety and health, antitrust, unfair competition,
securities, Tax or other Law, or under or pursuant to any contract, agreement or
other instrument.
"Loan Documents" means this Agreement, the Notes, the Security
Agreement, the Pledge Agreement, any other Collateral Document, the Westar
Guaranty, and any other document or agreement executed or delivered from time to
time by the Borrower or any other Person in connection herewith or as security
for the Obligations.
"Material Adverse Effect" means any act or circumstance or event that
(a) could reasonably be expected to be material and adverse to the business,
financial condition or results of operations of the Borrower, or (b) in any
manner whatsoever does or could reasonably be expected to materially and
adversely affect (i) the validity or enforceability of any Loan Document, (ii)
the ability of the Borrower to perform its Obligations under the Loan Documents,
or (iii) the rights and remedies of the Lenders or the Administrative Agent
under any of the Loan Documents.
"Necessary Authorization" means any right, franchise, license, permit,
consent, approval or authorization from, or any filing or registration with, any
Tribunal or any Person necessary or appropriate to enable the Borrower or any
Subsidiary of the Borrower to maintain and operate its business and properties.
"Notice of Borrowing" has the meaning specified in Section 2.2(a)
hereof.
"Obligations" means (a) all obligations of any nature (whether matured
or unmatured, fixed or contingent) of the Borrower or any other Obligor to any
Lender or the Administrative Agent under any of the Loan Documents as they may
be amended from time to time, and (b) all obligations of the Borrower or any
other Obligor for losses, damages, expenses or any other liabilities of any kind
that any Lender may suffer by reason of a breach by the Borrower or any other
Obligor of any obligation, covenant or undertaking with respect to any Loan
Document payable by the Borrower or any other Obligor under any Loan Document.
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"Obligor" means the Borrower and Westar.
"Participant" has the meaning specified in Section 10.6(c) hereof.
"Participation" has the meaning specified in Section 10.6(c) hereof.
"Payment Date" means the last day of the Interest Period for any LIBOR
Advance.
"Permitted Collateral Liens" means Liens described in clauses (b), (c),
(d) and (e) of the definition of "Permitted Liens" herein.
"Permitted Liens" means, as applied to any Person:
(a) Any Lien in favor of the Lenders to secure the Obligations
hereunder;
(b) Any Lien in favor of the lenders under the Existing Credit
Agreement;
(c) Liens for taxes, assessments, governmental charges, levies or
claims that are not yet delinquent or that are being diligently contested in
good faith by appropriate proceedings in accordance with Section 5.6 of the
Existing Credit Agreement and for which adequate reserves shall have been set
aside on such Person's books, but only so long as no foreclosure, restraint,
sale or similar proceedings have been commenced with respect thereto;
(d) Liens of carriers, warehousemen, mechanics, laborers and
materialmen and other similar Liens incurred in the ordinary course of business
for sums not yet due or being contested in good faith, if such reserve or
appropriate provision, if any, as shall be required by GAAP shall have been made
therefor;
(e) Liens incurred or deposits made in the ordinary course of business
in connection with worker's compensation, unemployment insurance or similar
legislation;
(f) Easements, right-of-way, restrictions and other similar
encumbrances on the use of real property which do not interfere in any material
respect with the ordinary conduct of the business of such Person;
(g) Liens created to secure the purchase price of assets acquired (or
existing on property at the time such property is acquired) by such Person or
created to secure Indebtedness permitted by Section 7.1(c) or 7.1(h) of the
Existing Credit Agreement, which is incurred solely for the purpose of financing
the acquisition of such assets and incurred at the time of acquisition or which
exists against such assets at the time of acquisition thereof, so long as each
such Lien shall at all times be confined solely to the asset or assets so
acquired (and proceeds thereof), and refinancings thereof so long as any such
Lien remains solely on the asset or assets acquired (and the proceeds thereof)
and the amount of Indebtedness related thereto is not increased;
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(h) Any Liens which are described on Schedule 2 of the Existing Credit
Agreement, and Liens resulting from the refinancing of the related Indebtedness,
provided that the Indebtedness secured thereby shall not be increased and the
Liens shall not cover additional assets of the Borrower;
(i) Liens arising from filing Uniform Commercial Code financing
statements for precautionary purposes relating solely to true leases of personal
property permitted by this Agreement under which the Borrower or any of its
Subsidiaries is a lessee;
(j) Any zoning or similar law or right reserved to or vested in any
Tribunal to control or regulate the use of any real property;
(k) Any other title or survey exception with respect to real property
assets disclosed by any preliminary title report, title commitment report,
survey or other search of title provided to the Administrative Agent in
accordance with this Agreement unless disapproved by the Administrative Agent
prior to the Agreement Date;
(l) Liens incurred or deposits made to secure the performance of bids,
tenders, leases, trade contracts (other than for Indebtedness), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(m) Any leases or subleases currently in effect, entered into in the
ordinary course of business or entered into in compliance with the Loan
Documents;
(n) Liens created by such Person to secure Indebtedness permitted to be
incurred by such Person pursuant to Section 7.1(l) of the Existing Credit
Agreement, so long as such Lien shall at no time extend to any Collateral; and
(o) Any replacements or renewals of Liens (but no increases in the
Indebtedness secured thereby) permitted by clauses (g), (h), (i) and (n) hereof.
"Person" means an individual, corporation, partnership, limited
liability company, trust or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Pledge Agreement" means a pledge agreement related to certain one or
more certificates of deposit owned by Westar Capital II, LLC, substantially in
the form of Exhibit D hereto, as amended, modified, renewed, supplemented or
restated from time to time.
"Prime Rate" means, at any time, the prime interest rate announced or
published by the Reference Lender from time to time as its reference rate for
the determination of interest rates for loans of varying maturities in United
States dollars to United States residents of varying degrees of creditworthiness
and being quoted at such time by the Reference Lender as its "prime rate;" it
being understood that such rate may not be the lowest rate of interest charged
by the Reference Lender.
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"Purchase Money Advance" means any Advance, the proceeds of which are
incurred to finance the acquisition (including in the case of Capitalized Lease
Obligations (as defined in the Existing Credit Agreement), the lease) of any
personal tangible property which, in the reasonable judgment of the Board of
Directors of the Borrower, is directly related to the business of the Borrower
and which is incurred within 180 days of such acquisition.
"Quarterly Date" means the last day of each March, June, September and
December, beginning September 30, 1999.
"Reference Lender" means Bank of America; provided that if Bank of
America's commitment shall terminate and it shall have no Advances outstanding
hereunder, Bank of America shall cease to be the Reference Lender, and
Administrative Agent (after consultation with Borrower) shall, with notice to
Borrower and Lenders, designate another Lender as the Reference Lender.
"Release Date" means the date on which the Revolving Credit Notes have
been paid, all other Obligations due and owing have been paid and performed in
full, and the Revolving Credit Commitment has been terminated.
"Responsible Officer" means, of any Person, the President, chief
operating officer, chief executive officer, chief financial officer, treasurer
or any other executive officer of such Person.
"Revolving Commitment Maturity Date" means February 1, 2000, or the
earlier date of termination in whole of the Revolving Credit Commitment pursuant
to Section 2.6 or 7.2 hereof.
"Revolving Credit Advance" means an Advance made pursuant to Section
2.1(a) hereof.
"Revolving Credit Commitment" means $10,000,000 as reduced pursuant to
Section 2.6; provided, however, the Revolving Credit Commitment shall be
automatically adjusted on October 15, 1999 to an amount equal to the greater of
(a) the aggregate principal amount of Revolving Credit Advances outstanding on
such date (not to exceed the amount of the Revolving Credit Commitment in effect
immediately prior to such adjustment) and (b) the value of Westar Collateral
which is pledged on or prior to October 15, 1999 to secure the Obligations.
"Revolving Credit Notes" means the promissory notes of Borrower
evidencing Revolving Credit Advances hereunder, substantially in the form of
Exhibit A hereto, together with any extension, renewal, or amendment thereof, or
substitution therefor.
"Revolving Credit Specified Percentage" means, as to any Lender, the
percentage indicated beside its name on the signature pages hereof as its
Revolving Credit Specified Percentage, or as adjusted or specified in any
amendment to this Agreement or in any Assignment Agreement.
"Rights" means rights, remedies, powers and privileges.
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"Security Agreement" means a security agreement relating to certain
personal property assets of the Borrower, substantially in the form of Exhibit B
hereto, as amended, modified, renewed, supplemented or restated from time to
time.
"Senior Subordinated Notes" means those certain senior subordinated
notes of the Borrower due 2007 to be issued by the Borrower in connection with
the Dogloo Transaction not to exceed $85,000,000, pursuant to the terms set
forth in the Indenture of Trust dated as of September 19, 1997 by and between
the Borrower and First Trust National Association, as trustee (the "Indenture").
"Solvent" means, with respect to any Person, that as of the date of
determination, (a) the fair saleable value of the assets of such Person is
greater than the total amount of liabilities (including contingent and
unliquidated liabilities) of such Person, (b) such Person is able to pay the
probable liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person, and (c) such Person does not have
unreasonably small capital with which to carry on its business. In computing the
amount of contingent or unliquidated liabilities at any time, such liabilities
will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person.
"Special Counsel" means the law firm of Donohoe, Jameson & Carroll,
P.C., or such other legal counsel as the Administrative Agent may select.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate or other Person of which (or in which) more than 50%
of:
(a) the outstanding capital stock having voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such partnership or joint
venture,
(c) the beneficial interest of such trust or estate, or
(d) the equity interest of such other Person,
is at the time directly or indirectly owned by such Person, by such Person and
one or more of its Subsidiaries or by one or more of such Person's Subsidiaries.
"Tribunal" means any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision, agency, department,
commission, board, bureau, or instrumentality of a governmental or other
regulatory or public body or authority.
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"Westar" means, collectively, Westar Capital II, LLC, a Delaware
limited liability company, and Westar Capital, a California limited partnership.
"Westar Collateral" means the Collateral provided for in the Pledge
Agreement.
"Westar Consent" means the consent of the general partners of Westar to
the Westar Guaranty.
"Westar Guaranty" means that certain Continuing Guarantee, dated as of
the Agreement Date, executed by Westar in favor of the Administrative Agent for
the benefit of the Lenders, as amended, modified, supplemented or restated from
time to time.
"Westar Investment" means any equity or debt investment of cash in the
Borrower (other than the purchase of warrants issued by the Borrower to Westar
substantially currently therewith), the proceeds of which are used to prepay
Advances with concurrent or prior written notice to the Administrative Agent
from the Borrower and Westar that such payment is being made pursuant to Section
10 of the Westar Guaranty.
"Westar Loan Approval" means that certain Guarantee Loan Approval
attached to the Westar Guaranty as Exhibit A.
Section 1.2 Amendments and Renewals. Each definition of an agreement in
this Article 1 shall include such agreement as amended to date, and as amended
or renewed from time to time in accordance with its terms, but only with the
prior written consent of the Determining Lenders or all the Lenders as required
pursuant to Section 10.11 hereof.
Section 1.3 Construction. The terms defined in this Article 1 (except
as otherwise expressly provided in this Agreement) for all purposes shall have
the meanings set forth in Section 1.1 hereof, and the singular shall include the
plural, and vice versa, unless otherwise specifically required by the context.
All accounting terms used in this Agreement which are not otherwise defined
herein shall be construed in accordance with GAAP on a consolidated basis for
the Borrower and its Subsidiaries, unless otherwise expressly stated herein.
ARTICLE 2
Advances
Section 2.1 The Advances.
(a) Revolving Credit Advances. Each Lender severally agrees, upon the
terms and subject to the conditions of this Agreement, to make Revolving Credit
Advances to the Borrower from time to time in an aggregate amount not to exceed
its Revolving Credit Specified Percentage of the
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Revolving Credit Commitment for the purposes and as otherwise provided in
Section 2.1(c) hereof. Subject to Section 2.9 hereof, Revolving Credit Advances
may be repaid and then reborrowed.
(b) LIBOR Advances. Any Advance shall, at the option of the Borrower as
provided in Section 2.2 hereof (and, in the case of LIBOR Advances, subject to
the provisions of Article 8 hereof), be made as a Base Rate Advance or a LIBOR
Advance; provided that there shall not be outstanding, at any one time, more
than five LIBOR Advances.
(c) General Advances and Purchase Money Advances. The proceeds of
General Advances may be used for working capital and other general corporate
purposes, including the purchase of tangible personal property. The aggregate
amount of outstanding General Advances shall not exceed the lesser of (i) the
result of the Revolving Credit Commitment minus the aggregate amount of Purchase
Money Advances and (ii) the amount of General Advances permitted to be incurred
pursuant to the Indenture. The aggregate amount of outstanding Purchase Money
Advances shall not exceed the result of the Revolving Credit Commitment minus
the aggregate amount of outstanding General Advances. The proceeds of Purchase
Money Advances may only be used to finance tangible personal property as
provided in the definition of such term.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Base Rate Advances. In the case of Base Rate Advances, the
Borrower, through an Authorized Signatory, shall give the Administrative Agent
prior to 10:00 a.m., Dallas, Texas time, on the date of any proposed Base Rate
Advance irrevocable written notice, or irrevocable telephonic notice followed
immediately by written notice, in substantially the form of Exhibit C hereto (a
"Notice of Borrowing") (provided, however, that the Borrower's failure to
confirm any telephonic notice in writing shall not invalidate any notice so
given), of its intention to borrow a Base Rate Advance hereunder. Such Notice of
Borrowing shall specify the requested funding date, which shall be a Business
Day, the amount of the proposed aggregate Base Rate Advances to be made by
Lenders, and whether such Base Rate Advance is a General Advance or a Purchase
Money Advance.
(b) LIBOR Advances. In the case of LIBOR Advances, the Borrower,
through an Authorized Signatory, shall give the Administrative Agent at least
three Business Days' irrevocable written notice, or irrevocable telephonic
notice followed immediately by written notice (provided, however, that the
Borrower's failure to confirm any telephonic notice in writing shall not
invalidate any notice so given) pursuant to a Notice of Borrowing, of its
intention to borrow a LIBOR Advance hereunder. Notice shall be given to the
Administrative Agent prior to 10:00 a.m., Dallas, Texas time, in order for such
Business Day to count toward the minimum number of Business Days required. LIBOR
Advances shall in all cases be subject to Article 8 hereof. For LIBOR Advances,
the notice of borrowing shall specify the requested funding date, which shall be
a Business Day, the amount of the proposed aggregate LIBOR Advances to be made
by Lenders, the Interest Period selected by the Borrower, provided that no such
Interest Period shall extend past the Revolving Commitment Maturity Date or
prohibit or impair the Borrower's ability to comply with Section 2.5 or 2.8
hereof and whether such LIBOR Advance is a General Advance or a Purchase Money
Advance.
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(c) Continuation/Conversion. Subject to Sections 2.1 and 2.9 hereof,
the Borrower shall have the option (i) to convert at any time all or any part of
the outstanding Base Rate Advances to LIBOR Advances and all or any part of the
outstanding LIBOR Advances to Base Rate Advances or (ii) upon expiration of any
Interest Period applicable to a LIBOR Advance, to continue all or any portion of
such LIBOR Advance equal to $500,000 and integral multiples of $500,000 in
excess of that amount as a LIBOR Advance and the succeeding Interest Period(s)
of such continued LIBOR Advance shall commence on the last day of the Interest
Period of the LIBOR Advance to be continued; provided, however, (a) LIBOR
Advances may only be converted into Base Rate Advances on the expiration date of
the Interest Period applicable thereto and (b) notwithstanding anything in this
Agreement to the contrary, no outstanding Advance may be continued as, or
converted into, a LIBOR Advance when any Default or Event of Default has
occurred and is continuing. At least three Business Days prior to a proposed
conversion/continuation date, the Borrower, through an Authorized Signatory,
shall give the Administrative Agent irrevocable written notice, or irrevocable
telephonic notice followed immediately by written notice (provided, however,
that the Borrower's failure to confirm any telephonic notice in writing shall
not invalidate any notice so given), stating (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the amount of
the Advance to be converted/continued, (iii) in the case of a conversion to, or
a continuation of, a LIBOR Advance, the requested Interest Period, and (iv) in
the case of a conversion of a Base Rate Advance to a LIBOR Advance or
continuation of a LIBOR Advance, stating that no Default or Event of Default has
occurred and is continuing. If the Borrower shall fail to give any notice in
accordance with this Section 2.2(c), the Borrower shall be deemed irrevocably to
have requested that such LIBOR Advance be converted to a Base Rate Advance in
the same principal amount. Notice shall be given to the Administrative Agent
prior to 10:00 a.m., Dallas, Texas time, in order for such Business Day to count
toward the minimum number of Business Days required.
(d) Minimum Amount. The aggregate amount of Base Rate Advances to be
made by the Lenders on any day shall be in a principal amount which is at least
$500,000 and which is an integral multiple of $100,000; provided, however, that
such amount may equal the unused amount of the Revolving Credit Commitment. The
aggregate amount of LIBOR Advances having the same Interest Period and to be
made by the Lenders on any day shall be in a principal amount which is at least
$500,000 and which is an integral multiple of $250,000.
(e) Notice and Disbursement. The Administrative Agent shall promptly
notify the Lenders of each notice received from the Borrower pursuant to this
Section. Each Lender shall, not later than 2:00 p.m., Dallas, Texas time, on the
date of any Advance, deliver to the Administrative Agent, at its address set
forth herein, such Lender's Specified Percentage of such Advance in immediately
available funds in accordance with the Administrative Agent's instructions.
Prior to 2:30 p.m., Dallas, Texas time, on the date of any Advance hereunder,
the Administrative Agent shall, subject to satisfaction of the conditions set
forth in Article 3, disburse the amounts made available to the Administrative
Agent by the Lenders by (i) transferring such amounts by wire transfer pursuant
to the Borrower's instructions, or (ii) in the absence of such instructions,
crediting such amounts to the
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account of the Borrower maintained with the Administrative Agent. All Revolving
Credit Advances shall be made by each Lender according to its Revolving Credit
Specified Percentage.
(f) Recharacterization of Advances. The Borrower may elect to
recharacterize a General Advance as a Purchase Money Advance or a Purchase Money
Advance as a General Advance pursuant to a notice delivered in writing to the
Administrative Agent and Westar; provided that all requirements of this
Agreement (including with respect to use of proceeds) are satisfied with respect
to such Advance as so recharacterized.
Section 2.3 Interest.
(a) On Base Rate Advances.
(i) The Borrower shall pay interest on the outstanding unpaid
principal amount of the Base Rate Advances outstanding from time to
time, until such Base Rate Advances are due (whether at maturity, by
reason of acceleration, by scheduled reduction, or otherwise)
and repaid at a simple interest rate per annum equal to the Base Rate
Basis for the Base Rate Advances as in effect from time to time. If at
any time the Base Rate Basis would exceed the Highest Lawful Rate,
interest payable on the Base Rate Advances shall be limited to the
Highest Lawful Rate, but the Base Rate Basis shall not thereafter be
reduced below the Highest Lawful Rate until the total amount of
interest accrued on the Base Rate Advances equals the amount of
interest that would have accrued if the Base Rate Basis had been in
effect at all times.
(ii) Interest on the Base Rate Advances shall be computed on
the basis of a year of 365 or 366 days, as appropriate, for the actual
number of days elapsed, and shall be payable in arrears on each
Quarterly Date and on the Revolving Commitment Maturity Date.
(b) On LIBOR Advances.
(i) The Borrower shall pay interest on the unpaid principal
amount of each LIBOR Advance, from the date such Advance is made until
it is due (whether at maturity, by reason of acceleration, by scheduled
reduction, or otherwise) and repaid, at a rate per annum equal to the
LIBOR Basis for such LIBOR Advance. The Administrative Agent, whose
determination shall be controlling in the absence of demonstrable
error, shall determine the LIBOR Basis on the second Business Day prior
to the applicable funding, conversion or continuation date and shall
notify the Borrower and the Lenders of such LIBOR Basis.
(ii) Subject to Section 10.9 hereof, interest on each LIBOR
Advance shall be computed on the basis of a 360-day year for the actual
number of days elapsed, and shall be payable in arrears on the
applicable Payment Date and on the Revolving Commitment Maturity Date.
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(c) Interest After an Event of Default. (i) After an Event of Default
(other than an Event of Default specified in Section 7.1(f) or (g) hereof) and
during any continuance thereof, at the option of the Determining Lenders, and
(ii) after an Event of Default specified in Section 7.1(f) or (g) hereof and
during any continuance thereof, automatically and without any action by the
Administrative Agent or any Lender, the Obligations shall bear interest at a
rate per annum equal to the Default Rate. Such interest shall be payable on the
earlier of demand or the Revolving Commitment Maturity Date, and shall accrue
until the earlier of (i) waiver or cure of the applicable Event of Default, (ii)
agreement by the Determining Lenders to rescind the charging of interest at the
Default Rate, or (iii) payment in full of the Obligations. The Lenders shall not
be required to accelerate the maturity of the Advances, to exercise any other
rights or remedies under the Loan Documents, or to give notice to the Borrower
of the decision to charge interest at the Default Rate.
Section 2.4 Revolving Commitment Fee. Subject to Section 10.9 hereof,
the Borrower agrees to pay to the Administrative Agent, for the account of the
Lenders according to their Revolving Credit Specified Percentages, a commitment
fee of 0.25% per annum on the daily average Credit Agreement Unused Portion
during the period commencing on August 17, 1999 and ending on the Revolving
Credit Maturity Date. Such fee shall be (i) payable in arrears on each Quarterly
Date and on the Revolving Commitment Maturity Date, (ii) fully earned when due
and, subject to Section 10.9 hereof, nonrefundable when paid and (iii) subject
to Section 10.9 hereof, computed on the basis of a 360-day year for the actual
number of days elapsed.
Section 2.5 Prepayments.
(a) Prepayments Generally. Subject to Section 2.5(b) and 2.9 hereof,
the Borrower shall have the right to prepay Advances under this Agreement.
(b) Voluntary LIBOR Advance Prepayments. Upon three Business Days'
prior telephonic notice (to be promptly followed by written notice) by an
Authorized Signatory to the Administrative Agent, LIBOR Advances may be
voluntarily prepaid but only so long as the Borrower concurrently reimburses the
Lenders in accordance with Section 2.9 hereof. Any notice of prepayment shall be
irrevocable.
(c) Mandatory Prepayment. On or before the date of any reduction of the
Revolving Credit Commitment, the Borrower shall prepay applicable outstanding
Revolving Credit Advances in an amount necessary to reduce the sum of
outstanding Revolving Credit Advances to an amount less than or equal to the
Revolving Credit Commitment as so reduced. To the extent required by the
immediately preceding sentence, the Borrower shall first prepay all Base Rate
Advances and shall thereafter prepay LIBOR Advances. To the extent that any
prepayment requires that a LIBOR Advance be repaid on a date other than the last
day of its Interest Period, the Borrower shall reimburse each Lender in
accordance with Section 2.9 hereof. To the extent that outstanding Revolving
Credit Advances exceed the Revolving Credit Commitment after any reduction
thereof, the Borrower shall repay any such excess amount and all accrued
interest attributable to such excess Revolving Credit Advances on the date of
such reduction.
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(d) Payments, Generally. Any prepayment of any Advance shall be
accompanied by interest accrued on the principal amount being prepaid. Any
voluntary partial payment of a Base Rate Advance shall be in a principal amount
which is at least $250,000 and which is an integral multiple of $500,000. Any
voluntary partial payment of a LIBOR Advance shall be in a principal amount
which is at least $500,000 and which is an integral multiple of $250,000, and to
the extent that any prepayment of a LIBOR Advance is made on a date other than
the last day of its Interest Period, the Borrower shall reimburse each Lender in
accordance with Section 2.9 hereof.
Section 2.6 Reduction of Revolving Credit Commitment.
(a) Voluntary Reduction. The Borrower shall have the right, upon not
less than 5 Business Days' notice by an Authorized Signatory to the
Administrative Agent (if telephonic, to be confirmed by telex or in writing on
or before the date of reduction or termination), which shall promptly notify the
Lenders, to terminate or reduce the Revolving Credit Commitment. Each partial
termination shall be in an aggregate amount which is at least $1,000,000 and
which is an integral multiple thereof, and no voluntary reduction in the
Revolving Credit Commitment shall cause any LIBOR Advance to be repaid prior to
the last day of its Interest Period unless the Borrower shall reimburse each
Lender in accordance with Section 2.9 hereof.
(b) Mandatory Reduction. On the date of receipt by the Administrative
Agent of notice of a Westar Investment from the Borrower and Westar, the
Revolving Credit Commitment shall be automatically reduced by the amount of the
Westar Investment. On October 15, 1999, the Revolving Credit Commitment may be
automatically reduced as provided in the proviso of the definition thereof. On
the Revolving Commitment Maturity Date, the Revolving Credit Commitment shall be
automatically reduced to zero.
(c) General Requirements. Upon any reduction of the Revolving Credit
Commitment pursuant to this Section but subject to Section 2.5(a) hereof, the
Borrower shall immediately make a repayment of Revolving Credit Advances in
accordance with Section 2.5(c) hereof. The Borrower shall reimburse each Lender
in connection with any such payment in accordance with Section 2.9 hereof to the
extent applicable. The Borrower shall not have any right to rescind any
termination or reduction. Once reduced, the Revolving Credit Commitment may not
be increased or reinstated.
Section 2.7 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender prior to the date
of any proposed Advance (which notice shall be effective upon receipt) that such
Lender does not intend to make the proceeds of such Advance available to the
Administrative Agent, the Administrative Agent may assume that such Lender has
made such proceeds available to the Administrative Agent on such date, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
amount on demand from such Lender (or, if such Lender fails to pay such amount
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forthwith upon such demand, from the Borrower) together with interest thereon in
respect of each day during the period commencing on the date such amount was
available to the Borrower and ending on (but excluding) the date the
Administrative Agent receives such amount from (a) the Lender, at a per annum
rate equal to the lesser of (i) the Highest Lawful Rate or (ii) the Federal
Funds Rate, or (b) the Borrower, at the per annum rate applicable at the time to
such Advance. No Lender shall be liable for any other Lender's failure to fund
an Advance hereunder.
Section 2.8 Payment of Principal of Advances. To the extent not
otherwise required to be paid earlier as provided herein, the principal amount
of the Revolving Credit Advances shall be due and payable on the Revolving
Commitment Maturity Date.
Section 2.9 Reimbursement. Whenever any Lender shall sustain or incur
any losses or reasonable out-of-pocket expenses in connection with (a) failure
by the Borrower to borrow any LIBOR Advance after having given notice of its
intention to borrow in accordance with Section 2.2 hereof (whether by reason of
the Borrower's election not to proceed or the non-fulfillment of any of the
conditions set forth in Article 3 hereof), (b) any prepayment for any reason of
any LIBOR Advance in whole or in part (including, but not limited to, a
prepayment pursuant to Section 8.3(b) hereof) on other than the last day of an
Interest Period applicable to such LIBOR Advance, (c) any prepayment of any of
its LIBOR Advances that is not made on any date specified in a notice of
prepayment given by the Borrower or (d) the selling by such Lender (provided
that such Lender was a Lender on the Agreement Date) of its rights and
obligations under this Agreement to an Eligible Assignee within 180 days after
the Agreement Date, the Borrower agrees to pay to any such Lender, within 30
days after demand by such Lender, an amount sufficient to compensate such Lender
for all such losses (excluding loss of anticipated profits) and out-of-pocket
expenses, subject to Section 10.9 hereof. A certificate as to any amounts
payable to any Lender under this Section 2.9 submitted to the Borrower by such
Lender shall certify that such amounts were actually incurred by such Lender and
shall show in reasonable detail an accounting of the amount payable and the
calculations used to determine in good faith such amount and shall be conclusive
absent demonstrable error.
Section 2.10 Manner of Payment.
(a) Each payment (including prepayments) by the Borrower of the
principal of or interest on the Advances, fees, and any other amount owed under
this Agreement or any other Loan Document shall be made not later than 12:00
noon (Dallas, Texas time) on the date specified for payment under this Agreement
to the Administrative Agent at the Administrative Agent's office, in lawful
money of the United States of America constituting immediately available funds.
(b) If any payment under this Agreement or any other Loan Document
shall be specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day, unless, with respect
to a payment due in respect of a LIBOR Advance, such Business Day falls in
another calendar month, in which case payment shall be made on the preceding
Business Day. Any extension of time shall in such case be included in computing
interest and fees, if any, in connection with such payment.
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(c) The Borrower agrees to pay principal, interest, fees and all other
amounts due under the Loan Documents without deduction for set-off or
counterclaim or any deduction whatsoever.
(d) All payments received by the Administrative Agent in respect of the
Revolving Credit Advances pursuant to the Loan Documents (other than from other
Lenders) shall be distributed to the Lenders in accordance with the Revolving
Credit Percentages.
Section 2.11 LIBOR Lending Offices. Each Lender's initial LIBOR Lending
Office is set forth opposite its name in Schedule 1 attached hereto. Each Lender
shall have the right at any time and from time to time to designate a different
office of itself or of any Affiliate of such Lender as such Lender's LIBOR
Lending Office, and to transfer any outstanding LIBOR Advance to such LIBOR
Lending Office. No such designation or transfer shall result in any liability on
the part of the Borrower for increased costs or expenses resulting solely from
such designation or transfer (except any such transfer which is made by a Lender
pursuant to Section 8.2 or 8.3 hereof, or otherwise for the purpose of complying
with Applicable Law). Increased costs for expenses resulting from a change in
law occurring subsequent to any such designation or transfer shall be deemed not
to result solely from such designation or transfer.
Section 2.12 Sharing of Payments. If any Lender shall obtain a payment
(whether voluntary or involuntary, due to the exercise of any right of set-off,
or otherwise) on account of its Advances (other than pursuant to Sections 2.14,
8.3 or 8.5) in excess of its share of payments made by the Borrower according to
its Revolving Credit Specified Percentage, such Lender shall purchase from each
other Lender such participation in the Advances made by such other Lender as
shall be necessary to cause such purchasing Lender to share a ratable portion of
the excess payment with each other Lender (based on its Revolving Credit
Specified Percentage); provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section, to the
fullest extent permitted by law, may exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 2.13 Calculation of LIBOR Rate. The provisions of this
Agreement relating to calculation of the LIBOR Rate are included only for the
purpose of determining the rate of interest or other amounts to be paid
hereunder that are based upon such rate, it being understood that each Lender
shall be entitled to fund and maintain its funding of all or any part of a LIBOR
Advance as it sees fit.
Section 2.14 Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.10, free and clear of and without deduction for any
and all present or future taxes, levies,
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imposts, deductions, charges and withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative Agent, (i)
taxes imposed on, based upon or measured by its overall net income, net worth or
capital, and franchise taxes, doing business taxes or minimum taxes imposed on
it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or in which it has its
applicable lending office or any political subdivision thereof; (ii) taxes
imposed by reason of failure by the Lender or the Administrative Agent to comply
with the requirements of paragraph (e) of this Section 2.14; and (iii) in the
case of any Lender, any taxes in the nature of transfer, stamp, recording or
documentary taxes resulting from a transfer (other than as a result of
foreclosure) by such Lender of all or any portion of its interest in this
Agreement, the Notes or any other Loan Documents (all such non- excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by Law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder to
any Lender or the Administrative Agent, to the extent not prohibited by
Applicable Law, (x) the sum payable shall be increased as may be necessary so
that after making all required deductions for Taxes (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (y) the Borrower
shall make such deductions and (z) the Borrower shall pay the full amount of
Taxes deducted to the relevant taxation authority or other authority in
accordance with Applicable Law.
(b) In addition, the Borrower agrees to pay any and all stamp and
documentary taxes and any and all other excise and property taxes, charges and
similar levies (other than taxes described in clause (iii) of the first sentence
of Section 2.14(a)) that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) paid by such Lender or the Administrative Agent
(as the case may be) and all liabilities (including penalties, additions to tax,
interest and reasonable expenses) arising therefrom or with respect thereto
whether or not such Taxes or Other Taxes were correctly or legally asserted,
other than penalties, additions to tax, interest and expenses which are finally
judicially determined by a court of competent jurisdiction to have arisen as a
result of gross negligence or wilful misconduct on the part of such Lender or
the Administrative Agent. This indemnification shall be made within 30 days from
the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent the original or a certified
copy of a receipt evidencing payment thereof. For purposes of this Section 2.14
the terms "United States" and "United States Person" shall have the meanings set
forth in Section 7701 of the Code.
(e) Each Lender which is not a United States Person hereby agrees that:
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(i) it shall, no later than the Agreement Date (or, in the
case of a Lender which becomes a party hereto pursuant to Section 10.6
after the Agreement Date, the date upon which such Lender becomes a
party hereto) and at such times as necessary in the reasonable
determination of the Borrower, deliver to the Borrower through the
Administrative Agent, with a copy to the Administrative Agent:
(A) if any lending office is located in the United
States, two (2) accurate and complete signed
originals of Internal Revenue Service Form 4224 or
any successor form thereto ("Form 4224"),
(B) if any lending office is located outside the United
States, two (2) accurate and complete signed
originals of Internal Revenue Service Form 1001 or
any successor form thereto ("Form 1001"),
in each case establishing that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest, fees, or
other amounts payable at such lending office or lending offices under
this Agreement or any other Loan Document free from deduction or
withholding of United States federal income tax;
(ii) if at any time such Lender changes its lending office or
lending offices or selects an additional lending office it shall, at
the same time or reasonably promptly thereafter, but only to the extent
the forms previously delivered by it hereunder are not effective with
respect to such changed or additional lending office or lending
offices, deliver to the Borrower through the Administrative Agent, with
a copy to the Administrative Agent, in replacement for the forms
previously delivered by it hereunder:
(A) if such changed or additional lending office is
located in the United States, two (2) accurate and
complete signed originals of Form 4224; or
(B) otherwise, two (2) accurate and complete signed
originals of Form 1001,
in each case establishing that such Lender is on the date of delivery
thereof entitled to receive payments of principal, interest, fees, or
other amounts payable at such changed or additional lending office
under this Agreement or any other Loan Document free from deduction of
withholding of United States federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned
in clause (ii) above) requiring a change in the most recent Form 4224
or Form 1001 previously delivered by such Lender and if the delivery of
the same be lawful, deliver to the Borrower through the Administrative
Agent, with a copy to the Administrative Agent, two (2) accurate and
complete original signed copies of Form 4224 or Form 1001, in each case
establishing that such Lender is on the date
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<PAGE> 26
of delivery thereof entitled to receive payments of principal,
interest, fees, or other amounts payable under this Agreement or any
other Loan Document free from deduction or withholding of United States
federal income tax, in replacement for the forms previously delivered
by such Lender;
(iv) it shall, promptly upon the request of the Borrower to
that effect, deliver to the Borrower such other forms or similar
documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such Lender's tax
status for withholding purposes;
(v) it shall notify the Borrower promptly after any event
(including an amendment to or a change in any applicable law or
regulation or in the written interpretation thereof by any regulatory
authority or any judicial authority or by ruling applicable to such
Lender of any governmental authority charged with the interpretation or
administration of any law) shall occur that results in such Lender no
longer being capable of receiving payments under this Agreement without
any deduction or withholding of United States federal income tax; and
(vi) if such Lender is not a "bank" or other person described
in Section 881(c)(3) of the Code and cannot deliver either Form 4224 or
Form 1001, a statement that such Lender is not a "bank" under Section
881(c)(3)(A) of the Code and two original copies of Internal Revenue
Service Form W-8 (or any successor form), properly completed and duly
executed by such Lender.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of the Obligations.
(g) Each Lender (and the Administrative Agent with respect to payments
to the Administrative Agent for its own account) agrees that (i) it will take
all reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding taxes (whether available by
treaty, existing administrative waiver or by virtue of the location of any
Lender's lending office), (ii) it will use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its lending office, if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable judgment of such Lender, be
disadvantageous to such Lender, and (iii) otherwise cooperate with the Borrower
(in a manner that is not disadvantageous to such Lender in its sole discretion)
to minimize amounts payable by the Borrower under this Section 2.14; provided,
however, no Lender nor the Administrative Agent shall be obligated by reason of
this Section 2.14(g) to (a) disclose any information regarding its tax affairs
or tax computations or reorder its tax or other affairs or tax or other planning
or (b) contest the payment of any Taxes or Other Taxes. Subject to the
foregoing, to the extent the Borrower pays sums pursuant to this Section 2.14
and the Lender or the Administrative Agent receives a refund of any or all of
such sums, the party receiving such refund shall promptly pay over all such
refunded sums to the Borrower, provided that
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<PAGE> 27
no Default or Event of Default is in existence at such time. At such time, if
any, that such Default or Event of Default is cured or waived, the party
receiving such refund shall promptly pay over all such refunded sums to the
Borrower.
(h) If the Borrower becomes obligated to pay additional amounts
described in this Section 2.14 to any Lender, the Borrower may designate a
financial institution reasonably acceptable to the Administrative Agent to
replace such Lender by purchasing for cash and receiving an assignment of such
Lender's pro rata share of the Commitments and the Rights of such Lender under
the Loan Documents without recourse to or warranty by, or expense to, such
Lender, for a purchase price equal to the outstanding amounts owed to such
Lender (including such additional amounts owing to such Lender pursuant to this
Section 2.14). Upon execution of an Assignment Agreement, such other financial
institution shall be deemed to be a "Lender" for all purposes of this Agreement
as set forth in Section 10.6 hereof.
Section 2.15 Pari Passu. Nothing provided in this Agreement or any
other Loan Document shall cause the Obligations under this Agreement to be
senior or superior in any manner to the Obligations (as defined in the Existing
Credit Agreement) under the Existing Credit Agreement, it being understood that
the Obligations under this Agreement and the Obligations (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement are of equal rank
and priority and are otherwise pari passu for all purposes.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to the Initial Advances. The
obligation of each Lender to make the initial Advance is subject to (i) receipt
by the Administrative Agent of the following items which are to be delivered, in
form and substance satisfactory to each Lender, with a copy (except for the
Revolving Credit Notes and this Agreement) for each Lender, and (ii)
satisfaction of the following conditions which are to be satisfied:
(a) A loan certificate of the Borrower certifying as to the accuracy of
its representations and warranties in the Loan Documents, certifying that no
Default or Event of Default has occurred, and including a certificate of
incumbency with respect to each Authorized Signatory, and including (i) a copy
of the articles of incorporation of the Borrower, certified to be true, complete
and correct by the Secretary of State of Texas, (ii) a copy of a certificate of
good standing and a certificate of existence for its state of Texas, (iii) a
copy of the Borrower's bylaws, certified to be true, complete and correct by its
secretary or general partner, as the case may be, and (iv) a copy of corporate
or similar resolutions authorizing the execution, delivery and performance of
the Loan Documents to be executed by the Borrower;
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<PAGE> 28
(b) a duly executed Revolving Credit Note payable to the order of each
Lender and in an amount for each Lender equal to its Revolving Credit Specified
Percentage;
(c) opinions of counsel to each Obligor addressed to the Lenders and in
form and substance satisfactory to the Lenders, dated the Agreement Date, and
covering such matters incident to the transactions contemplated hereby as the
Administrative Agent or Special Counsel may reasonably request;
(d) reimbursement for the Administrative Agent for Special Counsel's
reasonable and customary fees (on an hourly basis) and expenses rendered through
the date hereof, to the extent invoiced one Business Day prior to the Agreement
Date;
(e) evidence that all proceedings of each Obligor taken in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent and Special Counsel; and the Lenders shall have received
copies of all documents or other evidence which the Administrative Agent or
Special Counsel may reasonably request in connection with such transactions;
(f) the duly completed and executed Westar Consent and Westar Guaranty;
(g) the duly executed and completed Security Agreement, dated as of the
Agreement Date, granting a Lien, in all Collateral covered thereby, together
with related financing statements;
(h) a duly executed amendment to the Existing Credit Agreement, in form
and substance satisfactory to the Borrower and the Administrative Agent;
(i) duly executed and completed Pledge Agreement, dated as of the
Agreement Date, granting a Lien in all Collateral covered thereby (which shall
initially include a certificate of deposit in the face amount of $5,000,000 with
a maturity of 30 days issued by a financial institution reasonably acceptable to
the Administrative Agent), together with such certificate of deposit and
executed, blank bond powers;
(j) a letter from George Argyros, in form and substance reasonably
satisfactory to the Administrative Agent, regarding his future investments in
Westar; and
(k) in form and substance reasonably satisfactory to the Administrative
Agent and Special Counsel, such other documents, instruments and certificates as
the Administrative Agent or any Lender may reasonably require in connection with
the transactions contemplated hereby, including without limitation, evidence of
the status, organization or authority of the Borrower, and the enforceability of
the Obligations.
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<PAGE> 29
Section 3.2 Conditions Precedent to All Advances. The obligation of
each Lender to make each Advance hereunder (including the initial Advance) is
subject to fulfillment of the following conditions immediately prior to or
contemporaneously with each such Advance or issuance:
(a) With respect to each Advance, all of the representations and
warranties of the Borrower under this Agreement, which, pursuant to Section 4.2
hereof, are made at and as of the time of each such Advance, shall be true and
correct, both before and after giving effect to the application of the proceeds
of the Advance, except as otherwise expressly provided in said Section 4.2
hereof.
(b) The incumbency of the Authorized Signatories shall be as stated in
the certificate of incumbency delivered in the Borrower's loan certificate
pursuant to Section 3.1(a) or as subsequently modified and reflected in a
certificate of incumbency delivered to the Administrative Agent. The Lenders
may, without waiving this condition, consider it fulfilled and a representation
by the Borrower made to such effect if no written notice to the contrary, dated
on or before the date of such Advance, is received by the Administrative Agent
from the Borrower prior to the making of such Advance;
(c) There shall not exist a Default or Event of Default hereunder;
(d) The aggregate Advances, after giving effect to such proposed
Advance, shall not exceed the maximum principal amount then permitted to be
outstanding hereunder;
(e) No order, judgment, injunction or decree of any Tribunal shall
purport to enjoin or restrain any Lender from making any Advance;
(f) There shall be no Litigation pending against, or, to the Borrower's
current actual knowledge, threatened against the Borrower or any of its
Subsidiaries, or in any other manner relating directly and adversely to the
Borrower or any of its Subsidiaries, or any of their respective properties, in
any court or before any arbitrator of any kind or before or by any governmental
body which could reasonably be expected to have a Material Adverse Effect;
(g) There shall have occurred no material adverse change in the
business, assets, condition (financial or otherwise) or results of operations of
the Borrower and its Subsidiaries, taken as a whole, since June 30, 1999; and
(h) After giving effect to the making of such Advances, the following
statements shall be true and correct and the Borrower shall be deemed to
represent and warrant as of such date as follows:
(i) such requested Advances are permitted "Indebtedness" (as
such term is defined in the Indenture);
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<PAGE> 30
(ii) upon the making of each requested Advance, no Event of
Default (as defined in the Indenture) shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro
forma basis to, such increase of "Indebtedness"; and
(iii) all Advances under this Agreement are "Senior Debt" as
defined in the Indenture; and
(i) Westar shall shave delivered an executed Westar Loan Approval for
such proposed Advance.
Section 3.3 Conditions Precedent to Conversions and Continuations. The
obligation of the Lenders to convert any existing Base Rate Advance into a LIBOR
Advance or to continue any existing LIBOR Advance is subject to the condition
precedent that on the date of such conversion or continuation no Default or
Event of Default shall have occurred and be continuing or would result from the
making of such conversion or continuation. The acceptance of the benefits of
each such conversion and continuation shall constitute a representation and
warranty by the Borrower to each of the Lenders that no Default or Event of
Default shall have occurred and be continuing or would result from the making of
such conversion or continuation.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
represents and warrants to each Lender as follows:
(a) Authorization. The Borrower has legal power and has taken all
necessary legal action to authorize it to borrow hereunder. The Borrower has
legal power and has taken all necessary legal action to execute, deliver and
perform the Loan Documents to which it is party in accordance with the terms
thereof, and to consummate the transactions contemplated thereby. Each Loan
Document has been duly executed and delivered by the Borrower. Each of the Loan
Documents to which the Borrower is a party is a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, subject,
to enforcement of remedies, to the following qualifications: (i) equitable
principles generally, and (ii) Debtor Relief Laws (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower).
(b) Compliance with Other Loan Documents and Contemplated Transactions.
The execution, delivery and performance by the Borrower of the Loan Documents,
and the consummation of the transactions contemplated thereby, do not and will
not (i) require any consent or approval necessary on or prior to the Agreement
Date not already obtained, except to the extent that the failure to obtain such
consent or approval could not reasonably be expected to have a Material Adverse
Effect, (ii) violate any Applicable Law, (iii) conflict with, result in a breach
of, or constitute a default
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<PAGE> 31
under the certificate of incorporation or by-laws or other applicable
organizational documents of the Borrower, (iv) conflict with, result in a breach
of, or constitute a default under any indenture, agreement (other than the
Existing Credit Agreement for which a consent has been obtained) or other
instrument, to which the Borrower is a party or by which they or its properties
may be bound, the effect of which could reasonably be expected to have a
Material Adverse Effect, or (v) result in or require the creation or imposition
of any Lien (other than Liens in favor of the Lenders to secure the Obligations
hereunder) upon or with respect to any property now owned or hereafter acquired
by the Borrower.
(c) Solvency. The Borrower is Solvent.
(d) Disclosure. All factual information furnished by the Borrower in
writing to the Administrative Agent or any Lender in connection with this
Agreement or the other Loan Documents is, and all other such factual information
hereafter furnished by or on behalf of the Borrower or any of its Subsidiaries
in writing to the Administrative Agent or any Lender will be, true and accurate
in all material respects on the date as of which such information is dated or
certified and no incomplete by omitting to state any material fact necessary to
make such information not misleading at such time in light of the circumstances
under which such information was provided. There is no fact known to the
Borrower and not known to the public generally that could reasonably be expected
to have a Material Adverse Effect, which has not been set forth in this
Agreement or in the documents, certificates and statements furnished to the
Lenders by or on behalf of the Borrower prior to the date hereof in connection
with the transaction contemplated hereby.
(e) Compliance with Law. The Borrower is in compliance in all respects
with all Applicable Laws, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect.
(f) Litigation. There is no Litigation pending against, or, to the
Borrower's current actual knowledge, threatened against the Borrower, or in any
other manner relating directly and adversely to the Borrower, or any of its
properties, in any court or before any arbitrator of any kind or before or by
any governmental body which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
(g) Taxes. All federal, state and other tax returns of the Borrower
required by law to be filed have been duly filed, or extensions have been timely
filed, and all Taxes shown to be due and payable on such returns, have been
paid, unless the same are being diligently contested in accordance with Section
5.6 of the Existing Credit Agreement.
(h) Absence of Default. The Borrower is in compliance in all material
respects with all of the provisions of its certificate of incorporation, by-laws
and other organizational documents, and no event has occurred or failed to
occur, which has not been remedied or waived, the occurrence or non-occurrence
of which constitutes, or which with the passage of time or giving of notice or
both would constitute, (i) an Event of Default (which has not
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<PAGE> 32
been waived) or (ii) a default (which has not been waived) by the Borrower under
any indenture, agreement or other instrument, or any judgment, decree or order
to which the Borrower or by which it or any of its properties is bound (other
than Events of Default (as defined in the Existing Credit Agreement) under the
Existing Credit Agreement which are not specifically listed in Section 7.1(h) of
this Agreement), the result of which with respect to any default set forth in
clause (ii) could reasonably be expected to have a Material Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date and at and
as of the date of each Advance, and each shall be true and correct in all
material respects when made, except to the extent (a) previously fulfilled in
accordance with the terms hereof, (b) previously waived in writing by the
Determining Lenders with respect to any particular factual circumstance or
permitted by the terms of this Agreement or (c) such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such date. All such representations and warranties shall
survive, and not be waived by, the execution hereof by any Lender, any
investigation or inquiry by any Lender, or by the making of any Advance under
this Agreement.
ARTICLE 5
Indemnity
Section 5.1 Indemnity.
(a) THE BORROWER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS
THE ADMINISTRATIVE AGENT, EACH LENDER, EACH OF THEIR RESPECTIVE AFFILIATES, AND
EACH OF THEIR RESPECTIVE (INCLUDING SUCH AFFILIATES') OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS AND CONSULTANTS (INCLUDING, WITHOUT LIMITATION,
THOSE RETAINED IN CONNECTION WITH THE SATISFACTION OR ATTEMPTED SATISFACTION OF
ANY OF THE CONDITIONS SET FORTH HEREIN) OF EACH OF THE FOREGOING (COLLECTIVELY,
"INDEMNITEES") FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, REASONABLE COSTS,
REASONABLE OUT-OF-POCKET EXPENSES AND REASONABLE DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL FOR SUCH INDEMNITEES IN CONNECTION WITH ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING, WHETHER OR NOT SUCH
INDEMNITEES SHALL BE DESIGNATED A PARTY THERETO), IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST SUCH INDEMNITEES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND
WHETHER BASED ON ANY FEDERAL, STATE, OR LOCAL LAWS AND
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<PAGE> 33
REGULATIONS, UNDER COMMON LAW OR AT EQUITABLE CAUSE, OR ON CONTRACT, TORT OR
OTHERWISE, ARISING FROM OR CONNECTED WITH THE PAST, PRESENT OR FUTURE OPERATIONS
OF THE BORROWER OR ANY SUBSIDIARY OF THE BORROWER OR THEIR RESPECTIVE
PREDECESSORS IN INTEREST, OR THE PAST, PRESENT OR FUTURE ENVIRONMENTAL CONDITION
OF PROPERTY OF THE BORROWER OR ANY SUBSIDIARY OF THE BORROWER), RELATING TO OR
ARISING OUT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY ACT, EVENT OR
TRANSACTION OR ALLEGED ACT, EVENT OR TRANSACTION RELATING THERETO, INCLUDING IN
CONNECTION WITH, OR AS A RESULT, IN WHOLE OR IN PART, OF ANY ORDINARY OR MERE
NEGLIGENCE OF ADMINISTRATIVE AGENT OR ANY LENDER (OTHER THAN THOSE MATTERS
RAISED EXCLUSIVELY BY A PARTICIPANT AGAINST THE ADMINISTRATIVE AGENT OR ANY
LENDER AND NOT THE BORROWER), OR THE USE OR INTENDED USE OF THE PROCEEDS OF THE
ADVANCES OR LETTERS OF CREDIT HEREUNDER, OR IN CONNECTION WITH ANY INVESTIGATION
OF ANY POTENTIAL MATTER COVERED HEREBY, BUT EXCLUDING (i) ANY CLAIM OR LIABILITY
THAT ARISES AS THE RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF ANY
INDEMNITEE, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, (ii) ANY CLAIM OR LIABILITY THAT ARISES AS THE DIRECT RESULT OF
THE OPERATION OF THE PROPERTY OF THE BORROWER OR ANY SUBSIDIARY OF THE BORROWER
BY ANY OF THE LENDERS AFTER TAKING POSSESSION THEREOF BY FORECLOSURE OR BY
TRANSFER IN LIEU OF FORECLOSURE (PROVIDED THAT SUCH CLAIM OR LIABILITY DOES NOT
RELATE TO ANY CONDITION EXISTING ON SUCH PROPERTY PRIOR TO FORECLOSURE OR
TRANSFER IN LIEU OF FORECLOSURE), AND (iii) MATTERS RAISED BY ONE LENDER AGAINST
ANOTHER LENDER OR BY ANY SHAREHOLDERS OF A LENDER AGAINST A LENDER OR ITS
MANAGEMENT (COLLECTIVELY, EXCEPT FOR THE MATTERS REFERRED TO CLAUSES (i), (ii)
OR (iii) ABOVE, "INDEMNIFIED MATTERS", AND THE MATTERS REFERRED TO IN CLAUSES
(i), (ii) OR (iii) ABOVE, COLLECTIVELY, "EXCLUDED MATTERS"). TO THE EXTENT THAT
ANY INDEMNIFIED MATTER INVOLVES ONE OR MORE INDEMNITEES, SUCH INDEMNITEES SHALL
USE THE SAME LEGAL COUNSEL UNLESS ANY INDEMNITEE IN ITS REASONABLE DISCRETION
DETERMINES THAT CONFLICTS EXIST OR MAY ARISE IN CONNECTION WITH SUCH
REPRESENTATION.
(b) WITHOUT DUPLICATION, THE BORROWER SHALL PERIODICALLY, UPON REQUEST,
REIMBURSE EACH INDEMNITEE FOR ITS REASONABLE OUT-OF- POCKET LEGAL AND OTHER
ACTUAL REASONABLE EXPENSES (INCLUDING THE REASONABLE COST OF ANY INVESTIGATION
AND PREPARATION) INCURRED IN CONNECTION WITH ANY INDEMNIFIED MATTER; PROVIDED
THAT SUCH INDEMNITEE SHALL PROVIDE ADEQUATE DOCUMENTATION OF SUCH EXPENSES;
PROVIDED, FURTHER, THAT IF AN INDEMNITEE IS REIMBURSED
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<PAGE> 34
HEREUNDER FOR SUCH AMOUNT, THE AMOUNT SO PAID SHALL BE REFUNDED TO THE BORROWER
IF AND TO THE EXTENT IT IS FINALLY JUDICIALLY DETERMINED THAT THE INDEMNIFIED
MATTER IN QUESTION WAS AN EXCLUDED MATTER. THE REIMBURSEMENT, INDEMNITY AND
CONTRIBUTION OBLIGATIONS UNDER THIS SECTION SHALL BE IN ADDITION TO ANY
LIABILITY WHICH THE BORROWER MAY OTHERWISE HAVE, SHALL EXTEND UPON THE SAME
TERMS AND CONDITIONS TO EACH INDEMNITEE, AND SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF ANY SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF
THE BORROWER, THE ADMINISTRATIVE AGENT, THE LENDERS AND ALL OTHER INDEMNITEES.
THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE
OBLIGATIONS.
ARTICLE 6
Covenants
Until the termination of the Revolving Credit Commitment and payment of
all outstanding Obligations in full, the Borrower will comply with all of the
covenants and agreements set forth in Articles 5 (other than Sections 5.8 and
5.9 thereof), 6 and 7 (other than Sections 7.11, 7.12 or 7.13 prior to September
30, 1999) of the Existing Credit Agreement as in effect on the Agreement Date.
For purposes of this Agreement, all of the covenants and agreement of the
Borrower set forth in Articles 5 (other than Sections 5.8 and 5.9 thereof), 6
and 7 (other than Sections 7.11, 7.12 or 7.13 prior to September 30, 1999) of
the Existing Credit Agreement and all definitions relating thereto are hereby
reaffirmed and adopted by the Borrower and are incorporated herein as written
and agreed upon as of the Agreement Date, and as may be hereafter amended,
modified or waived pursuant to the terms thereof, mutatis mutandis. In the event
of termination of the Existing Credit Agreement prior to the payment full of all
Obligations under this Agreement and termination of the Revolving Credit
Commitment, the Borrower covenants and agrees that the covenants and agreements
of the Borrower contained in Articles 5 (other than Sections 5.8 and 5.9
thereof), 6 and 7 (other than Sections 7.11, 7.12 or 7.13 prior to September 30,
1999) of the Existing Credit Agreement shall nevertheless remain in full force
and effect and be binding upon the Borrower, and the Borrower shall continue to
perform, observe and comply with all of the covenants and agreements of the
Borrower set forth in Articles 5 (other than Sections 5.8 and 5.9 thereof), 6
and 7 (other than Sections 7.11, 7.12 or 7.13 prior to September 30, 1999) of
the Existing Credit Agreement. If the Borrower delivers the applicable quarterly
or annual financial statements in accordance with Section 6.3 of the Existing
Credit Agreement (as incorporated by reference herein) in a timely manner, the
Borrower's compliance or non-compliance with Sections 7.11, 7.12 and 7.13 of the
Existing Credit Agreement incorporated by reference herein as of the date of
such financial statements shall be based upon the information set forth in such
financial statements absent error.
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ARTICLE 7
Default
Section 7.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event, and whether voluntary,
involuntary, or effected by operation of law or pursuant to any judgment or
order of any court or any order, rule or regulation of any governmental or
non-governmental body:
(a) Any representation or warranty made under any Loan Document shall
prove to have been incorrect or misleading in any material respect when made;
(b) The Borrower shall fail to pay any (i) principal under any
Revolving Credit Note when due; or (ii) interest under any Revolving Credit Note
or any fees payable hereunder or any other costs, fees, expenses or other
amounts payable hereunder or under any other Loan Document within the earlier of
(A) three Business Days after the date due or (B) one Business Day after written
notice thereof from the Administrative Agent;
(c) The Borrower shall default in the performance or observance of any
agreement or covenant contained in Section 5.1 hereof or in Article 7 of the
Existing Credit Agreement to the extent incorporated by reference herein as
provided in Article 6 hereof;
(d) Any Obligor shall default in the performance or observance of any
other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 7.1, and such default shall not be cured
within a period of thirty days after the earlier of notice from the
Administrative Agent thereof or actual notice thereof by a Responsible Officer
of any Obligor;
(e) Any Obligor shall default in the performance or observance of any
agreement or covenant in any of the Loan Documents (other than this Agreement)
and such default shall not be cured within a period of thirty days after the
earlier of notice from the Administrative Agent thereof or actual notice thereof
by a Responsible Officer of any Obligor;
(f) There shall be commenced an involuntary proceeding or an
involuntary petition shall be filed in a court having competent jurisdiction
seeking (i) relief in respect of any Obligor, or a substantial part of the
property or the assets of such Obligor, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable Federal,
state or foreign bankruptcy law or other similar law, (ii) the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of any Obligor, or of any substantial part of their respective
properties, or (iii) the winding-up or liquidation of the affairs of any
Obligor, and any such proceeding or petition shall continue unstayed and in
effect for a period of forty-five consecutive days;
(g) Any Obligor shall (i) file a petition, answer or consent seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable Federal,
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state or foreign bankruptcy law or other similar law, (ii) consent to the
institution of proceedings thereunder or to the filing of any such petition or
to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of any Obligor or of
substantially all of its properties, (iii) file an answer admitting the material
allegations filed against it in any such proceeding, (iv) make a general
assignment for the benefit of creditors, (v) become unable, admit in writing its
inability, or fail generally, to pay its debts as they become due, or (vi) any
Obligor shall take any corporate or other legal action in furtherance of any
such action;
(h) An Event of Default (as defined in the Existing Credit Agreement)
under Section 8.1(b), 8.1(h), 8.1(i), 8.1(j) (but excluding a default with
respect to the Existing Credit Agreement unless the debt thereunder is
accelerated) or 8.1(n) shall occur and be continuing pursuant to the Existing
Credit Agreement;
(i) Any provision of any Loan Document shall for any reason cease to be
valid and binding on or enforceable against any party to it (other than the
Administrative Agent or any Lender) other than in accordance with its terms, or
any such party (other than the Administrative Agent or any Lender) shall so
assert in writing; or
(j) Any Collateral Document shall for any reason cease to create a
valid and perfected second priority Lien (subject only to a first Lien in favor
of the lenders under the Existing Credit Agreement) in any Collateral subject
thereto, other than as expressly provided or permitted in such Collateral
Document or in this Agreement.
Section 7.2 Remedies. If an Event of Default shall have occurred and
shall be continuing:
(a) With the exception of an Event of Default specified in Section
7.1(f) or (g) hereof, the Administrative Agent may at its election (provided
that the Administrative Agent has not previously received notice to the contrary
from the Determining Lenders), and shall upon the direction of the Determining
Lenders, terminate the Revolving Credit Commitment and/or declare the principal
of and interest on the Advances and all Obligations and other amounts owed under
the Loan Documents to be forthwith due and payable without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived, except
for notices expressly set forth in the Loan Documents.
(b) Upon the occurrence of an Event of Default specified in Section
7.1(f) or (g) hereof, such principal, interest and other amounts shall thereupon
and concurrently therewith become due and payable and the Revolving Credit
Commitment shall forthwith terminate, all without any action by the
Administrative Agent, any Lender or any holders of the Revolving Credit Notes
and without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in the Loan Documents to the contrary
notwithstanding.
(c) The Administrative Agent and the Lenders may exercise all of the
Rights granted to them under the Loan Documents or under Applicable Law.
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(d) The Rights of the Administrative Agent and the Lenders hereunder
shall be cumulative, and not exclusive.
ARTICLE 8
Changes in Circumstances
Section 8.1 LIBOR Basis Determination Inadequate. If with respect to
any proposed LIBOR Advance for any Interest Period, (i) any Lender determines
that deposits in dollars (in the applicable amount) are not being offered to
that Lender in the relevant market for such Interest Period or (ii) the
Determining Lenders determine that the LIBOR Rate for such proposed LIBOR
Advance does not adequately cover the cost to such Lender of making and
maintaining such proposed LIBOR Advance for such Interest Period, such Lender or
Determining Lenders, as the case may be, shall forthwith give notice thereof to
the Borrower, whereupon until such Lender or Determining Lenders, as the case
may be, notify the Borrower that the circumstances giving rise to such situation
no longer exist, the obligation of such Lender to make LIBOR Advances shall be
suspended; provided, however, such Lender or the Determining Lenders, as the
case may be, shall promptly notify the Borrower if the circumstances giving rise
to such situation no longer exist.
Section 8.2 Illegality. If after the Agreement Date any change in
applicable law, rule or regulation, or adoption thereof, or any change in any
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its LIBOR Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for such Lender (or its LIBOR Lending Office) to make, maintain or
fund its LIBOR Advances, such Lender shall so notify the Borrower and the
Administrative Agent. Before giving any notice to the Borrower pursuant to this
Section, the notifying Lender shall designate a different LIBOR Lending Office
or other lending office if such designation will avoid the need for giving such
notice and will not, in the sole judgment of the Lender, be materially
disadvantageous to the Lender. Upon receipt of such notice, notwithstanding
anything contained in Article 2 hereof, the Borrower shall repay in full the
then outstanding principal amount of each LIBOR Advance owing to the notifying
Lender, together with accrued interest thereon and any reimbursement required
under Section 2.9 hereof, on either (a) the last day of the Interest Period
applicable to such Advance, if the Lender may lawfully continue to maintain and
fund such Advance to such day, or (b) immediately, if the Lender may not
lawfully continue to fund and maintain such Advance to such day or if the
Borrower so elects. Concurrently with repaying each affected LIBOR Advance owing
to such Lender if the Borrower does not terminate this Agreement,
notwithstanding anything contained in Article 2 hereof, the Borrower may,
without any requirement to satisfy the conditions precedent set forth in Section
3.1, 3.2 or 3.3, borrow a Base Rate Advance from such Lender, and such Lender
shall make such Base Rate Advance, in an amount such that the outstanding
principal amount of the Advances owing to such Lender shall equal the
outstanding principal amount of the Advances owing immediately prior to such
repayment.
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Section 8.3 Increased Costs.
(a) If after the Agreement Date any change in or adoption of any law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by any Lender
(or its LIBOR Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or compatible
agency:
(i) shall subject a Lender (or its LIBOR Lending Office) to
any Tax (net of any tax benefit engendered thereby) with respect to its
LIBOR Advances or its obligation to make such Advances, or shall change
the basis of taxation of payments to a Lender (or to its LIBOR Lending
Office) of the principal of or interest on its LIBOR Advances or in
respect of any other amounts due under this Agreement, as the case may
be, or its obligation to make such Advances (except for changes in (A)
the rate of tax on the overall net income, net worth or capital of the
Lender and franchise taxes, doing business taxes or minimum taxes
imposed upon such Lender and (B) withholding taxes of any Tribunal
other than the United States of America or any state thereof); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, a Lender's LIBOR Lending Office or shall impose on the
Lender (or its LIBOR Lending Office) or on the London interbank market
any other condition affecting its LIBOR Advances or its obligation to
make such Advances (but excluding any reserves or deposits that are
included in the calculation of LIBOR Basis);
and the result of any of the foregoing is to increase the cost to a Lender (or
its LIBOR Lending Office) of making or maintaining any LIBOR Advances, or to
reduce the amount of any sum received or receivable by a Lender (or its LIBOR
Lending Office) with respect thereto, by an amount deemed by a Lender to be
material, then, within 30 days after demand by a Lender, the Borrower agrees to
pay to such Lender such additional amount as will compensate such Lender for
such increased costs or reduced amounts, subject to Section 10.9 hereof. The
affected Lender will as soon as practicable notify the Borrower of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section and will designate a different
LIBOR Lending Office or other lending office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
reasonable judgment of the affected Lender made in good faith, be
disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation under this
Section and setting forth the additional amounts to be paid to it hereunder
shall certify that such amounts or costs were actually incurred by such Lender
and shall show in reasonable detail an accounting of the amount payable and the
calculations used to determine in good faith such amount and shall be conclusive
absent
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demonstrable error. In determining such amount, a Lender may use any reasonable
averaging and attribution methods. Nothing in this Section 8.3 shall provide the
Borrower or any Subsidiary of the Borrower the right to inspect the records,
files or books of any Lender. If a Lender demands compensation under this
Section, the Borrower may at any time, upon at least five Business Days' prior
notice to the Lender, after reimbursement to the Lender by the Borrower in
accordance with this Section of all costs incurred, prepay in full the then
outstanding LIBOR Advances of the Lender, together with accrued interest thereon
to the date of prepayment, along with any reimbursement required under Section
2.9 hereof. Concurrently with prepaying such LIBOR Advances, the Borrower may,
without any requirement to satisfy the conditions precedent set forth in Section
3.1, 3.2 or 3.3, borrow a Base Rate Advance from the Lender, and the Lender
shall make such Base Rate Advance, in an amount such that the outstanding
principal amount of the Advances owing to such Lender shall equal the
outstanding principal amount of the Advances owing immediately prior to such
prepayment.
Section 8.4 Effect On Base Rate Advances. If notice has been given
pursuant to Section 8.1, 8.2 or 8.3 hereof suspending the obligation of a Lender
to make LIBOR Advances, or requiring LIBOR Advances of a Lender to be repaid or
prepaid, then, unless and until the Lender notifies the Borrower that the
circumstances giving rise to such repayment no longer apply, all Advances which
would otherwise be made by such Lender as LIBOR Advances shall be made instead
as Base Rate Advances.
Section 8.5 Capital Adequacy. If (a) the introduction of or any change
in or in the interpretation of any law, rule or regulation after the Agreement
Date or (b) compliance by a Lender with any Law or any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law) adopted or promulgated after the Agreement Date (including any
implementation of the Basle Accord or similar guideline or requirement adopted,
promulgated or becoming effective after the Agreement Date) affects or would
affect the amount of capital required or expected to be maintained by a Lender
or any corporation controlling such Lender, and such Lender determines that the
amount of such capital is increased by or based upon the existence of such
Lender's commitment or Advances hereunder and other commitments or advances of
such Lender of this type, then, within 10 days after demand by such Lender,
subject to Section 10.9, the Borrower shall immediately pay to such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender with respect to such circumstances, to the extent that
such Lender reasonably determines in good faith such increase in capital to be
allocable to the existence of such Lender's Commitments hereunder. A certificate
as to any additional amounts payable to any Lender under this Section 8.5
submitted to the Borrower by such Lender shall certify that such amounts were
actually incurred by such Lender or corporation controlling such Lender and
shall show in reasonable detail an accounting of the amount payable and the
calculations used to determine in good faith such amount and shall be conclusive
absent demonstrable error. In determining such amount, such Lender or a
corporation controlling such Lender may use any reasonable averaging and
attribution methods. Notwithstanding the foregoing, nothing in this Section 8.5
shall provide the Borrower or any Subsidiary of the Borrower the right to
inspect the records, files or books of any Lender or any corporation controlling
such Lender.
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Section 8.6 Replacement Lender. If the Borrower becomes obligated to
pay additional amounts to any Lender described in Section 8.2, 8.3 or 8.5, the
Borrower may designate a financial institution reasonably acceptable to the
Administrative Agent to replace such Lender by purchasing for cash and receiving
an assignment of such Lender's pro rata share of such Lender's commitment and
the Rights of such Lender under the Loan Documents without recourse to or
warranty by, or expense to, such Lender, for a purchase price equal to the
outstanding amounts owing to such Lender (including such additional amounts
owing to such Lender pursuant to Section 8.3 or 8.5). Upon execution of an
Assignment Agreement, such other financial institution shall be deemed to be a
"Lender" for all purposes of this Agreement as set forth in Section 10.6 hereof.
ARTICLE 9
Agreement Among Lenders
Section 9.1 Agreement Among Lenders. The Lenders agree among themselves
that:
(a) Administrative Agent. Each Lender hereby appoints the
Administrative Agent as its nominee in its name and on its behalf, to receive
all documents and items to be furnished hereunder; to act as nominee for and on
behalf of all Lenders under the Loan Documents; to, except as otherwise
expressly set forth herein, take such action as may be requested by the
Determining Lenders, provided that, (i) unless and until the Administrative
Agent shall have received such requests, the Administrative Agent may take such
administrative action, or refrain from taking such administrative action, as it
may deem advisable and in the best interests of the Lenders, and (ii) the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to any Loan
Document or Applicable Law; to arrange the means whereby the proceeds of the
Advances of the Lenders are to be made available to the Borrower; to distribute
promptly to each Lender information, requests and documents received from the
Borrower, and each payment (in like funds received) with respect to any of such
Lender's Advances, or the ratable amount of fees or other amounts; and to
deliver to the Borrower requests, demands, approvals and consents received from
the Lenders. Administrative Agent agrees to promptly distribute to each Lender,
at such Lender's address set forth below information, requests, documents and
payments received from the Borrower. The Administrative Agent shall have no
trustee or other fiduciary relationship in respect of any Lender by reason of
this Agreement or any other Loan Document. The Administrative Agent shall have
no duties or responsibilities except those expressly set forth in this
Agreement. The duties of the Administrative Agent are mechanical and
administrative in nature.
(b) Replacement of Administrative Agent. Should the Administrative
Agent or any successor Administrative Agent ever cease to be a Lender hereunder,
or should the Administrative Agent or any successor Administrative Agent ever
resign as Administrative Agent, or should the Administrative Agent or any
successor Administrative Agent ever be removed with cause or without cause by
the action of all Lenders (other than the Administrative Agent), then the Lender
appointed
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by the other Lenders (with the consent of the Borrower, which consent shall not
be unreasonably withheld) shall forthwith become the Administrative Agent, and
the Borrower and the Lenders shall execute such documents as any Lender may
reasonably request to reflect such change at no cost to the Borrower. Any
resignation or removal of the Administrative Agent or any successor
Administrative Agent shall become effective upon the appointment by the Lenders
of a successor Administrative Agent; provided, however, if no successor
Administrative Agent shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the Laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents, provided
that if the retiring or removed Administrative Agent is unable to appoint a
successor Administrative Agent, the Administrative Agent shall, after the
expiration of a 60 day period from the date of notice, be relieved of all
obligations as Administrative Agent hereunder. Notwithstanding any
Administrative Agent's resignation or removal hereunder, the provisions of this
Article shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Administrative Agent under this
Agreement.
(c) Expenses. Each Lender shall pay its pro rata share, based on its
Revolving Credit Specified Percentage, of any reasonable expenses paid by the
Administrative Agent directly and solely in connection with any of the Loan
Documents if Administrative Agent does not receive reimbursement therefor from
other sources within 60 days after the date incurred. Any amount so paid by the
Lenders to the Administrative Agent shall be returned by the Administrative
Agent pro rata to each paying Lender to the extent later paid by the Borrower or
any other Person on the Borrower's behalf to the Administrative Agent.
(d) Delegation of Duties. The Administrative Agent may execute any of
its duties hereunder by or through officers, directors, employees, attorneys or
agents, and shall be entitled to (and shall be protected in relying upon) advice
of counsel concerning all matters pertaining to its duties hereunder.
(e) Reliance by Administrative Agent. The Administrative Agent and its
officers, directors, employees, attorneys and agents shall be entitled to rely
and shall be fully protected in relying on any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telex or teletype
message, statement, order, or other document or conversation reasonably believed
by it or them in good faith to be genuine and correct and to have been signed or
made by the proper Person and, with respect to legal matters, upon opinions of
counsel selected by the Administrative Agent. The Administrative Agent may, in
its reasonable judgment, deem and treat the payee of any Note as the owner
thereof for all purposes hereof.
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(f) Limitation of Administrative Agent's Liability. Neither the
Administrative Agent nor any of its officers, directors, employees, attorneys or
agents shall be liable for any action taken or omitted to be taken by it or them
hereunder in good faith and believed by it or them to be within the discretion
or power conferred to it or them by the Loan Documents or be responsible for the
consequences of any error of judgment, except for its or their own gross
negligence or wilful misconduct. Except as aforesaid, the Administrative Agent
shall be under no duty to enforce any rights with respect to any of the
Advances, or any security therefor. The Administrative Agent shall not be
compelled to do any act hereunder or to take any action towards the execution or
enforcement of the powers hereby created or to prosecute or defend any suit in
respect hereof, unless indemnified to its reasonable satisfaction against loss,
cost, liability and expense. The Administrative Agent shall not be responsible
in any manner to any Lender for the effectiveness, enforceability, genuineness,
validity or due execution of any of the Loan Documents, or for any
representation, warranty, document, certificate, report or statement made herein
or furnished in connection with any Loan Documents, or be under any obligation
to any Lender to ascertain or to inquire as to the performance or observation of
any of the terms, covenants or conditions of any Loan Documents on the part of
the Borrower. TO THE EXTENT NOT REIMBURSED BY THE BORROWER, EACH LENDER HEREBY
SEVERALLY INDEMNIFIES AND HOLDS HARMLESS THE ADMINISTRATIVE AGENT, PRO RATA
ACCORDING TO ITS REVOLVING CREDIT SPECIFIED PERCENTAGE, FROM AND AGAINST ANY AND
ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, REASONABLE EXPENSES AND/OR DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER WHICH MAY BE IMPOSED ON, ASSERTED AGAINST, OR INCURRED BY THE
ADMINISTRATIVE AGENT (IN SUCH CAPACITY) IN ANY WAY WITH RESPECT TO ANY LOAN
DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THE ADMINISTRATIVE AGENT UNDER THE
LOAN DOCUMENTS (INCLUDING ANY NEGLIGENT ACTION OF THE ADMINISTRATIVE AGENT),
EXCEPT TO THE EXTENT THE SAME ARE FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION TO RESULT FROM GROSS NEGLIGENCE OR WILFUL MISCONDUCT BY THE
ADMINISTRATIVE AGENT. THE INDEMNITY PROVIDED IN THIS SECTION 9.1(f) SHALL
SURVIVE TERMINATION OF THIS AGREEMENT.
(g) Liability Among Lenders. No Lender shall incur any liability (other
than the sharing of expenses and other matters specifically set forth herein and
in the other Loan Documents) to any other Lender, except for acts or omissions
in bad faith.
(h) Rights as Lender. With respect to its commitment hereunder, the
Advances made by it and the Notes issued to it, the Administrative Agent shall
have the same rights as a Lender and may exercise the same as though it were not
the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent or any Lender may accept deposits from, act
as trustee under indentures of, and generally engage in any kind of business
with, the Borrower and any of its Affiliates, and any Person who may do business
with or own securities of the Borrower or any of its
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Affiliates, all as if the Administrative Agent were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.
Section 9.2 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based upon the financial statements referred to in Sections
4.1(j), 6.1, and 6.2 of the Existing Credit Agreement, and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents. Each Lender
also acknowledges that its decision to fund the initial Advances shall
constitute evidence to the Administrative Agent that such Lender has deemed all
of the conditions set forth in Section 3.1 to have been satisfied.
Section 9.3 Benefits of Article. None of the provisions of this Article
shall inure to the benefit of any Person other than Lenders and, with respect to
Section 9.1(b), the Borrower; consequently, no such other Person shall be
entitled to rely upon, or to raise as a defense, in any manner whatsoever, the
failure of the Administrative Agent or any Lender to comply with such
provisions.
ARTICLE 10
Miscellaneous
Section 10.1 Notices.
(a) All notices and other communications under this Agreement shall be
in writing (except in those cases where giving notice by telephone is expressly
permitted) and shall be deemed to have been given on the date personally
delivered or sent by telecopy (answerback received), or three days after deposit
in the mail, designated as certified mail, return receipt requested,
postage-prepaid, or one day after being entrusted to a reputable commercial
overnight delivery service, addressed to the party to which such notice is
directed at its address determined as provided in this Section. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
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(i) If to the Borrower, at:
4209 Barnett
Arlington, Texas 76017
Attention: Chief Executive Officer
Telephone: (817) 467-5116
Telecopier: (817) 472-9810
with a copy to:
Westar Capital L.L.C.
949 South Coast Drive, Suite 65
Costa Mesa, California 92626
Attention: Alan Sellers
Telephone: (714) 481-5161
Telecopier: (714) 481-5166
(ii) If to the Administrative Agent, at:
Bank of America, N.A.
901 Main Street, 13th Floor
Dallas, Texas 75202-3714
Attn: Marie T. Lancaster
Telephone: (214) 209-2158
Telecopier: (214) 209-2515
(iii) If to a Lender, at its address shown below its name
on the signature pages hereof, or if applicable, set
forth in its Assignment Agreement.
(b) Any party hereto may change the address to which notices shall be
directed by giving 10 days' written notice of such change to the other parties.
Section 10.2 Expenses. The Borrower shall promptly pay:
(a) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, the transactions contemplated hereunder
and thereunder, and the making of Advances hereunder, including without
limitation the reasonable fees and disbursements of Special Counsel;
(b) all reasonable out-of-pocket expenses, including reasonable
attorneys' fees, of the Administrative Agent in connection with the transactions
contemplated in this Agreement and the other Loan Documents and the preparation,
negotiation, execution and delivery of any waiver,
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amendment or consent by the Administrative Agent relating to this Agreement or
the other Loan Documents; and
(c) all reasonable out-of-pocket costs, expenses and attorneys' fees of
the Administrative Agent and each Lender incurred for enforcement, collection,
restructuring, refinancing and "workout", or otherwise incurred in obtaining
performance under the Loan Documents, which in each case shall include without
limitation reasonable fees and expenses of consultants, counsel for the
Administrative Agent and any Lender.
Section 10.3 Waivers. The rights and remedies of the Lenders under this
Agreement and the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which they would otherwise have. No failure or delay by
the Administrative Agent or any Lender in exercising any right shall operate as
a waiver of such right. The Lenders expressly reserve the right to require
strict compliance with the terms of this Agreement in connection with any
funding of a request for an Advance. In the event that any Lender decides to
fund an Advance at a time when the Borrower is not in strict compliance with the
terms of this Agreement, such decision by such Lender shall not be deemed to
constitute an undertaking by the Lender to fund any further requests for
Advances or preclude the Lenders from exercising any rights available under the
Loan Documents or at law or equity. Any waiver or indulgence granted by the
Lenders shall not constitute a modification of this Agreement, except to the
extent expressly provided in such waiver or indulgence, or constitute a course
of dealing by the Lenders at variance with the terms of the Agreement such as to
require further notice by the Lenders of the Lenders' intent to require strict
adherence to the terms of the Agreement in the future. Any such actions shall
not in any way affect the ability of the Administrative Agent or the Lenders, in
their discretion, to exercise any rights available to them under this Agreement
or under any other agreement, whether or not the Administrative Agent or any of
the Lenders are a party thereto, relating to the Borrower.
Section 10.4 Calculation by the Lenders Conclusive and Binding. Any
mathematical calculation required or expressly permitted to be made by the
Administrative Agent or any Lender under this Agreement shall be controlling,
absent demonstrable error.
Section 10.5 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence and during the continuation of an Event of Default, each
Lender and any subsequent holder of any Revolving Credit Note, and any assignee
of any Revolving Credit Note is hereby authorized by the Borrower at any time or
from time to time, without notice to the Borrower or any other Person, any such
notice being hereby expressly waived, to set-off, appropriate and apply any
deposits (general or special (except trust and escrow accounts), time or demand,
including without limitation Indebtedness evidenced by certificates of deposit,
in each case whether matured or unmatured) and any other Indebtedness at any
time held or owing by such Lender or holder to or for the credit or the account
of the Borrower, against and on account of the Obligations and other liabilities
of the Borrower to such Lender or holder, irrespective of whether or not (a) the
Lender or holder shall have made any demand hereunder, or (b) the Lender or
holder shall have declared the principal of and interest on the Advances and
other
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<PAGE> 46
amounts due hereunder to be due and payable as permitted by Section 7.2. Any
sums obtained by any Lender or by any assignee or subsequent holder of any Note
shall be subject to pro rata treatment of all Obligations and other liabilities
hereunder in accordance with each Lender's Revolving Credit Specified
Percentage.
Section 10.6 Assignment.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder or under the other Loan Documents without the prior
written consent of the Lenders.
(b) No Lender shall be entitled to assign or grant a participation in
its interest in this Agreement, its Notes or its Advances, except as hereinafter
set forth.
(c) Each Lender may sell participations to one or more banks or other
entities (the "Participants") in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Advances owing to it and the Revolving Credit Note held by it)
(the "Participations"); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Revolving Credit Note for
all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (v)
no Participant under any such Participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would (A) reduce or postpone any date fixed for payment of
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (B) increase the commitment of any Participant or (C)
release any Collateral or security for the Obligations, except pursuant to the
Loan Documents, in each case to the extent subject to such Participation, and
(vi) no Participation shall be in an amount less than $2,000,000.
Notwithstanding the foregoing, the Borrower agrees that Participants shall be
entitled to the benefits of Article 9 hereof as though they were Lenders and the
Lenders may, subject to Section 10.13 hereof, provide copies of all financial
information received from the Borrower to such Participants.
(d) Each Lender may assign to one or more Eligible Assignees its rights
and obligations under this Agreement and the other Loan Documents; provided,
however, that (i) each such assignment shall be subject to the prior written
consent of the Administrative Agent and Borrower, which consents shall not be
unreasonably withheld (provided, however, notwithstanding anything herein to the
contrary, no consent of the Borrower is required for any assignment during any
time that an Event of Default has occurred and is continuing), (ii) no such
assignment shall be in an amount less than $5,000,000, unless the commitment of
a Lender is less than $5,000,000, in which case such assignment may be in the
aggregate amount of such Lender's commitment, (iii) the applicable Lender,
Administrative Agent and Eligible Assignee shall execute and deliver to the
Administrative Agent an
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<PAGE> 47
Assignment and Acceptance Agreement (an "Assignment Agreement") in substantially
the form of Exhibit F hereto, together with the Notes subject to such assignment
and (iv) the Eligible Assignee executing the Assignment, shall deliver to the
Administrative Agent a processing fee of $3,500. Upon such execution, delivery
and acceptance from and after the effective date specified in each Assignment,
which effective date shall be at least three Business Days after the execution
thereof, (A) the Eligible Assignee thereunder shall be party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment, have the rights and obligations of a Lender hereunder and
(B) the applicable Lender shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment, relinquish such
rights and be released from such obligations under this Agreement.
(e) Notwithstanding anything in clause (d) above to the contrary, (i)
any Lender may assign and pledge all or any portion of its Advances and
Revolving Credit Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A of F.R.S. Board and any Operating Circular issued by
such Federal Reserve Bank and (ii) any Lender that is a fund may at any time
assign or pledge all or any portion of its rights under this Agreement to secure
such Lender's indebtedness; provided, however, that no such assignment under
this clause (e) shall release the assignor Lender from its obligations
hereunder.
(f) Upon its receipt of an Assignment Agreement executed by a Lender
and an Eligible Assignee, and any Revolving Credit Note or Revolving Credit
Notes subject to such assignment, the Borrower shall, subject to the Borrower's
rights under Section 10.6(d), within five Business Days after its receipt of
such Assignment Agreement execute and deliver to the Administrative Agent in
exchange for the surrendered Revolving Credit Notes new Revolving Credit Notes
to the order of such Eligible Assignee in an amount equal to the portion of the
Advances and commitment assigned to it pursuant to such Assignment Agreement and
new Revolving Credit Notes to the order of the assignor Lender in an amount
equal to the portion of the Advances and Commitments retained by it hereunder.
Such new Revolving Credit Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Credit Notes,
shall be dated the effective date of such Assignment Agreement and shall
otherwise be in substantially the form of Exhibit A, hereto.
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.6, disclose
to the Eligible Assignee or Participant or proposed Eligible Assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower, provided such Person agrees in writing to
handle such information in accordance with the standards set forth in Section
10.13 hereof.
(h) Except as specifically set forth in this Section 10.6, nothing in
this Agreement or any other Loan Documents, expressed or implied, is intended to
or shall confer on any Person other than the respective parties hereto and
thereto and their successors and assignees permitted hereunder and thereunder
any benefit or any legal or equitable right, remedy or other claim under this
Agreement or any other Loan Documents.
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<PAGE> 48
(i) Notwithstanding anything in this Section 10.6 to the contrary, no
Eligible Assignee or Participant (nor the assigning or participating Lender)
shall be entitled to receive (whether individually or collectively) any greater
payment under Section 2.14 or Section 8.3 or Section 8.5 than such assigning or
participating Lender would have been entitled to receive with respect to the
interest assigned or participated to such Eligible Assignee or Participant.
Section 10.7 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 10.8 Severability. Any provision of this Agreement or any other
Loan Document which is for any reason prohibited or found or held invalid or
unenforceable by any court or governmental agency shall be ineffective to the
extent of such prohibition or invalidity or unenforceability without
invalidating the remaining provisions hereof or thereof in such jurisdiction or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 10.9 Interest and Charges. It is not the intention of any
parties to this Agreement to make an agreement in violation of the laws of any
applicable jurisdiction relating to usury. Regardless of any provision in any
Loan Documents, no Lender shall ever be entitled to receive, collect or apply,
as interest on the Obligations, any amount in excess of the Highest Lawful
Amount. If any Lender or participant ever receives, collects or applies, as
interest, any such excess, such amount which would be excessive interest shall
be deemed a partial repayment of principal and treated hereunder as such; and if
principal is paid in full, any remaining excess shall be paid to the Borrower.
In determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Borrower and the Lenders
shall, to the maximum extent permitted under Applicable Law, (a) characterize
any nonprincipal payment as an expense, fee or premium rather than as interest,
(b) exclude voluntary prepayments and the effect thereof, and (c) amortize,
prorate, allocate and spread in equal parts, the total amount of interest
throughout the entire contemplated term of the Obligations so that the interest
rate is uniform throughout the entire term of the Obligations; provided,
however, that if the Obligations are paid and performed in full prior to the end
of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Highest Lawful Rate, the Lenders
shall refund to the Borrower the amount of such excess or credit the amount of
such excess against the total principal amount of the Obligations owing, and, in
such event, the Lenders shall not be subject to any penalties provided by any
laws for contracting for, charging or receiving interest in excess of the
Highest Lawful Rate. This Section shall control every other provision of all
agreements pertaining to the transactions contemplated by or contained in the
Loan Documents.
Section 10.10 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
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<PAGE> 49
Section 10.11 Amendment and Waiver. The provisions of this Agreement
may not be amended, modified or waived except by the written agreement of the
Borrower and the Determining Lenders; provided, however, that no such amendment,
modification or waiver shall be made (a) without the consent of all Lenders, if
it would (i) increase the Revolving Credit Specified Percentage or commitment of
any Lender, or (ii) extend or postpone the date of maturity of, extend the due
date for any payment of principal or interest on, reduce the amount of any
installment of principal or interest on, or reduce the rate of interest on, any
Advance or other amount owing under any Loan Documents to which such Lender is
entitled, or (iii) release any guaranty of the Obligations or all or
substantially all of the Collateral (except, in any case, pursuant to this
Agreement or the other Loan Documents), or (iv) reduce the fees payable
hereunder to which such Lender is entitled, or (v) revise this Section 10.11, or
(vi) waive the date for payment of any principal, interest or fees hereunder or
(vii) amend the definition of "Determining Lenders" or "Revolving Credit
Specified Percentage"; or (b) without the consent of the Administrative Agent,
if it, would alter the rights, duties or obligations of the Administrative
Agent. Neither this Agreement nor any term hereof may be amended orally, nor may
any provision hereof be waived orally but only by an instrument in writing
signed by the Administrative Agent and, in the case of an amendment, by the
Borrower.
Section 10.12 Exception to Covenants. Neither the Borrower nor any
Subsidiary of the Borrower shall be deemed to be permitted to take any action or
fail to take any action which is permitted as an exception to any of the
covenants contained herein or which is within the permissible limits of any of
the covenants contained herein if such action or omission would result in the
breach of any other covenant contained herein.
Section 10.13 Confidentiality. Each Lender and the Administrative Agent
agrees (on behalf of itself and each of its Affiliates, directors, officers,
employees and representatives) to use reasonable efforts to keep confidential,
in accordance with customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower or any of its Affiliates
pursuant to this Agreement, provided that nothing herein shall limit the
disclosure of any such information (a) to the extent required by statute, rule,
regulation or judicial process, (b) to counsel for any Lender or the
Administrative Agent, (c) to bank examiners, auditors or accountants of any
Lender, (d) to the Administrative Agent or any other Lender or any Affiliate
thereof, (e) in connection with any Litigation to which any one or more of
Lenders is a party, (f) to the extent necessary in connection with the exercise
of any remedy under this Agreement or any other Loan Document, or (g) to any
Eligible Assignee or Participant (or prospective Eligible Assignee or
Participant) or to any direct or indirect contractual counterparties in swap
agreements or to the professional advisors of such swap counterparties so long
as such Eligible Assignee or Participant (or prospective Eligible Assignee or
Participant) or direct or indirect contractual counterparties in swap agreements
or such swap counterparties' professional advisors agrees to handle such
information in accordance with the provisions of this Section 10.13.
Section 10.14 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
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<PAGE> 50
THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS) AND THE UNITED STATES OF AMERICA. THE LOAN DOCUMENTS ARE PERFORMABLE IN
DALLAS COUNTY, TEXAS, AND THE BORROWER AND EACH SURETY, GUARANTOR, ENDORSER AND
ANY OTHER PARTY EVER LIABLE FOR PAYMENT OF ANY MONEY PAYABLE WITH RESPECT TO THE
LOAN DOCUMENTS, JOINTLY AND SEVERALLY WAIVE THE RIGHT TO BE SUED ELSEWHERE.
WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER, THE ADMINISTRATIVE AGENT
AND EACH LENDER EACH AGREES THAT THE STATE AND FEDERAL COURTS OF TEXAS LOCATED
IN DALLAS, TEXAS, SHALL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION WITH
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND HEREBY SUBMITS WITH RESPECT TO
ITSELF AND ITS PROPERTY TO THE JURISDICTION OF ANY SUCH COURT FOR THE PURPOSE OF
ANY SUIT, ACTION, PROCEEDING OR JUDGMENT RELATING TO OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Section 10.15 WAIVER OF JURY TRIAL. EACH OF THE PARENT, THE BORROWER,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY KNOWINGLY VOLUNTARILY,
IRREVOCABLY AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR
RELATED TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH LENDER ENTERING INTO THIS
AGREEMENT AND MAKING ANY ADVANCES HEREUNDER.
Section 10.16 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH
THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
REGARDING THE SUBJECT MATTER HEREIN AND THEREIN AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES
HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Credit Agreement is executed as of the date
first set forth above.
BORROWER: DOSKOCIL MANUFACTURING
COMPANY, INC.
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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<PAGE> 52
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
LENDERS: BANK OF AMERICA, N.A., as a Lender
Revolving Credit Specified
Percentage: 100%
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
100 North Tryon Street
Charlotte, North Carolina 28225
Attention: John J. O'Neill
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<PAGE> 53
SCHEDULE 1
LIBOR LENDING OFFICES
BANK OF AMERICA, N.A.
901 Main Street, 67th Floor
Dallas, Texas 75202
