CREDIT AGREEMENT
Dated as of June 6, 2000
among
ENNIS BUSINESS FORMS, INC.
as Borrower,
BANK ONE, TEXAS, N.A.
as Administrative Agent,
U.S. BANK NATIONAL ASSOCIATION
as Syndications Agent,
CERTAIN FINANCIAL INSTITUTIONS
as Lenders,
and
BANC ONE CAPITAL MARKETS, INC.
as Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
ARTICLE I 1
DEFINITIONS 1
ARTICLE II 12
THE CREDITS 12
2.1 Commitments 12
2.2 Required Payments; Termination. 12
2.3 Ratable Loans. 13
2.4 Types of Advances. 13
2.5 Commitment Fee; Reductions in Aggregate Commitment.
13
2.6 Minimum Amount of Each Advance. 13
2.7 Optional Principal Payments. 13
2.8 Method of Selecting Types and Interest Periods for New
Advances. 13
2.9 Conversion and Continuation of Outstanding Advances.
14
2.10 Changes in Interest Rate, etc. 14
2.11 Rates Applicable After Default. 15
2.12 Method of Payment. 15
2.13 Evidence of Indebtedness. 15
2.14 Telephonic Notices. 16
2.15 Interest Payment Dates; Interest and Fee Basis. 16
2.16 Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions. 16
2.17 Lending Installations. 16
2.18 Non-Receipt of Funds by the Agent. 17
2.19 Facility LCs. 17
2.20 Extension of Facility Termination Date. 20
2.21 Replacement of Lender. 21
ARTICLE III 21
YIELD PROTECTION; TAXES 21
3.1 Yield Protection. 21
3.2 Changes in Capital Adequacy Regulations. 22
3.3 Availability of Types of Advances. 22
3.4 Funding Indemnification. 22
3.5 Taxes. 23
3.6 Lender Statements; Survival of Indemnity. 24
ARTICLE IV 25
CONDITIONS PRECEDENT 25
4.1 Initial Credit Extension. 25
4.2 Each Credit Extension. 25
ARTICLE V 26
REPRESENTATIONS AND WARRANTIES 26
5.1 Existence and Standing. 26
5.2 Authorization and Validity. 26
5.3 No Conflict; Government Consent. 26
5.4 Financial Statements. 27
5.5 Material Adverse Change. 27
5.6 Taxes. 27
5.7 Litigation and Contingent Obligations. 27
5.8 Subsidiaries. 27
5.9 ERISA. 27
5.10 Accuracy of Information. 27
5.11 Regulation U. 28
5.12 Material Agreements. 28
5.13 Compliance With Laws. 28
5.14 Ownership of Properties. 28
5.15 Plan Assets; Prohibited Transactions. 28
5.16 Environmental Matters. 28
5.17 Investment Company Act. 28
5.18 Public Utility Holding Company Act. 28
5.19 Omitted. 29
5.20 Insurance. 29
5.21 Solvency. 29
ARTICLE VI 29
COVENANTS 29
6.1 Financial Reporting. 29
6.2 Use of Proceeds. 30
6.3 Notice of Default. 31
6.4 Conduct of Business. 31
6.5 Taxes. 31
6.6 Insurance. 31
6.7 Compliance with Laws. 31
6.8 Maintenance of Properties. 31
6.9 Inspection. 31
6.10 Dividends. 31
6.11 Indebtedness. 32
6.12 Merger. 32
6.13 Sale of Assets. 32
6.14 Investments and Acquisitions. 32
6.15 Liens. 33
6.16 Capital Expenditures. 33
6.17 Omitted. 33
6.18 Affiliates. 34
6.19 Subordinated Indebtedness. 34
6.20 Omitted 34
6.21 Sale of Accounts. 34
6.22 Sale and Leaseback Transactions and other Off-Balance
Sheet Liabilities. 34
6.23 Contingent Obligations. 34
6.24 Letters of Credit. 34
6.25 Financial Covenants. 34
ARTICLE VII 35
DEFAULTS 35
ARTICLE VIII 37
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 37
8.1 Acceleration; Facility LC Collateral Account.
37
8.2 Amendments. 38
8.3 Preservation of Rights. 39
ARTICLE IX 39
GENERAL PROVISIONS 39
9.1 Survival of Representations. 39
9.2 Governmental Regulation. 39
9.3 Headings. 39
9.4 Entire Agreement. 39
9.5 Several Obligations; Benefits of this Agreement.
40
9.6 Expenses; Indemnification. 40
9.7 Usury Savings Clause 41
9.8 Accounting. 41
9.9 Severability of Provisions. 41
9.10 Nonliability of Lenders. 41
9.11 Confidentiality. 42
9.12 Nonreliance. 42
9.13 Disclosure. 42
ARTICLE X 42
THE AGENT 42
10.1 Appointment; Nature of Relationship. 42
10.2 Powers. 43
10.3 General Immunity. 43
10.4 No Responsibility for Loans, Recitals, etc. 43
10.5 Action on Instructions of Lenders. 43
10.6 Employment of Agents and Counsel. 43
10.7 Reliance on Documents; Counsel. 44
10.8 Agent's Reimbursement and Indemnification. 44
10.9 Notice of Default. 44
10.10 Rights as a Lender. 44
10.11 Lender Credit Decision. 44
10.12 Successor Agent. 45
10.13 Omitted. 45
10.14 Delegation to Affiliates. 45
10.15 Co-Agents and Arranger. 45
ARTICLE XI 46
SETOFF; RATABLE PAYMENTS 46
11.1 Setoff. 46
11.2 Ratable Payments. 46
ARTICLE XII 46
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 46
12.1 Successors and Assigns. 46
12.2 Participations. 46
12.3 Assignments. 47
12.4 Dissemination of Information. 48
12.5 Tax Treatment. 48
ARTICLE XIII 48
NOTICES 48
13.1 Notices. 48
13.2 Change of Address. 49
ARTICLE XIV 49
COUNTERPARTS 49
ARTICLE 49
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 49
15.1 CHOICE OF LAW. 49
15.2 CONSENT TO JURISDICTION. 49
15.3 WAIVER OF JURY TRIAL. 49
Schedules and Exhibits
Pricing Schedule
Commitment Schedule
Exhibit A - Form of Opinion
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment Agreement
Exhibit D - Form of Transfer Instructions
Exhibit E-1 - Form of Term Note
Exhibit E-2 - Form of Revolving Note
Schedule 1 - Subsidiaries and Other Investments
Schedule 2 - Indebtedness and Liens
CREDIT AGREEMENT
This Credit Agreement, dated as of the 6th day of June, 2000, is
among ENNIS BUSINESS FORMS, INC., a Texas corporation, the LENDERS, BANK
ONE, TEXAS, N.A., as LC Issuer and Agent, and U.S. BANK NATIONAL
ASSOCIATION, as syndications agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or limited
liability company, or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions)
at least a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the
outstanding ownership interests of a partnership or limited liability
company.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and, in the case of
Eurodollar Loans, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly
or indirectly, the power to direct or cause the direction of the management
or policies of the controlled Person, whether through ownership of stock,
by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative
of the Lenders pursuant to Article X, and not in its individual capacity as
a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders under the Revolving Credit Facility (as reduced from time to
time pursuant to the terms hereof, including, without limitation,
Section 2.1.1. and Section 2.5.) and the Term Loan.
"Aggregate Outstanding Credit Exposure"means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in
Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii)
the sum of the Federal Funds Effective Rate for such day plus 1/2% per
annum.
"Applicable Fee Rate" means, at any time, the percentage rate per
annum at which Commitment Fees are accruing on the unused portion of the
Revolving Credit Facility at such time as set forth in the Pricing
Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., an Illinois
corporation, and its successors, in its capacity as Lead Arranger and Sole
Book Runner.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Officer" means either of the Chief Executive Officer or
the Chief Financial Officer of the Borrower, or any other person designated
in writing by either of the foregoing persons, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment of the Revolving Credit Facility then in effect minus the
Aggregate Outstanding Credit Exposure under the Revolving Credit Facility
at such time.
"Bank One" means Bank One, Texas, N.A., in its individual capacity,
and its successors.
"Borrower" means Ennis Business Forms, Inc., a Texas corporation, and
its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in Dallas, Texas; Minneapolis,
Minnesota; and New York, New York for the conduct of substantially all of
their commercial lending activities, interbank wire transfers can be made
on the Fedwire system and dealings in United States dollars are carried on
in the London interbank market and (ii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in
Dallas for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capital Expenditures" means, without duplication, any expenditures
for any purchase or other acquisition of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet of
the Borrower and its Subsidiaries prepared in accordance with Agreement
Accounting Principles excluding (i) expenditures of insurance proceeds to
rebuild or replace any asset after a casualty loss and (ii) leasehold
improvement expenditures for which the Borrower or a Subsidiary is
reimbursed promptly by the lessor.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper
rated A-1 or better by S&P or P-1 or better by Moody's, (iii) demand
deposit accounts maintained in the ordinary course of business, and (iv)
certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000; provided in each case that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and
is not subject to any contingency regarding the payment of principal or
interest.
"Change in Control" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 35% or more of the outstanding shares
of voting stock of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans to, and participate in Facility LCs issued upon the application
of, the Borrower (for its benefit or for the benefit of any Subsidiary) in
an aggregate amount not exceeding such Lender's Commitment Percentage of
the Aggregate Commitment.
"Commitment Schedule" means the Schedule attached hereto identified as
such.
"Commitment Percentage" means, for each Lender, the percentage of the
Aggregate Commitment such Lender has committed to make available to the
Borrower as set forth in the Commitment Schedule, or as set forth in any
Notice of Assignment relating to any assignment that has become effective
pursuant to Section 12.3.2, as such amount may be modified from time to
time pursuant to the terms hereof.
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Borrower and its Subsidiaries
calculated on a consolidated basis for such period.
"Consolidated EBITDA" means Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or accrued,
(iii) depreciation, (iv) amortization and (v) extraordinary losses incurred
other than in the ordinary course of business, minus, to the extent
included in Consolidated Net Income, extraordinary gains realized other
than in the ordinary course of business, all calculated for the Borrower
and its Subsidiaries on a consolidated basis.
"Consolidated Funded Indebtedness" means at any time the aggregate
dollar amount of Consolidated Indebtedness which has actually been funded
and is outstanding at such time, whether or not such amount is due or
payable at such time.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Tangible Net Worth" of a Person means its Consolidated
Net Worth, less the aggregate book value of Intangible Assets shown on a
balance sheet of such Person, prepared in accordance with GAAP.
"Contingent Obligation" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person, or
otherwise assures any creditor of such other Person against loss,
including, without limitation, any comfort letter, operating agreement,
take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the
partnership.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate or prime rate of interest announced by Bank One or by its parent,
BANK ONE CORPORATION, from time to time, changing when and as said
corporate base rate or prime rate changes.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other governmental
restrictions relating to (i) the protection of the environment, (ii) the
effect of the environment on human health, (iii) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD is not available
to the Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as
reported by any other generally recognized financial information service as
of 11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period,
and (ii) if no such British Bankers' Association Interest Settlement Rate
is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent
to be the rate at which Bank One or one of its Affiliate banks offers to
place deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, in the approximate
amount of Bank One's relevant Eurodollar Loan and having a maturity equal
to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest
Period, plus the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net
income, the value of its assets or property and franchise taxes imposed on
it, by (i) the jurisdiction under the laws of which such Lender or the
Agent is incorporated or organized or (ii) the jurisdiction in which the
Agent's or such Lender's principal executive office or such Lender's
applicable Lending Installation is located.
"Extension Request" is defined in Section 2.20.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility LC" is defined in Section 2.19.1.
"Facility LC Application" is defined in Section 2.19.3.
"Facility LC Collateral Account" is defined in Section 2.19.11.
"Facility Termination Date" means June 30, 2003, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest 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 for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Dallas, Texas time) on such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or over-
the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each
case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Guarantor" means each Subsidiary of Borrower identified as such on
Schedule 1 and each new Subsidiary of Borrower from time to time, and their
successors and assigns.
"Guaranty" means that certain Subsidiary Guaranty dated the date
hereof, executed by each Guarantor in favor of the Agent, for the ratable
benefit of the Lenders, as it may be supplemented, amended or modified and
in effect from time to time.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price
of Property or services (other than accounts payable arising in the
ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or
payable out of the proceeds or production from Property now or hereafter
owned or acquired by such Person, (iv) obligations which are evidenced by
notes, acceptances, or other instruments, (v) obligations of such Person to
purchase securities or other Property arising out of or in connection with
the sale of the same or substantially similar securities or Property, (vi)
Capitalized Lease Obligations, (vii) Contingent Obligations, (viii) Letters
of Credit, (ix) Net Mark-to-Market Exposure of Rate Management Transactions
and other Financial Contracts, (x) Off-Balance Sheet Liabilities, (xi) Rate
Management Transactions, (xii) Sale and Leaseback Transactions and (xiii)
any other obligation for borrowed money or other financial accommodation
which in accordance with Agreement Accounting Principles would be shown as
a liability on the consolidated balance sheet of such Person.
"Intangible Assets" of any Person means those assets of such Person
which are (a) deferred assets, other than prepaid insurance and prepaid
taxes, (b) patents, copyrights, trademarks, tradenames, franchises,
goodwill, experimental expenses and other similar assets which would be
classified as intangible assets on a balance sheet of such Person, prepared
in accordance with GAAP, and (c) unamortized debt discount and expenses.
"Interest Period" means, with respect to a Eurodollar Advance, a
period of one, two, three, or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Interest Period
shall end on the day which corresponds numerically to such date one, two,
three, or six months thereafter, provided, however, that if there is no
such numerically corresponding day in such next, second, third, or sixth
succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third, or sixth succeeding month. If an Interest
Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business
Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in
the ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in
the trade) or contribution of capital by such Person; stocks, bonds, mutual
funds, partnership interests, notes, debentures or other securities owned
by such Person; any deposit accounts and certificate of deposit owned by
such Person; and structured notes, derivative financial instruments and
other similar instruments or contracts owned by such Person.
"LC Fee" is defined in Section 2.19.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs
hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding
at such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.19.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent
listed on the signature pages hereof or on a Schedule or otherwise selected
by such Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any
way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of
(i) Borrower's Consolidated Funded Indebtedness outstanding on such date to
(ii) Consolidated EBITDA for the Borrower's then most-recently ended four
fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Facility LC Applications,
any Term Notes or Revolving Notes issued pursuant to Section 2.13, the
Guaranty and any other agreement or instrument executed in connection
herewith or therewith.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of
operations, or prospects of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under
the Loan Documents to which it is a party, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of
the Agent, the LC Issuer or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer
is obligated to make contributions.
"Net Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all
unrealized profits of such Person arising from Rate Management
Transactions. "Unrealized losses" means the fair market value of the cost
to such Person of replacing such Rate Management Transaction as of the date
of determination (assuming the Rate Management Transaction were to be
terminated as of that date), and "unrealized profits" means the fair market
value of the gain to such Person of replacing such Rate Management
Transaction as of the date of determination (assuming such Rate Management
Transaction were to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit E-1 or E-2, as applicable.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Lenders or to any Lender, the Agent, the
LC Issuer or any indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and
Leaseback Transaction which is not a Capitalized Lease, (iii) any liability
under any so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheets
of such Person, but excluding from this clause (iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than
a Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option
of the lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the
case of each particular Operating Lease by applying a discount rate (which
discount rate shall equal the discount rate which would be applied under
Agreement Accounting Principles if such Operating Lease were a Capitalized
Lease) from the date on which each fixed lease payment is due under such
Operating Lease to such date of determination, of all fixed lease payments
due under all Operating Leases of the Borrower and its Subsidiaries.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such
time, plus (ii) an amount equal to its Pro Rata Share of the LC Obligations
at such time; provided that Outstanding Credit Exposure shall not include
Indebtedness of Borrower and its Subsidiaries to U.S. Bank National
Association described on Schedule 2.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or
other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which the Borrower or any member of the
Controlled Group may have any liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the
denominator of which is the Aggregate Commitment.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into
between the Borrower and any Lender or Affiliate thereof which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect
to any of these transactions) or any combination thereof, whether linked to
one or more interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
"Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all Rate Management Transactions and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any
Rate Management Transactions.
"Recapture Amount" means $2,000,000 per year that Borrower shall be
entitled to keep from the net proceeds of sales of assets or insurance
proceeds.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the Federal Reserve
System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.19 to
reimburse the LC Issuer for amounts paid by the LC Issuer in respect of any
one or more drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by
such Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however,
that a failure to meet the minimum funding standard of Section 412 of the
Code and of Section 302 of ERISA shall be a Reportable Event regardless of
the issuance of any such waiver of the notice requirement in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having at least
66.67% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66.67% of the
Aggregate Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"Revolving Credit Facility" is defined in Section 2.1.
"Revolving Note" is defined in Section 2.13.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member
of the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations
to the written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than 50%
of the ownership interests having ordinary voting power of which shall at
the time be so owned or controlled. Unless otherwise expressly provided,
all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10%
of the consolidated assets of the Borrower and its Subsidiaries as would be
shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more
than 10% of the consolidated net sales or of the consolidated net income of
the Borrower and its Subsidiaries as reflected in the financial statements
referred to in clause (i) above.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities
with respect to the foregoing, but excluding Excluded Taxes.
"Term Loan" means a term loan by the Lenders in accordance with their
Commitment Percentages, in the aggregate amount of $25,000,000.
"Term Note" is defined in Section 2.13.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to
such benefits, all determined as of the then most recent valuation date for
such Plans using PBGC actuarial assumptions for single employer plan
terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting power
of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitments .
2.1.1 Revolving Credit Facility. From and including the date
of this Agreement and prior to the Facility Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this Agreement,
to (i) make revolving Loans to the Borrower from time to time in amounts
not to exceed in the aggregate at any one time outstanding the amount of
its Commitment Percentage of $11,500,000, and (ii) participate in Facility
LCs issued upon the request of Borrower, provided that, after giving effect
to the making of each such Loan and the issuance of each such Facility LC,
such Lender's Outstanding Credit Exposure shall not exceed its Commitment
(the "Revolving Credit Facility"). Commencing on March 31, 2001, and on
the last day of each June, September, December and March thereafter, the
Revolving Credit Facility shall be reduced by $460,000.00. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow under
the Revolving Credit Facility at any time prior to the Facility Termination
Date. Each Lender's Commitment to lend under the Revolving Credit Facility
shall expire on the Facility Termination Date. Principal payments made
after the Facility Termination Date, may not be reborrowed. The LC Issuer
will issue Facility LCs hereunder on the terms and conditions set forth in
Section 2.19. The Revolving Credit Facility shall be used solely to
finance a portion of the acquisition of Northstar Computer Forms, Inc., and
for general working capital and corporate purposes.
2.1.2 Term Loan. Each Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make available its
Commitment Percentage of the Term Loan to the Borrower in a single advance
on the date of closing. The Term Loan shall be used solely to finance a
portion of the acquisition of Northstar Computer Forms, Inc. and for
corporate purposes.
2.2 Required Payments; Termination.
2.2.1 Term Loan. Commencing on the last day of September, 2000,
and continuing on the last day of each December, March, June and September
thereafter until paid in full, Borrower shall make a principal payment (in
addition to the interest payments required by Section 2.15) on the Term
Loan to Agent for the account of the Lenders in an amount equal to
$850,000. The Term Loan shall be payable in full on June 30, 2003.
2.2.2 Other Mandatory Principal Payments. In addition to the
principal payments provided for above in Section 2.2.1, Borrower shall,
unless Required Lenders agree otherwise in their sole discretion, make
payments to Agent for the account of the Lenders in an amount equal to 100%
of the net cash proceeds (i.e. gross cash proceeds less ordinary and
reasonable closing costs) of (X) any insurance policy following a casualty
loss or the sale of any asset (to the extent, in each case, not applied to
replace the related asset, with the consent of Required Lenders [which
consent may be given or withheld in their sole discretion]) outside the
ordinary course of business, including but not limited to the sale of
accounts receivable less the Recapture Amount, (Y) the issuance of other
Indebtedness (without implying the Lenders' consent to any such
Indebtedness except as specifically provided herein), and (Z) the issuance
of any equity securities by Borrower or any Subsidiary of Borrower (whether
public or private, registered or unregistered). Any mandatory prepayment
under this Section 2.2.2 shall be applied first to the Term Loan, and
second to the Revolving Credit Facility, in each instance in the inverse
order of maturity.
2.2.3 Termination. The Aggregate Outstanding Credit Exposure and
all other unpaid Obligations shall be paid in full by the Borrower on the
Facility Termination Date
2.3 Ratable Loans. Each Advance hereunder shall consist of Loans
made from the several Lenders ratably in accordance with their Pro Rata
Shares.
2.4 Types of Advances. The Advances may be Floating Rate Advances
or Eurodollar Advances, or a combination thereof, selected by the Borrower
in accordance with Sections 2.8 and 2.9.
2.5 Commitment Fee; Reductions in Aggregate Commitment. The
Borrower agrees to pay to the Agent for the account of each Lender
(according to its Pro Rata Share) a Commitment Fee at a per annum rate
equal to the Applicable Fee Rate on the average daily Available Aggregate
Commitment from the date hereof to and including the Facility Termination
Date, payable at the end of each calendar quarter hereafter and on the
Facility Termination Date. The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the Lenders in
integral multiples of $100,000, upon at least five Business Days' written
notice to the Agent, which notice shall specify the amount of any such
reduction, provided, however, that the amount of the Aggregate Commitment
may not be reduced below the Aggregate Outstanding Credit Exposure. All
accrued Commitment Fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Credit Extensions
hereunder.
2.6 Minimum Amount of Each Advance. Each Eurodollar Advance and
each Floating Rate Advance shall be in the minimum amount of $250,000 (and
in multiples of $100,000 if in excess thereof), provided, however, that any
Floating Rate Advance may be in the amount of the Available Aggregate
Commitment.
2.7 Optional Principal Payments. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $100,000 or any integral multiple of
$100,000 in excess thereof, any portion of the outstanding Floating Rate
Advances upon one Business Days' prior notice to the Agent. The Borrower
may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or
premium, all outstanding Eurodollar Advances, or, in a minimum aggregate
amount of $100,000 or any integral multiple of $100,000 in excess thereof,
any portion of the outstanding Eurodollar Advances upon three Business
Days' prior notice to the Agent.
2.8 Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to
time. The Borrower shall give the Agent irrevocable notice (a "Borrowing
Notice") not later than 10:00 a.m. (Dallas, Texas time) at least one
Business Day before the Borrowing Date of each Floating Rate Advance and
three Business Days before the Borrowing Date for each Eurodollar Advance,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
(v) Not later than noon (Dallas, Texas time) on each Borrowing
Date, each Lender shall make available its Loan or Loans in funds
immediately available in Dallas, Texas to the Agent at its address
specified pursuant to Article XIII. The Agent will make the funds
so received from the Lenders available to the Borrower at the
Agent's aforesaid address. Borrower shall be entitled to no more
than five (5) Eurodollar Loans outstanding at any one time.
2.9 Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until
such Floating Rate Advances are converted into Eurodollar Advances pursuant
to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurodollar Advance shall continue as a Eurodollar Advance until the end of
the then applicable Interest Period therefor, at which time such Eurodollar
Advance shall be automatically converted into a Floating Rate Advance
unless (x) such Eurodollar Advance is or was repaid in accordance with
Section 2.7 or (y) the Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below) requesting that, at the
end of such Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance for the same or another Interest Period. The Borrower
may elect from time to time to convert all or any part of a Floating Rate
Advance into a Eurodollar Advance. The Borrower shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 10:00 a.m. (Dallas, Texas time) at least
three Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
2.10 Changes in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is automatically
converted from a Eurodollar Advance into a Floating Rate Advance pursuant
to Section 2.9, to but excluding the date it is paid or is converted into a
Eurodollar Advance pursuant to Section 2.9 hereof, at a rate per annum
equal to the Floating Rate for such day. Changes in the rate of interest
on that portion of any Advance maintained as a Floating Rate Advance will
take effect simultaneously with each change in the Alternate Base Rate.
Each Eurodollar Advance shall bear interest on the outstanding principal
amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined by the Agent as applicable to such
Eurodollar Advance based upon the Borrower's selections under Sections 2.8
and 2.9 and otherwise in accordance with the terms hereof. No Interest
Period may end after the Facility Termination Date. The Borrower shall
select Interest Periods so that it is not necessary to repay any portion of
a Eurodollar Advance prior to the last day of the applicable Interest
Period in order to make a mandatory repayment required pursuant to Section
2.2.
2.11 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare
that no Advance may be made as, converted into or continued as a Eurodollar
Advance. During the continuance of a Default the Required Lenders may, at
their option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurodollar Advance shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum and (ii) each Floating
Rate Advance shall bear interest at a rate per annum equal to the Floating
Rate in effect from time to time plus 2% per annum, provided that, during
the continuance of a Default under Section 7.6 or 7.7, the interest rates
set forth in clauses (i) and (ii) above shall be applicable to all Advances
without any election or action on the part of the Agent or any Lender.
2.12 Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified
in writing by the Agent to the Borrower, by noon (local time) on the date
when due and shall be (except in the case of Reimbursement Obligations for
which LC Issuer has not been fully indemnified by the Lenders, or as
otherwise specifically required hereunder) applied ratably by the Agent
among the Lenders. Each payment delivered to the Agent for the account of
any Lender shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. The Agent is hereby
authorized to charge the account of the Borrower maintained with Bank One
for each payment of principal, interest and fees as it becomes due
hereunder. Each reference to the Agent in this Section 2.12 shall also be
deemed to refer and shall apply equally to the LC Issuer, in the case of
payments required to be made by the Borrower to the LC Issuer pursuant to
Section 2.19.6.
2.13 Evidence of Indebtedness. (i) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made
by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (c) the original stated amount of each Facility
LC and the amount of LC Obligations outstanding at any time, and (d) the
amount of any sum received by the Agent hereunder from the Borrower and
each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant
to paragraphs (i) and (ii) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided,
however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Obligations in accordance with their terms.
(iv) Each Lender's Loans under the Term Loan shall be evidenced
by a promissory note (a "Term Note"), and Borrower shall execute and
deliver to such Lender a Term Note payable to the order of such Lender in
the form attached hereto as Exhibit E-1. The Loans evidenced by such Term
Note and interest thereon shall at all times (including after any
assignment pursuant to Section 12.3) be represented by one or more Term
Notes payable to the order of the payee named therein or any assignee
pursuant to Section 12.3.
(v) Each Lender's Loans under the Revolving Credit Facility shall
be evidenced by a promissory note (a "Revolving Note"), and Borrower shall
execute and deliver to such Lender a Revolving Note payable to the order of
such Lender in the form attached hereto as Exhibit E-2. The Loans
evidenced by such Revolving Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.3) be represented by
one or more Revolving Notes payable to the order of the payee named therein
or any assignee pursuant to Section 12.3.
2.14 Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by
any person or persons the Agent or any Lender in good faith believes to be
acting on behalf of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The Borrower
agrees to deliver promptly to the Agent a written confirmation, if such
confirmation is requested by the Agent or any Lender, of each telephonic
notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Agent and the
Lenders, the records of the Agent and the Lenders shall govern absent
manifest error.
2.15 Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof
and at maturity. Interest accrued on each Eurodollar Advance shall be
payable on the last day of its applicable Interest Period, on any date on
which the Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance
having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period.
Interest, commitment fees and LC Fees shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest shall be payable for the
day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be made
on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
2.16 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and repayment
notice received by it hereunder. Promptly after notice from the LC Issuer,
the Agent will notify each Lender of the contents of each request for
issuance of a Facility LC hereunder. The Agent will notify each Lender of
the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility
LCs at any Lending Installation selected by such Lender or the LC Issuer,
as the case may be, and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans, Facility LCs, participations in LC Obligations
and any Notes issued hereunder shall be deemed held by each Lender or the
LC Issuer, as the case may be, for the benefit of any such Lending
Installation. Each Lender and the LC Issuer may, by written notice to the
Agent and the Borrower in accordance with Article XIII, designate
replacement or additional Lending Installations through which Loans will be
made by it or Facility LCs will be issued by it and for whose account Loan
payments or payments with respect to Facility LCs are to be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the times on which
it is scheduled to make payment to the Agent of (i) in the case of a
Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a
payment of principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may assume
that such payment has been made. The Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower, as the case
may be, has not in fact made such payment to the Agent, the recipient of
such payment shall, on demand by the Agent, repay to the Agent the amount
so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per
annum equal to (x) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day for the first three days and, thereafter, the
interest rate applicable to the relevant Loan or (y) in the case of payment
by the Borrower, the interest rate applicable to the relevant Loan.
2.19 Facility LCs.
2.19.1 Issuance. The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby and commercial
letters of credit (each, a "Facility LC") and to renew, extend, increase,
decrease or otherwise modify each Facility LC ("Modify," and each such
action a "Modification"), from time to time from and including the date of
this Agreement and prior to the Facility Termination Date upon the request
of the Borrower (for its benefit or for the benefit of any Subsidiary);
provided that immediately after each such Facility LC is issued or
Modified, the aggregate amount of the outstanding LC Obligations shall not
exceed $2,000,000, the aggregate amount of the LC Obligations and the
Advances under the Revolving Credit Facility shall not exceed $11,500,000
(as reduced as provided in Section 2.1.1 and 2.5), and (3) the Aggregate
Outstanding Credit Exposure shall not exceed the Aggregate Commitment. No
Facility LC shall have an expiry date later than the earlier of (x) the
fifth Business Day prior to the Facility Termination Date and (y) one year
after its issuance.
2.19.2 Participations. Upon the issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.19, the LC
Issuer shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall
be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the LC Issuer, a
participation in such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to its Pro Rata Share.
2.19.3 Notice. Subject to Section 2.19.1, the Borrower shall
give the LC Issuer notice prior to 10:00 a.m. (Dallas time) at least five
Business Days prior to the proposed date of issuance or Modification of
each Facility LC, specifying the beneficiary, the proposed date of issuance
(or Modification) and the expiry date of such Facility LC, and describing
the proposed terms of such Facility LC and the nature of the transactions
proposed to be supported thereby. Upon receipt of such notice, the LC
Issuer shall promptly notify the Agent, and the Agent shall promptly notify
each Lender, of the contents thereof and of the amount of such Lender's
participation in such proposed Facility LC. The issuance or Modification
by the LC Issuer of any Facility LC shall, in addition to the conditions
precedent set forth in Article IV (the satisfaction of which the LC Issuer
shall have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to the LC Issuer and that the
Borrower shall have executed and delivered such application agreement
and/or such other instruments and agreements relating to such Facility LC
as the LC Issuer shall have reasonably requested (each, a "Facility LC
Application"). In the event of any conflict between the terms of this
Agreement and the terms of any Facility LC Application, the terms of this
Agreement shall control.
2.19.4 LC Fees. The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective Pro Rata
Shares, a letter of credit fee at a per annum rate equal to the Applicable
Margin for Eurodollar Loans in effect from time to time on the average
daily undrawn stated amount under such Facility LC, such fee to be payable
in arrears on each Payment Date (an "LC Fee"). The Borrower shall also pay
to the LC Issuer for its own account (x) at the time of issuance of each
Facility LC, a fronting fee in an amount to be agreed upon between the LC
Issuer and the Borrower, and (y) documentary and processing charges in
connection with the issuance or Modification of and draws under Facility
LCs in accordance with the LC Issuer's standard schedule for such charges
as in effect from time to time.
2.19.5 Administration; Reimbursement by Lenders. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Agent and the Agent shall
promptly notify the Borrower and each other Lender as to the amount to be
paid by the LC Issuer as a result of such demand and the proposed payment
date (the "LC Payment Date"). The responsibility of the LC Issuer to the
Borrower and each Lender shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be in conformity in all material
respects with such Facility LC. The LC Issuer shall endeavor to exercise
the same care in the issuance and administration of the Facility LCs as it
does with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be unconditionally
and irrevocably liable without regard to the occurrence of any Default or
any condition precedent whatsoever, to reimburse the LC Issuer on demand
for such Lender's Pro Rata Share of the amount of each payment made by the
LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.19.6 below, plus interest
on the foregoing amount to be reimbursed by such Lender, for each day from
the date of the LC Issuer's demand for such reimbursement (or, if such
demand is made after 11:00 a.m. (Dallas time) on such date, from the next
succeeding Business Day) to the date on which such Lender pays the amount
to be reimbursed by it, at a rate of interest per annum equal to the
Federal Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Floating Rate Advances.
2.19.6 Reimbursement by Borrower. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the LC Issuer on or
before the applicable LC Payment Date for any amounts to be paid by the LC
Issuer upon any drawing under any Facility LC, without presentment, demand,
protest or other formalities of any kind; provided that neither the
Borrower nor any Lender shall hereby be precluded from asserting any claim
for direct (but not consequential) damages suffered by the Borrower or such
Lender to the extent, but only to the extent, caused by the willful
misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC issued by it complied with the
terms of such Facility LC or the LC Issuer's failure to pay under any
Facility LC issued by it after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. All such
amounts paid by the LC Issuer and remaining unpaid by the Borrower shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to (x) the rate applicable to Floating Rate Advances for such
day if such day falls on or before the applicable LC Payment Date and (y)
the sum of 2% plus the rate applicable to Floating Rate Advances for such
day if such day falls after such LC Payment Date. The LC Issuer will pay
to each Lender ratably in accordance with its Pro Rata Share all amounts
received by it from the Borrower for application in payment, in whole or in
part, of the Reimbursement Obligation in respect of any Facility LC issued
by the LC Issuer, but only to the extent such Lender has made payment to
the LC Issuer in respect of such Facility LC pursuant to Section 2.19.5.
Subject to the terms and conditions of this Agreement (including without
limitation the submission of a Borrowing Notice in compliance with Section
2.8 and the satisfaction of the applicable conditions precedent set forth
in Article IV), the Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
(4)
2.19.7 Obligations Absolute. The Borrower's obligations
under this Section 2.19 shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense
to payment which the Borrower may have or have had against the LC Issuer,
any Lender or any beneficiary of a Facility LC. The Borrower further
agrees with the LC Issuer and the Lenders that the LC Issuer and the
Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligation in respect of any Facility LC shall not be affected by, among
other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between
or among the Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to whom any
Facility LC may be transferred or any claims or defenses whatsoever of the
Borrower or of any of its Affiliates against the beneficiary of any
Facility LC or any such transferee. The LC Issuer shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with
any Facility LC. The Borrower agrees that any action taken or omitted by
the LC Issuer or any Lender under or in connection with each Facility LC
and the related drafts and documents, if done without gross negligence or
willful misconduct, shall be binding upon the Borrower and shall not put
the LC Issuer or any Lender under any liability to the Borrower. Nothing
in this Section 2.19.7 is intended to limit the right of the Borrower to
make a claim against the LC Issuer for damages as contemplated by the
proviso to the first sentence of Section 2.19.6.
2.19.8 Actions of LC Issuer. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and
other experts selected by the LC Issuer. The LC Issuer shall be fully
justified in failing or refusing to take any action under this Agreement
unless it shall first have received such advice or concurrence of the
Required Lenders as it reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. Notwithstanding any other provision
of this Section 2.19, the LC Issuer shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement in accordance
with a request of the Required Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon the Lenders
and any future holders of a participation in any Facility LC.
2.19.9 Indemnification. The Borrower hereby agrees to indemnify
and hold harmless each Lender, the LC Issuer and the Agent, and their
respective directors, officers, agents and employees from and against any
and all claims and damages, losses, liabilities, costs or expenses which
such Lender, the LC Issuer or the Agent may incur (or which may be claimed
against such Lender, the LC Issuer or the Agent by any Person whatsoever)
by reason of or in connection with the issuance, execution and delivery or
transfer of or payment or failure to pay under any Facility LC or any
actual or proposed use of any Facility LC, including, without limitation,
any claims, damages, losses, liabilities, costs or expenses which the LC
Issuer may incur by reason of or in connection with the failure of any
other Lender to fulfill or comply with its obligations to the LC Issuer
hereunder (but nothing herein contained shall affect any rights the
Borrower may have against any defaulting Lender) or by reason of or on
account of the LC Issuer issuing any Facility LC which specifies that the
term "Beneficiary" included therein includes any successor by operation of
law of the named Beneficiary, but which Facility LC does not require that
any drawing by any such successor Beneficiary be accompanied by a copy of a
legal document, satisfactory to the LC Issuer, evidencing the appointment
of such successor Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, the LC Issuer or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (x) the willful misconduct or gross
negligence of the LC Issuer in determining whether a request presented
under any Facility LC complied with the terms of such Facility LC or (y)
the LC Issuer's failure to pay under any Facility LC after the presentation
to it of a request strictly complying with the terms and conditions of such
Facility LC. Nothing in this Section 2.19.9 is intended to limit the
obligations of the Borrower under any other provision of this Agreement.
2.19.10 Lenders' Indemnification. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and employees
(to the extent not reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees'
gross negligence or willful misconduct or the LC Issuer's failure to pay
under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC) that such
indemnitees may suffer or incur in connection with this Section 2.19 or any
action taken or omitted by such indemnitees hereunder.
2.19.11 Facility LC Collateral Account. The Borrower agrees
that it will, upon the request of the Agent or the Required Lenders and
until the final expiration date of any Facility LC and thereafter as long
as any amount is payable to the LC Issuer or the Lenders in respect of any
Facility LC, maintain a special cash collateral account pursuant to
arrangements satisfactory to the Agent (the "Facility LC Collateral
Account") at the Agent's office at the address specified pursuant to
Article XIII, in the name of the Borrower but under the sole dominion and
control of the Agent, for the benefit of the Lenders and in which the
Borrower shall have no interest other than as set forth in Section 8.1.
Borrower shall only be required to deposit funds into the Facility LC
Collateral Account as and to the extent required by Section 8.1. The
Borrower hereby pledges, assigns and grants to the Agent, on behalf of and
for the ratable benefit of the Lenders and the LC Issuer, a security
interest in all of the Borrower's right, title and interest in and to all
funds which may from time to time be on deposit in the Facility LC
Collateral Account to secure the prompt and complete payment and
performance of the Obligations. The Agent will invest any funds on deposit
from time to time in the Facility LC Collateral Account in certificates of
deposit of Bank One having a maturity not exceeding 30 days. Nothing in
this Section 2.19.11 shall either obligate the Agent to require the
Borrower to deposit any funds in the Facility LC Collateral Account or
limit the right of the Agent to release any funds held in the Facility LC
Collateral Account in each case other than as required by Section 8.1.
2.19.12 Rights as a Lender. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other Lender.
2.20 Extension of Facility Termination Date. The Borrower may
request a one-year extension of the Facility Termination Date by submitting
a request for an extension to the Agent (an "Extension Request") no more
than 90 and no less than 30 days prior to the Facility Termination Date.
Promptly upon receipt of an Extension Request, the Agent shall notify each
Lender thereof. Each Lender approving the Extension Request shall deliver
its written consent no later than 15 days prior to such Facility
Termination Date. If the consent of each of the Lenders is received by the
Agent, the Facility Termination Date shall be extended by one year and the
Agent shall promptly notify the Borrower and each Lender of the new
Facility Termination Date.
2.21 Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if
any Lender's obligation to make or continue, or to convert Floating Rate
Advances into, Eurodollar Advances shall be suspended pursuant to
Section 3.3 (any Lender so affected an "Affected Lender"), the Borrower may
elect by written notice (the "Replacement Election"), if such amounts
continue to be charged or such suspension is still effective, to replace
such Affected Lender as a Lender party to this Agreement, provided that no
Default or Unmatured Default shall have occurred and be continuing at the
time of such replacement, and provided further that, concurrently with such
replacement, (i) another bank or other entity which is reasonably
satisfactory to the Borrower and the Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the Affected
Lender pursuant to an assignment substantially in the form of Exhibit C and
to become a Lender for all purposes under this Agreement and to assume all
obligations of the Affected Lender to be terminated as of such date and to
comply with the requirements of Section 12.3 applicable to assignments, and
(ii) the Borrower shall pay to such Affected Lender in same day funds on
the day of such replacement (A) all interest, fees and other amounts then
accrued but unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments
due to such Affected Lender under Sections 3.1, 3.2 and 3.5 prior to the
Replacement Election, and (B) an amount, if any, equal to the payment which
would have been due to such Lender on the day of such replacement under
Section 3.4 had the Loans of such Affected Lender been prepaid on such date
rather than sold to the replacement Lender. If Borrower makes a
Replacement Election, the obligations of Borrower to the Affected Lender
under Sections 3.1, 3.2 or 3.5 shall be suspended for the period, not to
exceed 180 days, after the Replacement Election until such Affected Lender
is replaced pursuant to this Section. If such Affected Lender is not
replaced within said 180 day period, Borrower shall be liable for such
amounts as though no Replacement Election had been made.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force
of law), or any change in the interpretation or administration thereof by
any governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender or applicable Lending Installation or
the LC Issuer with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation or the
LC Issuer to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender or the LC Issuer in
respect of its Eurodollar Loans, Facility LCs or participations therein ,
or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation or the LC Issuer (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation or the LC
Issuer of making, funding or maintaining its Eurodollar Loans, or of
issuing or participating in Facility LCs or reduces any amount receivable
by any Lender or any applicable Lending Installation or the LC Issuer in
connection with its Eurodollar Loans, Facility LCs or participations
therein, or requires any Lender or any applicable Lending Installation or
the LC Issuer to make any payment calculated by reference to the amount of
Eurodollar Loans, Facility LCs or participations therein, held or interest
or LC Fees received by it, by an amount deemed material by such Lender or
the LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation or the LC Issuer as the case may
be, of making or maintaining its Eurodollar Loans or Commitment as of
issuing or participating in Facility LCs or to reduce the return received
by such Lender or applicable Lending Installation or the LC Issuer as the
case may be, in connection with such Eurodollar Loans, Commitment, Facility
LCs or participations therein, then, within 30 days of demand by such
Lender or the LC Issuer as the case may be, and delivery to the Borrower of
a certified calculation of the amounts owed hereunder, the Borrower shall
pay such Lender such additional amount or amounts as will compensate such
Lender or the LC Issuer as the case may be, for such increased cost or
reduction in amount received.
1.1 Changes in Capital Adequacy Regulations. If a Lender or the LC
Issuer determines the amount of capital required or expected to be
maintained by such Lender or the LC Issuer, any Lending Installation of
such Lender or the LC Issuer or any corporation controlling such Lender or
the LC Issuer is increased as a result of a Change, then, within 15 days of
demand by such Lender or the LC Issuer, the Borrower shall pay such Lender
or the LC Issuer the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such
Lender or the LC Issuer determines is attributable to this Agreement, its
Outstanding Credit Exposure or its Commitment to make Loans and issue or
participate in Facility LCs, as the case may be, hereunder (after taking
into account such Lender's or the LC Issuer's policies as to capital
adequacy). "Change" means (i) any change after the date of this Agreement
in the Risk-Based Capital Guidelines or (ii) any adoption of or change in
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC
Issuer. "Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules,
and any amendments to such regulations adopted prior to the date of this
Agreement.
3.3 Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether
or not having the force of law, or if the Required Lenders determine that
(i) deposits of a type and maturity appropriate to match fund Eurodollar
Advances are not available or (ii) the interest rate applicable to
Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Agent shall suspend the
availability of Eurodollar Advances and require any affected Eurodollar
Advances to be repaid or converted to Floating Rate Advances, subject to
the payment of any funding indemnification amounts required by Section 3.4.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by the Borrower for
any reason other than default by the Lenders, the Borrower will indemnify
each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain such Eurodollar Advance.
Notwithstanding any provision of this Agreement to the contrary, each
Lender shall be entitled to fund and maintain its funding of all or any
part of the Advances in any manner it elects; it being understood, however,
that all determinations hereunder shall be made as if each Lender had
actually funded and maintained each Eurodollar Advance during the Interest
Period for such Eurodollar Advance through the purchase of deposits having
a term corresponding to such Interest Period and bearing an interest rate
equal to the Eurodollar Base Rate for such Interest Period.
3.5 Taxes. All payments by the Borrower to or for the account of
any Lender, the LC Issuer or the Agent hereunder or under any Note or
Facility LC Application shall be made free and clear of and without
deduction for any and all Taxes. If the Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder to any
Lender or Facility LC Application or the Agent, (a) the sum payable shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.5) such Lender, the LC Issuer or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the
Agent the original copy of a receipt evidencing payment thereof within 30
days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or Facility LC Application or from the
execution or delivery of, or otherwise with respect to, this Agreement or
any Note or Facility LC Application ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent, the LC Issuer
and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable
under this Section 3.5) paid by the Agent, the LC Issuer or such Lender and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this indemnification
shall be made within 30 days of the date the Agent, the LC Issuer or such
Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after the date of this
Agreement, (i) deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes, and (ii) deliver to each of the
Borrower and the Agent a United States Internal Revenue Form W-8 or W-9, as
the case may be, and certify that it is entitled to an exemption from
United States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Agent (x) renewals or
additional copies of such form (or any successor form) on or before the
date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto as may be
reasonably requested by the Borrower or the Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form or amendment
with respect to it and such Lender advises the Borrower and the Agent that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv),
above (unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 3.5 with respect to Taxes
imposed by the United States; provided that, should a Non-U.S. Lender which
is otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a form required
under clause (iv), above, the Borrower shall take such steps as such Non-
U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Borrower (with a copy to the Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to
be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed,
because such Lender failed to notify the Agent of a change in circumstances
which rendered its exemption from withholding ineffective, or for any other
reason), such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding therefor, or
otherwise, including penalties and interest, and including taxes imposed by
any jurisdiction on amounts payable to the Agent under this subsection,
together with all costs and expenses related thereto (including attorneys
fees and time charges of attorneys for the Agent, which attorneys may be
employees of the Agent). The obligations of the Lenders under this
Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability
of the Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid
the unavailability of Eurodollar Advances under Section 3.3, so long as
such designation is not, in the judgment of such Lender, disadvantageous to
such Lender. Each Lender shall deliver a written statement of such Lender
to the Borrower (with a copy to the Agent) as to the amount due, if any,
under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined
such amount and shall be final, conclusive and binding on the Borrower in
the absence of manifest error. Determination of amounts payable under such
Sections in connection with a Eurodollar Loan shall be calculated as though
each Lender funded its Eurodollar Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact
that is the case or not. Unless otherwise provided herein, the amount
specified in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment
of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Initial Credit Extension. The Lenders shall not be required to
make the initial Credit Extension hereunder unless the Borrower has
furnished to the Agent:
(i) Copies of the articles or certificate of incorporation of the
Borrower and each Guarantor, together with all amendments, and a
certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower and each Guarantor, of their by-laws and of their Board of
Directors' resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the Borrower and
each Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower and each Guarantor, which shall identify by name
and title and bear the signatures of the Authorized Officers and any other
officers of the Borrower and such Guarantor authorized to sign the Loan
Documents to which the Borrower and each Guarantor is a party, upon which
certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower or a Guarantor.
(iv) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date no Default or
Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's and Guarantors' counsel,
addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable
to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the Agent
may have reasonably requested.
(viii) The insurance certificate described in Section 5.20.
(ix) If the initial Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application.
(x) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2 Each Credit Extension. The Lenders shall not be required to
make any Credit Extension unless on the applicable Credit Extension Date.
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
materially true and correct as of such Credit Extension Date except to the
extent any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall have been
materially true and correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Credit Extension
shall be reasonably satisfactory to the Lenders and their counsel.
Each Borrowing Notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by the Borrower that the conditions contained in Sections 4.2(i)
and (ii) have been satisfied. Any Lender may require a duly completed
compliance certificate in substantially the form of Exhibit B as a
condition to making a Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence and Standing. Each of the Borrower and its respective
Subsidiaries is a corporation, partnership (in the case of Subsidiaries
only) or limited liability company duly and properly incorporated or
organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its
jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its
business is conducted.
5.2 Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan
Documents to which it is a party and to perform its obligations thereunder.
The execution and delivery by the Borrower of the Loan Documents to which
it is a party and the performance of its obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents to
which the Borrower is a party constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with their terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents to which it is a party, nor
the consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate (i) in any material respect, any
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's
or any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the
case may be, or (iii) the material provisions of any indenture, instrument
or agreement to which the Borrower or any of its Subsidiaries is a party or
is subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of the Borrower or a
Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, adjudication, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained
by the Borrower or any of its Subsidiaries, is required to be obtained by
the Borrower or any of its Subsidiaries in connection with the execution
and delivery of the Loan Documents, the borrowings under this Agreement,
the payment and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of the Loan
Documents.
5.4 Financial Statements. The February 29, 2000 consolidated
financial statements of the Borrower and its Subsidiaries heretofore
delivered to the Lenders were prepared in accordance with generally
accepted accounting principles in effect on the date such statements were
prepared and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
5.5 Material Adverse Change. Since March 1, 2000, there has been no
change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to
be filed and have paid all taxes due pursuant to said returns or pursuant
to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided in accordance with Agreement
Accounting Principles and as to which no Lien exists. No tax liens have
been filed and no claims are being asserted with respect to any such taxes.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are
adequate. If the Borrower or any of its Subsidiaries is a limited
liability company, each such limited liability company qualifies for
partnership tax treatment under United States federal tax law.
5.7 Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or,
to the knowledge of any of their officers, threatened against or affecting
the Borrower or any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect or which seeks to prevent, enjoin or
delay the making of any Credit Extensions. Other than any liability
incident to any litigation, arbitration or proceeding which could not
reasonably be expected to have a Material Adverse Effect, the Borrower has
no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8 Subsidiaries. Schedule 1 contains an accurate list of all
Subsidiaries of the Borrower other than Inactive Subsidiaries as of the
date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other
ownership interests owned by the Borrower or other Subsidiaries. All of
the issued and outstanding shares of capital stock or other ownership
interests of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and
issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,500,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to
incur, any withdrawal liability to Multiemployer Plans in excess of
$1,500,000 in the aggregate. Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither the Borrower nor any
other member of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to terminate any
Plan.
5.10 Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact necessary to make the statements contained therein not
misleading.
5.11 Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and
its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder.
5.12 Material Agreements. Neither the Borrower nor any of Subsidiary
is a party to any agreement or instrument or subject to any charter or
other corporate restriction which could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement to which it
is a party, which default could reasonably be expected to have a Material
Adverse Effect.
5.13 Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality
or agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any
failure to comply with any of the foregoing which could not reasonably be
expected to have a Material Adverse Effect.
5.14 Ownership of Properties. Except as set forth on Schedule 2, on
the date of this Agreement, the Borrower and its Subsidiaries will have
good title, free of all Liens other than those permitted by Section 6.15,
to all of the Property and assets reflected in the Borrower's most recent
consolidated financial statements provided to the Agent as owned by the
Borrower and its Subsidiaries.
5.15 Plan Assets; Prohibited Transactions. The Borrower is an not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of
ERISA) which is subject to Title I of ERISA or any plan (within the meaning
of Section 4975 of the Code), neither the execution of this Agreement nor
the making of Credit Extensions hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of
the Code, and "benefit plan investors" (as defined in 29 C.F.R. 2510.3-
101(f)) do not own 25% or more of the value of any class of equity
interests in the Borrower.
5.16 Environmental Matters. In the ordinary course of its business,
the Borrower considers the effect of Environmental Laws on the business of
the Borrower and its Subsidiaries, in the course of which it identifies and
evaluates potential risks and liabilities accruing to the Borrower due to
Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or
are the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could reasonably be expected to have a Material Adverse
Effect.
5.17 Investment Company Act. Neither Borrower nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended.
5.18 Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
5.19 Omitted.
5.20 Insurance. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and
adequacy of, and summarizes, the property and casualty insurance program
carried by the Borrower with respect to itself and its Subsidiaries and
that has been furnished by the Borrower to the Agent and the Lenders, is
materially complete and accurate. This summary includes the insurer's or
insurers' name(s), policy number(s), expiration date(s), amount(s) of
coverage, type(s) of coverage, exclusion(s), and deductibles. This summary
also includes material similar information, and describes any material
reserves, relating to any self-insurance program that is in effect.
5.21 Solvency. (i) Immediately after the consummation of the
transactions to occur on the date hereof and immediately following the
making of each Loan, if any, made on the date hereof and after giving
effect to the application of the proceeds of such Loans, (a) the fair value
of the assets of the Borrower and its Subsidiaries on a consolidated basis,
at a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of
the Borrower and its Subsidiaries on a consolidated basis will be greater
than the amount that will be required to pay the probable liability of the
Borrower and its Subsidiaries on a consolidated basis on their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as
such businesses are now conducted and are proposed to be conducted after
the date hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature,
taking into account the timing of and amounts of cash to be received by it
or any such Subsidiary and the timing of the amounts of cash to be payable
on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish
directly to each of the Lenders:
(i) Within 60 days after the close of each of its fiscal
years, (unless Required Lenders shall agree otherwise, which agreement
shall not be unreasonably withheld) an unqualified audit report certified
by independent certified public accountants acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries, including
balance sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows,
accompanied by any management letter prepared by said accountants.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its Subsidiaries,
(unless Required Lenders shall agree otherwise, which agreement shall not
be unreasonably withheld) consolidated and consolidating unaudited balance
sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus statements and
a statement of cash flows for the period from the beginning of such fiscal
year to the end of such quarter, all certified by its chief financial
officer.
(iii) As soon as available, but in any event within 90 days after the
beginning of each fiscal year of the Borrower, (unless Required Lenders
shall agree otherwise, which agreement shall not be unreasonably withheld)
a copy of the plan and forecast (including a projected consolidated and
consolidating balance sheet, income statement and funds flow statement) of
the Borrower for such fiscal year.
(iv) As soon as available, but in any event within 45 days of the end
of each quarterly period of Borrower's fiscal year, a compliance
certificate in substantially the form of Exhibit B signed by an Authorized
Officer of Borrower showing the calculations necessary to determine
compliance with this Agreement, and stating that no Default or Unmatured
Default exists, or if any Default or Unmatured Default exists, stating the
nature and status thereof.
(v) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by an Authorized Officer of Borrower, describing
said Reportable Event and the action which the Borrower proposes to take
with respect thereto.
(vi) As soon as possible and in any event within 10 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, any of its Subsidiaries, or any
other Person of any toxic or hazardous waste or substance into the
environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
(vii) Promptly upon the filing thereof, copies of all registration
statements, proxy statements and annual, quarterly, monthly or other
regular reports which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission.
(viii) Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for the purposes
set forth in Section 2.1. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or carry
any "margin stock" (as defined in Regulation U) or to make any other
Acquisitions.
6.3 Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the
occurrence of any Default or Unmatured Default and of any other
development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in accordance with good
business practices and in substantially the same fields of enterprise as it
is presently conducted and, subject to Section 6.12, do all things
necessary to remain duly incorporated or organized, validly existing and
(to the extent such concept applies to such entity) in good standing as a
domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due all
taxes, assessments and governmental charges and levies upon it or its
income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement Accounting
Principles. At any time that the Borrower or any of its Subsidiaries is
organized as a limited liability company, each such limited liability
company will qualify for partnership tax treatment under United States
federal tax law.
6.6 Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as
is consistent with sound business practice, and the Borrower will furnish
to any Lender upon request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all Environmental Laws.
6.8 Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect
and keep its Property in good repair, working order and condition, and make
all necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at
all times.
6.9 Inspection. The Borrower will, and will cause each Subsidiary
to, permit the Agent and the Lenders, by their respective representatives
and agents, to inspect, upon reasonable notice and during normal business
hours, any of the Property, books and financial records of the Borrower and
each Subsidiary, to examine and make copies, subject to Section 9.11, of
the books of accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of the
Borrower and each Subsidiary with, and to be advised as to the same by,
their respective officers at such reasonable times and intervals as the
Agent or any Lender may designate.
6.10 Dividends. The Borrower will not, nor will it permit any
Subsidiary to, (unless Required Lenders agree otherwise, in their sole
discretion) declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own capital stock) or
redeem, repurchase or otherwise acquire or retire any of its capital stock
at any time outstanding, except that (a) any Subsidiary may declare and pay
dividends or make distributions to the Borrower or to a Wholly-Owned
Subsidiary of Borrower, and (b) so long as no Default or Unmatured Default
then exists, Borrower may declare and pay dividends or make distributions
to its shareholders in an amount not to exceed $10,500,000 per fiscal year
of Borrower.
6.11 Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, (unless Required Lenders agree otherwise, in their sole
discretion) create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date hereof and described in
Schedule 2.
(iii) Indebtedness arising under Rate Management Transactions related
to the Loans.
(iv) Purchase money Indebtedness not to exceed, at any one time,
$1,000,000.
6.12 Merger. The Borrower will not, nor will it permit any
Subsidiary to, (unless Required Lenders agree otherwise, in their sole
discretion) merge or consolidate with or into any other Person, except that
a Subsidiary may merge into the Borrower or a Subsidiary.
6.13 Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, (unless Required Lenders agree otherwise, in their sole
discretion) lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than inventory in the
ordinary course of business) as permitted by this Section during the
twelve-month period ending with the month in which any such lease, sale or
other disposition occurs, do not constitute a Substantial Portion of the
Property of the Borrower and its Subsidiaries. Upon a sale pursuant to
this subsection which results in all of the outstanding stock of a
Subsidiary being transferred to an unrelated third-party, Borrower shall be
entitled to obtain the release of such Subsidiary from its obligations
under the Guaranty.
6.14 Investments and Acquisitions. The Borrower will not, nor will
it permit any Subsidiary to, (unless Required Lenders agree otherwise, in
their sole discretion) make or suffer to exist any Investments (other than
loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Acquisition of
any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments
in existence on the date hereof and described in Schedule 1.
(iii) Other than during the existence of a Default, Investments in any
newly created Subsidiary so long as such Subsidiary becomes a Guarantor by
signing a joinder to the Guaranty within ten days after it becomes active
(i.e. not "inactive"). The Borrower may establish or create Subsidiaries
which are "inactive" (as hereinafter defined) when established or created
without the necessity of complying with the foregoing requirements so long
as such Subsidiaries remain "inactive"; provided that, as soon as
practicable after, but in no event later than ten days after, each such
Subsidiary so established or created ceases to be "inactive", Borrower
shall cause such Subsidiary to Guaranty the Loans by signing a joinder to
the Guaranty. As used herein, an "inactive" Subsidiary shall mean any
Subsidiary which has no assets or liabilities, other than as nominally
required under applicable law in order for such Subsidiary to be
established or created. "Inactive" Subsidiaries may include, without
limitation, Subsidiaries formed to reserve a certain corporate or trade
name in anticipation of business being done under that name and those
formed in anticipation of an Acquisition which is pending.
(iv) Acquisitions where the total acquisition consideration (cash or
otherwise) is less than $1,500,000 and the total acquisition consideration
for all Acquisitions (including the Acquisition in question) for the
preceding 12 months is less than $3,000,000.
6.15 Liens. (a) The Borrower will not, nor will it permit any
Subsidiary to, (unless Required Lenders agree otherwise, in their sole
discretion) create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower, or any Subsidiary, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due
or which are being contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the marketability of the same or interfere with
the use thereof in the business of the Borrower or its Subsidiaries.
(v) Liens securing purchase money Indebtedness in the aggregate not
to exceed $1,000,000 so long as such Liens affect only the assets acquired
with the proceeds of such purchase money Indebtedness.
(vi) Liens existing on the date hereof and described in Schedule 2.
(b) Borrower shall not, and Borrower shall not permit any Subsidiary
of Borrower to, enter into any agreement (excluding this Agreement or any
other Loan Documents) prohibiting the creation or assumption of any Lien
upon any property, revenues, or assets of such Person, whether now owned or
hereafter acquired.
6.16 Capital Expenditures. The Borrower will not, nor will it permit
any Subsidiary to, expend, or be committed to expend, in excess of
$9,000,000 for Capital Expenditures during any 12-month period in the
aggregate for the Borrower and its Subsidiaries, without the prior written
consent of the Required Lenders.
6.17 Omitted.
6.18 Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment
or transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than the Borrower or such Subsidiary
would obtain in a comparable arms-length transaction.
6.19 Subordinated Indebtedness. The Borrower will not, and will not
permit any Subsidiary to, (unless Required Lenders agree otherwise, in
their sole discretion) make any amendment or modification to the indenture,
note or other agreement evidencing or governing any Subordinated
Indebtedness, or directly or indirectly voluntarily prepay, defease or in
substance defease, purchase, redeem, retire or otherwise acquire, any
Subordinated Indebtedness.
6.20 Omitted .
6.21 Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any accounts receivable, with
or without recourse.
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. The Borrower will not, nor will it permit any Subsidiary to,
enter into or suffer to exist any (i) Sale and Leaseback Transaction, or
(ii) any other transaction pursuant to which it incurs or has incurred Off-
Balance Sheet Liabilities without the prior written consent of Required
Lenders.
6.23 Contingent Obligations. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to
the obligations of a Subsidiary), except (i) by endorsement of instruments
for deposit or collection in the ordinary course of business, (ii) the
Reimbursement Obligations, (iii) the Guaranty, without the prior written
consent of Required Lenders, and (iv) the Contingent Obligations more
particularly described on Schedule 2.
6.24 Letters of Credit. The Borrower will not, nor will it permit
any Subsidiary to, apply for or become liable upon or in respect of any
Letter of Credit other than Facility LCs and the Consent, Assumption and
Amendment Agreement between Borrower and U.S. Bank National Association,
relating to the Debt described on Schedule 2.
6.25 Financial Covenants.
6.25.1 Fixed Charge Coverage Ratio. The Borrower will not permit
the ratio, determined as of the end of each of its fiscal quarters for the
then most-recently ended four fiscal quarters, of (i) Consolidated EBITDA
minus taxes paid during such period minus Consolidated Capital Expenditures
to (ii) Consolidated Interest Expense, plus current maturities of principal
Indebtedness (including Capitalized Lease Obligations), all calculated for
the Borrower and its Subsidiaries on a consolidated basis plus dividends
and distributions by Borrower during such period, to be less than 1.25 to
1.00.
6.25.2 Leverage Ratio. The Borrower will not permit the Leverage
Ratio, determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters to be greater than 2.00 to 1.0.
6.25.3 Minimum Tangible Net Worth. The Borrower will at all times
maintain Consolidated Tangible Net Worth of not less than the sum of (i)
90% of Borrower's Consolidated Tangible Net Worth on the date of this
Agreement, plus (ii) 25% of Consolidated Net Income earned in each fiscal
quarter beginning with the quarter ending August 31, 2000 (without
deduction for losses).
6.26 Hedging Obligation. The Borrower shall maintain at all times
after the date which is 90 days after the date of this Agreement,
agreements, devices or arrangements providing for payments related to
fluctuations of interest rates, exchange rates, forward rates or commodity
prices, including, but not limited to, interest rate swap or exchange
agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate
options in form, substance and with financial institutions acceptable to
Agent, with respect to at least 50% of the outstanding balance of the Term
Loan and the Revolving Credit Facility.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Agent under or in connection with this Agreement, any Credit Extension, or
any certificate or information delivered in connection with this Agreement
or any other Loan Document shall be materially false on the date as of
which made, and the failure of Borrower to remedy such failure within
twenty (20) days of the date when made.
7.2 Nonpayment of principal of any Loan within three (3) days after
the same becomes due, nonpayment of any Reimbursement Obligation within one
(1) Business Day after the same becomes due, or nonpayment of interest upon
any Loan or of any commitment fee, LC Fee, or other obligations under any
of the Loan Documents within five (5) days after the same becomes due.
7.3 (a) The breach by the Borrower of any of the terms or provisions
of Section 6.1(i), (ii) or (iii), 6.2, 6.10, 6.12, 6.13, 6.14,
6.18, 6.25 or 6.26.
(b) The breach by the Borrower of any of the terms or provisions
of Section 6.11 or 6.15, and the continuation of such breach for
ten (10) days.
7.4 The breach by the Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within ten (10) days
after written notice from the Agent or any Lender.
7.5 Failure of the Borrower or any of its Subsidiaries or any
Guarantor to pay when due any Indebtedness aggregating in excess of
$250,000 ("Material Indebtedness"); or the default by the Borrower or any
of its Subsidiaries or any Guarantor in the performance(beyond the
applicable grace period with respect thereto, if any) of any material term,
provision or condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other event shall
occur or condition exist, the effect of which default or event is to cause,
or to permit the holder or holders of such Material Indebtedness to cause,
such Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Borrower or any of its Subsidiaries or any
Guarantor shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the
stated maturity thereof; or the Borrower or any of its Subsidiaries or any
Guarantor shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
7.6 The Borrower or any of its Subsidiaries or any Guarantor shall
(i) have a final order for relief entered with respect to it under the
Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion
of its Property, (iv) institute any proceeding seeking an order for relief
under the Federal bankruptcy laws as now or hereafter in effect or seeking
to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi)
fail to contest in good faith any appointment or proceeding described in
Section 7.7.
7.7 Without the application, approval or consent of the Borrower or
any of its Subsidiaries, or any Guarantor, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or any
of its Subsidiaries or any Guarantor or any Substantial Portion of its
Property, or a proceeding described in Section 7.6(iv) shall be instituted
against the Borrower or any of its Subsidiaries or any Guarantor and in
either case such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion
of the Property of the Borrower and its Subsidiaries or any Guarantor
which, when taken together with all other Property of the Borrower and its
Subsidiaries or any Guarantor so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month
in which any such action occurs, constitutes a Substantial Portion;
provided, that it shall not constitute a Default under this Section 7.8 if
Borrower obtains the release of such condemnation, seizure, appropriation,
custody or control within fifteen (15) days of its occurrence.
7.9 The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge one or more (i) judgments or orders for
the payment of money in excess of $100,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which
judgment(s), in any such case, is/are not stayed on appeal or otherwise
being appropriately contested in good faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $1,500,000 or any Reportable Event shall occur in
connection with any Plan.
7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such Multiemployer Plan in an amount
which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled
Group as withdrawal liability (determined as of the date of such
notification), exceeds $500,000 or requires payments exceeding $250,000 per
annum.
7.12 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the
other members of the Controlled Group (taken as a whole) to all
Multiemployer Plans which are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
termination occurs by an amount exceeding $1,500,000.
7.13 The Borrower or any of its Subsidiaries shall (i) be the subject
of any proceeding or investigation pertaining to the release by the
Borrower, any of its Subsidiaries or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i)
or clause (ii), could reasonably be expected to have a Material Adverse
Effect.
7.14 Any Change in Control shall occur.
7.15 The occurrence of any "default", as defined in any Loan Document
(other than this Agreement) or the breach of any of the terms or provisions
of any Loan Document (other than this Agreement), which default or breach
continues beyond any period of grace therein provided.
7.16 Nonpayment by the Borrower or any Subsidiary of any Rate
Management Obligation when due or the breach by the Borrower of any
material term, provision or condition contained in any Rate Management
Transaction, and in either case the expiration of any applicable cure
period.
7.17 Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply
with any of the material terms or provisions of any Guaranty to which it is
a party, or any Guarantor shall deny that it has any further liability
under any Guaranty to which it is a party, or shall give notice to such
effect.
7.18 The representations and warranties set forth in Section 5.15
shall at any time not be true and correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration; Facility LC Collateral Account. (i) If any Default
described in Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and
power of the LC Issuer to issue Facility LCs shall automatically terminate
and the Obligations shall immediately become due and payable without any
election or action on the part of the Agent, the LC Issuer or any Lender
and the Borrower will be and become thereby unconditionally obligated,
without any further notice, act or demand, to pay to the Agent an amount in
immediately available funds, which funds shall be deposited in the Facility
LC Collateral Account, equal to the difference of (x) the amount of LC
Obligations at such time, less (y) the amount on deposit in the Facility LC
Collateral Account at such time which is free and clear of all rights and
claims of third parties and has not been applied against the Obligations
(such difference, the "Collateral Shortfall Amount"). If any other Default
occurs, the Required Lenders (or the Agent with the consent of the Required
Lenders) may (a) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation and power of the LC Issuer to issue
Facility LCs, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives, and (b) upon notice to the Borrower and
in addition to the continuing right to demand payment of all amounts
payable under this Agreement, make demand on the Borrower to pay, and the
Borrower will, forthwith upon such demand and without any further notice or
act, pay to the Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater
than zero, the Agent may make demand on the Borrower to pay, and the
Borrower will, forthwith upon such demand and without any further notice or
act, pay to the Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(iii) The Agent may at any time or from time to time after funds
are deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Obligations and any other amounts as shall from time to
time have become due and payable by the Borrower to the Lenders or the LC
Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall have any
right to withdraw any of the funds held in the Facility LC Collateral
Account. After all of the Obligations have been indefeasibly paid in full
and the Aggregate Commitment has been terminated, any funds remaining in
the Facility LC Collateral Account shall be returned by the Agent to the
Borrower or paid to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
and the obligation and power of the LC Issuer to issue Facility LCs
hereunder as a result of any Default (other than any Default as described
in Section 7.6 or 7.7 with respect to the Borrower) and before any judgment
or decree for the payment of the Obligations due shall have been obtained
or entered, the Required Lenders (in their sole discretion) shall so
direct, the Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder
or waiving any Default hereunder; provided, however, that (a) no such
supplemental agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the expiry date
of any Facility LC to a date after the Facility Termination Date or
postpone any regularly scheduled payment of principal of any Loan or
forgive all or any portion of the principal amount thereof or any
Reimbursement Obligation related thereto, or reduce the rate or extend
the time of payment of interest or fees (Commitment Fees, LC Fees,
or otherwise) thereon or any Reimbursement Obligation related thereto;
(ii) Change the definition of Required Lenders;
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments or commitment
reductions required under Section 2.1 or 2.2, or increase the amount
of the Aggregate Commitment, the Commitment of any Lender hereunder or
the commitment of any Lender to participate in any Facility LCs, or
permit the Borrower to assign its rights under this Agreement;
(iv) Amend this Section 8.2;
(v) Release any guarantor of any Advance; and
(b) without the consent of all of the Lenders, unless there are more
than two (2) Lenders and at least two (2) Lenders which are not Affiliates
are necessary to constitute the Required Lenders (in which case only the
approval of the Required Lenders is necessary):
(i) Change any term or provision of Sections 4.2, 5.5, 6.25 or
12.3 or any defined term used in any of the foregoing Sections;
(ii) Waive any Default or Unmatured Default arising from the
Borrower's failure to pay principal, interest or other amounts or from
the Borrower's breach of any of the provisions of Section 6.25.
No amendment of any provision of this Agreement relating to the Agent shall
be effective without the written consent of the Agent, and no amendment of
any provision of this Agreement relating to the LC Issuer shall be
effective without the written consent of the LC Issuer. The Agent may
waive payment of the fee required under Section 12.3.2 without obtaining
the consent of any other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders,
the LC Issuer or the Agent to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding
the existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any
waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 8.2,
and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Agent, the LC Issuer and the
Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive the making of the
Credit Extensions herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, neither the LC Issuer nor any Lender shall
be obligated to extend credit to the Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.
9.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, the LC Issuer
and the Lenders and supersede all prior agreements and understandings among
the Borrower, the Agent, the LC Issuer and the Lenders relating to the
subject matter thereof other than the fee letter described in
Section 10.13.
9.5 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to
which the Agent is authorized to act as such). The failure of any Lender
to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement and their respective successors and assigns,
provided, however, that the parties hereto expressly agree that the
Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the
right to enforce such provisions on its own behalf and in its own name to
the same extent as if it were a party to this Agreement.
9.6 Expenses; Indemnification. (i) THE BORROWER SHALL REIMBURSE THE
AGENT AND THE ARRANGER FOR ANY COSTS AND OUT-OF-POCKET EXPENSES (INCLUDING
ATTORNEYS' FEES AND TIME CHARGES OF ATTORNEYS FOR THE AGENT, WHICH
ATTORNEYS MAY BE EMPLOYEES OF THE AGENT) PAID OR INCURRED BY THE AGENT OR
THE ARRANGER IN CONNECTION WITH THE PREPARATION, NEGOTIATION, EXECUTION,
DELIVERY, SYNDICATION, REVIEW, AMENDMENT, MODIFICATION, AND ADMINISTRATION
OF THE LOAN DOCUMENTS. THE BORROWER ALSO AGREES TO REIMBURSE THE AGENT,
THE ARRANGER, THE LC ISSUER AND THE LENDERS FOR ANY COSTS, AND
OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEYS' FEES AND TIME CHARGES OF
ATTORNEYS FOR THE AGENT, THE ARRANGER, THE LC ISSUER AND THE LENDERS, WHICH
ATTORNEYS MAY BE EMPLOYEES OF THE AGENT, THE ARRANGER, THE LC ISSUER OR THE
LENDERS) PAID OR INCURRED BY THE AGENT, THE ARRANGER, THE LC ISSUER OR ANY
LENDER IN CONNECTION WITH THE COLLECTION AND ENFORCEMENT OF THE LOAN
DOCUMENTS. EXPENSES BEING REIMBURSED BY THE BORROWER UNDER THIS SECTION
INCLUDE, WITHOUT LIMITATION, COSTS AND EXPENSES INCURRED IN CONNECTION WITH
THE REPORTS DESCRIBED IN THE FOLLOWING SENTENCE. THE BORROWER ACKNOWLEDGES
THAT FROM TIME TO TIME BANK ONE MAY PREPARE AND MAY DISTRIBUTE TO THE
LENDERS (BUT SHALL HAVE NO OBLIGATION OR DUTY TO PREPARE OR TO DISTRIBUTE
TO THE LENDERS) CERTAIN AUDIT REPORTS (THE "REPORTS") PERTAINING TO THE
BORROWER'S ASSETS FOR INTERNAL USE BY BANK ONE FROM INFORMATION FURNISHED
TO IT BY OR ON BEHALF OF THE BORROWER, AFTER BANK ONE HAS EXERCISED ITS
RIGHTS OF INSPECTION PURSUANT TO THIS AGREEMENT.
(ii) THE BORROWER HEREBY FURTHER AGREES TO INDEMNIFY THE AGENT,
THE ARRANGER, THE LC ISSUER AND EACH LENDER, ITS DIRECTORS, OFFICERS AND
EMPLOYEES AGAINST ALL LOSSES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL EXPENSES OF
LITIGATION OR PREPARATION THEREFOR WHETHER OR NOT THE AGENT, THE ARRANGER,
THE LC ISSUER OR ANY LENDER IS A PARTY THERETO) WHICH ANY OF THEM MAY PAY
OR INCUR ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, THE TRANSACTIONS CONTEMPLATED HEREBY OR THE DIRECT OR INDIRECT
APPLICATION OR PROPOSED APPLICATION OF THE PROCEEDS OF ANY CREDIT EXTENSION
HEREUNDER EXCEPT TO THE EXTENT THAT THEY ARE DETERMINED IN A FINAL NON-
APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY SEEKING
INDEMNIFICATION. THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION 9.6
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
9.7 Usury Savings Clause . Notwithstanding anything to the contrary
in this Agreement, the Notes or any other Loan Document, or in any other
agreement entered into in connection with the Notes or securing the
indebtedness evidenced by the Notes, whether now existing or hereafter
arising and whether written or oral, it is agreed that the aggregate of all
interest and other charges constituting interest, or adjudicated as
constituting interest, and contracted for, chargeable or receivable under
the Notes or otherwise in connection with the Notes shall under no
circumstances exceed the maximum rate of interest permitted by applicable
law. In the event the maturity of the Notes is accelerated by reason of an
election by the holder thereof resulting from a default thereunder or under
any other document executed as security therefor or in connection
therewith, or by voluntary prepayment by the maker, or otherwise, then
earned interest may never include more than the maximum rate of interest
permitted by applicable law. If from any circumstance any holder of any of
the Notes shall ever receive interest or any other charges constituting
interest, or adjudicated as constituting interest, the amount, if any,
which would exceed the maximum rate of interest permitted by applicable law
shall be applied to the reduction of the principal amount owing on such
Notes or on account of any other principal indebtedness of the maker to the
holders of such Notes, and not to the payment of interest, or if such
excessive interest exceeds the unpaid balance of principal thereof and such
other indebtedness, the amount of such excessive interest that exceeds the
unpaid balance of principal thereof and such other indebtedness shall be
refunded to the Borrower. All sums paid or agreed to be paid to the holder
of the Notes for the use, forbearance or detention of the indebtedness of
the maker to the holder of such Notes shall be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until
payment in full for the purpose of determining the actual rate on such
indebtedness is uniform throughout the term thereof. The terms "maximum
amount" or "maximum rate" as used in this Agreement, or in any other
agreement entered into in connection with the Notes or securing the
indebtedness evidenced by the Notes, whether now existing or hereafter
arising and whether written or oral, include, as to Chapter 303 of the
Texas Finance Code (and as same may be incorporated by reference in other
statutes of the State of Texas), but otherwise without limitation, that
rate based upon the "weekly ceiling"; provided, however, that this
designation shall not preclude the rate of interest contracted for, charged
or received in connection with the Loans from being governed by, or
construed in accordance with, any other state or federal law, including but
not limited to, Public Law 96-221. Chapter 346 of the Texas Finance Code
as in effect on the date hereof and as the same may hereafter be amended or
supplemented from time to time, shall not apple to any of the loans or any
loan document.
9.8 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles, except that any calculation or determination which
is to be made on a consolidated basis shall be made for the Borrower and
all its Subsidiaries, including those Subsidiaries, if any, which are
unconsolidated on the Borrower's audited financial statements.
9.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any
other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
9.10 Nonliability of Lenders. The relationship between the Borrower
on the one hand and the Lenders, the LC Issuer and the Agent on the other
hand shall be solely that of borrower and lender. Neither the Agent, the
Arranger, the LC Issuer nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent, the Arranger, the LC
Issuer nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations. The Borrower agrees that neither
the Agent, the Arranger, the LC Issuer nor any Lender shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring
in connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted
from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Agent, the Arranger, the LC Issuer nor any
Lender shall have any liability with respect to, and the Borrower hereby
waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by the Borrower in connection with, arising
out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates who shall comply with this
Section, (ii) to legal counsel, accountants, and, after the occurrence of a
Default (or prior to such time with the consent of Borrower), other
professional advisors to such Lender or to a Transferee, (iii) to
regulatory officials, (iv) to any Person pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any
legal proceeding concerning this Agreement or any of the Loan Documents or
the transactions evidenced or governed hereby or thereby to which such
Lender is a party, (vi) to such Lender's direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and
other professional advisors to such counterparties, (vii) permitted by
Section 12.4 and (viii) with Borrower's consent, to any Person in
connection with any legal proceeding to which such Lender is a party other
than legal proceedings contemplated by clause (v) above.
9.12 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of
the Board of Governors of the Federal Reserve System) for the repayment of
the Credit Extensions provided for herein.
9.13 Disclosure. Borrower and each Lender hereby (i) acknowledge and
agree that (a) one or more Affiliates of Bank One are or may become direct
or indirect equity investors in Borrower, (b) Bank One is or may become a
lender to, and agent bank for, Borrower, and (c) Bank One and/or its
Affiliates from time to time may hold other investments in, make other
loans to or have other relationships with Borrower or any of its
Affiliates, and (ii) waive any liability of Bank One or an Affiliate of
Bank One to Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than
liabilities arising out of the gross negligence or willful misconduct of
Bank One or its Affiliates.
ARTICLE X
THE AGENT
10.1 Appointment; Nature of Relationship. Bank One is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Agent") hereunder and under each other Loan Document,
and each of the Lenders irrevocably authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent
agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of the
defined term "Agent," it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely
acting as the contractual representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Agent (i) does not hereby assume any fiduciary duties to any of the
Lenders, (ii) is a "representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any
agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.
10.2 Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders
or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a
final non-appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (a)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of
any of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered
solely to the Agent; (d) the existence or possible existence of any Default
or Unmatured Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency,
creation, perfection or priority of any Lien in any collateral security; or
(g) the financial condition of the Borrower or any guarantor of any of the
Obligations or of any of the Borrower's or any such guarantor's respective
Subsidiaries. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the
Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions
signed by the Required Lenders (unless the consent of more than the
Required Lenders is required pursuant to Section 8.2, in which case the
Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under any other Loan Document in accordance with
written instructions signed by the Lenders required by such Section), and
such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge
that the Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or
any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document
unless it shall first be indemnified to its satisfaction by the Lenders pro
rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
10.6 Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it
or its authorized agents, for the default or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care. The Agent shall
be entitled to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to the Agent's
duties hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by
the Agent, which counsel may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to
their Commitments immediately prior to such termination) (i) for any
amounts not reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with
the preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses incurred by
the Agent in connection with any dispute [a] between two or more of the
Lenders and [b] between Agent and any Lender if Agent is the prevailing
party in such dispute) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against the Agent
in connection with any dispute between the Agent and any Lender or between
two or more of the Lenders), or the enforcement of any of the terms of the
Loan Documents or of any such other documents, provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing
is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of the Agent and (ii) any indemnification required pursuant to
Section 3.5(vii) shall, notwithstanding the provisions of this
Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the
event that the Agent receives such a notice, the Agent shall give prompt
notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other
Loan Document with respect to its Commitment and its Loans as any Lender
and may exercise the same as though it were not the Agent, and the term
"Lender" or "Lenders" shall, at any time when the Agent is a Lender, unless
the context otherwise indicates, include the Agent in its individual
capacity. The Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Borrower or any of its Subsidiaries in which
the Borrower or such Subsidiary is not restricted hereby from engaging with
any other Person. The Agent, in its individual capacity, is not obligated
to remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any
other Lender and based on the financial statements prepared by the Borrower
and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, the Arranger or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan
Documents.
10.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to
be effective upon the appointment of a successor Agent or, if no successor
Agent has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. The Agent may be removed at any time
with or without cause by written notice received by the Agent from the
Required Lenders, such removal to be effective on the date specified by the
Required Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint, on behalf of the Borrower and the
Lenders, a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders within thirty days after the resigning
Agent's giving notice of its intention to resign, then the resigning Agent
may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Agent hereunder. If the Agent
has resigned or been removed and no successor Agent has been appointed, the
Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the Lenders. No
successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning or removed Agent. Upon the effectiveness of the resignation or
removal of the Agent, the resigning or removed Agent shall be discharged
from its duties and obligations hereunder and under the Loan Documents.
After the effectiveness of the resignation or removal of an Agent, the
provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger,
or the Agent assigns its duties and obligations to an Affiliate pursuant to
this Section 10.12, then the term "Corporate Base Rate" as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of
the new Agent.
10.13 Omitted.
10.14 Delegation to Affiliates. The Borrower and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection with
this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Agent
is entitled under Articles IX and X.
10.15 Co-Agents and Arranger. Neither any of the Lenders identified
in this Agreement as a "co-agent" or "syndications agent" (if any) nor the
Arranger shall have any right, power, obligation, liability, responsibility
or duty under this Agreement other than those applicable to all Lenders as
such. Without limiting the foregoing, none of such Lenders nor the
Arranger shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to
such Lenders as it makes with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default occurs, any and all deposits (including
all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or
owing by any Lender or any Affiliate of any Lender to or for the credit or
account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any
part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit Exposure
(other than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in
a greater proportion than that received by any other Lender, such Lender
agrees, promptly upon demand, to purchase a portion of the Aggregate
Outstanding Credit Exposure held by the other Lenders so that after such
purchase each Lender will hold its Pro Rata Share of the Aggregate
Outstanding Credit Exposure. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which
may be subject to setoff, such Lender agrees, promptly upon demand, to take
such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower
and the Lenders and their respective successors and assigns, except that
(i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any Lender
must be made in compliance with Section 12.3. Notwithstanding clause (ii)
of this Section, any Lender may at any time, without the consent of the
Borrower or the Agent, assign all or any portion of its rights under this
Agreement and any Note to a Federal Reserve Bank; provided, however, that
no such assignment to a Federal Reserve Bank shall release the transferor
Lender from its obligations hereunder. The Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3 in
the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any assignee or
transferee of the rights to any Loan or any Note agrees by acceptance of
such transfer or assignment to be bound by all the terms and provisions of
the Loan Documents. Any request, authority or consent of any Person, who
at the time of making such request or giving such authority or consent is
the owner of the rights to any Loan (whether or not a Note has been issued
in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Outstanding Credit Exposure of such Lender,
any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of its
Outstanding Credit Exposure and the holder of any Note issued to it in
evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Credit Extension
or Commitment in which such Participant has an interest which forgives
principal, interest, fees, or any Reimbursement Obligation or reduces the
interest rate or fees payable with respect to any such Credit Extension or
Commitment, extends the Facility Termination Date, postpones any date fixed
for any regularly-scheduled payment of principal of, or interest any Loan
in which such Participant has an interest, or any regularly-scheduled
payment of fees on any such Credit Extension or Commitment, releases any
guarantor of any such Credit Extension or releases any collateral held in
the Facility LC Collateral Account (except in accordance with the terms
hereof) or all or substantially all of any other collateral, if any,
securing any such Credit Extension.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a
Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of Exhibit C or in such other
form as may be agreed to by the parties thereto. The consent of the
Borrower, the Agent and the LC Issuer shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof; provided, however, that if a Default has
occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or delayed. Each
such assignment with respect to a Purchaser which is not a Lender or an
Affiliate thereof shall (unless each of the Borrower and the Agent
otherwise consents) be in an amount not less than the lesser of (i)
$5,000,000 or (ii) the remaining amount of the assigning Lender's
Commitment (calculated as at the date of such assignment) or outstanding
Loans (if the applicable Commitment has been terminated). Notwithstanding
the foregoing as between Bank One and U.S. Bank National Association, Bank
One agrees to hold at least $10,000,000 of the Aggregate Commitment, unless
U.S. Bank National Association otherwise consents, such consent not to be
unreasonably withheld or delayed.
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent of
an assignment, together with any consents required by Section 12.3.1, and
(ii) payment of a $4,000 fee paid by the assigning Lender or purchaser to
the Agent for processing such assignment (unless such fee is waived by the
Agent), such assignment shall become effective on the effective date
specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and the
Outstanding Credit Exposure under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be
"plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto,
and no further consent or action by the Borrower, the Lenders or the Agent
shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and the Outstanding Credit Exposure
assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the Agent
and the Borrower shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate arrangements so that
new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting
their respective Commitments, as adjusted pursuant to such assignment.
12.4 Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of the Borrower
and its Subsidiaries, including without limitation any information
contained in any Reports; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower or the Agent,
at its address or facsimile number set forth on the signature pages hereof,
(y) in the case of any Lender, at its address or facsimile number set forth
below its signature hereto or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify for the
purpose by notice to the Agent and the Borrower in accordance with the
provisions of this Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission,
when transmitted to the facsimile number specified in this Section and
confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, or (iii) if given by any other means, when
delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Agent under
Article II shall not be effective until received.
13.2 Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent, the LC Issuer and the Lenders and each party has notified the Agent
by facsimile transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS OR PRINCIPLES) OF THE STATE OF TEXAS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
TEXAS STATE COURT SITTING IN DALLAS, TEXAS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT, THE
LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE
AGENT, THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN DALLAS, TEXAS.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE LC ISSUER
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURES FOUND ON FOLLOWING PAGES.]
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Agent have executed this Agreement as of the date first above written.
BORROWER:
ENNIS BUSINESS FORMS, INC.,
a Texas corporation
By: /s/Keith S. Walters
------------------------------
Print Name: Keith S. Walters
----------------------
Title: Chairman, CEO & President
---------------------------
1510 North Hampton Road
DeSoto, Texas 75208-1308
Attention: Robert M. Halowec
Telephone: (800) 752-5386
FAX: (800) 579-4271
COMMITMENTS: LENDERS:
Term: $18,150,684.93 BANK ONE, TEXAS, N.A., a national
banking association,
Revolving: $8,349,315.07 Individually and as Agent and LC Issuer
By: /s/Mark B. Wade
------------------------------
Print Name: Mark B. Wade
----------------------
Title: Vice President
---------------------------
1717 Main Street; Third Floor
Dallas, Texas 75201
Attention: Mark Wade
Telephone: (214) 290-2516
FAX: (214) 290-2305
Term: $6,849,315.07 U.S. BANK NATIONAL ASSOCIATION,
Revolving: $3,150,684.93 a national banking association,
Individually and as syndications agent
By: /s/Michael J. Reymann
------------------------------
Print Name: Michael J. Reymann
----------------------
Title: Vice President
---------------------------
601 Second Avenue South
Mailstop: MPFP-0602
Minneapolis, MN 55402
Attention: Michael J. Reymann
Telephone: (612) 973-4549
FAX: (612) 973-0821
PRICING SCHEDULE
Applicable Level I Level II Level III Level IV Level V
Margin Status Status Status Status Status
Eurodollar 1.00% 1.25% 1.50% 2.00% 2.50%
Rate
Floating Rate 0.00% 0.00% 0.00% 0.50% 0.75%
Applicable Fee Level I Level II Level III Level IV Level V
Rate Status Status Status Status Status
Commitment Fee 0.25% 0.25% 0.375% 0.50% 0.75%
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
the Leverage Ratio is less than or equal to 1.50 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
(i) the Borrower has not qualified for Level I Status and (ii) the Leverage
Ratio is less than or equal to 2.00 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
(i) the Borrower has not qualified for Level I Status or Level II Status
and (ii) the Leverage Ratio is less than or equal to 2.50 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
(i) the Borrower has not qualified for Level I Status, Level II Status or
Level III Status and (ii) the Leverage Ratio is less than or equal to 3.00
to 1.00.
"Level V Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials,
the Borrower has not qualified for Level I Status, Level II Status, Level
III Status or Level IV Status.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as
reflected in the then most recent Financials. Adjustments, if any, to the
Applicable Margin or Applicable Fee Rate shall be effective five Business
Days after the Agent has received the applicable Financials. If the
Borrower fails to deliver the Financials to the Agent at the time required
pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate
shall be the highest Applicable Margin and Applicable Fee Rate set forth in
the foregoing table until five days after such Financials are so delivered.
Commitment Schedule
Lender Term Loan Revolving Total Commitment
Commitment Commitment Commitment Percentage
1. Bank One, $18,150,684 $8,349,315. $26,500,000 72.603%
Texas .93 07 .00
2 U.S. Bank $6,849,315. $3,150,684. $10,000,000 27.397%
07 93 .00
Totals: $25,000,000 $11,500,000 $36,500,000 100%
.00 .00 .00
EXHIBIT A
FORM OF OPINION
[SEE ATTACHED]
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of _____________________________, ________ (as
amended, modified, renewed or extended from time to time, the "Agreement")
among Ennis Business Forms, Inc. (the "Borrower"), the lenders party
thereto and Bank One, Texas, N.A., as Agent for the Lenders and as LC
Issuer. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of
the Agreement, all of which data and computations are true, complete and
correct, all of which are prepared in accordance with Agreement Accounting
Principles.
5. Schedule II hereto sets forth the determination of the interest
rates to be paid for Advances, the LC Fee rates and the commitment fee
rates commencing on the fifth day following the delivery hereof.
6. Schedule III attached hereto sets forth the various reports and
deliveries which are required at this time under the Credit Agreement, and
the other Loan Documents and the status of compliance.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it
has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
________________________________________________________
________________________________________________________
________________________________________________________
The foregoing certifications, together with the computations set forth
in Schedule I and Schedule II hereto and the financial statements delivered
with this Certificate in support hereof, are made and delivered this
day of ___________________, ________.
____________________________
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Sections 6.16, 6.25.1, 6.25.2 and 6.25.3 of
the Agreement
SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrower's Applicable Margin Calculation
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_______________ (the "Assignor") and _________________________ (the
"Assignee") is dated as of_____________, 19__. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended from
time to time is herein called the "Credit Agreement") described in Item 1
of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed
to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under
the Credit Agreement and the other Loan Documents, such that after giving
effect to such assignment the Assignee shall have purchased pursuant to
this Assignment Agreement the percentage interest specified in Item 3 of
Schedule 1 of all outstanding rights and obligations under the Credit
Agreement and the other Loan Documents relating to the facilities listed in
Item 3 of Schedule 1. The aggregate Commitment (or Outstanding Credit
Exposure, if the applicable Commitment has been terminated) purchased by
the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "Effective Date") shall be the later of the date specified in Item 5
of Schedule 1 or two Business Days (or such shorter period agreed to by the
Agent) after this Assignment Agreement, together with any consents required
under the Credit Agreement, are delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date are not made on the proposed
Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment
of Outstanding Credit Exposure hereunder, the Assignee shall pay the
Assignor, on the Effective Date, the amount agreed to by the Assignor and
the Assignee. On and after the Effective Date, the Assignee shall be
entitled to receive from the Agent all payments of principal, interest,
Reimbursement Obligations and fees with respect to the interest assigned
hereby. The Assignee will promptly remit to the Assignor any interest on
Loans and fees received from the Agent which relate to the portion of the
Commitment or Outstanding Credit Exposure assigned to the Assignee
hereunder for periods prior to the Effective Date and not previously paid
by the Assignee to the Assignor. In the event that either party hereto
receives any payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall promptly
remit it to the other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-
half of the recordation fee required to be paid to the Agent in connection
with this Assignment Agreement unless otherwise specified in Item 6 of
Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder, (ii)
such interest is free and clear of any adverse claim created by the
Assignor and (iii) the execution and delivery of this Assignment Agreement
by the Assignor is duly authorized. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the
Assignor and that the Assignor makes no other representation or warranty of
any kind to the Assignee. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) the
due execution, legality, validity, enforceability, genuineness, sufficiency
or collectability of any Loan Document, including without limitation,
documents granting the Assignor and the other Lenders a security interest
in assets of the Borrower or any guarantor, (ii) any representation,
warranty or statement made in or in connection with any of the Loan
Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any
of the terms or provisions of any of the Loan Documents, (v) inspecting any
of the property, books or records of the Borrower, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency of
any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee
(i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements requested by the Assignee and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement,
(ii) agrees that it will, independently and without reliance upon the
Agent, the Assignor or any other Lender and based on such documents and
information at it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan
Documents, (iii) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto, (iv) confirms that the execution and
delivery of this Assignment Agreement by the Assignee is duly authorized,
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration
being used to make the purchase and assumption hereunder are "plan assets"
as defined under ERISA and that its rights, benefits and interests in and
under the Loan Documents will not be "plan assets" under ERISA, (viii)
agrees to indemnify and hold the Assignor harmless against all losses,
costs and expenses (including, without limitation, reasonable attorneys'
fees) and liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee's non-performance of the
obligations assumed under this Assignment Agreement, and (ix) if
applicable, attaches the forms prescribed by the Internal Revenue Service
of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any
United States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Texas.
9. NOTICES. Notices shall be given under this Assignment Agreement
in the manner set forth in the Credit Agreement. For the purpose hereof,
the addresses of the parties hereto (until notice of a change is delivered)
shall be the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement
may be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due
and sufficient delivery of such counterpart and such facsimile shall be
deemed to be an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as
of the date first above written.
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ______________, ___
3. Amounts (As of Date of Item 2 above):
Revolving Credit Term Loan
Facility
a. Assignee's
percentage of each _.0000000000% _.0000000000%
Facility purchased
under the Assignment
Agreement
b. Amount of each
Facility $_________ $__________
purchased under the
Assignment
Agreement
4. Assignee's Commitment (or Outstanding Credit Exposure
with respect to terminated
Commitments) purchased
hereunder: Loans $____________
Facility LCs $____________
5. Proposed Effective Date: ________________
6. Non-standard Recordation Fee
Arrangement N/A
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _______________________ By: ___________________________
Title: ____________________ Title: _______________________
ACCEPTED AND CONSENTED TO BY:
BANK ONE, TEXAS, N.A.
By: ________________________
Title: _____________________
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
--------------------------------
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
--------------------
Contact:
-------
Name: _____________________ Telephone No.: ___________________
Fax No.: ___________________ Telex No.: _______________________
Answerback: ______________________
Payment Information:
-------------------
Name & ABA # of Destination Bank: ___________________________________
___________________________________
Account Name & Number for Wire Transfer: ____________________________
____________________________
Other Instructions: __________________________________________________
______________________________________________________________________
Address for Notices for Assignor: ___________________________________
-------------------------------- ___________________________________
___________________________________
ASSIGNEE INFORMATION
--------------------
Credit Contact:
--------------
Name: _________________________ Telephone No.: ___________________
Fax No.: ______________________ Telex No.: _______________________
Answerback: ______________________
Key Operations Contacts:
-----------------------
Booking Installation: _______________ Booking Installation: ____________
Name: _______________________________ Name: ____________________________
Telephone No.: ______________________ Telephone No.: ___________________
Fax No.: ____________________________ Fax No.: _________________________
Telex No.: ___________________________ Telex No.: _______________________
Answerback: _________________________ Answerback: ______________________
Payment Information:
-------------------
Name & ABA # of Destination Bank: ________________________________________
________________________________________
Account Name & Number for Wire Transfer: _________________________________
_________________________________
Other Instructions: ______________________________________________________
___________________________________________________________________________
Address for Notices for Assignee: ________________________________________
________________________________________
________________________________________
BOT INFORMATION
---------------
Assignee will be called promptly upon receipt of the signed agreement.
Initial Funding Contact: Subsequent Operations Contact:
----------------------- -----------------------------
Name: __________________________ Name: ___________________________
Telephone No.: (214) ___________ Telephone No.: (214) ____________
Fax No.: (214) _________________ Fax No.: (214) ___________________
BOT Telex No.: __________________
Initial Funding Standards:
-------------------------
Libor - Fund 2 days after rates are set.
BOT Wire Instructions: _____________________________
---------------------
Address for Notices for BOT: 1717 Main Street; Third Floor
--------------------------- Dallas, Texas 75201
Attention: Corporate Banking Group
Telephone: (214) _____________
Telecopy: (214) _____________
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank One, Texas, Agent,
as Agent (the "Agent") under the Credit Agreement
Described Below
Re: Credit Agreement, dated __________, ____ (as the same may be amended
or modified, the "Credit Agreement"), among Ennis Business Forms, Inc. (the
"Borrower"), the Lenders named therein, the LC Issuer and the Agent.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds
of Advances or other extensions of credit from time to time until receipt
by the Agent of a specific written revocation of such instructions by the
Borrower, provided, however, that the Agent may otherwise transfer funds as
hereafter directed in writing by the Borrower in accordance with
Section 13.1 of the Credit Agreement or based on any telephonic notice made
in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s) ______________________________________
Customer/Account Name __________________________________________________
Transfer Funds To ______________________________________________________
______________________________________________________
For Account No. ________________________________________________________
Reference/Attention To _________________________________________________
Authorized Officer (Customer Representative) Date _________________
____________________________ ___________________________
(Please Print) Signature
Bank Officer Name Date ____________________
____________________________ ___________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate
Processing)
EXHIBIT E-1
TERM NOTE
$___________________ ____________, _____
Ennis Business Forms, Inc., a Texas corporation (the "Borrower"),
promises to pay to the order of ____________________________________ (the
"Lender") the aggregate unpaid principal amount of all Loans made by the
Lender to the Borrower under the Term Loan pursuant to Article II of the
Agreement (as hereinafter defined), in immediately available funds at the
main office of Bank One, Texas, N.A. in Dallas, Texas, as Agent, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. The Borrower shall pay the principal of
and accrued and unpaid interest on the Loans in full on the Facility
Termination Date and shall make such mandatory payments as are required to
be made under the terms of Article II of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Term Notes issued pursuant to, and is entitled
to the benefits of, the Credit Agreement dated as of _______________,______
(which, as it may be amended or modified and in effect from time to time,
is herein called the "Agreement"), among the Borrower, the lenders party
thereto, including the Lender, the LC Issuer and Bank One, Texas, N.A., as
Agent, to which Agreement reference is hereby made for a statement of the
terms and conditions governing this Note, including the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is guaranteed pursuant to the Guaranty, as more
specifically described in the Agreement, and reference is made thereto for
a statement of the terms and provisions thereof. Capitalized terms used
herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
ENNIS BUSINESS FORMS, INC.,
a Texas corporation
By: ___________________________
Print Name: ___________________
Title: ________________________
EXHIBIT E-2
REVOLVING NOTE
$___________________ ___________, _______
Ennis Business Forms, Inc., a Texas corporation (the "Borrower"),
promises to pay to the order of ____________________________________ (the
"Lender") the aggregate unpaid principal amount of all Loans made by the
Lender to the Borrower under the Revolving Credit Facility pursuant to
Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, Texas, N.A. in Dallas,
Texas, as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay the principal of and accrued and unpaid interest on the
Loans in full on the Facility Termination Date and shall make such
mandatory payments as are required to be made under the terms of Article II
of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Revolving Notes issued pursuant to, and is
entitled to the benefits of, the Credit Agreement dated as of
_______________,______ (which, as it may be amended or modified and in
effect from time to time, is herein called the "Agreement"), among the
Borrower, the lenders party thereto, including the Lender, the LC Issuer
and Bank One, Texas, N.A., as Agent, to which Agreement reference is hereby
made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or
its maturity date accelerated. This Note is guaranteed pursuant to the
Guaranty, as more specifically described in the Agreement, and reference is
made thereto for a statement of the terms and provisions thereof.
Capitalized terms used herein and not otherwise defined herein are used
with the meanings attributed to them in the Agreement.
ENNIS BUSINESS FORMS, INC.,
a Texas corporation
By: __________________________
Print Name: __________________
Title: _______________________
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See Sections 5.8 and 6.14)
Investment In Jurisdiction Owned By Percent
of Ownership
Organization
Ennis Business Forms of Kansas Ennis Business Forms, 100%
Kansas, Inc. Inc.
Connolly Tool and Machine Delaware Ennis Business Forms, 100%
Company Inc.
Admore, Inc. Texas Ennis Business Forms, 100%
Inc.
PFC Products, Inc. Delaware Admore, Inc. 100%
Ennis Acquisitions, Inc. Nevada Ennis Business Forms, 100%
Inc.
Polaris Acquisition Corp.* Minnesota Ennis Business Forms, 100%
Inc.
Texas EBF, L.P. Texas Ennis Business Forms, 100%
Inc.
Ennis Sales, L.P. Texas Ennis Business Forms, 100%
Inc.
Ennis Management, L.P. Texas Ennis Business Forms, 100%
Inc.
Adams McClure I, L.P. Texas Ennis Business Forms, 100%
Inc.
American Forms I, L.P. Texas Ennis Business Forms, 100%
Inc.
Northstar Computer Forms, Minnesota Ennis Business Forms, 100%
Inc.* Inc.
General Financial Supply, Iowa Northstar Computer 100%
Inc. Forms, Inc.
* Polaris Acquisition Corporation will cease to exist upon the
completion of the Merger of Polaris Acquisition Corporation into Northstar
Computer Forms, Inc. Northstar Computer Forms, Inc. will be the surviving
entity of the Merger and will thereby become a wholly-owned subsidiary of
Ennis Business Forms, Inc.
SCHEDULE 2
INDEBTEDNESS AND LIENS
(See sections 5.14, 6.11 and 6.15)
Indebtedness Indebtedness Property Maturity and
Incurred By Owed To Encumbered Amount
(If Any) of Indebtedness
Northstar Computer U.S. Bank National 7130 Northland August 1, 2004
Forms, Inc. Association Circle $1,733,411.10
North Brooklyn
Park,
MN 55428
Ennis Business TABIQUES L.L.C. 3463 E. November 15,
Forms, Inc. Commerce St. 2002
San Antonio, 437,500
Texas
Ennis Business IBM Credit Various May 25, 2002
Forms, Inc. Corporation scheduled 256,305
computer
equipment
LIENS:
Ennis Business Forms, Inc. Mead Corporation
Lien filed by Mead Corporation
to protect their interest in
consigned paper located in
Ennis facilities. Paper is
owned by Mead until Consumed
by Ennis.
Ennis Business Forms, Inc. FUJI Photo Film U.S.A.,
Inc. Lien filed to cover
FUJI equipment located in
Ennis facility. Equipment is
provided by FUJI as inducement
to use their product.
Ennis Business Forms, Inc. Mitsubishi Imaging (MC)
Inc. Lien filed to cover
Mitsubishi equipment located
in Ennis facility. Equipment
is provided by Mitsubishi as
inducement to use their
product.
