FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Quarterly Period Ended March 31, 2000
---------------------------------
Commission file number #0-10786
------------------------------------------
Insituform Technologies, Inc.
- ----------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3032158
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
702 Spirit 40 Park Drive, Chesterfield, Missouri 63005
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(Address of Principal Executive Offices)
(636) 530-8000
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(Registrant's telephone number including area code)
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(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable
date.
Class Outstanding at May 1, 2000
- -------------------------- ---------------------------------
Class A Common Stock, 24,826,673 Shares
$0.01 par value
<PAGE>
INDEX
-----
Part I Financial Information:
Item 1. Financial Statements:
Consolidated Balance Sheets
Consolidated Statements of Income
Consolidated Statements of Cash Flow
Notes to Consolidated Financial Statements
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations
Part II Other Information and Signatures:
Item 6. Exhibits and Reports on Form 8-K
Signatures
Index to Exhibits
<PAGE>
<TABLE>
PART I. - FINANCIAL INFORMATION
---------------------
ITEM 1. - FINANCIAL STATEMENTS
INSITUFORM TECHNOLOGIES, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
<CAPTION>
Unaudited
March 31, 2000 December 31, 1999
-------------- -----------------
<S> <C> <C>
ASSETS
- ------
CURRENT ASSETS
--------------
Cash and cash equivalents $51,371 $68,183
Trade receivables, less allowance
for doubtful accounts of $2,970
and $3,096, respectively 60,529 58,546
Retainage under construction contracts 13,503 13,253
Costs and estimated earnings in excess
of billings 18,724 12,372
Inventories 11,810 12,525
Prepaid expenses and other 8,478 9,493
-------- --------
TOTAL CURRENT ASSETS 164,415 174,372
-------- --------
PROPERTY AND EQUIPMENT, less accumulated
depreciation 59,941 54,188
-------- --------
OTHER ASSETS
------------
Goodwill, less accumulated amortization of
$19,322 and $18,417, respectively 67,503 64,077
Other assets 18,467 18,988
-------- --------
TOTAL OTHER ASSETS 85,970 83,065
-------- --------
TOTAL ASSETS $310,326 $311,625
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES
-------------------
Current maturities of long-term debt and
notes payable $23,715 $3,188
Accounts payable and accrued expenses 50,329 51,004
-------- --------
TOTAL CURRENT LIABILITIES 74,044 54,192
LONG-TERM DEBT, less current maturities 98,972 114,954
OTHER LIABILITIES 1,163 1,168
-------- --------
TOTAL LIABILITIES 174,179 170,314
-------- --------
MINORITY INTERESTS 2,684 2,708
STOCKHOLDERS' EQUITY -------- --------
--------------------
Preferred stock, undesignated, $.10 par -
shares authorized 2,000,000; none
outstanding - -
Common stock, $.01 par - shares authorized
40,000,000; shares outstanding 27,839,139
and 27,787,862 278 278
Additional paid-in capital 75,426 74,809
Retained earnings 118,431 112,338
Treasury stock - 3,128,266 and 2,744,101
shares (55,254) (45,118)
Cumulative foreign currency translation
adjustments (5,418) (3,704)
-------- --------
TOTAL STOCKHOLDERS' EQUITY 133,463 138,603
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $310,326 $311,625
======== ========
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
INSITUFORM TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(in thousands, except per share amounts)
<CAPTION>
For the Three Months
Ended March 31,
2000 1999
---- ----
<S> <C> <C>
Revenue $94,283 $71,162
Cost of revenue 63,913 47,012
-------- --------
Gross profit 30,370 24,150
Operating expenses 18,751 15,222
-------- --------
Operating income 11,619 8,928
Other expense:
- --------------
Interest expense (2,400) (2,214)
Other income 1,102 927
-------- --------
Total other expense (1,298) (1,287)
Income before taxes on income 10,321 7,641
Taxes on income 4,128 3,092
-------- --------
Income before minority interests and
equity in earnings 6,193 4,549
Minority interests in net income (135) (199)
Equity in earnings of affiliated companies 35 (100)
-------- --------
Net income $6,093 $4,250
======== ========
Basic earnings per share $0.25 $0.16
======== ========
Diluted earnings per share $0.24 $0.16
======== ========
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
INSITUFORM TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW
(Unaudited)
(in thousands)
<CAPTION>
For the Three Months
Ended March 31,
2000 1999
---- ----
<S> <C> <C>
Cash flow from operating activities:
- ------------------------------------
Net income $6,093 $4,250
Adjustments to reconcile net income to cash
provided by operating activities:
Depreciation and amortization 4,515 4,645
Other (367) 216
Translation adjustments (1,582) 118
Deferred income taxes 214 (173)
Changes in operating assets and liabilities,
net of assets acquired:
Receivables (8,957) 4,350
Inventories 657 1,395
Prepaid expenses and other assets 971 (1,350)
Accounts payable and accrued expenses (513) (8,489)
------- ------
Net cash provided by operating activities 1,031 4,962
------- ------
Cash flow from investing activities:
- ------------------------------------
Capital expenditures (9,196) (1,924)
Purchase of business, net of cash acquired (4,335) -
Other investing activities 559 332
------- ------
Net cash used in investing activities (12,972) (1,592)
------- ------
Cash flow from financing activities:
- ------------------------------------
Proceeds from issuance of common stock 617 1,796
Purchases of treasury stock (10,137) (13,858)
Repayments of long-term debt (532) (700)
Increase (decrease) in short-term borrowings 5,367 (466)
-------- --------
Net cash used in financing activities (4,685) (13,228)
-------- --------
Effect of exchange rates changes on cash (186) (212)
-------- --------
Net decrease in cash and cash equivalents for
the period (16,812) (10,070)
-------- --------
Cash and cash equivalents, beginning of period 68,183 76,904
-------- --------
Cash and cash equivalents, end of period $51,371 $66,834
======== ========
Supplemental disclosures of cash flow information:
- --------------------------------------------------
2000 1999
---- ----
Cash paid during three months ended March 31, for:
--------------------------------------------------
Interest $4,513 $4,351
Income taxes $2,447 $2,520
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE>
INSITUFORM TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
March 31, 2000
1. GENERAL
In the opinion of the Company, the accompanying consolidated
financial statements contain all adjustments (consisting of
only normal recurring adjustments) necessary to present
fairly the financial position as of March 31, 2000
(unaudited), the unaudited results of operations for the
three months ended March 31, 2000 and 1999, and the cash
flows for the three months ended March 31, 2000 and 1999.
The financial statements have been prepared in accordance
with the requirements of Form 10-Q and consequently do not
include all the disclosures normally made in an Annual
Report on Form 10-K. Accordingly, the consolidated
financial statements included herein should be reviewed in
conjunction with the financial statements and the footnotes
thereto included in the Company's 1999 Annual Report on Form
10-K.
The results of operations for the three months ended March
31, 2000 and 1999 are not necessarily indicative of the
results to be expected for the full year.
Certain prior year amounts in the consolidated financial
statements have been reclassed to conform to the current
year presentation.
2. COMPREHENSIVE INCOME
For both the quarters ended March 31, 2000 and 1999,
comprehensive income was $4.4 million. The Company's
adjustment to comprehensive income consists solely of
cumulative foreign currency translation adjustments.
3. EARNINGS PER SHARE
Earnings per share have been calculated using the following
share information:
Three Months Ended March 31,
2000 1999
---- ----
Weighted average number of common
shares used for basic EPS 24,768,553 25,967,417
Effect of dilutive stock options and
warrants 716,464 385,039
---------- ----------
Weighted average number of common
shares and dilutive potential
common stock 25,485,017 26,352,456
========== ==========
<PAGE> INSITUFORM TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
March 31, 2000
4. SEGMENT REPORTING
The Company has principally three operating segments:
rehabilitation, tunneling and corrosion and abrasion
("TiteLiner(R)"). These operating units represent strategic
business units that offer distinct products and services and
serve different markets.
The following disaggregated financial results have been
prepared using a management approach, which is consistent
with the basis and manner with which management internally
disaggregates financial information for purposes of
assisting in making internal operating decisions.
Financial information by segment is as follows (in
thousands):
Three Months Ended March 31,
2000 1999
---- ----
Revenues
Rehabilitation $76,208 $55,431
Tunneling 9,236 9,573
TiteLiner(R) 8,839 6,158
------- -------
Total Revenues $94,283 $71,162
======= =======
Operating Income
Rehabilitation $8,384 $8,201
Tunneling 1,173 1,014
TiteLiner(R) 2,062 (287)
------- ------
Total Operating Income $11,619 $8,928
======= ======
<PAGE>
INSITUFORM TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
March 31, 2000
5. ACQUISITION
In February 2000, the Company acquired the rights to the
Insituform(R) Process and NuPipe(R) Process for the states
of New York and New Jersey, through the purchase of all of
the shares of the capital stock of Insituform(R)
Metropolitan, Inc. and the operating assets of certain of
its affiliates. The purchase price is estimated at $5.2
million, inclusive of the closing payments. At closing, the
Company paid the sellers or delivered into escrow an
aggregate of $4.3 million in cash, in addition to assuming
operating liabilities of the acquired business. The
remaining balance will be paid after adjustments for net
assets to be shown in a closing balance sheet of the
acquired business, which is expected during the second
quarter of 2000.
6. LITIGATION
The Company is involved in certain litigation incidental to
the conduct of its business. In the Company's opinion, none
of these proceedings will have a material adverse effect on
the Company's financial position, results of operations and
liquidity. The financial statements include the estimated
amounts of liabilities that are likely to be incurred from
these and various other pending litigation and claims.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following is management's discussion and analysis of certain
significant factors which have affected the Company's financial
condition and results of operations during the periods included
in the accompanying consolidated financial statements.
GENERAL
- -------
The Company's rehabilitation revenues are derived primarily from
direct installation and other contracting activities generated
by the Company's subsidiaries operating in the United States,
Canada, France, the United Kingdom, the Netherlands, Japan,
Spain, Chile, and Peru, and include product sales to, and
royalties and license fees paid by, the Company's unaffiliated
Insituform(R) licensees and sub-licensees and its unaffiliated
NuPipe(R) licensees. During the three years ended December 31,
1999, 1998 and 1997, approximately 76.4%, 63.8% and 62.5%,
respectively, of the Company's consolidated revenues related to
the Insituform(R) Process.
Statements contained in and preceding management's discussion
and analysis include various forward-looking information that is
based on data currently available to management and management's
beliefs and assumptions. When used in this document, the words
"anticipate," "estimate," "believes," "plans," and similar
expressions are intended to identify forward-looking statements,
but are not the exclusive means of identifying such statements.
Such statements are subject to risks and uncertainties, and the
Company's actual results may vary materially from those
anticipated, estimated or projected due to a number of factors,
including, without limitation, the competitive environment for
the Company's products and services, the geographical
distribution and mix of the Company's work, and other factors
set forth in reports and other documents filed by the Company
with the Securities and Exchange Commission from time to time.
RESULTS OF OPERATIONS
- ---------------------
Three Months Ended March 31, 2000 and 1999
Total revenues increased 32.5% to $94.3 million from $71.2
million in 1999. The principal reason for the increase was
strong underlying growth in the Company's rehabilitation
operations which grew $20.8 million or 37.5% compared to the
same quarter in the prior year, of which most of the growth came
from the Company's North American operations. In addition, the
Company's TiteLiner(R) revenues increased $2.7 million or 43.5%
over last year's first quarter.
<PAGE>
The Company's gross profit increased 25.8% to $30.4 million for
first quarter 2000 from $24.2 million in the first quarter of
1999, due to improved gross profit from the Company's North
American rehabilitation operations, as well as from the
Company's TiteLiner(R) operations. The majority of the gross
profit improvement was due to the 32.5% growth in revenue. The
overall gross profit margin for first quarter 2000 was 32.2%
compared to 33.9% in the first quarter of 1999. The lower gross
profit margin was primarily due to lower margins achieved in the
Company's North American rehabilitation operations due to two
projects that accounted for approximately $8 million in revenues
with relatively lower margin work. These projects were
substantially completed at the end of the first quarter of 2000.
In first quarter 2000, operating costs and expenses increased
23.2% to $18.8 million from $15.2 million in the same quarter in
the prior year. Although operating costs increased, as a
percentage of revenues, operating costs decreased in the first
quarter of 2000 to 19.9% from 21.4% in the comparable quarter of
the prior year as a result of revenues increasing at a higher
rate than operating expenses. The increased operating expenses
were primarily due to increases in North American rehabilitation
personnel to support and maintain the Company's growth
strategies. To a lesser extent, operating expenses increased
due to higher corporate legal expenses and the acquisition of
the licensees in New York and the Netherlands.
Interest expense in first quarter 2000 increased 8.4% to $2.4
million from $2.2 million in first quarter 1999, due primarily
to increased borrowings in the Company's subsidiaries. Other
income increased in first quarter 2000 to $1.1 million from $0.9
million in first quarter 1999, due principally to increased
investment income resulting from investing cash and cash
equivalents at a higher rate of return and gain from the sale of
equipment in the Company's TiteLiner(R) operations in Latin
America.
In the first quarter of 2000, taxes on income increased 33.5% to
$4.1 million from $3.1 million in 1999, due principally to a
35.1% increase in income before taxes. The Company's 2000
effective tax rate decreased to 40.0%, as compared to 40.5% in
1999.
In the first quarter of 2000, minority interest in net income
decreased 32.2% to $0.1 million from $0.2 million in 1999 due
primarily to the Company acquiring a larger portion of ownership
in Insituform Linings, the Company's manufacturing operation in
Europe. Equity earnings of affiliated companies were $35,000 in
the first quarter of 2000 in earnings as opposed to a $100,000
loss in first quarter of 1999, due primarily to eliminating
<PAGE>
losses in the Midsouth partnership from which the Company
withdrew in the third quarter of 1999.
As a result of the foregoing, net income for first quarter 2000
increased 43.4% to $6.1 million, representing a 6.5% return on
revenue, compared to $4.3 million for first quarter 1999, when a
6.0% return on revenue was achieved.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
At March 31, 2000, the balance of cash, U.S. Treasury bills, and
short-term investments was $51.4 million, compared to $68.2
million at December 31, 1999. The decrease in cash and cash
equivalents in 2000 resulted primarily from the Company's
previously reported stock repurchase program, which used cash in
the amount of $10.1 million in the first quarter of 2000, along
with capital spending of $9.2 million. In addition, $4.3
million was used to acquire the Company's licensee in New York
and New Jersey. These cash outlays were partially offset by
positive generation of cash from operating activities of $1.0
million and an increase in short-term borrowings of $5.4
million, used primarily to fund acquisitions for real estate and
other capital requirements. Working capital was $90.4 million
at March 31, 2000, compared to $120.2 million at December 31,
1999. The decrease was partially due to an increase in current
maturities of debt of $15.7 million related to the Senior Notes
(first installment due February 2001).
Trade receivables, together with costs and estimated earnings in
excess of billings and retainage under construction contracts,
increased 10.2% to $92.8 million from $84.2 million at December
1999, while revenues grew at 5.0% compared to fourth quarter of
last year. The collection of installation receivables involves
contractual provisions for retainage by the project owner, often
5% to 15% of the contract amount, which extends the collection
process. Collections are also sometimes further prolonged by
the slow review processes often employed by the Company's
municipal customers. In the United States, retainage
receivables are generally received within 60 to 90 days after
the completion of a contract.
Capital expenditures were $9.2 million in the first quarter of
2000, compared to $1.9 million in the first quarter of 1999.
The majority of the increase in capital expenditures represents
acquisitions of real estate in the St. Louis area, totaling
approximately $3.0 million, and additional equipment to
implement the Company's growth strategies and improvements in
productivity. Routine capital expenditures generally reflect
replacement equipment required by the Company's contracting
operations.
<PAGE>
In February 2000, the Company acquired the rights to the
Insituform(R) Process and NuPipe(R) Process for the states of
New York and New Jersey, through the purchase of all of the
shares of the capital stock of Insituform Metropolitan, Inc. and
the operating assets of certain of its affiliates. At closing,
the Company paid the sellers or delivered into escrow an
aggregate of $4.3 million in cash, in addition to assuming
operating liabilities of the acquired business. The remainder
of the purchase price (which is estimated at $5.2 million,
inclusive of the closing payments) will be paid after
adjustments for net assets to be shown in a closing balance
sheet of the acquired business, which is expected during the
second quarter of 2000.
Financing activities used $4.7 million in the first quarter of
1999, as compared to cash used of $13.2 million in the first
quarter of 1999. In mid-1998, the Company authorized the
repurchase of up to 2,700,000 shares of the Company's class A
common stock, $.01 par value ("Common Stock"), to be made from
time to time over five years in open market transactions. The
amount and timing of purchases will be dependent upon a number
of factors, including the price and availability of the
Company's shares, general market conditions and competing
alternative uses of funds, and may be discontinued at any time.
In October 1999, the Company increased the original
authorization by an additional 2,000,000 shares of Common Stock
through the period ending June 2003. During the three months
ended March 31, 2000, the Company used cash in the amount of
$10.1 million for the repurchase of 384,165 shares. The Company
has used cash in the cumulative amount of $52.0 million for the
repurchase of 2,872,465 shares through March 31, 2000 since
inception of the stock repurchase program. The repurchased
shares will be held as treasury stock.
In the first quarter of 2000, the Company made principal
payments totaling $0.5 million relating to the Company's
existing debt, as compared to $0.7 million in the first quarter
of 1999. The Company generated $0.6 million from the issuance
of Common Stock from stock options granted to employees and
directors, as compared to $1.8 million in the first quarter of
1999.
The Company's $110 million principal amount of Senior Notes,
Series A, due February 14, 2007 (the "Senior Notes") bear
interest, payable semi-annually in August and February of each
year, at the rate per annum of 7.88%. Each year, from February
2001 to February 2006, inclusive, the Company will be required
to make principal payments of $15.7 million, together with an
equivalent payment at maturity. The Senior Notes may be prepaid
<PAGE>
at the Company's option, in whole or in part, at any time,
together with a make whole premium, and upon specified change in
control events each holder has the right to require the Company
to purchase its Senior Note without any premium thereon.
In March 2000, the Company entered into a new credit agreement
(the "Credit Agreement") whereby the lender will make available
to the Company, up to $50,000,000 aggregate principal amount for
working capital and permitted acquisitions, including
$30,000,000 available for standby and commercial letters of
credit, on a revolving basis through March 30, 2003, at which
time principal will be repayable. Interest on outstanding
advances accrues, at the election of the Company, at either the
lender's prime rate, the federal funds rate plus .5% or the
lender's offshore rate plus a margin ranging from .5% to 1.5%
depending on the maintenance of certain financial ratios, and be
payable quarterly. Upon specified change in control events, the
lender has the right to require the Company to repay outstanding
amounts without any premium thereon. At the end of the first
quarter of 2000, the Company had $5.0 million outstanding under
the Credit Agreement. The proceeds were used to fund real
estate acquisitions and certain capital requirements during the
quarter.
The note purchase agreements pursuant to which the Senior Notes
were acquired, and the Credit Agreement, obligate the Company to
comply with certain financial ratios and restrictive covenants
that, among other things, place limitations on operations and
sales of assets by the Company or its subsidiaries, and limit
the ability of the Company to incur further secured indebtedness
and liens and of subsidiaries to incur indebtedness, and, in the
event of default, limit the ability of the Company to pay cash
dividends or make other distributions to the holders of its
capital stock or to redeem such stock. The Credit Agreement
also obligates certain of the Company's domestic subsidiaries to
guaranty the Company's obligations, as a result of which the
same subsidiaries have also delivered their guaranty with
respect to the Senior Notes.
The Credit Agreement replaced an existing facility with the same
lender, under which the Company, until September 2001, had
access to a revolving line of up to $20,000,000 aggregate
principal amount, repayable on such date and accruing interest,
at the election of the Company, at either the lender's prime
rate or its LIBOR rate plus a margin ranging from .5% to 1.5%
depending on the maintenance of certain financial ratios.
In July 1999, the Company borrowed EUR 5,672,000 in order to
refinance a portion of the purchase price for its Dutch
licensee. Such amount is repayable in seven equal installments
<PAGE>
annually on each July 31, and accrues interest, payable
quarterly, at the rate of 5.5% per annum.
Management believes its current working capital will be adequate
to meet its requirements for the foreseeable future.
MARKET RISK
- -----------
The Company conducts its rehabilitation activities on a
worldwide basis, giving rise to exposures related to changes in
foreign currency exchange rates. For example, foreign currency
exchange rate movements may create a degree of risk to the
Company's operations by affecting: (i) the U.S. dollar value of
sales made in foreign currencies, and (ii) the U.S. dollar value
of costs incurred in foreign currencies. In addition, the
Company is exposed to market risks related to changes in
interest rates. The Company's objective is to minimize the
volatility in earnings and cash flow from these risks.
The Company has selectively used, and will continue to use,
forward exchange contracts in order to manage its currency
exposure. Forward exchange contracts are executed by the
Company only with large, reputable banks and financial
institutions and are denominated in currencies of major
industrial countries. Given its assessment of such risk, the
Company has not deemed it necessary to offset any interest rate
exposure. Furthermore, the Company does not enter into
transactions involving derivative financial instruments for
speculative trading purposes.
Based on the Company's overall currency exchange rate and
interest rate exposure at March 31, 2000, a 10% weakening in the
U.S. dollar across all currencies or 10% increase in interest
rates would not have a material impact on the financial
position, results of operations or cash flows of the Company.
These effects of hypothetical changes in currency exchange rates
and in interest rates, however, ignore other effects the same
movement may have arising from other variables, and actual
results could differ from the sensitivity calculations of the
Company. The Company regularly assesses these variables,
establishes policies and business practices to protect against
the adverse effects of foreign currency and interest rate
fluctuations and does not anticipate any material losses
generated by these risks.
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET
RISK
For information concerning this item, see "Item 2. Management's
Discussion and Analysis of Financial Condition and Results of
Operations - Market Risk," which information is incorporated
herein by reference.
<PAGE>
PART II. - OTHER INFORMATION
----------------------------
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The exhibits filed as part of this Quarterly
Report on Form 10-Q are listed on the annexed Index to Exhibits.
(b) During the quarter ended March 31, 2000, the
Company filed a Current Report on Form 8-K dated February 2,
2000, which, under "Item 5. Other Events" thereunder, reported
its acquisition of the rights to the Insituform(R) Process and
NuPipe(R) Process for the states of New York and New Jersey. No
financial statements were filed as part of such report.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
INSITUFORM TECHNOLOGIES, INC.
May 11, 2000 By: s/Joseph A. White
---------------------------------
Joseph A. White
Vice President - Chief Financial Officer
Principal Financial and
Accounting Officer
<PAGE>
INDEX TO EXHIBITS
------------------
10.1 - Multicurrency Credit Agreement dated as of March 30,
2000 between the Company and Bank of America, N.A.
10.2 - Master Guaranty dated March 30, 2000 executed by the
Company and those subsidiaries of the Company party
thereto to Bank of America, N.A.
10.3 - Second Amendment dated as of March 30, 2000 to the
Note Purchase Agreements, each dated as of February
14, 1997, between the Company and the purchasers
parties thereto (the "Noteholders").
10.4 - Amended and Restated Intercreditor Agreement dated as
of March 30, 2000 between the Noteholders and Bank of
America, N.A.
27 - Financial Data Schedule, which is submitted
electronically to the Securities and Exchange
Commission for information only and is not
filed.
Multicurrency Credit Agreement
Dated as of March 30, 2000
among
Insituform Technologies, Inc.,
The Subsidiary Borrowers,
Bank of America, N.A.
as Administrative Agent,
and
Letter of Credit Issuing Lender
and
The Other Financial
Institutions Party Hereto
<PAGE> TABLE OF CONTENTS
Section Page
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS 1
1.01 Defined Terms. 1
1.02 Use of Certain Terms. 39
1.03 Accounting Terms. 41
1.04 Rounding. 41
1.05 Exhibits and Schedules. 41
1.06 References to Agreements and Laws. 41
1.07 Currency Equivalents Generally. 41
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT 42
2.01 Amount and Terms of Commitments. 42
2.02 Borrowings, Conversions and Continuations of Loans. 43
2.03 Letters of Credit. 45
2.04 Prepayments. 55
2.05 Offer to Take Out Lenders Upon Change of Control. 57
2.06 Reduction or Termination of Commitments. 60
2.07 Principal and Interest. 60
2.08 Fees. 61
2.09 Computation of Interest and Fees. 61
2.10 Making Payments. 62
2.11 Funding Sources. 63
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY 64
3.01 Taxes. 64
3.02 Illegality. 65
3.03 Inability to Determine Offshore Rates. 66
3.04 Increased Cost and Reduced Return; Capital Adequacy. 67
3.05 Breakfunding Costs. 69
3.06 Matters Applicable to all Requests for Compensation. 69
3.07 Survival. 71
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT 71
4.01 Conditions of Initial Extension of Credit. 71
4.02 Conditions to all Extensions of Credit. 76
SECTION 5. REPRESENTATIONS AND WARRANTIES 78
5.01 Organization and Existence. 79
5.02 Authorization. 79
5.03 Due Execution. 79
5.04 Enforceability of Obligations. 79
5.05 Burdensome Obligations. 79
5.06 Legal Restraints. 79
5.07 Labor Disputes. 81
5.08 No Material Proceedings 81
5.09 Material Licenses. 81
5.10 Compliance with Material Laws. 81
<PAGE>
5.11 Initial Financial Statements. 82
5.12 No Change in Condition. 82
5.13 No Defaults. 82
5.14 Tax Liabilities; Governmental Charges. 83
5.15 Pension Benefit Plans. 84
5.16 Welfare Benefit Plans. 86
5.17 State of Property. 86
5.18 Subsidiaries. 86
5.19 Margin Stock. 86
5.20 Hostile Securities Transactions. 88
5.21 Investment Company Act, Etc. 88
5.22 Filings. 88
5.23 Broker's Fees. 88
5.24 Year 2000. 88
5.25 Indebtedness Outstanding on Closing Date. 90
5.26 Projections. 90
5.27 Full Disclosure. 90
SECTION 6. AFFIRMATIVE COVENANTS 91
6.01 Financial Statements. 91
6.02 Certificates, Notices and Other Information. 91
6.03 Use of Proceeds. 98
6.04 Corporate Existence. 98
6.05 Maintenance of Property and Leases. 98
6.06 Insurance. 99
6.07 Payment of Taxes and Other Obligations. 100
6.08 Compliance With Laws. 100
6.09 Accounting System. 102
6.10 Additional Guarantors. 102
6.11 Audits by Administrative Agent and Lenders. 102
6.12 Access to Officers and Auditors. 104
6.13 Further Assurances. 104
SECTION 7. NEGATIVE COVENANTS 104
7.01 Priority Debt. 104
7.02 Prepayments. 106
7.03 Security Interests. 106
7.04 Acquisitions. 108
7.05 Disposal of Property. 108
7.06 Restricted Payments. 108
7.07 Mergers and Consolidations. 108
7.08 Change of Business. 110
7.09 Transactions With Affiliates. 110
7.10 Conflicting Agreements, Etc. 110
7.11 Sale and Leaseback Transactions. 110
7.12 Fiscal Year. 110
7.13 Transactions Having a Material Adverse Effect on a Covered Person. 110
<PAGE>
7.14 Termination of Pension Benefit Plan. 111
7.15 Financial Covenants. 111
SECTION 8. EVENTS OF DEFAULT AND REMEDIES 112
8.01 Events of Default. 112
8.02 Remedies Upon Event of Default. 116
SECTION 9. ADMINISTRATIVE AGENT 120
9.01 Appointment and Authorization of Administrative Agent. 120
9.02 Delegation of Duties. 122
9.03 Liability of Administrative Agent. 122
9.04 Reliance by Administrative Agent. 124
9.05 Notice of Default. 125
9.06 Credit Decision; Disclosure of Information by Administrative Agent. 126
9.07 Indemnification of Administrative Agent. 128
9.08 Administrative Agent in Individual Capacity. 128
9.09 Successor Administrative Agent. 130
SECTION 10. MISCELLANEOUS 132
10.01 Amendments; Consents. 132
10.02 Transmission and Effectiveness of Communications and Signatures. 133
10.03 Attorney Costs, Expenses and Taxes. 135
10.04 Binding Effect; Assignment. 137
10.05 Set-off. 141
10.06 Sharing of Payments. 141
10.07 No Waiver; Cumulative Remedies. 143
10.08 Usury. 145
10.09 Counterparts. 145
10.10 Integration. 145
10.11 Nature of Lenders' Obligations. 145
10.12 Survival of Representations and Warranties. 147
10.13 Indemnity by Borrowers. 147
10.14 Nonliability of Lenders. 149
10.15 No Third Parties Benefited. 150
10.16 Severability. 150
10.17 Confidentiality. 151
10.18 Further Assurances. 152
10.19 Headings. 152
10.20 Time of the Essence. 152
10.21 Foreign Lenders. 152
10.22 Compelled Return of Payments or Proceeds. 154
10.23 Governing Law. 154
10.24 Waiver of Right to Trial by Jury. 155
10.25 Termination of Existing Credit Agreement; this Agreement as Replacement
"Lender Facility." 155
<PAGE>
EXHIBITS
Form of:
A Request for Extension of Credit
B Compliance Certificate
C Promissory Note
D Master Guaranty
E Instrument of Joinder
F Assignment and Acceptance
SCHEDULES
1.01 Subsidiary Borrowers as of Closing Date
2.01 Commitments and Pro Rata Shares
4.01(b) Guarantors as of Closing Date
5.08 Certain Material Proceedings
5.18 Subsidiaries as of Closing Date
5.25 Existing Indebtedness, Liens and Negative Pledges
10.02 Notice Addresses and Lending Office
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of
March 30, 2000 by and among INSITUFORM TECHNOLOGIES, INC., a
Delaware corporation ("Company"), each subsidiary of Company from
time to time designated as a borrower hereunder (each, a
"Subsidiary Borrower," and collectively, the "Subsidiary
Borrowers"), each lender from time to time party hereto
(collectively, "Lenders" and individually, a "Lender"), and BANK
OF AMERICA, N.A., as Administrative Agent and Issuing Lender.
RECITAL
Lenders and Issuing Lender have agreed to make available a
revolving multicurrency credit facility to Company and each
Subsidiary Borrower which Company may from time to time
designate, upon the terms and conditions set forth in this
Agreement.
In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Acquiring Person" means a "person" or "group of persons"
within the meaning of Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended.
"Administrative Agent" means Bank of America, N.A., in its
capacity as administrative agent under any of the Loan Documents,
or any successor administrative agent.
"Administrative Agent's Office" means Administrative Agent's
address and, as appropriate, account as set forth on Schedule
10.02, or such other address or account as Administrative Agent
hereafter may designate by written notice to Company and Lenders.
"Administrative Agent-Related Persons" means Administrative
Agent (including any successor agent), together with its
Affiliates (including, in the case of Bank of America in its
capacity as Administrative Agent), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
Affiliates.
<PAGE>
"Affiliate" means, with respect to any Person, (a) any other
Person who is a partner, director or executive officer of such
Person; and (b) any other Person which, directly or indirectly,
is in control of, is controlled by or is under common control
with such Person, and any partner, director or executive officer
of such other Person. For purposes of this Agreement, control of
a Person by another Person shall be deemed to exist if such other
Person has the power, directly or indirectly, either to (i) vote
twenty percent (20%) or more of the securities having the power
to vote in an election of directors of such Person, or (ii)
direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
"Agreement" means this Credit Agreement, as amended,
restated, extended, supplemented or otherwise modified in writing
from time to time.
"Applicable Amount" means the following amounts per annum,
based upon the Leverage Ratio as set forth in the most recent
Compliance Certificate received by Administrative Agent pursuant
to Section 6.02(c); provided, however, that, until Administrative
Agent receives the first Compliance Certificate after the Closing
Date, such amounts shall be those indicated for pricing level 3
set forth below:
<PAGE>
<TABLE>
<CAPTION>
Applicable Amount (in basis points per annum)
Pricing
Level
Leverage
Ratio
Commitment
fee
Offshore
Rate
Loans
Financial
Letters of
Credit
Performance
Letters of
Credit
<S>
1
<C>
<1.00:1
<C>
20.00
<C>
50.00
<C>
50.00
<C>
37.50
2
<1.50:1 but
>1.00:1
20.00
62.50
62.50
46.875
3
<2.00:1 but
>1.50:1
20.00
75.00
75.00
56.25
4
<2.50:1 but
>2.00:1
25.00
100.00
100.00
75.00
5
<3.00:1 but
>2.50:1
30.00
125.00
125.00
93.75
6
>3.00:1
35.00
150.00
150.00
112.50
</TABLE>
Offshore Rate Loans shall bear interest at a per annum rate
equal to (a) the Offshore Rate determined in accordance with
Section 2.02 plus (b) the Applicable Amount set forth above under
the column entitled "Offshore Rate Loans" opposite the Leverage
Ratio then applicable in accordance with the next sentence. The
Applicable Amount shall be in effect from the date the most
recent Compliance Certificate is received by Administrative Agent
to but excluding the date the next Compliance Certificate is
received; provided, however, that if Company fails to timely
deliver the next Compliance Certificate, the Applicable Amount
from the date such Compliance Certificate was due to but
excluding the date such Compliance Certificate is received by
Administrative Agent shall be that indicated for the highest
pricing level set forth above, and, thereafter, the pricing level
indicated by such Compliance Certificate when received.
"Applicable Payment Date" means, (a) as to any Offshore Rate
Loan, the last day of the relevant Interest Period, any date that
such Loan is prepaid or converted in whole or in part and the
Maturity Date; provided, however, that if any Interest Period for
an Offshore Rate Loan exceeds three months, interest shall also
be paid on the date which falls every three months after the
<PAGE>
beginning of such Interest Period; and (b) as to any other
Obligations, the last Business Day of each calendar quarter and
the Maturity Date; provided, further, that interest accruing at
the Default Rate shall be payable from time to time upon demand
of Administrative Agent.
"Applicable Time" means California time.
"Assignment and Acceptance" means an Assignment and
Acceptance substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the
reasonable allocated cost of internal legal services and all
disbursements of internal counsel.
"Bank of America" means Bank of America, N.A.
"Base Rate" means a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate." Such
rate is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by
Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan which bears interest based on
the Base Rate.
"Borrower" means Company and each Subsidiary Borrower
(collectively, the "Borrowers").
"Borrower Party" means Company, each Subsidiary Borrower and
each Guarantor.
"Borrowing" and "Borrow" each mean a borrowing of Loans
hereunder.
"Borrowing Date" means the date that a Loan is made, which
shall be a Business Day.
"Borrowing" and "Borrow" each mean a borrowing of Loans
hereunder.
<PAGE>
"Business Day" means any day other than a Saturday, Sunday
or other day on which commercial banks in New York City or the
local lending office of Administrative Agent set forth in
Schedule 10.02 are authorized or required by law to close, and,
if the applicable Business Day relates to:
(a) an Obligation denominated in Dollars, any such day
on which dealings are carried on in the applicable offshore
Dollar market;
(b) an Obligation denominated in the euro or NCU, any
such day which is:
(i) for payments or purchases of the euro or NCU,
a TARGET Business Day; and
(ii) for all other purposes, including without
limitation the giving and receiving of notices
hereunder, a TARGET Business Day on which banks are
generally open for business in London, Frankfurt and in
any other principal financial center as Administrative
Agent may from time to time determine for this purpose;
and
(c) an Obligation denominated in any other Offshore
Currency, a day on which commercial banks are open for
foreign exchange business in London, England, and on which
dealings in the relevant Offshore Currency are carried on in
the applicable offshore foreign exchange interbank market in
which disbursement of or payment in such Offshore Currency
will be made or received hereunder.
A "TARGET Business Day" is a day when TARGET (Trans-
European Automated Real-time Gross settlement Express Transfer
system), or any successor thereto, is scheduled to be open for
business.
"Capital Expenditure" means an expenditure for an asset that
must be depreciated or amortized under GAAP, for goodwill, or for
any asset that under GAAP must be treated as a capital asset,
including payments under Capital Leases. An expenditure for
purposes of this definition includes any deferred or seller
financed portion of the purchase price of an asset and the
original capitalized amount of a Capital Lease.
"Capital Lease" means any lease that has been or should be
capitalized under GAAP.
<PAGE>
"Change of Control" means the earliest to occur of: (a) the
date a tender offer or exchange offer results in an Acquiring
Person, directly or indirectly, beneficially owning 50% of more
of the Voting Stock of Company then outstanding, or (b) the date
an Acquiring Person becomes, directly or indirectly, the
beneficial owner of 50% or more of the Voting Stock of Company
then outstanding, or (c) the date of a merger or statutory share
exchange between Company and any other Person, a consolidation of
Company with any other Person or an acquisition of any other
Person by Company, if immediately after such event, the Acquiring
Person shall hold 50% or more of the Voting Stock of Company
outstanding immediately after giving effect to such merger,
statutory share exchange, consolidation or acquisition, or (d)
the replacement (other than solely by reason of retirement, death
or disability) of 50% or more of the members of the Board of
Directors of Company over a one year period from the directors
who constituted such Board of Directors at the beginning of such
period and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of Company
then still in office who either were members of such Board of
Directors at the beginning of such one year period or whose
election as members of the Board of Directors was previously so
approved.
"Charter Documents" means the articles or certificate of
incorporation and bylaws of a corporation; the certificate of
limited partnership and partnership agreement of a limited
partnership; the partnership agreement of a general partnership;
the articles of organization of a limited liability company; or
the indenture of a trust, or comparable documents for other
entities.
"Closing Date" means the date all the conditions precedent
in Section 4.01 are satisfied or waived in accordance with
Section 4.01.
"Cobra" means the Consolidated Omnibus Budget Reconciliation
Act of 1986, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, for each Lender, the amount set forth
opposite such Lender's name on Schedule 2.01, as such amount may
be reduced or adjusted from time to time in accordance with the
terms of this Agreement (collectively, the "combined
Commitments").
<PAGE>
"Commonly Controlled Entity" means a Person which is under
common control with another Person within the meaning of Section
414(b) or (c) of the Code.
"Company" has the meaning set forth in the introductory
paragraph hereto.
"Compliance Certificate" means a certificate in the form of
Exhibit B, properly completed and signed by a Responsible Officer
of Company.
"Consolidated Adjusted Net Worth" means, as of any date of
determination, without duplication, the arithmetic sum of:
(a) The amount of the consolidated stockholders'
equity of Company and its Subsidiaries as reflected in its
most recent quarterly financial statements, PLUS
(b) Minority Interests and deferred tax liabilities of
Company and its Subsidiaries up to an amount not exceeding
$10,000,000 in the aggregate;
MINUS
(c) the net book value, after deducting any reserves
applicable thereto, of all items of the following character
which are included in the assets of Company and its
Subsidiaries to wit:
(i) the incremental increase in an asset
resulting from any reappraisal, revaluation or write-up
of assets (other than any revaluation or write-up of
assets in accordance with GAAP);
(ii) goodwill or the "cost in excess of net assets
of businesses acquired" to the extent and in the amount
by which the net book value thereof exceeds
$70,000,000; and
(iii) patents, patent applications, permits,
trademarks, trade names, copyrights, licenses,
franchises, experimental expense, organizational
expense, unamortized debt discount and expense, and
such other assets (other than goodwill or the "cost in
excess of net assets of businesses acquired") as are
properly classified as "intangible assets" in
accordance with GAAP to the extent and in the amount by
which the net book value thereof exceeds $20,000,000;
<PAGE>
all determined in accordance with GAAP.
"Consolidated Cash Flow Available for Fixed Charges" for any
period means, without duplication, the sum of (a) Consolidated
Net Earnings during such period plus (to the extent deducted in
determining Consolidated Net Earnings), (b) all provisions for
any Federal, state or other income taxes made by Company and its
Subsidiaries during such period, (c) all provisions for
depreciation and amortization (other than the amortization of
debt discount) made by Company and its Subsidiaries during such
period, (d) merger and restructuring charges provided with
respect to the period prior to the date of the closing of the
Note Purchase Agreement, and (e) Consolidated Fixed Charges
during such period.
"Consolidated EBITDA" means, for the period of four fiscal
quarters ending on any date of determination for Company and its
Subsidiaries on a consolidated basis, an amount equal to the sum
of (a) Consolidated Net Income, (b) Consolidated Interest
Charges, (c) the amount of taxes, based on or measured by income,
used or included in the determination of such Consolidated Net
Income, (d) the amount of depreciation and amortization expense
deducted in determining such Consolidated Net Income, (e) the
amount of other non-cash charges deducted in determining such
Consolidated Net Income not exceeding 0.5% of revenue during such
four fiscal-quarter period, (f) losses on the sale or other
disposition of assets other than in the ordinary course of
business if included in the calculation of Consolidated Net
Income, and (g) extraordinary losses if included in the
calculation of Consolidated Net Income, minus (h) gains on the
sale or other disposition of assets other than in the ordinary
course of business if included in the calculation of Consolidated
Net Income and (ii) extraordinary gains if included in
Consolidated Net Income, all as accrued in such period.
"Consolidated Fixed Charges" for any period means on a
consolidated basis (in each case, eliminating all offsetting
debits and credits between Company and its Subsidiaries and all
other items to be eliminated in the course of the preparation of
consolidated financial statements of Company and its Subsidiaries
in accordance with GAAP), without duplication, the sum of (a) all
Rentals (other than Rentals on Capital Leases) payable during
such period by Company and its Subsidiaries, and (b) all Interest
Expense on all Indebtedness of Company and its Subsidiaries
payable during such period.
<PAGE>
"Consolidated Funded Indebtedness" means, as of any date of
determination, without duplication, for Company and its
Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations and liabilities,
whether current or long-term, for borrowed money (including the
principal amount of Indebtedness hereunder), (b) liabilities in
respect of financial letters of credit and letters of credit or
instruments serving a similar function issued or accepted for its
account by banks, insurance companies and financial institutions
supporting obligations owing to unrelated third parties (valued
(i) in the case of letters of credit supporting financial
obligations, at the face amount of such letters of credit and
(ii) in the case of other letters of credit, at the amount drawn
on such letters of credit at such time and not reimbursed), (c)
that unamortized portion of obligations with respect to capital
leases that are capitalized in the consolidated balance sheet of
Company and its Subsidiaries, and (d) all Restricted Guaranty
Obligations with respect to Indebtedness of the type specified in
subsections (a) and (c) above of Persons other than Company or
any Subsidiary.
"Consolidated Interest Charges" means, for any period,
without duplication, for Company and its Subsidiaries on a
consolidated basis, the sum of (a) all interest expense of
Company and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the
deferred purchase price of assets, in each case to the extent
treated as interest in accordance with GAAP, and (b) the portion
of rent expense of Company and its Subsidiaries with respect to
such period under capital leases that is treated as interest in
accordance with GAAP.
"Consolidated Net Income" means, for any period, for Company
and its Subsidiaries on a consolidated basis, the net income of
Company and its Subsidiaries.
"Consolidated Net Earnings" for any period means, without
duplication, the gross revenues of Company and its Subsidiaries
for such period less all expenses and other proper charges
(including taxes on income), determined on a consolidated basis
after eliminating earnings or losses attributable to outstanding
Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other
disposition of Investments or fixed or capital assets, and
any taxes on such excluded gains and any tax deductions or
credits on account of any such excluded losses;
<PAGE>
(b) the proceeds of any life insurance policy, net of
out-of-pocket expenses;
(c) net earnings and losses of any Subsidiary accrued
prior to the date it became a Subsidiary;
(d) net earnings and losses of any Person (other than
a Subsidiary), substantially all the assets of which have
been acquired in any manner by Company or any Subsidiary,
realized by such Person prior to the date of such
acquisition;
(e) net earnings and losses of any Person (other than
a Subsidiary), with which Company or a Subsidiary shall have
consolidated or which shall have merged into or with Company
or a Subsidiary prior to the date of such consolidation or
merger;
(f) net earnings of any business entity (other than a
Subsidiary) in which Company or any Subsidiary has an
ownership interest unless such net earnings shall have
actually been received by Company or such Subsidiary in the
form of cash distributions;
(g) any portion of the net earnings of any Subsidiary
which for any reason is unavailable for payment of dividends
to Company or any other Subsidiary;
(h) earnings resulting from any reappraisal,
revaluation or write-up of assets;
(i) any deferred or other credit representing any
excess of the equity in any Subsidiary at the date of
acquisition thereof over the amount invested in such
Subsidiary;
(j) any gain arising from the acquisition of any
securities of Company or any Subsidiary;
(k) any reversal of any contingency reserve, except to
the extent that provision for such contingency reserve shall
have been made from income arising during such period; and
(l) any other extraordinary gain;
all determined in accordance with GAAP.
<PAGE>
"Consolidated Total Capitalization" means, as of any date of
determination, without duplication, the sum of (a) Consolidated
Total Indebtedness plus (b) Consolidated Adjusted Net Worth.
"Consolidated Total Indebtedness" means, as of any date of
determination, without duplication, all Indebtedness of Company
and its Subsidiaries after eliminating all offsetting debits and
credits between Company and its Subsidiaries and all other items
to be eliminated in the course of the preparation of consolidated
financial statements of Company and its Subsidiaries in
accordance with GAAP.
"Continuation" and "Continue" mean, with respect to any
Offshore Rate Loan, the continuation of such Offshore Rate Loan
as an Offshore Rate Loan on the last day of the Interest Period
for such Loan.
"Contract" means any contract, note, bond, indenture, deed,
mortgage, deed of trust, security agreement, pledge,
hypothecation agreement, assignment, or other agreement or
undertaking, or any security.
"Conversion" and "Convert" mean, with respect to any Loan,
the conversion of such Loan from or into another type of Loan.
"Covered Person" means Company and each of its presently
existing or future acquired, organized or created Subsidiaries
separately. The words "Covered Persons" refer to Company and its
presently existing or future acquired, organized or created
Subsidiaries collectively.
"Currency Calculation Date" means, with respect to any (a)
Borrowing, Conversion, Continuation or payment or prepayment of
Offshore Currency Loans, the date of such Borrowing, Conversion,
Continuation, payment or prepayment, as applicable, and (b)
outstanding Offshore Currency Loans, any Applicable Payment Date
relevant thereto, the last Business Day of each month or any
additional and more frequent dates as Administrative Agent may,
in its sole discretion or at the direction of the Requisite
Lenders, select from time to time.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or
similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect
affecting the rights of creditors generally.
<PAGE>
"Default" means any of the events listed in Section 8.01,
without giving effect to any requirement for the giving of
notice, for the lapse of time, or both, or for the happening of
any other condition, event or act.
"Default Rate" means an interest rate equal to the Base Rate
plus 2% per annum; provided, however, that with respect to
Offshore Rate Loans, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Amount)
otherwise applicable to such Offshore Rate Loans plus 2% per
annum, in each case to the fullest extent permitted by applicable
Laws.
"Designated Deposit Account" means a deposit account
maintained by Company with Bank of America, as from time to time
designated by Company to Administrative Agent by Requisite
Notice.
"DOL" means the United States Department of Labor.
"Dollar" and "$" means lawful money of the United States of
America.
"Eligible Assignee" means (a) a financial institution
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws of
any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision
of any such country, and having a combined capital and surplus of
at least $100,000,000, provided that such bank is acting through
a branch or agency located in the United States; (c) a Person
that is primarily engaged in the business of commercial banking
and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a
Person of which a Lender is a Subsidiary, or (iii) a Person of
which a Lender is a Subsidiary; (d) another Lender; (e) any other
entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act of 1933, as amended) which
extends credit or buys loans as one of its businesses, including
but not limited to, insurance companies, mutual funds and lease
financing companies; or (f) other lenders or institutional
investors consented to in writing in advance by Administrative
Agent and Company. No Borrower Party or any Affiliate of a
Borrower Party shall be an Eligible Assignee.
<PAGE>
"EMU Legislation" means (a) the Treaty on European Union
(the Treaty of Rome of March 25, 1957, as amended by the Single
European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht on February 1, 1992 and came into force on November 1,
1993)), and (b) legislative measures of the European Council
(including without limitation European Council regulations) for
the introduction of, changeover to or operation of the euro, in
each case as amended or supplemented from time to time.
"Environmental Law" means the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Clean Water Act, the Clean
Air Act, or any other Law pertaining to environmental quality or
remediation of Hazardous Material.
"Equivalent Amount" means, as of any Currency Calculation
Date, the amount determined by reference to the following table:
<TABLE>
<CAPTION>
If the notional
amount is
denominated in:
The Equivalent Amount in Dollars
is:
The Equivalent Amount in
another Offshore Currency is:
<S>
Dollars
<C>
Such amount
<C>
The amount of such Offshore
Currency that can be purchased with
Dollars at the Spot Rate for delivery
on Currency Calculation Date
An Offshore
Currency
The amount of Dollars that can be
purchased with such Offshore
Currency at the Spot Rate for delivery
on Currency Calculation Date
Such amount
</TABLE>
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means as to any Person, any trade or
business (irrespective of whether incorporated) which is a member
of a group of which such Person is a member and thereafter
treated as a single employer under Sections 414(b), (c), (m) or
(o) of the Code or applicable Treasury Regulations.
<PAGE>
"euro" means the single currency of Participating Member
States.
"Euro Transition Cutoff Date" means December 31, 2001, or
such other date as may be established by EMU Legislation.
"Event of Default" means any of the events listed in Section
8.01 as to which any requirement for the giving of notice, for
the lapse of time, or both, or for the happening of any further
condition, event or act has been satisfied.
"Existing Credit Facility" means that certain Loan Agreement
dated as of August 20, 1997, as amended, between Company and Bank
of America (f/k/a NationsBank, N.A.).
"Extension of Credit" means (a) the borrowing, Conversion or
Continuation of any Loans, or (b) a Letter of Credit Action
wherein a new Letter of Credit is issued or which has the effect
of increasing the amount of, extending the maturity of, or making
a material modification to an outstanding Letter of Credit or the
reimbursement of drawings thereunder (collectively, the
"Extensions of Credit").
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal
Reserve Bank on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published
on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by Administrative
Agent.
"Final Payment" means payment in full of the Loans, all
unpaid interest accrued thereon and all commitment fees,
accompanied by the cancellation or termination of all Commitments
and expiration of all undrawn outstanding Letters of Credit for
which Company has not provided a back-to-back letter of credit in
favor of Issuing Lender in form and substance reasonably
satisfactory to Issuing Lender covering all Letter of Credit
Usage with respect thereto issued by a financial institution (a)
whose long-term senior unsecured indebtedness is rated at least A
<PAGE>
by Standard & Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc., at least A2 by Moody's Investors Service,
Inc., or an equivalent rating by any other credit rating agency
of recognized national standing, and (b) which would qualify as
an Eligible Assignee.
"Financial Statements" means the most recent of the Initial
Financial Statements and the financial statements of Company that
are furnished to Administrative Agent as required in Section
6.01; provided, however, that for purposes of calculating any
amount or financial ratio hereunder as of a date or for a period
not entirely covered by the most recent and prior such financial
statements furnished to Administrative Agent, the term "Financial
Statements" shall be deemed to include the financial statements
of Company that cover such periods as have been filed by Company
with the Securities and Exchange Commission.
"FRB" means the Board of Governors of the Federal Reserve
System and any successor thereto or to the functions thereof.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession,
that are applicable to the circumstances as of the date of
determination, consistently applied. If at any time any change
in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either Company or
Requisite Lenders shall so request, Administrative Agent, Lenders
and Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of Requisite
Lenders), provided that, until so amended, (a) such ratio or
requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (b) Company shall provide to
Administrative Agent and Lenders financial statements and other
documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.
"Governmental Authority" means the federal government of the
United States; the government of any foreign country that is
recognized by the United States or is a member of the United
Nations; any state of the United States; any local government or
municipality within the territory or under the jurisdiction of
<PAGE>
any of the foregoing; any department, agency, division, or
instrumentality of any of the foregoing; and any court,
arbitrator, or board of arbitrators whose orders or judgements
are enforceable by or within the territory of any of the
foregoing.
"Guarantor" means each Person from time to time executing
and delivering the Master Guaranty (collectively, the
"Guarantors").
"Guaranty" means, with respect to any Person, without
duplication, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit
or collection) of such Person guaranteeing or in effect
guaranteeing (including, without limitation, having recourse
obligations for the Guaranties of another Person) any
indebtedness, dividend or other obligation of any other Person in
any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent
or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to
maintain any working capital or other balance sheet
condition or any income statement condition of any other
Person or otherwise to advance or make available funds for
the purchase or payment of such Indebtedness or obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of any other
Person to make payment of the Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness
or obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of
the obligor under any Guaranty, the Indebtedness or other
obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
"Guaranty Obligation" means as to any Person, (a) any
guaranty by such Person of any obligation of another Person; (b)
any Security Interest in any property of such Person that secures
<PAGE>
any obligation of another Person, (c) any enforceable contractual
requirement that such Person (i) purchase an obligation of
another Person or any property that is security for such
obligation, (ii) advance or contribute funds to another Person
for the payment of an obligation of such other Person or to
maintain the working capital, net worth or solvency of such other
Person as required in any documents evidencing an obligation of
such other Person, (iii) purchase property, securities or
services from another Person for the purpose of assuring the
beneficiary of any obligation of such other Person that such
other Person has the ability to timely pay or discharge such
obligation, (iv) grant a Security Interest in any property of
such Person to secure any obligation of another Person, or (v)
otherwise assure or hold harmless the beneficiary of any
obligation of another Person against loss in respect thereof; and
(d) any other contractual requirement enforceable against such
Person that has the same substantive effect as any of the
foregoing. The term "Guaranty Obligation" does not, however,
include the endorsement by a Person of instruments for deposit or
collection in the ordinary course of business or the liability of
a general partner of a partnership for obligations of such
partnership. The amount of any Guaranty Obligation of a Person
shall be deemed to be the stated or determinable amount of the
obligation in respect of which such Guaranty Obligation is made
or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such
Person in good faith.
"Hazardous Material" means any hazardous, radioactive,
toxic, solid or special waste, material, substance or constituent
thereof, or any other such substance (as defined under any
applicable law or regulation), including Asbestos or asbestos
containing material. "Hazardous Material" does not include
materials or products containing hazardous constituents which are
not considered to be waste under the applicable Environmental Law
or which are considered to be waste but are transported, handled
or disposed of in accordance with the applicable Environmental
Law, or asbestos or asbestos containing material which is not
friable.
"Indebtedness" means, with respect to any Person, at any
time, without duplication,
(a) its liabilities for borrowed money and its
redemption obligations in respect of mandatorily redeemable
Preferred Stock;
<PAGE>
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such
property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of all Capital Leases;
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person
(whether or not it has assumed or otherwise become liable
for such liabilities);
(e) all its liabilities in respect of letters of
credit or instruments serving a similar function issued or
accepted for its account by banks and other financial
institutions valued (i) in the case of letters of credit
supporting obligations for borrowed money, at the face
amount of such letters of credit and (ii) in the case of
other letters of credit, at the amount drawn on such letters
of credit at such time and not reimbursed;
(f) obligations of such Person under Swaps; and
(g) any Guaranty of such Person with respect to
liabilities of a type described in any of clauses (a)
through (f) hereof.
Indebtedness of any Person shall include all obligations of
such Person of the character described in clauses (a) through (g)
to the extent such Person remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be
extinguished under GAAP, but shall not include Unfunded Pension
Liabilities of any Plan of Company and its Subsidiaries.
"Indemnified Liabilities" has the meaning set forth in
Section 9.12.
"Indemnitees" has the meaning set forth in Section 9.12.
"Interest Expense" of Company and its Subsidiaries for any
period means, without duplication, all (a) interest (including
capitalized interest and the interest component on Rentals on
Capital Leases) and all amortization of debt discount and expense
on any particular Indebtedness (including payment-in-kind, zero
<PAGE>
coupon and other like securities) for which such calculations are
being made, (b) expenses, fees and commissions for letters of
credit and bankers' acceptances and (c) the net interest cost of
Swaps.
"Initial Financial Statements" means the financial
statements of Company referred to in Section 5.11.
"Instrument of Joinder" means the Instrument of Joinder
substantially in the form of Exhibit E executed and delivered by
any Subsidiary Borrower, as contemplated by Section 4.03, and any
amendments or supplements thereto.
"Intercreditor Agreement" means that certain Amended and
Restated Intercreditor Agreement dated as of March 30, 2000, as
amended, by and among Bank of America (f/k/a NationsBank, N.A.)
and the other lenders party thereto, as further amended,
supplemented or otherwise modified from time to time.
"Interest Period" means for each Offshore Rate Loan, (a)
initially, the period commencing on the date such Offshore Rate
Loan is disbursed or Continued or Converted into such Offshore
Rate Loan and (b) thereafter, the period commencing on the last
day of the preceding Interest Period, and ending, in each case,
on the earlier of (i) the scheduled Maturity Date, or (ii) one,
two, three or six months as requested by a Borrower; provided
that:
(x) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(y) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such
Interest Period; and
(z) unless Administrative Agent otherwise consents,
there may not be more than four Interest Periods for
Offshore Rate Loans in effect at any time.
"Investments" means, without duplication, all investments,
in cash or by delivery of property, made directly or indirectly
in any property or assets or in any Person, whether by
<PAGE>
acquisition of shares of capital stock, Indebtedness or other
obligations or securities or by loan, advance, capital
contribution or otherwise.
"IRS" means the United States Internal Revenue Service.
"Issuing Lender" means Bank of America, or any successor
issuing lender hereunder.
"Laws" or "Law" means all international, foreign, federal,
state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the
force of law.
"Lender" means each lender from time to time party hereto
and, as the context requires, Issuing Lender.
"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such on Schedule 10.02, or
such other office or offices as a Lender may from time to time
notify Administrative Agent.
"Letter of Credit" means any letter of credit issued or
outstanding hereunder. A Letter of Credit may be a commercial
letter of credit, a performance letter of credit or a financial
letter of credit.
"Letter of Credit Action" means the issuance, supplement,
amendment, renewal, extension, modification or other action
relating to a Letter of Credit hereunder.
"Letter of Credit Application" means an application for a
Letter of Credit Action from time to time in general use by
Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked
deposit account at Bank of America in which each Borrower shall
grant a security interest to Issuing Lender as security for
Letter of Credit Usage by such Borrower and with respect to which
such Borrower agrees to execute and deliver from time to time, on
the date hereafter required, such documentation as Administrative
<PAGE>
Agent or Issuing Lender may reasonably request to further assure
and confirm such security interest.
"Letter of Credit Sublimit" means an amount equal to the lesser
of the Commitment and $30,000,000. The Letter of Credit Sublimit
is part of, and not in addition to, the Commitment.
"Letter of Credit Usage" means, as at any date of
determination, the aggregate undrawn face amount of outstanding
Letters of Credit plus the aggregate amount of all drawings under
the Letters of Credit not reimbursed by a Borrower or converted
into Loans.
"Leverage Ratio" means, as of the end of any fiscal quarter,
for Company and its Subsidiaries on a consolidated basis, the
ratio of (a) Consolidated Funded Indebtedness as of such date to
(b) Consolidated EBITDA for the period of the four fiscal
quarters ending on such date.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement (in the nature of compensating
balances, cash collateral accounts or security interests),
encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including any conditional sale
or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing,
and the filing of any financing statement under the Uniform
Commercial Code or comparable Laws of any jurisdiction),
including the interest of a purchaser of accounts receivable.
"Loan" means any advance made as provided in Section 2.01
(collectively, the "Loans").
"Loan Documents" means this Agreement, any Compliance
Certificate, the Master Guaranty, the Intercreditor Agreement,
any Letter of Credit Application, any Request for Extension of
Credit and any Note, certificate, any fee letter, and other
instrument, document or agreement from time to time delivered in
connection with this Agreement.
"Master Guaranty" means the continuing guaranty of the
Obligations to be executed and delivered by the Guarantors,
substantially in the form of Exhibit D, and any amendments or
supplements thereto.
"Material Adverse Effect" means with respect to any event or
occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, investigation or
proceeding), a material adverse effect on the business,
operations, revenues, financial condition or property of Company
and its Subsidiaries taken as a whole, without reference to the
ability of Company to timely pay or perform Company's obligations
generally, or the ability of Company to pay or perform any of the
Obligations.
<PAGE>
"Material Agreement" means as to any Person, any Contract to
which such Person is a party or by which such Person is bound
which, if violated or breached, would have a Material Adverse
Effect.
"Material Domestic Subsidiary" means:
(a) any Subsidiary of Company organized under the laws
of the United States or a state of the United States
existing on the Closing Date (other than a domesticated
foreign Subsidiary) which (i) has assets (excluding all
intercompany items) of $1,000,000 or more as of the end of
any fiscal year, or (ii) had revenues (excluding all
intercompany items) of $1,000,000 or more in any fiscal
year, in each case as reflected on the fiscal year-end
balance sheet and income statements of such Subsidiary;
(b) any Subsidiary of Company organized under the laws
of the United States or a state of the United States created
or acquired after the Closing Date (other than a
domesticated foreign Subsidiary) which (i) had assets
(excluding all intercompany items) of $1,000,000 or more
based on its balance sheet as of (A) the date of its
creation or acquisition, (B) the end of any fiscal quarter
ended thereafter in the then current fiscal year, or (C) as
of the end of any fiscal year ended thereafter or (ii) had
revenues (excluding all intercompany items) of $1,000,000 or
more as reflected in its income statements for(A) its latest
fiscal year ended before such acquisition, (B) any four
consecutive fiscal quarters ended after its creation or
acquisition and in its then current fiscal year, or (C) for
any fiscal year ended thereafter; or
(c) any Subsidiary of Company organized under the laws
of the United States or a state of the United States
existing on the Closing Date (other than a domesticated
foreign Subsidiary) to which Company or any other Subsidiary
transfers assets, and as a consequence, such Subsidiary has
assets (excluding all intercompany items) of $1,000,000 or
more as of the date of such transfer or the end of its first
fiscal quarter ended thereafter.
"Material Law" means any Law whose violation by a Person
would have a Material Adverse Effect.
<PAGE>
"Material License" means (a) as to any Person, any license,
permit or consent from a Governmental Authority or other Person
and any registration and filing with a Governmental Authority or
other Person which if not obtained, held or made would have a
Material Adverse Effect, and (b) as to any Person who is a party
to this Agreement or any of the other Loan Documents, any
license, permit or consent from a Governmental Authority or other
Person and any registration or filing with a Governmental
Authority or other Person that is necessary for the execution or
performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan
Document.
"Material Obligation" means as to any Person, an obligation
of such Person which if not fully and timely paid or performed
would have a Material Adverse Effect.
"Material Proceeding" means any litigation, investigation or
other proceeding by or before any Governmental Authority (a)
which involves any of the Loan Documents or any of the
transactions contemplated thereby, or involves a Covered Person
as a party or any property of Covered Person, and is reasonably
likely to have a Material Adverse Effect, or (b) in which there
has been issued an injunction, writ, temporary restraining order
or any other order of any nature which purports to restrain or
enjoin the making of any Loan, the consummation of any other
transaction contemplated by the Loan Documents, or the
enforceability of any provision of any of the Loan Documents.
"Maturity Date" means (a) March 30, 2003 or (b) such earlier
date upon which the Commitment may be terminated in accordance
with the terms of this Agreement.
"Minimum Amount" means, with respect to each of the
following actions, the minimum amount and any multiples in excess
thereof set forth opposite such action:
<PAGE>
<TABLE>
<CAPTION>
Type of Action
Minimum Amount
Multiples in excess
thereof
<S>
Borrowing or prepayment of, or
Conversion into, Base Rate
Loans
<C>
$100,000
<C>
$10,000
Borrowing, prepayment or
Continuation of, or Conversion
into, Dollar-denominated
Offshore Rate Loans
$100,000
$10,000
Borrowing, prepayment or
Continuation of, or Conversion
into, Offshore Currency Loans
Equivalent Amount
of $100,000
Equivalent Amount
of $10,000
Letter of Credit Action
None
None
Reduction in Commitment
$1,000,000
$500,000
</TABLE>
"Minority Interests" means, without duplication, any shares
of stock of any class of a Subsidiary (other than directors'
qualifying shares as required by law) that are not owned by
Company and/or one or more of its Subsidiaries. Minority
Interests shall be valued by valuing Minority Interests
constituting preferred stock at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater,
and by valuing Minority Interests constituting common stock at
the book value of common stock, additional paid-in capital and
retained earnings applicable thereto adjusted, if necessary, to
reflect any changes from the book value of such common stock
required by the foregoing method of valuing Minority Interests in
preferred stock.
<PAGE>
"Multi-Employer Plan" means a Pension Benefit Plan which is
a multi-employer plan as defined in Section 4001(a)(3) of ERISA.
"Note" means a promissory note made by each Borrower in
favor of a Lender evidencing Loans made by such Lender,
substantially in the form of Exhibit C.
"Note Purchase Agreement" means the Note Purchase Agreement
dated as of February 14, 1997, as amended to and including the
Closing Date, among Company and other parties signatory thereto
under which Company issued certain 7.88% Senior Notes, Series A,
Due February 14, 2007, of $110,000,000 aggregate original
principal amount; provided, however, that, except with respect to
Section 8.01(f) of this Agreement (which is a cross default to
other Indebtedness, including the Note Purchase Agreement as in
effect from time to time), after the Closing Date no amendments
to, or waivers of, the terms, conditions and definitions of the
Note Purchase Agreement referred to or incorporated by reference
herein shall be deemed to amend or waive such terms, conditions
and definitions for purposes of this Agreement unless Requisite
Lenders separately agree or consent thereto hereunder. The
terms, conditions and definitions referred to or incorporated by
reference herein will survive termination, restatement or
cancellation of the Note Purchase Agreement for purposes of this
Agreement (other than Section 8.01(f)).
"NCU" means the national currency unit (other than the euro)
of a Participating Member State. From and after the Euro
Transition Cutoff Date, all references to NCU shall mean instead
the euro.
"Obligations" means all advances to, and debts, liabilities
(contractual or tortious), obligations, covenants and duties of,
any Borrower Party arising under any Loan Document, whether
direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or
hereafter arising and including interest that accrues after the
commencement of any proceeding under any Debtor Relief Laws by or
against any Borrower Party or any Subsidiary or Affiliate of any
Borrower Party.
"Offshore Currency" means Canadian Dollars, British Pounds
Sterling, the euro, any additional currency permitted in
accordance with Section 2.02(f) and, prior to the Euro Transition
<PAGE>
Cutoff Date, the NCU of France. From and after Euro Transition
Cutoff Date, Loans denominated in an NCU shall be automatically
redenominated into the euro as of the close of business on such
date at the applicable rate adopted and irrevocably fixed by the
European Council (in accordance with Article 109l(4) of the
Treaty on European Union) on December 31, 1998 as the official
exchange rate between the euro and such NCU.
"Offshore Currency Loan" means any Offshore Rate Loan
denominated in an Offshore Currency.
"Offshore Base Rate" has the meaning set forth in the
definition of Offshore Rate.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same borrowing, the
per annum rate of interest (rounded upward to the next 1/100th of
1%) determined in good faith by Administrative Agent as follows:
Offshore
Rate =
Offshore Base Rate
- -------------------------
1.00 - Eurodollar Reserve
Percentage
as defined
below
Where,
"Offshore Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on
the page of the Telerate Screen that displays an average
British Bankers Association Interest Settlement Rate for
deposits in the applicable currency (for delivery on the
first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day
of such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or
such page or service shall cease to be available, the rate
per annum equal to the rate determined in good faith by
Administrative Agent to be the offered rate on such other
page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in
the applicable currency (for delivery on the first day of
such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
<PAGE>
(London time) two Business Days prior to the first day of
such Interest Period, or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per
annum determined in good faith by Administrative Agent as
the rate of interest at which deposits in the applicable
currency (for delivery on the first day of such Interest
Period) in same day funds in the approximate amount of the
applicable Offshore Rate Loans and with a term equivalent to
such Interest Period would be offered by Bank of America's
London Branch to major banks in the offshore Dollar market
at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest
Period.
"Eurodollar Reserve Percentage" means, for any day
during any Interest Period, the reserve percentage
(expressed as a decimal, rounded upward to the next 1/100th
of 1%) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by
the Board of Governors of the Federal Reserve System for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Offshore
Rate for each outstanding Offshore Rate Loan shall be
adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage
and the Offshore Base Rate by Administrative Agent in good
faith shall be conclusive in the absence of manifest error.
"Offshore Rate Loan" means a Loan bearing interest based on
the Offshore Rate, which may be denominated in U.S. Dollars or an
Offshore Currency. Offshore Rate Loans include Offshore Currency
Loans.
"Outstanding Obligations" means, as of any date, and giving
effect to making any Extensions of Credit requested on such date
and all payments, repayments and prepayments made on such date,
the sum of (a) the aggregate outstanding principal amount of all
Loans, and (b) all Letter of Credit Usage.
"Overnight Rate" means, for any day, (a) with respect to
payments in Dollars, the Federal Funds Rate and (b) with respect
to payments in Offshore Currencies, the rate of interest per
<PAGE>
annum at which overnight deposits in the applicable Offshore
Currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered
for such day by Bank of America's principal office in London to
major banks in the London or other applicable offshore interbank
market.
"Participating Member State" means each country which from
time to time becomes a Participating Member State as described in
EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Benefit Plan" means any pension or profit-sharing
plan which is covered by Title I of ERISA and all other benefit
plans and in respect of which a Person or a Commonly Controlled
Entity of such Person is an "employer" as defined in Section 3(5)
of ERISA.
"Permitted Acquisition" means any acquisition of stock or
other equity interest in a Person, or of all or a material part
of the assets of a Person, with respect to which all of the
following requirements have been satisfied:
(a) the Person is engaged in a line of business
substantially the same as any line of business conducted by
Company or any of its Subsidiaries on the Closing Date or
reasonably related, or ancillary or complementary, thereto
or in furtherance thereof (including, without limitation,
any business providing materials or services to Company or
any of its Subsidiaries or any business to which Company or
any of its Subsidiaries furnishes materials or services);
and
(b) the acquisition is not hostile from the point of
view of such Person;
(c) no Default or Event of Default is (unless waived)
continuing; and
(d) no Default or Event of Default will occur or is
reasonably likely to occur as a consequence of the
acquisition.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company,
joint stock company, trust, unincorporated organization, bank,
business association, firm, joint venture, Governmental
Authority, or otherwise.
<PAGE>
"Plan" means any employee benefit plan maintained or
contributed to by a Borrower Party or by any trade or business
(whether or not incorporated) under common control with a
Borrower Party as defined in Section 4001(b) of ERISA and insured
by the Pension Benefit Guaranty Corporation under Title IV of
ERISA.
"Preferred Stock" means any class of capital stock of a
corporation that is preferred over any other class of capital
stock of such corporation as to the payment of dividends or the
payment of any amount upon liquidation or dissolution of such
corporation.
"Priority Debt" means, as of any date of determination,
without duplication, (a) all Indebtedness of Subsidiaries (other
than the Indebtedness owing to Company or another Wholly-Owned
Subsidiary) and (b) all Indebtedness of Company and its
Subsidiaries secured by Liens within the limitations of Section
10.5(l) of the Note Purchase Agreement.
"Regulation D," "Regulation U" and "Regulation U" means,
respectively, Regulation D, Regulation D and Regulation U issued
by the FRB.
"Rentals" means and includes, as of as of any date of
determination, without duplication, all fixed payments (including
as such all payments which the lessee is obligated to make to the
lessor on termination of the lease or surrender of the property)
payable by Company or a Subsidiary, as lessee or sublessee under
a lease of real or personal property, but shall be exclusive of
any amounts required to be paid by Company or a Subsidiary
(whether or not designated as rents or additional rents) on
account of maintenance, repairs, insurance, taxes and similar
charges. Fixed rents under any so-called "percentage leases"
shall be computed solely on the basis of the minimum rents, if
any, required to be paid by the lessee regardless of sales volume
or gross revenues.
"Reportable Event" means a reportable event as defined in
Title IV of ERISA or the regulations thereunder.
"Request for Extension of Credit" means, unless otherwise
specified herein, (a) a written request substantially in the form
of Exhibit A, and (b) with respect to a Letter of Credit Action,
a Letter of Credit Application, in each case duly completed and
signed by a Responsible Officer of Company and delivered by
Requisite Notice.
<PAGE>
"Requisite Lenders" means, as of any date of determination:
(a) if the Commitments are then in effect, Lenders having in the
aggregate more than 50% of the combined Commitments then in
effect and (b) if the Commitments have then been terminated and
there are Outstanding Obligations, Lenders holding Outstanding
Obligations aggregating more than 50% of such Outstanding
Obligations.
"Requisite Notice" means, unless otherwise provided herein,
(a) irrevocable written notice to the intended recipient or (b)
except with respect to Letter of Credit Actions (which must be in
writing), irrevocable telephonic notice to the intended
recipient, promptly followed by a written notice to such
recipient. Such notices shall be (i) delivered to such recipient
at the address or telephone number specified on Schedule 10.02 or
as otherwise designated by such recipient by Requisite Notice to
Administrative Agent, and (ii) if made by any Borrower Party,
given or made by a Responsible Officer of such Borrower Party.
Any written notice delivered in connection with any Loan Document
shall be in the form, if any, prescribed herein or therein. Any
notice sent by other than hardcopy shall be promptly confirmed by
a telephone call to the recipient and, if requested by
Administrative Agent, by a manually-signed hardcopy thereof.
"Requisite Time" means, with respect to any of the actions
listed below, the time and date set forth below opposite such
action:
<PAGE>
<TABLE>
<CAPTION>
Type of Action
Applicable
Time
Date of Action
<S>
Delivery of Request for Extension of Credit
for, or notice for:
<C>
<C>
? Borrowing or prepayment of, or
Conversion into, Base Rate Loan
9:00 a.m.
Same date as such borrowing,
prepayment or Conversion
? Borrowing, prepayment or Continuation
of, or Conversion into, Dollar-
denominated Offshore Rate Loan
10:00 a.m.
3 Business Days prior to such
borrowing, prepayment
Continuation or Conversion
? Borrowing of, prepayment of,
Continuation of, or Conversion into
Offshore Currency Loan
10:00 a.m.
5 Business Days prior to such
borrowing or prepayment
? Requests for new Offshore Currencies
10:00 a.m.
10 Business Days prior to proposed
Extension of Credit(or such lesser
time which is acceptable to
Lenders)
? Letter of Credit Action
10:00 a.m.
2 Business Days prior to such
action (or such lesser time which is
acceptable to Issuing Lender)
? Voluntary reduction in or termination of
Commitment
10:00 a.m.
2 Business Days prior to such
reduction or termination
Payments by Lenders or a Borrower to
Administrative Agent
11:00 a.m.
On date payment is due
</TABLE>
"Responsible Officer" means, as to any Person that is not an
individual, partnership or trust, the Chairman of the Board of
Directors, the President, the chief executive officer, the chief
operating officer, the chief financial officer, the Treasurer,
any Assistant to the Treasurer, or any Vice President in charge
of a principal business unit; as to any partnership, any
individual who is a general partner thereof or any individual who
has general management or administrative authority over all or
any principal unit of the partnership's business; and as to any
trust, any individual who is a trustee.
<PAGE>
"Restricted Guaranty Obligations" means, as to any Person,
all of its Guaranty Obligations except (a) Guaranty Obligations
undertaken in the ordinary course of business to secure bids or
contracts or performance bonds related to work to be performed by
Company or any Subsidiary or any joint venture in which Company
or any Subsidiary participates; (b) all Guaranty Obligations with
respect to trade indebtedness incurred in the ordinary course of
business, whether payable directly or by reimbursement in
connection with any letter of credit facility; (c) all Guaranty
Obligations with respect to Security Interests permitted under
Section 7.03; and (d) all Guaranty Obligations with respect to
obligations of Company or any Subsidiary thereof.
"Restricted Payment" means (a) any cash dividend, (b) any
acquisition, redemption or retirement of any outstanding stock,
(c) any retirement or prepayment of debt securities before their
regularly scheduled maturity dates, (d) any loan or advance that
is made to a Person in such Person's capacity as a shareholder,
and (e) any "Restricted Payment" as defined in the Note Purchase
Agreement.
"Security Interest" means as to any item of tangible or
intangible property, any interest therein or right with respect
thereto that secures an obligation or Guaranty Obligation,
whether such interest or right is created under a Contract, or by
operation of law or statute (such as but not limited to a
statutory lien for work or materials), or as a result of a
judgment, or which arises under any form of preferential or title
retention agreement or arrangement (including a conditional sale
agreement or a lease) that has substantially the same economic
effect as any of the foregoing.
"Spot Rate" for a currency means the rate quoted by Bank of
America as the spot rate for the purchase by Bank of America of
such currency with another currency through its FX Trading Office
at approximately 8:00 a.m. (California time) on the date two
Business Days prior to the Currency Calculation Date.
"Subsequent Participant" means each country that adopts the
euro as its lawful currency after January 1, 1999.
"Subsidiary" means, as to any Person, a corporation with
respect to which more than 50% of the outstanding shares of stock
of each class having ordinary voting power (other than stock
having such power only by reason of the happening of a
contingency) is at the time owned by such Person or by one or
more Subsidiaries of such Person, other than a corporation which
<PAGE>
has no significant assets and is not actively engaged in a trade
or business.
"Subsidiary Borrower" means any Material Domestic Subsidiary
of Company which has satisfied the requirements of Section 4.03.
The Subsidiary Borrowers as of the Closing Date are identified as
such on Schedule 1.01.
"Swaps" means, with respect to any Person, without
duplication, payment obligations with respect to interest rate
swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement,
the amount of the obligation under any Swap shall, unless
otherwise expressly set forth herein, be the amount determined in
respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumption that such
Swap had terminated at the end of such fiscal quarter, and in
making such determination, if any agreement relating to such Swap
provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case,
the amount of such obligation shall be the net amount so
determined.
"Swap Termination Value" means, in respect of any one or
more Swaps, after taking into account the effect of any legally
enforceable netting agreement relating to such Swaps, (a) for any
date on or after the date such Swaps have been closed out and
termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the mark-to-
market value(s) for such Swaps, as determined based upon one or
more mid-market or other readily available quotations provided by
any recognized dealer in such Swaps (which may include any
Lender).
"Total Assets" means the total assets of Company and its
Subsidiaries, as shown on the most recent annual Financial
Statements.
"type" of Loan means the designation of whether such Loan is
a Base Rate Loan or an Offshore Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Pension Plan's assets, determined
in accordance with the assumptions used for funding the Pension
<PAGE>
Plan pursuant to Section 412 of the Code for the applicable plan
year.
"United States" means, when used in a geographical sense,
all the states of the United States of America and the District
of Columbia; and when used in a legal jurisdictional sense, the
government of the country that is the United States of America.
"United States Assets" means the identifiable United States
assets of Company and its Subsidiaries, as shown on the most
recent annual Financial Statements.
"Voting Stock" means capital stock of any class or classes
of a corporation, the holders of which are ordinarily, in the
absence of contingencies, entitled to elect the majority of the
corporate directors (or Persons performing similar functions),
irrespective of whether not at the time capital stock of any such
class or classes shall have or might have special voting power or
rights by reason of the occurrence of any contingency.
"Wholly-Owned Subsidiary" means, at any time, any
Subsidiary, 100% of all the equity shares (except directors'
qualifying shares) and voting interests of which are owned by any
one or more of Company and Company's other Wholly-Owned
Subsidiaries at such time.
"1999 Form 10-K" means Company's Annual Report as Form 10-K
for the year ended December 31, 1999, as amended, filed with the
Securities and Exchange Commission.
1.02 Use of Certain Terms.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document
made or delivered pursuant hereto or thereto, unless otherwise
defined therein.
(b) As used herein, unless the context requires otherwise,
the masculine, feminine and neuter genders and the singular and
plural include one another.
(c) The words "herein" and "hereunder" and words of similar
import when used in any Loan Document shall refer to the Loan
Documents as a whole and not to any particular provision
thereof. The term "including" is by way of example and not
limitation. References herein to a Section, subsection or clause
shall, unless the context otherwise requires, refer to the
appropriate Section, subsection or clause in this Agreement.
<PAGE>
(d) The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is
permissive.
1.03 Accounting Terms. Subject to the definition of GAAP
herein, all accounting terms not specifically or completely
defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement
shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the financial
statements contained in the 1999 Form 10-K, except as otherwise
specifically prescribed herein.
1.04 Rounding. Any financial ratios required to be
maintained by Company pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number
of places by which such ratio is expressed in this Agreement and
rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places
by which such ratio is expressed in this Agreement.
1.05 Exhibits and Schedules. All exhibits and schedules to
this Agreement, either as originally existing or as the same may
from time to time be supplemented, modified or amended, are
incorporated herein by this reference. A matter disclosed on any
Schedule shall be deemed disclosed on all Schedules.
1.06 References to Agreements and Laws. Unless otherwise
expressly provided herein, (a) references to agreements
(including the Loan Documents) and other contractual instruments
shall include all amendments, restatements, extensions,
supplements and other modifications thereto (unless prohibited by
any Loan Document), and (b) references to any Law shall include
all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.
1.07 Currency Equivalents Generally. Except for purposes of
financial statements delivered by Borrower Parties hereunder or
calculating financial covenants hereunder, the applicable amount
of any currency for purposes of the Loan Documents shall be the
Equivalent Amount thereof determined on each Currency Calculation
Date from time to time by Administrative Agent.
<PAGE>
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 Amount and Terms of Commitments.
(a) Subject to the terms and conditions set forth herein,
each Lender severally agrees to make, Convert and Continue loans
(each such loan, a "Loan") to each Borrower in Dollars and
Offshore Currencies in such amounts as each and any Borrower may
from time to time request on any Business Day during the period
from the Closing Date to the Maturity Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth
on Schedule 2.01 (such amount as the same may be reduced under
Section 2.06 or as a result of one or more assignments hereunder,
such Lender's "Commitment"); provided, however, that, after
giving effect to any Borrowing, all Outstanding Obligations of
each Lender shall not exceed such Lender's Commitment and all
Outstanding Obligations of all Lenders shall not exceed the
combined Commitments. This is a revolving credit and subject to
the foregoing, and the other terms and conditions hereof, each
and any Borrower may borrow, Convert, Continue, prepay and
reborrow Loans as set forth herein without premium or penalty.
(b) Loans made by each Lender shall be evidenced by one or
more loan accounts or records maintained by such Lender in the
ordinary course of business. Upon the request of any Lender made
through Administrative Agent, such Lender's Loans may be
evidenced by one or more Notes, instead of or in addition to loan
accounts. Each such Lender may attach schedules to its Note(s)
and endorse thereon the date, amount, applicable currency and
maturity of its Loans and payments with respect thereto. Such
Notes, loan accounts, and records shall be conclusive absent
manifest error of the amount of such Loans and payments thereon.
Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of any Borrower
to pay any amount owing with respect to the Loans.
(c) Company may from time to time designate any Material
Domestic Subsidiary as a Subsidiary Borrower by satisfying the
requirements of Section 4.03 with respect to such Material
Domestic Subsidiary.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrower may irrevocably request a Borrowing,
Conversion or Continuation of Loans in a Minimum Amount therefor
by delivering a Request for Extension of Credit therefor by
<PAGE>
Requisite Notice to Administrative Agent not later than the
Requisite Time therefor. All Borrowings, Conversions and
Continuations shall constitute Base Rate Loans unless properly
and timely otherwise designated as set forth in the prior
sentence. Loans may only be Converted into or Continued as Loans
denominated in the same currency as originally borrowed.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro
Rata Share thereof by Requisite Notice. If any Lender is unable
in good faith to fund an Offshore Currency Loan in a requested
Offshore Currency, it shall promptly notify Administrative Agent
(who shall notify Company and the other Lenders), and such
Request for Extension of Credit shall be deemed withdrawn.
Administrative Agent shall promptly upon Borrower's request
notify the applicable Borrower and Lenders of the interest rate
applicable to any Loans proposed by any Borrower upon
determination of same. In the case of a Borrowing of Loans, each
Lender shall make the funds for its Loan available in the
currency of such Loan to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time therefor on the
Business Day specified in such Request for Extension of Credit.
Upon satisfaction of the applicable conditions set forth in
Section 4.02, (and if the initial Extension of Credit hereunder,
Section 4.01), all funds so received shall be made available to
the applicable Borrower in like funds received.
(c) Administrative Agent shall promptly notify Company and
Lenders of the interest rate applicable to any Loan other than a
Base Rate Loan upon determination of same in accordance with this
Agreement.
(d) Except as otherwise provided herein, an Offshore Rate
Loan may be Continued or Converted only on the last day of the
Interest Period for such Offshore Rate Loan. During the
existence of a Default or Event of Default, no Loans may be
requested as, Converted into or Continued as Offshore Rate Loans
without the consent of Requisite Lenders and Requisite Lenders
may demand that any or all of the then outstanding Offshore Rate
Loans be Converted immediately into Base Rate Loans.
(e) If a Loan is to be made to any Borrower on the same
date that another Loan in the same currency is due and payable by
such Borrower, such Borrower or Lenders, as the case may be,
shall, unless Administrative Agent otherwise requests, make
available to Administrative Agent the net amount of funds giving
effect to both such Loans and the effect for purposes of this
<PAGE>
Agreement shall be the same as if separate transfers of funds had
been made with respect to each such Loan.
(f) Each Borrower may from time to time request Extensions
of Credit in currencies other than those listed in the definition
of Offshore Currency so long as such currency is freely traded in
the offshore interbank foreign exchange markets and freely
transferable and freely convertible into Dollars. A Borrower
shall request any such additional currency by Requisite Notice to
Administrative Agent (who shall promptly notify each Lender) not
later than the Requisite Time therefor. Each Lender shall notify
Administrative Agent (who shall promptly notify Company) whether
it can, in its sole discretion, make an Extension of Credit in
such requested currency. If all Lenders consent to such
currency, such currency shall thereafter be deemed for all
purposes an Offshore Currency hereunder available for Extensions
of Credit.
(g) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and
without prejudice to (i) the liabilities for indebtedness of each
Borrower Party to Lenders under or pursuant to this Agreement or
(ii) Lenders' Commitments, any reference in this Agreement to a
minimum amount (or an integral multiple thereof) in a national
currency of a Subsequent Participant to be paid to or by
Administrative Agent shall immediately, upon it becoming a
Subsequent Participant, be replaced by a reference to such
reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as Administrative Agent may
specify in good faith.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment. Subject to the terms
and conditions set forth in this Agreement, until the Maturity
Date, Issuing Lender shall take such Letter of Credit Actions
denominated in Dollars or Offshore Currencies as Borrowers may
from time to time request; provided, however, that (i) the
Equivalent Amount in Dollars of the Outstanding Obligations of
each Lender shall not exceed such Lender's Commitment, the (ii)
Equivalent Amount in Dollars of the Outstanding Obligations of
all Lenders shall not exceed the combined Commitments at any
time, and (iii) all Letter of Credit Usage shall not exceed the
Letter of Credit Sublimit at any time. Subject to subsection (f)
below and unless consented to by Issuing Lender and Requisite
Lenders, no Letter of Credit may expire more than 12 months after
the date of its issuance or last renewal; provided, however, that
no Letter of Credit shall expire more than 12 months after the
<PAGE>
Maturity Date. If any Letter of Credit Usage remains outstanding
after such date, Borrowers shall, not later than such date,
deposit cash in an amount equal to such Letter of Credit Usage in
a Letter of Credit Cash Collateral Account. Letters of credit
issued and outstanding under the Existing Credit Agreement on the
Closing Date shall be deemed validly issued and outstanding
Letters of Credit with the same terms and maturity under this
Agreement as under the Existing Agreement.
(b) Requesting Letter of Credit Actions. Each Borrower may
irrevocably request a Letter of Credit Action in a Minimum Amount
therefor by delivering a Letter of Credit Application therefor to
Issuing Lender, with a copy to Administrative Agent (who shall
notify Lenders), by Requisite Notice not later than the Requisite
Time therefor. Each Letter of Credit Action shall be in a form
acceptable to Issuing Lender in its reasonable discretion.
Unless Administrative Agent notifies Issuing Lender that such
Letter of Credit Action is not permitted hereunder, or Issuing
Lender notifies Administrative Agent that it has determined in
good faith that such Letter of Credit Action is contrary to any
Laws or policies of Issuing Lender, Issuing Lender shall, upon
satisfaction of the applicable conditions set forth in Section
4.02 with respect to any Letter of Credit Action constituting an
Extension of Credit, effect such Letter of Credit Action. This
Agreement shall control in the event of any conflict with any
Letter of Credit Application, including without limitation, any
definition of "Default" or "Event of Default" in any such Letter
of Credit Application, which shall be deemed superseded by the
definitions thereof in this Agreement. Any requirement therein
or in any provision of this Agreement to grant a security
interest shall be subject to the prohibitions contained in
Section 7.03 and in Section 10.05 of the Note Purchase Agreement.
Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased from Issuing Lender a risk participation
therein in an amount equal to such Lender's Pro Rata Share times
the amount of such Letter of Credit.
(c) Reimbursement of Payments Under Letters of Credit.
Each Borrower for whose account a Letter of Credit has been
issued shall reimburse Issuing Lender through Administrative
Agent for any payment that Issuing Lender makes under a Letter of
Credit on or before the date of such payment; provided, however,
that if the conditions precedent set forth in Section 4.02 can be
satisfied, such Borrower may request a Borrowing of Loans to
reimburse Issuing Lender for such payment pursuant to Section
2.02, or, failing to make such request, such Borrower shall be
deemed to have requested a Borrowing of Base Rate Loans on such
payment date pursuant to subsection (e) below.
<PAGE>
(d) Funding by Lenders When Issuing Lender Not Reimbursed.
Upon any drawing under a Letter of Credit, Issuing Lender shall
notify Administrative Agent and Company. If any Borrower fails
to timely make the payment required pursuant to subsection (c)
above, Issuing Lender shall notify Administrative Agent of such
fact and the amount of such unreimbursed payment. Administrative
Agent shall promptly notify each Lender of its Pro Rata Share of
such amount by Requisite Notice. Each Lender shall make funds in
an amount equal its Pro Rata Share of such amount available to
Administrative Agent at Administrative Agent's Office not later
than the Requisite Time therefor on the Business Day specified by
Administrative Agent, Administrative Agent shall remit the funds
so received to Issuing Lender. The obligation of each Lender to
so reimburse Issuing Lender shall be absolute and unconditional
and shall not be affected by the occurrence of a Default or Event
of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the
obligation of any Borrower to reimburse Issuing Lender for the
amount of any payment made by Issuing Lender under any Letter of
Credit, together with interest as provided herein.
(e) Nature of Lenders' Funding. If the conditions
precedent set forth in Section 4.02 can be satisfied (except for
the giving of a Request for Extension of Credit) on any date a
Borrower is obligated to, but fails to, reimburse Issuing Lender
for a drawing under a Letter of Credit, the funding by Lenders
pursuant to the previous subsection shall be deemed to be a
Borrowing of Base Rate Loans (without regard to the Minimum
Amount therefor) deemed requested by such Borrower. If the
conditions precedent set forth in Section 4.02 cannot be
satisfied on the date a Borrower is obligated to, but fails to,
reimburse Issuing Lender for a drawing under a Letter of Credit,
the funding by Lenders pursuant to the previous subsection shall
be deemed to be a funding by each Lender of its risk
participation in such Letter of Credit, and each Lender making
such funding shall thereupon acquire a pro rata participation, to
the extent of its reimbursement, in the claim of Issuing Lender
against such Borrower in respect of such payment and shall share,
in accordance with that pro rata participation, in any payment
made by such Borrower with respect to such claim. Any amounts
made available by a Lender under its risk participation shall be
payable by a Borrower upon demand of Administrative Agent, and
shall bear interest at a rate per annum equal to the Default
Rate.
(f) Special Provisions Relating to Evergreen Letters of
Credit. Each Borrower may request Letters of Credit that have
automatic extension or renewal provisions ("evergreen" Letters of
<PAGE>
Credit) so long as Issuing Lender consents in its sole and
absolute discretion thereto and has the right to not permit any
such extension or renewal at least annually within a notice
period to be agreed upon at the time each such Letter of Credit
is issued. Once an evergreen Letter of Credit is issued, unless
Administrative Agent has notified Issuing Lender that Requisite
Lenders have elected not to permit such extension or renewal, the
Borrower Parties, Administrative Agent and Lenders shall be
deemed to have authorized (but may not require) Issuing Lender
to, in its sole and absolute discretion, permit the renewal of
such evergreen Letter of Credit at any time to a date not later
than the Maturity Date, and, unless directed by Issuing Lender,
no Borrower shall be required to request such extension or
renewal. Issuing Lender may, in its sole and absolute discretion
elect not to permit an evergreen Letter of Credit to be extended
or renewed at any time.
(g) Obligations Absolute. The obligation of each Borrower
to pay to Issuing Lender the amount of any payment made by
Issuing Lender under any Letter of Credit issued for its account
shall be absolute, unconditional, and irrevocable. Without
limiting the foregoing, each Borrower's obligation shall not be
affected by any of the following circumstances:
(i) any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from such Letter of Credit, this Agreement, or any
other agreement or instrument relating hereto or thereto;
(iii)the existence of any claim, setoff, defense, or
other rights which a Borrower may have at any time against
Issuing Lender, Administrative Agent or any Lender, any
beneficiary of such Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with such Letter of
Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply
with the terms of the Letter of Credit;
<PAGE>
(v) payment by Issuing Lender in good faith under such
Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with
the terms of such Letter of Credit; or any payment made by
Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-
possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor
to any beneficiary or any transferee of such Letter of
Credit, including any arising in connection with any
proceeding under any Debtor Relief Laws;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any property
purported to be represented by documents presented in
connection with such Letter of Credit or for any difference
between any such property and the character, quality,
quantity, condition, or value of such property as described
in such documents;
(vii)the time, place, manner, order or contents of
shipments or deliveries of property as described in
documents presented in connection with such Letter of Credit
or the existence, nature and extent of any insurance
relative thereto;
(viii)the solvency or financial responsibility of any
party issuing any documents in connection with such Letter
of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any property;
(x) any error in the transmission of any message
relating to such Letter of Credit not caused by Issuing
Lender, or any delay or interruption in any such message;
(xi) any error, neglect or default of any correspondent
of Issuing Lender in connection with such Letter of Credit;
(xii) any consequence arising from acts of God,
wars, insurrections, civil unrest, disturbances, labor
disputes, emergency conditions or other causes beyond the
control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith
determines that the document appears to comply with the
terms of the Letter of Credit, the form, accuracy,
genuineness or legal effect of any contract or document
<PAGE>
referred to in any document submitted to Issuing Lender in
connection with such Letter of Credit; and
(xiv) any other circumstances whatsoever where
Issuing Lender has acted in good faith.
In addition, each Borrower will promptly examine a copy of
each Letter of Credit and amendments thereto delivered to it and,
in the event of any claim of noncompliance with such Borrower's
instructions or other irregularity, such Borrower will
immediately notify Issuing Lender in writing. A Borrower shall
be conclusively deemed to have waived any such claim against
Issuing Lender and its correspondents unless such notice is given
as aforesaid.
(h) Role of Issuing Lender. Each Lender and Borrower agree
that, in paying any drawing under a Letter of Credit, Issuing
Lender shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as
to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. No
Administrative Agent-Related Person nor any of the respective
correspondents, participants or assignees of Issuing Lender shall
be liable to any Lender for any action taken or omitted in
connection herewith at the request or with the approval of
Lenders or Requisite Lenders, as applicable; any action taken or
omitted in the absence of gross negligence or willful misconduct;
or the due execution, effectiveness, validity or enforceability
of any document or instrument related to any Letter of Credit.
Each Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any
Letter of Credit. No Administrative Agent-Related Person, nor
any of the respective correspondents, participants or assignees
of Issuing Lender, shall be liable or responsible for any of the
matters described in subsection (g) above. In furtherance and
not in limitation of the foregoing, Issuing Lender may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary, and Issuing Lender shall
not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
<PAGE>
(i) Applicability of ISP98 and UCP. Unless otherwise
expressly agreed by Issuing Lender and a Borrower when a Letter
of Credit is issued and subject to applicable laws, performance
under Letters of Credit by Issuing Lender, its correspondents,
and beneficiaries will be governed by (i) with respect to standby
Letters of Credit, the rules of the "International Standby
Practices 1998" ("ISP98") or such later revision as may be
published by the Institute of International Banking Law &
Practice, subject to applicable laws, and (ii) with respect to
commercial Letters of Credit, the rules of the Uniform Customs
and Practice for Documentary Credits, as published in its most
recent version by the International Chamber of Commerce (the
"ICC") on the date any commercial Letter of Credit is issued, and
including the ICC decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European
single currency (euro).
(j) Letter of Credit Fee. With respect to each commercial
Letter of Credit, Company shall pay to Administrative Agent for
the account of Issuing Lender an upfront fee equal to 1/4 of 1%
of the face amount thereof, payable upon the issuance thereof.
With respect to financial Letters of Credit and performance
Letters of Credit, Company shall pay to Administrative Agent on
each Applicable Payment Date in arrears, for the account of each
Lender in accordance with its Pro Rata Share, a Letter of Credit
fee equal to the Applicable Amount for such type of Letter of
Credit times the actual daily maximum amount available to be
drawn under each Letter of Credit since the later of the Closing
Date and the previous Applicable Payment Date. If there is any
change in the Applicable Amount during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable
Amount separately for each period during such quarter that such
Applicable Amount was in effect.
(k) Documentary and Processing Charges Payable to Issuing
Lender. Company shall pay directly to Issuing Lender, upon
demand, for its sole account its customary documentary and
processing charges in accordance with its standard schedule, as
from time to time in effect, for any Letter of Credit Action or
other occurrence relating to a Letter of Credit for which such
charges are customarily made.
2.04 Prepayments. Upon Requisite Notice to Administrative
Agent not later than the Requisite Time therefor, each Borrower
may at any time and from time to time voluntarily prepay Loans in
part in the Minimum Amount therefor or in full without premium or
penalty. Administrative Agent will promptly notify each Lender
thereof and of such Lender's Pro Rata Share of such prepayment.
<PAGE>
If for any reason the Outstanding Obligations exceed the combined
Commitments as in effect or as reduced or because of any
limitation set forth in this Agreement or otherwise, each
Borrower shall immediately prepay its Loans and/or, at its
election, deposit cash in a Letter of Credit Cash Collateral
Account in an aggregate amount equal to its pro rata share of
such excess. Any prepayment of an Offshore Rate Loan shall be
accompanied by all accrued interest thereon, together with the
costs set forth in Section 3.05.
2.05 Offer to Take Out Lenders Upon Change of Control.
(a) If any Responsible Officer has knowledge of the
occurrence of any Change of Control, Company shall notify
Administrative Agent (who shall promptly notify each Lender) by
Requisite Notice of such fact. Each Borrower shall deliver a
notice (a "Take-Out Offer") promptly upon receipt of such
knowledge by Company, and in any event no later than five
Business Days following knowledge thereof by such Responsible
Officer. The Take-Out Offer shall (i) describe the facts and
circumstances of such Change of Control in reasonable detail,
(ii) make reference to this Section 2.05 and the right of any
Lender to require each Borrower to prepay all, but not less than
all, Loans made by such Lender to it and to furnish a back-to-
back letter of credit from a financial institution reasonably
acceptable to Issuing Lender with respect to such Lender's Pro
Rata Share of any Letter of Credit Usage issued for the account
of such Borrower on the terms and conditions provided for in this
Section (collectively, a "Take Out" of Lender), (iii) offer in
writing to Take Out such Lender with respect to Loans made to it
and Letters of Credit issued for its account and (iv) specify a
date therefor (the "Take-Out Date"), which Take-Out Date shall be
not more than 30 days nor less than 20 days following the date of
such Take-Out Offer.
(b) Within 10 days after receipt of any Take-Out Offer,
each Lender shall notify Administrative Agent by Requisite Notice
whether it accepts or does not accept such Take-Out Offer. Any
Lender not responding within the above time period shall be
deemed to have elected to accept such Take-Out Offer.
Administrative Agent shall, after receiving notification from all
Lenders or the expiration of such period, whichever is earlier,
promptly notify each Borrower and Lenders of the results thereof.
Each Borrower shall, with respect to Loans made to it and Letters
of Credit issued for its account, Take Out all Lenders accepting
or deemed to have accepted such Take-Out Offer on the Take-Out
Date. Any prepayment of a Loan shall be accompanied by all
accrued interest thereon, together with the costs set forth in
<PAGE>
Section 3.05, provided Administrative Agent shall theretofore
have notified Company of the amounts thereof.
(c) Without limiting the foregoing, notwithstanding any
failure on the part of any Borrower to give any Take-Out Offer
required above, any Lender who did not receive a Take-Out Offer
shall, upon having actual knowledge of a Change of Control, have
the right, by Requisite Notice to Company (with a copy to
Administrative Agent) (each such notice, a "Lender Demand") to
require each Borrower to Take Out such Lender with respect to
Loans made to it and Letters of Credit issued for its account.
Such Lender Demand shall specify a date to effect such Take Out
(the "Delayed Take-Out Date"), which shall be not more than 90
days nor less than 30 days following the date of such Lender
Demand. Upon its receipt of any Lender Demand, Administrative
Agent shall promptly notify all Lenders thereof by Requisite
Notice.
(d) Each Lender shall thereupon have ten Business Days to
submit by Requisite Notice to Administrative Agent (who shall
promptly notify Company) a Lender Demand for itself (with a Take-
Out Date not more than 90 days nor less than 30 days following
the initial Lender Demand) or to deliver a notice stating it does
not wish to do so. Any Lender not responding within the above
time period shall be deemed to have delivered a Lender Demand for
itself (with the same Take-Out Date as contained in the initial
Lender Demand). On the Take-Out Date, each Borrower shall, with
respect to Loans made to it and Letters of Credit issued for its
account, Take-Out all Lenders delivering or deemed to have
delivered a Lender Demand. Any prepayment of a Loan shall be
accompanied by all accrued interest thereon, together with the
costs set forth in Section 3.05 provided Administrative Agent
shall theretofore have notified Company of the amounts thereof.
Compliance with the provisions of this Section shall be not
deemed to constitute a waiver of, or consent to, any Default or
Event of Default caused by any violation of the provisions of
Section 2.05(a).
(e) If any Lender's Obligations are taken out as aforesaid,
such Lender's Commitment under the Loan Documents shall
terminate. Administrative Agent shall distribute an amended
Schedule 2.01, which shall thereafter be incorporated into this
Agreement, to reflect adjustments to Lenders and their
Commitments as a result of the operation of this Section 2.05.
(f) This Section shall supersede any provisions in Section
10.01 to the contrary.
<PAGE>
2.06 Reduction or Termination of Commitments. Upon
Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Company may at any time and from time to
time, without premium or penalty, permanently and irrevocably
reduce the Commitments in a Minimum Amount therefor to an amount
not less than the Outstanding Obligations at such time or
terminate the Commitments. Any such reduction or termination
shall be accompanied by payment of all accrued and unpaid
commitment fees with respect to the portion of the Commitments
being reduced or terminated. Administrative Agent shall promptly
notify Lenders of any such request for reduction or termination
of the Commitments. Each Lender's Commitment shall be reduced by
an amount equal to such Lender's Pro Rata Share times the amount
of such reduction.
2.07 Principal and Interest.
(a) Except as otherwise provided hereunder, if not sooner
paid, each Borrower agrees to pay the outstanding principal
amount of each Loan on the Maturity Date.
(b) Subject to subsection (c) below, and unless otherwise
specified herein, each Borrower shall pay interest on the unpaid
principal amount of each Loan (before and after default, before
and after maturity, before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief
Laws) from the date borrowed until paid in full (whether by
acceleration or otherwise) on each Applicable Payment Date at a
rate per annum equal to the interest rate determined in
accordance with the definition of such type of Loan, plus, to the
extent applicable in each case, the Applicable Amount for such
type of Loan. Administrative Agent shall invoice each Borrower
for the amount of interest due on any Base Rate Loan prior to the
due date thereof.
(c) If any amount payable by any Borrower Party under any
Loan Document is not paid when due (without regard to any
applicable grace periods), it shall thereafter bear interest
(after as well as before entry of judgment thereon to the extent
permitted by law) at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted
by applicable Law. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be
payable upon demand.
<PAGE>
2.08 Fees.
(a) Commitment Fee. Company shall pay to Administrative
Agent for the account of each Lender pro rata according to its
Pro Rata Share, a Commitment fee equal to the Applicable Amount
times the actual daily amount by which the combined Commitments
exceed the Outstanding Obligations (excluding Letter of Credit
Usage related to commercial Letters of Credit). The commitment
fee shall accrue at all times from the Closing Date until the
Maturity Date and shall be payable quarterly in arrears on each
Applicable Payment Date. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the
Applicable Amount during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Amount
separately for each period during such quarter that such
Applicable Amount was in effect. The commitment fee shall accrue
at all times, including at any time during which one or more
conditions in Section 4 are not met.
(b) Agency Fees. Whenever there is more than one Lender
party hereto, Company and Administrative Agent shall mutually
determine whether any agency fee will be payable by Company, and
the amount thereof. The parties acknowledge that there is no
existing obligation with respect to any agency fee. The agency
fee is for the services to be performed by Administrative Agent
in acting as Administrative Agent and is fully earned on the date
paid. The agency fee paid to Administrative Agent is solely for
its own account and is nonrefundable.
(c) Other Fees. Company shall pay any additional fees from
time to time agreed upon by each Lender and Company which are set
forth in any separate agreement or letter.
2.09 Computation of Interest and Fees. Computation of
interest on Base Rate Loans when the Base Rate is determined by
Bank of America's "prime rate" shall be calculated on the basis
of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed, which results
in a higher yield to Lenders than a method based on a year of 365
or 366 days. Interest shall accrue on each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on
which it is made shall bear interest for one day.
<PAGE>
2.10 Making Payments.
(a) Except as otherwise provided herein, all payments by
any Borrower or any Lender hereunder shall be made to
Administrative Agent at Administrative Agent's Office not later
than the Requisite Time for such type of payment. All payments
received after such Requisite Time shall be deemed received on
the next succeeding Business Day. All payments shall be made in
immediately available funds in the currency of such extension of
credit (or, with the consent of Administrative Agent in each
instance, the Equivalent Amount in Dollars of the Applicable
Offshore Currency). All payments by any Borrower shall be made
without condition or deduction for any counterclaim, defense,
recoupment or setoff. Notwithstanding any other provisions of
this Agreement, if and to the extent that EMU Legislation
provides that amounts denominated in the euro or an NCU may be
paid within a country in either the euro or the NCU of that
country by crediting an account of the creditor in that country,
payments may be made in either the euro or such NCU.
(b) Upon satisfaction of any applicable terms and
conditions set forth herein, Administrative Agent shall promptly
make any amounts received in accordance with the prior subsection
available in like funds received as follows: (i) if payable to a
Borrower, by crediting the Designated Deposit Account, and (ii)
if payable to any Lender, by wire transfer to such Lender at its
Lending Office. If such conditions are not so satisfied,
Administrative Agent shall return any funds it is holding to the
Lenders making such funds available, without interest.
(c) Subject to the definition of "Interest Period," if any
payment to be made by any Borrower Party shall come due on a day
other than a Business Day, payment shall instead be considered
due on the next succeeding Business Day, and such extension of
time shall be reflected in computing interest and fees.
(d) Unless Company or any Lender has notified
Administrative Agent prior to the date any payment to be made by
it is due, that it does not intend to remit such payment,
Administrative Agent may, in its sole and absolute discretion,
assume that Borrowers or such Lender, as the case may be, has
timely remitted such payment and may, in its sole and absolute
discretion and in reliance thereon, make available such payment
to the Person entitled thereto. If such payment was not in fact
remitted to Administrative Agent in immediately available funds,
then:
<PAGE>
(i) if a Borrower failed to make such payment, each
Lender shall forthwith on demand repay to Administrative
Agent the amount of such assumed payment made available to
such Lender, together with interest thereon in respect of
each day from and including the date such amount was made
available by Administrative Agent to such Lender to the date
such amount is repaid to Administrative Agent at the
Overnight Rate; and
(ii) if any Lender failed to make such payment,
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such
Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent
promptly shall notify such Borrower, and such Borrower shall
pay such corresponding amount to Administrative Agent.
Administrative Agent also shall be entitled to recover from
such Lender interest on such corresponding amount in respect
of each day from the date such corresponding amount was made
available by Administrative Agent to such Borrower to the
date such corresponding amount is recovered by
Administrative Agent, (A) from such Lender at a rate per
annum equal to the daily Overnight Rate, and (B) from such
Borrower, at a rate per annum equal to the interest rate
applicable to such Borrowing. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill
its Commitment or to prejudice any rights which
Administrative Agent or any Borrower may have against any
Lender as a result of any default by such Lender hereunder.
(e) If Administrative Agent or any Lender is required at
any time to return to any Borrower, or to a trustee, receiver,
liquidator, custodian, or any official under any proceeding under
Debtor Relief Laws, any portion of a payment made by any
Borrower, each Lender shall, on demand of Administrative Agent,
return its share of the amount to be returned, plus interest
thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the daily Federal Funds Rate.
2.11 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Lender to obtain the funds for any Loan in
any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
<PAGE>
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by any Borrower to or for the
account of Administrative Agent or any Lender under any Loan
Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges,
and all liabilities with respect thereto, excluding, in the case
of Administrative Agent and each Lender, taxes imposed on or
measured by its net income or branch profits or franchise taxes
imposed on it (in lieu of net income or branch profits taxes), by
the United States of America or by the jurisdiction (or any
political subdivision thereof) under the Laws of which
Administrative Agent or such Lender, as the case may be, is
organized, in which its principal office is located or in which
it maintains a lending office, and any other taxes withheld
because such Lender failed to timely deliver the forms required
pursuant to Section 10.21 (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as
"Taxes"). If a Borrower shall be required by any Laws to deduct
any Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section), Administrative Agent
and such Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower
shall make such deductions, (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30
days after the date of such payment, such Borrower shall furnish
to Administrative Agent (who shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, each Borrower agrees to pay any and all
present or future stamp, court or documentary taxes and any other
excise or property taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement or registration of,
or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
<PAGE>
(c) If a Borrower shall be required by the Laws of any
jurisdiction outside the United States to deduct any Taxes from
or in respect of any sum payable under any Loan Document to
Administrative Agent or any Lender, such Borrower shall also pay
to such Lender or Administrative Agent (for the account of such
Lender), at the time interest is paid, such additional amount
that the respective Lender specifies as necessary to preserve the
after-tax yield (after factoring in United States (federal and
state) taxes imposed on or measured by net income) such Lender
would have received if such deductions (including deductions
applicable to additional sums payable under this Section) had not
been made.
(d) Each Borrower agrees to indemnify Administrative Agent
and each Lender for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by
Administrative Agent and such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with
respect thereto.
3.02 Illegality. If the introduction of any Laws or any
change in any Laws or in the interpretation or administration
thereof has made it unlawful, or any central bank or other
Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund
Offshore Rate Loans, or materially restricts the authority of
such Lender to purchase or sell, or to take deposits of, Dollars
or the applicable Offshore Currency in the applicable offshore
interbank market, or to determine or charge interest rates based
upon the Offshore Rate, then, on notice thereof by such Lender to
Company through Administrative Agent, any obligation of such
Lender to make Offshore Rate Loans shall be suspended until the
circumstances giving rise to such determination no longer exist.
Upon receipt of such notice, each Borrower shall, upon demand
from such Lender (with a copy to Administrative Agent), prepay or
Convert all Offshore Rate Loans of such Lender, either on the
last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Offshore Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to
maintain such Offshore Rate Loans. Each Lender agrees to
designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous
to such Lender.
3.03 Inability to Determine Offshore Rates. If, in
connection with any Request for Extension of Credit involving any
<PAGE>
Offshore Rate Loan, (a) deposits in Dollars or the applicable
Offshore Currency are not being offered to banks in the
applicable offshore market in the amount and for the Interest
Period of the requested Offshore Rate Loan, (b) adequate and
reasonable means do not exist for determining the underlying
interest rate for such Offshore Rate Loan, or (c) such underlying
interest rate does not adequately and fairly reflect the cost to
Lenders of funding such Offshore Rate Loan, Administrative Agent
will promptly notify Company and all Lenders. Thereafter, the
obligation of Lenders to make or maintain such Offshore Rate Loan
shall be suspended until such circumstances have ceased to exist,
whereupon Administrative Agent shall revoke such notice. Upon
receipt of such notice, a Borrower may revoke any pending request
for a Borrowing of Offshore Rate Loans or, failing that, be
deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If, due to either the introduction of or any change in
or in the interpretation of any Law or the compliance with any
guideline or request of general applicability from any central
bank or other Governmental Authority (whether or not having the
force of law):
(i) subjects any Lender to any Tax, duty, or other
charge with respect to any Offshore Rate Loans or its
obligation to make Offshore Rate Loans, or change the basis
on which taxes are imposed on any amounts payable to such
Lender under this Agreement in respect of any Offshore Rate
Loans;
(ii) shall impose or modify any reserve, special
deposit, or similar requirement (other than the reserve
requirement utilized in the determination of the Offshore
Rate) relating to Offshore Rate Loans or other assets of, or
any deposits with or other liabilities or commitments of,
any Lender (including its Commitment) with respect thereto;
or
(iii) shall impose on any Lender or on the offshore
Dollar interbank market any other condition affecting
Offshore Rate Loans under this Agreement or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to
such Lender of making, Converting into, Continuing, or
maintaining any Offshore Rate Loans or to reduce any sum received
<PAGE>
or receivable by such Lender under this Agreement with respect to
any Offshore Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), each
Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any change in or the interpretation of any Laws have
the effect of reducing the rate of return on the capital of any
Lender or compliance by any Lender (or its Lending Office) or any
corporation controlling any Lender as a consequence of any
Lender's obligations hereunder (taking into consideration its
policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of
such Lender (with a copy to Administrative Agent), each Borrower
shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
3.05 Breakfunding Costs. Upon demand of any Lender (with a
copy to Administrative Agent) from time to time, each Borrower
shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a
result of:
(a) any Continuation, Conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);
or
(b) any failure by such Borrower (for a reason other than
the failure of such Lender to make a Loan) to prepay, borrow,
Continue or Convert any Loan other than a Base Rate Loan on the
date or in the amount notified by such Borrower;
including any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Each Borrower
shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
3.06 Matters Applicable to all Requests for Compensation.
(a) Each Lender or Administrative Agent claiming
compensation under this Section 3 shall in each case furnish a
certificate to Company that states in reasonable detail in good
faith the additional amount or amounts to be paid to it hereunder
and the basis therefor. Any such certificate shall be conclusive
<PAGE>
in the absence of clearly demonstrable error. In determining
such amount, Administrative Agent or any Lender may use any
reasonable averaging and attribution methods. For purposes of
this Section 3, a Lender shall be deemed to have funded each
Offshore Rate Loan at the Offshore Base Rate used in determining
the Offshore Rate for such Loan by a matching deposit or other
borrowing in the offshore Dollar interbank market, whether or not
such Offshore Rate Loan was in fact so funded.
3.07 Survival. All of Borrowers' obligations under this
Section 3 shall survive termination of the Commitments and
payment in full of all Obligations.
SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 Conditions of Initial Extension of Credit. The
obligation of each Lender to make its initial Extension of Credit
hereunder is subject to satisfaction of the following conditions
precedent:
(a) Unless waived by all Lenders (or by Administrative
Agent with respect to immaterial matters or items specified in
subsection (iv) or (v) below with respect to which Company has
given assurances satisfactory to Administrative Agent that they
will be delivered promptly following the Closing Date),
Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a
Responsible Officer of the signing Borrower Party, each dated on,
or in the case of third-party certificates, recently before the
Closing Date and each in form and substance reasonably
satisfactory to Administrative Agent and its legal counsel:
(i) Agreement. Executed counterparts of this
Agreement, sufficient in number for distribution to
Administrative Agent, Lenders and Borrowers;
(ii) Notes. Notes duly executed and delivered by each
Borrower in favor of each Lender requesting same, each in a
principal amount equal to such Lender's Commitment;
(iii) Master Guaranty. The Master Guaranty duly
executed and delivered by each Subsidiary listed on Schedule
4.01(b).
<PAGE>
(iv) Resolutions; Incumbency.
(A) Copies of the resolutions of the board of
directors or the executive committee of the board of
directors of each Borrower Party approving and
authorizing the execution, delivery and performance by
such Borrower Party of the Loan Documents to which it
is a party, certified as of the Closing Date by the
Secretary or an Assistant Secretary of such Borrower
Party; and
(B) A certificate of the Secretary or Assistant
Secretary of each Borrower Party, certifying the names
and true signatures of the officers of each Borrower
Party authorized to execute and deliver the Loan
Documents to which it is a party.
(v) Articles of Incorporation; By-laws and Good
Standing. Each of the following documents:
(A) the articles or certificate of incorporation
of each Borrower Party as in effect on the Closing
Date, certified by the Secretary of State of the State
of incorporation of each Borrower Party as of a recent
date and by the Secretary or Assistant Secretary of
each Borrower Party as of the Closing Date and the
bylaws of each Borrower Party as in effect on the
Closing Date, certified by the Secretary or Assistant
Secretary of each Borrower Party as of the Closing
Date; and
(B) a good standing certificate for Company from
the Secretary of State of Delaware and the State of
Missouri as of a recent date.
(vi) Amendment to Note Purchase Agreement. Evidence
that Company has amended the Note Purchase Agreement to
provide that the Obligations of the Guarantors under the
Master Guaranty will not be Priority Debt thereunder.
(vii) Intercreditor Agreement. The Intercreditor
Agreement duly executed and delivered by each noteholder,
each Borrower Party, each Lender and Administrative Agent.
(viii) Legal Opinion. An opinion of Krugman &
Kailes LLP, counsel to the Borrower Parties, and addressed
to each Lender and Issuing Lender in form and substance
heretofore approved by Administrative Agent.
<PAGE>
(ix) Payment of Fees. Company shall have paid all
accrued and unpaid fees, costs and expenses to the extent
then due and payable on the Closing Date, together with
reasonable attorney fees, costs and expenses (including the
reasonable allocated cost of Administrative Agent's inhouse
counsel and staff) to the extent invoiced prior to or on the
Closing Date.
(x) Certificate. A certificate signed by a
Responsible Officer, dated as of the Closing Date, stating
that: (i) the representations and warranties contained in
Section 5 are true and correct in all material respects on
and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists on the Closing
Date; and (iii) since December 31, 1999, there has been no
change that has caused or evidences, either in any case or
in the aggregate, a Material Adverse Effect.
(xi) Other Documents. such other assurances,
certificates, documents, consents or opinions as
Administrative Agent, Issuing Lender or Requisite Lenders
reasonably may require.
(b) The representations and warranties of any Borrower
Party contained in Section 5, or which are contained in the
Master Guaranty, any Compliance Certificate s or any other
material certificate furnished at any time under or in connection
with any Loan Document shall be correct in all material respects
on and as of the Closing Date except to the extent that such
representations and warranties specifically refer to an earlier
date.
(c) No Default or Event of Default shall have occurred and
be continuing.
(d) Each Lender shall have received and reviewed, with
results reasonably satisfactory to such Lender, of information
confirming that (i) Company and its Subsidiaries are taking all
reasonably necessary and appropriate steps to ascertain the
extent of, and to quantify and successfully address, material
business and financial risks facing Company and its subsidiaries
as a result of what is commonly referred to as the "Year 2000
problem" (as defined in Section 5.24) so as to avoid a Material
Adverse Effect resulting therefrom, including material risks
resulting from the failure of key vendors and customers of
Company and its Subsidiaries to successfully address the Year
2000 problem in a manner to avoid a Material Adverse Effect
resulting therefrom, and (ii) Company's and its Subsidiaries'
<PAGE>
material computer applications will, on a timely basis,
adequately address the Year 2000 problem so as to avoid a
Material Adverse Effect resulting therefrom.
4.02 Conditions to all Extensions of Credit. In addition to
any applicable conditions precedent set forth elsewhere in this
Section 4 or in Section 2, the obligation of each Lender to honor
any Request for Extension of Credit is subject to the following
conditions precedent:
(a) the representations and warranties of any Borrower
Party contained in Section 5, or which are contained in the
Master Guaranty, any Compliance Certificate s or any other
material certificate furnished at any time under or in connection
with any Loan Document shall be correct in all material respects
on and as of the date of such Extension of Credit, except to the
extent that such representations and warranties specifically
refer to an earlier date.
(b) no Default or Event of Default exists, or would result
from such proposed Extension of Credit.
(c) Administrative Agent shall have timely received a
Request for Extension of Credit by Requisite Notice by the
Requisite Time therefor.
(d) Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances,
certificates, documents or consents related to the foregoing as
Administrative Agent or Requisite Lenders reasonably may require.
Each Request for Extension of Credit by a Borrower shall be
deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and
as of the date of such Extension of Credit.
4.03 Conditions for a Material Domestic Subsidiary Becoming
a Subsidiary Borrower or Guarantor. As a condition precedent to
a Material Domestic Subsidiary becoming a Subsidiary Borrower or
a Guarantor under the Master Guaranty, Administrative Agent shall
have received the following with respect to such Subsidiary, in
form and substance satisfactory to Administrative Agent:
(a) With respect to all such Subsidiaries, the items
referred to in Section 4.01(a)(iv) and, to the extent not
previously delivered, the items referred in Section 4.01(a)(v).
(b) With respect to all Subsidiaries, the opinion of the
general counsel or assistant general counsel of Company (or such
<PAGE>
other counsel designated by Company and reasonably acceptable to
Administrative Agent), in form reasonably acceptable to
Administrative Agent, as to (i) such Subsidiary's obligations
under the Loan Documents to which it will be a party being the
legal, valid, binding and enforceable obligation of such
Subsidiary and (ii) the execution, delivery and performance of
such Loan Documents by such Subsidiary (A) being authorized by
all necessary corporate, company or partnership action, as
applicable, (B) not violating any law, decree, judgment or, to
the knowledge of such counsel, contractual obligation to which
such Subsidiary is a party or by which it or its assets are
bound, and (C) not requiring any government approvals, consents,
registrations or filings.
(c) With respect to Subsidiary Borrowers, an Instrument of
Joinder duly executed by such Subsidiary, whereby such Subsidiary
agrees to be bound by the terms and conditions hereof, together
with the consent of each existing Borrower.
(d) With respect to Guarantors, Exhibit A to the Master
Guaranty duly executed by such Material Domestic Subsidiary,
whereby such Material Domestic Subsidiary agrees to be bound by
the terms and conditions of the Master Guaranty and, if the
Intercreditor Agreement remains in effect, an acknowledgement to
be bound by the Intercreditor Agreement in accordance with the
terms thereof and the Note Purchase Agreement.
(e) Such other opinions or documents as Administrative
Agent or any Lender may reasonably request.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants to
Administrative Agent and Lenders that:
<PAGE>
5.01 Organization and Existence. Each Covered Person is
duly organized and existing in good standing under the laws of
the jurisdiction of its organization, is duly qualified to do
business and is in good standing in every state where the nature
or extent of its business or properties require it to be
qualified to do business, except where the failure to so qualify
will not have a Material Adverse Effect. Each Covered Person has
the power and authority to own its properties and carry on its
business as now being conducted.
5.02 Authorization. Each Covered Person is duly authorized
to execute and perform every Loan Document to which such Covered
Person is a party, and each Borrower is duly authorized to borrow
hereunder, and the Loan Documents to which it is a party have
been duly authorized by all requisite corporate (or, if not a
corporation, comparable) action of each Covered Person. No
consent, approval or authorization of, or declaration or filing
with, any Governmental Authority, and no consent of any other
Person, is required in connection with any Borrower Party's
execution, delivery or performance of this Agreement and the
other Loan Documents, except for those already duly obtained or
explicitly contemplated hereunder.
5.03 Due Execution. Every Loan Document to which a Covered
Person is a party has been executed on behalf of such Covered
Person by a legally competent Person duly authorized to do so.
5.04 Enforceability of Obligations. Each of the Loan
Documents to which a Covered Person is a party constitutes the
legal, valid and binding obligation of such Covered Person,
enforceable against such Covered Person in accordance with its
terms, except to the extent that the enforceability thereof
against such Covered Person may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by equitable principles of general
application.
5.05 Burdensome Obligations. No Covered Person is a party
to or bound by any Contract or is subject to any provision in the
Charter Documents of such Covered Person which would, if
performed by such Covered Person, result in a Default or Event of
Default either immediately or upon the elapsing of time.
5.06 Legal Restraints. The execution of any Loan Document
by a Covered Person will not violate or constitute a default
under the Charter Documents of such Covered Person, any Material
Agreement of such Covered Person, or any Material Law, and will
not, except as expressly contemplated or permitted in this
<PAGE>
Agreement, result in any Security Interest being imposed on any
of such Covered Person's property. The performance by any
Covered Person of its obligations under any Loan Document to
which it is a party will not violate or constitute a default
under the Charter Documents of such Covered Person, any Material
Agreement of such Covered Person, or any Material Law, and will
not, except as expressly contemplated or permitted in this
Agreement, result in any Security Interest being imposed on any
of such Covered Person's property.
5.07 Labor Disputes. There is no pending or, to Company's
knowledge, threatened, strike, work stoppage, material unfair
labor practice claim or other material labor dispute against or
affecting any Covered Person or its employees, which is
reasonably likely to have a Material Adverse Effect.
5.08 No Material Proceedings There are no Material
Proceedings pending or, to the best knowledge of Company,
threatened, other than as described in item Schedule 5.08 or in
Item 3 of Company's 1999 Form l0-K, copies of which have been
furnished to Administrative Agent.
5.09 Material Licenses. All Material Licenses have been
obtained or exist for each Covered Person.
5.10 Compliance with Material Laws. Each Covered Person is
in compliance with all Material Laws. Without limiting the
generality of the foregoing:
(a) General Compliance with Environmental Laws. The
operations and employee compensation practices of every Covered
Person comply in all material respects with all applicable
Environmental Laws, the failure to comply with which is
reasonably likely to have a Material Adverse Effect.
(b) Proceedings. None of the operations of any Covered
Person are the subject of any judicial or administrative
complaint, order or proceeding alleging the violation of any
applicable Environmental Laws, which violation is reasonably
likely to have a Material Adverse Effect.
(c) Investigations Regarding Hazardous Materials. None of
the operations of any Covered Person are the subject of
investigation by any Governmental Authority regarding the
improper transportation, storage, disposal, generation or release
into the environment of any Hazardous Material, the results of
which are reasonably likely to have a Material Adverse Effect.
<PAGE>
(d) Notices and Reports Regarding Hazardous Materials. No
notice or report under any Environ mental Law indicating a past
or present spill or release into the environment of any Hazardous
Material from any property owned or operated by a Covered Person
has been filed within the immediately preceding four fiscal years
of such Covered Person, or is required to be filed by any Covered
Person, which spill or release is reasonably likely to result in
a Material Adverse Effect.
(e) Hazardous Materials on Real Property. No Covered
Person, nor to Company's knowledge, any other Person, has at any
time transported, stored, disposed of, generated or released any
Hazardous Material on the surface, below the surface, or within
the boundaries of any real property owned or operated by such
Covered Person, which event is reasonably likely to have a
Material Adverse Effect. Company has no knowledge of any
Hazardous Material on the surface, below the surface, or within
the boundaries of any real property owned or operated by such
Covered Person, which is reasonably likely to have a Material
Adverse Effect. No property of such Covered Person is subject to
a Security Interest in favor of any Governmental Authority for
any liability under any Environmental Law or damages arising from
or costs incurred by such Governmental Authority in response to a
spill or release of Hazardous Material into the environment,
which is reasonably likely to have a Material Adverse Effect.
5.11 Initial Financial Statements. The Financial Statements
of Company as of December 31, 1999, as delivered to
Administrative Agent by Company, are complete and correct in all
material respects, have been prepared in accordance with GAAP,
and fairly reflect the financial condition, results of operations
and cash flows of Company as of the date and for the periods
stated therein.
5.12 No Change in Condition. Since December 31, 1999, there
has been no change which is reasonably likely to have a Material
Adverse Effect.
5.13 No Defaults. No Covered Person has breached or
violated or has defaulted under any Material Agreement, or has
defaulted with respect to any Material Obligation of such Covered
Person, in each case, in a manner that is reasonably likely to
have a Material Adverse Effect. No Default or Event of Default
exists.
5.14 Tax Liabilities; Governmental Charges. Each Covered
Person has filed or caused to be filed all tax reports and
returns required to be filed by it with any Governmental
<PAGE>
Authority, except where extensions have been properly obtained or
where failure to file is not reasonably likely to have a Material
Adverse Effect. Each Covered Person has paid or made adequate
provision for payment of all Taxes of such Covered Person, except
(a) Taxes which are being diligently contested in good faith by
appropriate proceedings and as to which such Covered Person has
established adequate reserves in conformity with GAAP or (b)
where failure to pay is not reasonably likely to have a Material
Adverse Effect. No Security Interests for any such Taxes has
been filed and no claims are being asserted with respect to any
such Taxes which, if adversely determined, are reasonably likely
to have a Material Adverse Effect. There are no material
unresolved issues concerning any liability of a Covered Person
for any Taxes which, if adversely determined, are reasonably like
to have a Material Adverse Effect.
5.15 Pension Benefit Plans. All Pension Benefit Plans
maintained by each Covered Person or an ERISA Affiliate of such
Covered Person qualify under Section 401 of the Code and are in
compliance in all material respects with the provisions of ERISA.
Except with respect to events or occurrences which do not have
and are not reasonably likely to have a Material Adverse Effect:
(a) Prohibited Transactions. None of such Pension Benefit
Plans has participated in, engaged in or been a party to any
non-exempt prohibited transaction as defined in ERISA or the
Code, and no officer, director or employee of a Covered Person or
of an ERISA Affiliate of such Covered Person has committed a
breach of any of the responsibilities or obligations imposed upon
fiduciaries by Title I of ERISA.
(b) Claims. Other than normal claims for benefits, there
are no claims, pending or threatened, involving any such Pension
Benefit Plan by a current or former employee (or beneficiary
thereof) of such Covered Person or ERISA Affiliate of such
Covered Person, nor is there any reasonable basis to anticipate
any claims involving any such Pension Benefit Plan which would
likely be successfully maintained against such Covered Person or
ERISA Affiliate of such Covered Person.
(c) Reporting and Disclosure Requirements. There are no
violations of any reporting or disclosure requirements with
respect to any such Pension Benefit Plan and none of such Pension
Benefit Plans has violated any applicable Law, including ERISA
and the Code.
(d) Accumulated Funding Deficiency. No such Pension
Benefit Plan has (i) incurred an accumulated funding deficiency
<PAGE>
(within the meaning of Section 412(a) of the Code), whether or
not waived; (ii) been a Pension Benefit Plan with respect to
which a Reportable Event (to the extent that the reporting of
such events to the PBGC within thirty days of the occurrence has
not been waived) has occurred and is continuing; or (iii) been a
Pension Benefit Plan with respect to which there exist conditions
or events which have occurred that present a significant risk of
termination of such Pension Benefit Plan by the PBGC.
(e) Multi-Employer Plan. No Covered Person or ERISA
Affiliate of such Covered Person has received notice that any
Multi-employer Plan to which any Covered Person contributes or is
obligated to contribute is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no such
Multi-employer Plan is reasonably expected to be in
reorganization or to be terminated within the meaning of Title IV
of ERISA.
5.16 Welfare Benefit Plans. No Covered Person or ERISA
Affiliate of such Covered Person maintains a Welfare Benefit Plan
that has a liability which, if enforced or collected, would have
a Material Adverse Effect. Each Covered Person and ERISA
Affiliate of such Covered Person has complied in all material
respects with the applicable requirements of Section 4980B of the
Code pertaining to continuation coverage as mandated by COBRA.
5.17 State of Property. Each Covered Person has good and
marketable or merchantable title to all real and personal
property purported to be owned by it or reflected in the Initial
Financial Statements, except for property sold in the ordinary
course of business after the date of the Initial Financial
Statements and except for any defects in title which are not
reasonably likely to have a Material Adverse Effect. There are
no Security Interests on any of the property purported to be
owned by any Covered Person except Security Interests permitted
under this Agreement.
5.18 Subsidiaries. As of the Closing Date, Company has no
Subsidiaries other than the Subsidiaries listed in Schedule 5.18,
and all Material Domestic Subsidiaries are Guarantors. After the
Closing Date, all Material Domestic Subsidiaries are Guarantors
within the time period set forth in Section 6.10.
5.19 Margin Stock. Company is not engaged and will not
engage, principally or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U), and
none of the proceeds of any Loan will be used to purchase or
<PAGE>
carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for
any purpose which violates, or which would be inconsistent with,
the provisions of Regulation U. None of the transactions
contemplated by any Permitted Acquisition will violate Regulation
U of the FRB.
5.20 Hostile Securities Transactions. No proceeds of any
Loan will be used to acquire from any Person any security in a
transaction that is hostile from the point of view of such
Person.
5.21 Investment Company Act, Etc. No Borrower Party is an
investment company registered or required to be registered under
the Investment Company Act of 1940, as amended, or a company
controlled (within the meaning of such Investment Company Act) by
such an investment company or an affiliated person of, or
promoter or principal underwriter for, an investment company, as
such terms are defined in the Investment Company Act of 1940, as
amended. No Borrower Party is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act
or the Interstate Commerce Act.
5.22 Filings. All registration statements, reports, proxy
statements and other documents, if any, required to be filed by
Company with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, have been filed, and such
filings are complete and accurate in all material respects and
contain no untrue statements of material fact or omit to state
any material facts required to be stated therein or necessary in
order to make the statements therein not misleading in light of
the circumstances in which made.
5.23 Broker's Fees. No broker or finder is entitled to
compensation for services rendered with respect to the loan
transactions contemplated by this Agreement and the other Loan
Documents.
5.24 Year 2000. Company has (a) undertaken a review and
assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by customers
and vendors) that could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications and
devices containing imbedded computer chips used by any Borrower
Party or any of its Subsidiaries (or their respective customers
and vendors) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any
<PAGE>
date after December 31, 1999) in a manner that reasonably could
be expected to have a Material Adverse Effect, (b) developed a
plan and timeline for addressing any Material Adverse Effect that
could reasonably be expected to result from the Year 2000 Problem
in all material respects on a timely basis, and (c) to date,
implemented that plan in accordance with that timetable, except
where the failure to implement such a plan could not reasonably
be expected to have a Material Adverse Effect. Based on the
foregoing, Company believes that all computer applications and
devices containing imbedded computer chips (including those of
its and its Subsidiaries' customers and vendors) that are
material to its or any of its Subsidiaries' business and
operations are reasonably expected on a timely basis to be able
to perform properly date-sensitive functions for all dates before
and after January 1, 2000 (that is, be "Year 2000 Compliant"),
except to the extent that a failure to do so could not reasonably
be expected to have a Material Adverse Effect.
5.25 Indebtedness Outstanding on Closing Date.
Schedule 5.25 lists, as of the Closing Date, all outstanding
Indebtedness of Company and its Subsidiaries in excess of
$1,000,000, all Liens on property of Company and its Subsidiaries
securing Indebtedness in excess of $1,000,000 and all contractual
obligations undertaken by the Company and its Subsidiaries in
connection with Indebtedness in excess of $1,000,000 restricting
Liens on property of Company and its Subsidiaries.
5.26 Projections. Notwithstanding anything in the Loan
Documents to the contrary, no Borrower Party shall be construed
as having made any representation, warranty or covenant with
respect to any projection or forecast, or the achievement
thereof, except that whenever Company or its Subsidiaries shall
from time to time deliver projections in connection with any Loan
Document, to the best knowledge of Company when delivered, the
assumptions set forth in such projections are reasonable and
consistent with each other and with all facts known to Company at
such time, and such projections are reasonably based on such
assumptions.
5.27 Full Disclosure. Company has disclosed to
Administrative Agent and each Lender all information regarding
the business, operations, property, financial condition, or
business prospects of itself and every Covered Person which is
reasonably likely to have a Material Adverse Effect.
<PAGE>
SECTION 6.
AFFIRMATIVE COVENANTS
Until Final Payment, Company shall, and shall (except in the
case of Company's reporting covenants under Sections 6.01 and
6.02), cause each Subsidiary to:
6.01 Financial Statements. Deliver to Administrative Agent
with sufficient copies for each Lender:
(a) Annual Financial Statements. Within 90 days after the
close of each fiscal year of Company (unless Company has timely
filed a Form 12b-25 with the Securities and Exchange Commission
with respect to such fiscal year, in which case such period shall
be 105 days after the close of such fiscal year), year-end
consolidated and consolidating Financial Statements of Company
and its Subsidiaries, containing an audit report without
qualification (except as set forth therein) with respect to such
consolidated statements by Arthur Andersen LLP or such other
independent certified public accounting firm selected by Company
and satisfactory to Requisite Lenders.
(b) Quarterly Financial Statements. Within 45 days after
the end of each fiscal quarter of Company (unless Company has
timely filed a Form 12b-25 with the Securities and Exchange
Commission with respect to such fiscal quarter, in which case
such period shall be 50 days after the close of such fiscal
quarter), unaudited consolidated and consolidating Financial
Statements of Company and its Subsidiaries for the most recent
quarter not covered by the latest year-end Financial Statements
required hereunder to be delivered to Administrative Agent.
6.02 Certificates, Notices and Other Information. Deliver
to Administrative Agent in form and detail reasonably
satisfactory to Administrative Agent and Requisite Lenders, with
sufficient copies for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 6.01(a), a certificate of the
independent certified public accounting firm that examined such
consolidated Financial Statements to the effect that they have
reviewed and are familiar with this Agreement and that, in
examining such consolidated Financial Statements, nothing came to
their attention that caused them to believe that an event or
condition that constitutes a Default or Event of Default has
occurred or existed insofar as such conditions or events relate
<PAGE>
to accounting matters, except for those, if any, described in
reasonable detail in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in Section 6.01(a), or as promptly as
available thereafter, the management letter and report on
internal controls delivered by such independent certified public
accounting firm in connection with their audit of such
financials;
(c) concurrently with the delivery of the financial
statements referred to in Sections 6.01(a) and (b), a duly
completed Compliance Certificate signed by a Responsible Officer
of Company;
(d) promptly after their preparation, copies of any and all
(i) proxy statements, financial statements and reports which
Company makes available to its stockholders generally, and (ii)
reports, registration statements and prospectuses, if any, filed
by Company with any securities exchange or the Securities and
Exchange Commission or any Governmental Authority succeeding to
any of its functions;
(e) within the 120 days following the first day of each
fiscal year of Company, projected or forecasted consolidated
balance sheets, statements of income and expense, and statements
of cash flows for Company and its Subsidiaries (including any
Subsidiary then proposed to be acquired, organized or created in
connection with a Permitted Acquisition and to continue in
existence after consummation thereof) as of the end of and for
each fiscal quarter in such fiscal year in such reasonable detail
as Administrative Agent or any Lender may require;
(f) promptly upon any Responsible Officer of Company
becoming aware of the occurrence thereof, notice of any Default
or Event of Default;
(g) promptly after the its receipt thereof, a copy of, any
(i) notice that any violation of any Environmental Law may have
been committed or is about to be committed by any Covered Person,
which violation is reasonably likely to have a Material Adverse
Effect, (ii) notice that any administrative or judicial complaint
or order has been filed or is about to be filed against any
Covered Person alleging violations of any Environmental Law or
requiring such Covered Person to take any action in connection
with the release of any Hazardous Material into the environment,
which event is reasonably likely to have a Material Adverse
Effect, (iii) notice from a Governmental Authority or private
<PAGE>
Person alleging that a Covered Person may be liable or
responsible for costs associated with a response to or cleanup of
a release of Hazardous Material into the environment or any
damages caused thereby, which event is reasonably likely to have
a Material Adverse Effect, (iv) notice that a Covered Person is
subject to federal, state or local investigation regarding the
improper transportation, storage, disposal, generation or release
into the environment of any Hazardous Material, which event is
reasonably likely to have a Material Adverse Effect, or (v)
notice that any properties or assets of a Covered Person are
subject to a Security Interest in favor of any Governmental
Authority for any liability under any Environmental Law or
damages arising from or costs incurred by such Governmental
Authority in response to a release of Hazardous Material into the
environment, which event is reasonably likely to have a Material
Adverse Effect;
(h) promptly after the occurrence thereof, notice of (i)
the failure of any Covered Person or ERISA Affiliate of such
Covered Person to make any required installment or any other
required payment to any Pension Benefit in sufficient amount to
comply with ERISA and the Code on or before the due date for such
installment or payment, which event is reasonably likely to have
a Material Adverse Effect; (ii) the occurrence of any Reportable
Event, or a Prohibited Transaction or Accumulated Funding
Deficiency (as those terms are defined in ERISA), with respect to
any Pension Benefit Plan maintained or contributed to by a
Covered Person or ERISA Affiliate of such Covered Person, which
event is reasonably likely to have a Material Adverse Effect;
(iii) receipt by a Covered Person or ERISA Affiliate of such
Covered Person of any notice from a Multiemployer Plan regarding
the imposition of withdrawal liability, which event is reasonably
likely to have a Material Adverse Effect; and (iv) receipt by a
Covered Person or ERISA Affiliate of such Covered Person of any
notice of the institution, or a Covered Person's expectancy of
the institution, of any proceeding or receipt by such Covered
Person or ERISA Affiliate of such Covered Person of any notice of
the taking, or such Covered Person's expectancy of the taking, of
any other action which may result in the termination of any
Pension Benefit Plan maintained or contributed to by such Covered
Person or ERISA Affiliate of such Covered Person, or the
withdrawal or partial withdrawal by a Covered Person or ERISA
Affiliate of such Covered Person from any Pension Benefit Plan,
and the filing or receipt by a Covered Person or ERISA Affiliate
of such Covered Person of any such notice and filing or receipt
of all subsequent reports or notices under ERISA with or from the
IRS, the PBGC, or the DOL relating to the same, which event is
reasonably likely to have a Material Adverse Effect; and, in
<PAGE>
addition to such notice, deliver to Administrative Agent a
certificate of a Responsible Officer of Company, setting forth
details as to such events and the action that the affected
Covered Person or ERISA Affiliate of such Covered Person proposes
to take with respect thereto. For purposes of this Section, a
Covered Person and any ERISA Affiliate of such Covered Person
shall be deemed to know all facts known by the administrator of
any Plan of which such Covered Person or any ERISA Affiliate of
such Covered Person is the plan sponsor;
(i) promptly after the occurrence thereof, notice of any
default or event of default, or the occurrence of any event which
would with the passage of time, giving of notice or otherwise,
constitute a default or event of default with respect to any
Priority Debt in excess of $5,000,000;
(j) promptly after becoming aware thereof, notice of any
pending or threatened strike, work stoppage, material unfair
labor practice claim or other material labor dispute affecting a
Covered Person which is reasonably likely to have a Material
Adverse Effect;
(k) promptly after the occurrence thereof, notice of any
change in the name, state of incorporation, or form of
organization of any Borrower Party at least 15 days prior to such
change;
(l) promptly after any discovery or determination thereof,
notice of any computer application (including those of its
suppliers and vendors) that is material to the business and
operations of any Covered Person which will not be Year 2000
compliant on a timely basis, except to the extent that such
failure is not reasonably likely to have a Material Adverse
Effect;
(m) promptly after becoming aware thereof, notice of any
event that has or is reasonably likely to have a Material Adverse
Effect;
(n) promptly after becoming aware thereof, commencement of
any Material Proceeding;
(o) promptly after becoming aware thereof, notice of an
actual, alleged, or potential violation of any Material Law
applicable to a Covered Person.
(p) promptly after the occurrence thereof, notice of any
material loss, including loss as a consequence of condemnation
proceedings, or material damage to any material part of the
<PAGE>
assets of a Covered Person, if such loss, damage or proceeding is
reasonably likely to have a Material Adverse Effect;
(q) promptly after the request of Administrative Agent or
any Lender, a copy of each annual report or other filing or
notice filed with respect to each Pension Benefit Plan of any
Covered Person or any ERISA Affiliate;
(r) promptly after the request of Administrative Agent or
any Lender, a copy of each federal, state, or local tax return or
report filed by Company; and
(s) promptly after the request of Administrative Agent or
any Lender, such additional information about the business,
operations, revenues, financial condition, property, or business
prospects of any Borrower Party as Administrative Agent or any
Lender may, from time to time, reasonably request.
6.03 Use of Proceeds. Use all proceeds of the Loans solely
for working capital, general corporate purposes and to fund
payment of amounts due from Company or any Subsidiary in
connection with Permitted Acquisitions.
6.04 Corporate Existence. Except as a result of a
transaction permitted by Section 7.07, maintain its existence in
good standing and shall maintain in good standing its right to
transact business in those states in which it is now or hereafter
doing business, except where the failure to so qualify is not
reasonably likely to have a Material Adverse Effect, and obtain
and maintain all Material Licenses for such Covered Person.
6.05 Maintenance of Property and Leases. Maintain in good
condition and working order, and repair and replace as required,
all buildings, equipment, machinery, fixtures and other real and
personal property whose useful economic life has not elapsed and
which is necessary for the ordinary conduct of the business of
such Covered Person, the failure to maintain which is reasonably
likely to have a Material Adverse Effect, and maintain in good
standing and free of defaults all of its leases of buildings,
equipment, machinery, fixtures and other real and personal
property whose useful economic life has not elapsed and which is
necessary for the ordinary conduct of the business of such
Covered Person, the failure to maintain which is reasonably
likely to have a Material Adverse Effect.
6.06 Insurance. At all times keep insured or cause to be
kept insured, with financially sound and reputable insurers, all
property owned by it of a character usually insured by others
<PAGE>
carrying on businesses similar to that of such Covered Person in
such manner and to such extent and covering such risks as such
properties are usually insured, the failure to insure which is
reasonably likely to have a Material Adverse Effect, and at all
times carry insurance, with financially sound and reputable
insurers, against liability on account of damage to persons or
property (including product liability insurance and insurance
required under all applicable workers' compensation laws) and
covering all other liabilities common to such Covered Person's
business, in such manner and to such extent as such coverage is
usually carried by others conducting businesses similar to that
of such Covered Person, the failure to insure which would have a
Material Adverse Effect.
6.07 Payment of Taxes and Other Obligations. Promptly pay
and discharge or cause to be paid and discharged, as and when
due, all taxes lawfully assessed or imposed upon it, and all
taxes lawfully assessed upon any of its property, or upon the
income or profits therefrom, and all claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like
Persons for labor, materials, supplies, storage or other items or
services which if unpaid might be or become a Security Interest
or charge upon any of its property the failure to pay which is
reasonably likely to have a Material Adverse Effect; provided,
however, that a Covered Person may diligently contest in good
faith by appropriate proceedings the validity of any such taxes
or claims if Company has established adequate reserves therefor
in conformity with GAAP on the books of such Covered Person, and
no Security Interest, other than a Permitted Security Interest,
results from such non-payment.
6.08 Compliance With Laws. Comply with all Material Laws.
Without limiting the generality of the foregoing:
(a) Environmental Laws. Comply and shall use commercially
reasonable efforts to ensure compliance by all tenants,
subtenants and other occupants of the property of such Covered
Person, if any, with all Environmental Laws whose violation is
reasonably likely to have a Material Adverse Affect.
(b) Pension Benefit Plans. Shall, and shall cause each
ERISA Affiliate of such Covered Person to, at all times make
prompt payments or contributions to meet the minimum funding
standards under ERISA and the Code with respect to any Pension
Benefit Plan maintained by such Covered Person or ERISA Affiliate
of such Covered Person, and shall comply with all reporting and
disclosure requirements and all provisions of the Code and ERISA
applicable to any Pension Benefit Plan maintained by such Covered
<PAGE>
Person or ERISA Affiliate of such Covered Person, if
non-compliance therewith is reasonably likely to have a Material
Adverse Affect.
(c) Discovery and Clean-up of Hazardous Material. Upon
receiving notice of any violation of Environmental Laws or any
similar notice described in Section 6.02, or upon otherwise
discovering Hazardous Material on any property owned or operated
by such Covered Person which is in violation of, or which is
reasonably likely to result in liability under, any Environmental
Law which is reasonably likely to have a Material Adverse Effect,
shall: (i) promptly take such acts as may be necessary to prevent
danger or harm to the affected property or any person therein as
a result of such Hazardous Material, and (ii) take all necessary
steps to initiate and expeditiously complete all removal,
remedial, response, corrective and other action to eliminate any
such environmental problems, and keep Administrative Agent
informed of such actions and the results thereof.
6.09 Accounting System. Maintain a system of accounting
established and administered in accordance with GAAP.
6.10 Additional Guarantors. Within 90 days after any event
described in the definition of "Material Domestic Subsidiaries"
resulting in a Subsidiary being deemed a Material Domestic
Subsidiary hereunder, cause each such Material Domestic
Subsidiary to become a Guarantor by timely complying with the
applicable provisions of Section 4.03 and Section 9.8(e) of the
Note Purchase Agreement on its part to be performed by it in such
cases. Each and every obligation and condition under this
Agreement with respect to the delivery of the Master Guaranty or
a Material Domestic Subsidiary becoming a Guarantor hereunder
shall be subject to the prior or contemporaneous execution and
delivery by Administrative Agent and all Lenders of such
agreements as are contemplated by Section 9.8(e) of the Note
Purchase Agreement on their part to be performed in such cases.
Upon Final Payment, the Master Guaranty shall terminate and be of
no further force or effect, except with respect to provisions
thereof which by their terms survive the termination thereof,
subject to reinstatement as contemplated in Section 10.23.
6.11 Audits by Administrative Agent and Lenders. Permit
Administrative Agent and each Lender or Persons authorized by and
acting on behalf of Administrative Agent and each Lender at any
time and from time to time during normal business hours to audit
the books and records, and inspect any of the property, of each
Covered Person from time to time upon reasonable prior notice to
such Covered Person, and in the course thereof permit
<PAGE>
Administrative Agent and each Lender or such Persons to make
copies or abstracts of such books and records and discuss the
affairs, finances and books and records of such Covered Person
with its accountants, officers and employees. Company shall
cause each Covered Person to cooperate with Administrative Agent
and each Lender and such Persons in the conduct of such audits
and shall deliver to Administrative Agent and such Lender any
instrument necessary for Administrative Agent and each Lender to
obtain records from any service bureau maintaining records for
such Covered Person.
6.12 Access to Officers and Auditors. Permit Administrative
Agent and each Lender and Persons authorized by them, upon
reasonable prior notice and during normal business hours, to
discuss the affairs, finances and accounts of such Covered Person
with its officers and independent auditors as often as they may
reasonably request, and direct such officers and independent
auditors to cooperate with them and make full disclosure to them
of those matters that they may deem relevant to the continuing
ability of Company timely to pay and perform the Obligations.
6.13 Further Assurances. Execute and deliver to
Administrative Agent or each Lender such documents and
agreements, and shall take or cause to be taken such actions, as
Administrative Agent or any Lender may from time to time
reasonably request to carry out the terms and conditions of this
Agreement and the other Loan Documents.
SECTION 7.
NEGATIVE COVENANTS
Until Final Payment, Company shall not, nor shall it permit
(except with respect to Section 7.15) any Covered Person to
directly or indirectly:
7.01 Priority Debt. Create, incur, assume, or allow to
exist any Indebtedness that is Priority Debt unless and only to
the extent that:
(a) no Default or Event of Default is (unless waived)
continuing or will occur or has occurred or is reasonably likely
to occur as a consequence thereof; and
(b) the aggregate amount of all Priority Debt will not as a
consequence thereof exceed 10% of Company's Consolidated Adjusted
Net Worth, determined as of the end of the immediately preceding
fiscal quarter of Company, it being understood that for purposes
<PAGE>
hereof Priority Debt shall not include any Indebtedness
represented by a "Guaranty" (as such term is defined under the
Note Purchase Agreement) from a Guarantor hereunder.
7.02 Prepayments. Voluntarily prepay any Indebtedness
other than:
(a) the Obligations in accordance with the terms of the
Loan Documents;
(b) trade payables in the ordinary course of business;
(c) prepayments of Indebtedness with respect to industrial
revenue bonds outstanding on the Closing Date; and
(d) prepayments on the 7.88% Senior Notes, Series A, Due
February 14, 2007 of $110,000,000 aggregate original principal
amount that were issued by Company required or permitted under
the Note Purchase Agreement.
7.03 Security Interests. Create, incur, assume or allow to
exist any Security Interest upon all or any part of its property,
real or personal, now owned or hereafter acquired, except
Security Interests:
(a) for taxes, assessments or governmental charges not
delinquent or being diligently contested in good faith and by
appropriate proceedings and for which adequate book reserves in
accordance with GAAP are maintained;
(b) arising out of pledges and deposits in connection with
workers' compensation insurance, unemployment insurance, old age
pensions, or other social security or retirement benefits
legislation;
(c) arising out of deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds,
and other obligations of like nature arising in the ordinary
course of business;
(d) imposed by any Law, such as mechanics', workmen's,
materialmen's, landlords', carriers', or other like Security
Interests arising in the ordinary course of business which secure
payment of obligations which are not past due or which are being
diligently contested in good faith by appropriate proceedings and
for which adequate book reserves in accordance with GAAP are
maintained;
<PAGE>
(e) in favor of Administrative Agent on behalf of Lenders;
and
(f) that are "Liens" as defined in the Note Purchase
Agreement but permitted thereunder to be created, incurred,
assumed or allowed to exist.
7.04 Acquisitions. Utilize any of the proceeds of any Loan
to acquire all or a material part of the assets of a Person,
regardless of the form of the transaction, except in a Permitted
Acquisition.
7.05 Disposal of Property. Sell, lease, transfer, abandon
as obsolete or otherwise dispose of assets (each, a
"Disposition"), or enter into any agreement or arrangement with
any Person providing for any Disposition, except Dispositions
permitted under Section 10.7(b) of the Note Purchase Agreement;
provided, however, no such Disposition may be effected by Company
or any Subsidiary organized under the laws of the United States
or any state of the United States (other than a domesticated
Foreign Subsidiary) to any Subsidiary of the Company not so
organized (A) while United States Assets do not exceed 60% of
Total Assets measured as of the most recent fiscal quarter-end or
(B) if, after giving effect to such Disposition, United States
Assets would not exceed 60% of Total Assets, measured on a pro
forma basis as of the most recent fiscal quarter-end.
7.06 Restricted Payments. At any time a Default or Event of
Default is (unless waived) continuing, directly or indirectly
declare or make, or incur any liability to make, any Restricted
Payment, unless and only to the extent that such a Restricted
Payment is permitted under the Note Purchase Agreement.
7.07 Mergers and Consolidations. Merge or consolidate with
or be a party to a merger with any other Person, or sell, lease
or otherwise dispose of all or substantially all of its assets;
except:
(a) transactions not prohibited by Section 7.05;
(b) other mergers and consolidations;
provided, however, that in the case of subsection (a) or (b)
above: (i) in any merger or consolidation involving Company,
Company shall be the surviving or continuing corporation, (ii) in
any merger or consolidation involving a Wholly-Owned Subsidiary,
the continuing or surviving corporation shall be a Wholly-Owned
Subsidiary, and (iii) in any merger or consolidation involving a
<PAGE>
Subsidiary, the continuing or surviving corporation shall be a
Subsidiary.
7.08 Change of Business. Engage in any business other than
substantially as conducted on the Closing Date by Company or any
of its Subsidiaries or a business reasonably related thereto or
in furtherance thereof.
7.09 Transactions With Affiliates. Enter into or be a party
to any material transaction or arrangement, including the
purchase, sale or exchange of property of any kind or the
rendering of any service material to the operations of Company
and the Subsidiaries taken as a whole, with any Affiliate, or
make any loans or advances to any Affiliate except:
(a) transactions with another Covered Person; and
(b) transactions in the ordinary course of business and
pursuant to the reasonable requirements of its business and on
fair and reasonable terms substantially as favorable to it as
those which it could obtain in a comparable arm's-length
transaction with a non-Affiliate.
7.10 Conflicting Agreements, Etc. Enter into any agreement,
engage in any transaction, acquire or create any Subsidiary, or
transfer assets to any Subsidiary (whether or not it is actively
engaged in a trade or business) that would immediately or in a
reasonably foreseeable time result in a Default or Event of
Default; or enter into any agreement that would immediately or in
a reasonably foreseeable time, if fully complied with or
performed by it, result in a Default or Event of Default.
7.11 Sale and Leaseback Transactions. Enter into any
agreement or arrangement with any Person providing for Company or
a Covered Person to lease or rent property that Company or a
Covered Person has or will sell or otherwise transfer to such
Person, except upon terms no less favorable than in an
arms-length transaction in which Company or such Covered Person
will receive a cash payment upon such sale or transfer equal to
the fair market value of such property.
7.12 Fiscal Year. Change its fiscal year.
7.13 Transactions Having a Material Adverse Effect on a
Covered Person. Enter into any transaction which has or is
reasonably likely to have a Material Adverse Effect.
<PAGE>
7.14 Termination of Pension Benefit Plan. Terminate or
amend, or permit any ERISA Affiliate of any Covered Person to
terminate or amend, any Pension Benefit Plan maintained by such
Covered Person or ERISA Affiliate of such Covered Person if such
termination or amendment would result in any liability to such
Covered Person or ERISA Affiliate of such Covered Person under
ERISA which is reasonably likely to have a Material Adverse
Effect or any increase in current liability for the plan year for
which such Covered Person or ERISA Affiliate of such Covered
Person is required to provide security to such Pension Benefit
Plan under the Code which is reasonably likely to have a Material
Adverse Effect.
7.15 Financial Covenants.
(a) Minimum Fixed Charge Coverage Ratio. Until Final
Payment permit, as at the end of each fiscal quarter, the ratio
of Consolidated Cash Flow Available for Fixed Charges for the
four consecutive fiscal quarter period ending at such date to
Consolidated Fixed Charges for such four consecutive fiscal
quarter period to be less than 2.50 to 1.
(b) Minimum Consolidated Adjusted Net Worth. Until Final
Payment permit Consolidated Adjusted Net Worth to be less than
the sum of (a) $100,000,000 plus (b) 50% of Consolidated Net
Earnings computed on a cumulative basis for each of the elapsed
fiscal years ending after December 31, 1996; provided that
notwithstanding that Consolidated Net Earnings for any such
elapsed fiscal year may be a deficit figure, no reduction as a
result thereof shall be made on the sum to be maintained pursuant
hereto.
(c) Minimum Consolidated Total Indebtedness Ratio. Until
Final Payment permit the ratio of Consolidated Total Indebtedness
to Consolidated Total Capitalization to exceed 0.55 to 1;
provided that in connection with any calculation of Indebtedness
for purposes of determining compliance with this subsection,
there shall be excluded all Indebtedness of Company and its
Subsidiaries outstanding under any revolving credit agreement
between Company and a committed bank or banks (including, without
limitation, this Agreement) if, during the 365-day period
immediately preceding the date of any such calculation of
Indebtedness, there shall have been a period of at least 60
consecutive days on each day of which Indebtedness of Company and
its Subsidiaries outstanding under such revolving credit
agreement is equal to zero by virtue, and solely by virtue, of
such Indebtedness having been paid from general corporate funds
<PAGE>
of Company and not from funds borrowed by Company or any
Subsidiary pursuant to any other revolving credit agreement for
the purpose of paying such Indebtedness. If there shall not have
been such 60 consecutive day period on each day of which such
Indebtedness was equal to zero, then and in such event there
shall be included in such calculation of Indebtedness for
purposes of this subsection an amount equal to the average
aggregate amount of all Indebtedness outstanding under such
revolving credit agreement during such preceding 365-day period.
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any one or more of the following
events shall constitute an Event of Default:
(a) Payment of Principal. Any Borrower fails to pay any
principal on any Outstanding Obligation (other than fees) as and
on the date when due; or
(b) Payment of Interest, Fees and Other Amounts. Any
Borrower Party fails to pay (i) any interest on any Outstanding
Obligation within five days after the date when due, or (ii) any
other fees or amount due under any Loan Document within five days
after notice from Administrative Agent that the same is due; or
(c) Reporting, Audits and Access Covenants and Certain
Negative Covenants. Any default occurs in the observance or
performance of any agreement contained in Section 6.01, 6.02(a),
(b), (c) or (f), 6.11, 6.12, 7.01, 7.04, 7.06, 7.07, 7.08, 7.12,
7.14, 7.15; or
(d) Other Defaults. Any Borrower Party defaults in the
performance of or compliance with any term contained in any Loan
Document (other than those otherwise referred to in this Section
8) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge
of such default and (ii) the Company receiving written notice of
such default from Administrative Agent or any Lender; or
(e) Representations and Warranties. Any representation or
warranty contained in Section 5, or which is contained in the
Master Guaranty, any Compliance Certificate or any other material
certificate furnished at any time under or in connection with any
Loan Document proves to have been incorrect in any material
respect when made or deemed made; or
<PAGE>
(f) Cross Default.
(a) (i) Any Borrower Party (x) defaults in any payment when
due of principal of or interest on any Indebtedness (other than
Indebtedness hereunder) having an aggregate principal amount in
excess of $10,000,000 which default continues unwaived beyond any
applicable grace period or (y) defaults in the observance or
performance of any other agreement or condition relating to any
Indebtedness (other than Indebtedness hereunder) in excess of
$10,000,000 which default continues unwaived beyond any
applicable grace period or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other
event shall occur, the effect of which default or other event is
to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice
if required, Indebtedness having an aggregate principal amount in
excess of $10,000,000 to be demanded or become due (automatically
or otherwise) prior to its stated maturity, or any Guaranty
Obligation with respect to Indebtedness in such amount to become
payable or cash collateral in respect thereof to be demanded, or
(ii) the occurrence under any Swaps of an Early Termination Date
(as defined in such Swaps) resulting from (x) any event of
default under such Swaps as to which Company or any Subsidiary is
the Defaulting Party (as defined in such Swaps) or (y) the
occurrence of any Termination Event under such Swap Contract (as
defined therein) as to which Company or any Subsidiary is an
Affected Party (as so defined) as a result of which, in either
event, the Swap Termination Value owed by Company or such
Subsidiary is greater than $10,000,000; or
(g) Bankruptcy; Insolvency; Etc. Any Borrower Party (i)
fails to pay, or admits in writing its inability to pay, its
debts generally as they become due, or otherwise becomes
insolvent (however evidenced); (ii) makes a general assignment
for the benefit of creditors; (iii) files a petition in
bankruptcy, is adjudicated insolvent or bankrupt, petitions or
applies to any tribunal for any receiver or any trustee of any
Borrower Party or any substantial part of its property; (iv)
commences any proceeding relating to any Borrower Party under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; (v) has commenced against it any such
proceeding which remains undismissed for a period of 60 days, or
by any act indicates its consent to, approval of, or acquiescence
in any such proceeding or the appointment of any receiver of or
any trustee for it or any substantial part of its property, or
allows any such receivership or trusteeship to continue
<PAGE>
undischarged for a period of 60 days; or (vi) takes any corporate
action to authorize any of the foregoing; or
(h) Judgments; Attachment; Etc. Any one or more judgments
or orders is entered against a Covered Person or any attachment
or other levy is made against the property of a Covered Person
with respect to a claim or claims involving in the aggregate
liabilities (not paid or fully covered by insurance, less the
amount of deductibles satisfactory to Requisite Lenders) greater
than $3,000,000 becomes final and non-appealable and is not fully
discharged within 45 days thereafter, or if timely appealed is
not fully bonded and collection thereof stayed pending the
appeal; or
(i) Pension Benefit Termination, Etc. Any termination by
the PBGC of a Pension Benefit Plan of Company or an ERISA
Affiliate of Company or the appointment by the appropriate United
States District Court of a trustee to administer any Pension
Benefit Plan of Company or an ERISA Affiliate of Company or to
liquidate any Pension Benefit Plan of Company or an ERISA
Affiliate of Company; or any event which constitutes grounds
either for the termination of any Pension Benefit Plan of Company
or an ERISA Affiliate of Company by PBGC or for the appointment
by the appropriate United States District Court of a trustee to
administer or liquidate any Pension Benefit Plan of Company or an
ERISA Affiliate of Company has occurred and is continuing for 30
days after Company has notice of any such event; or any voluntary
termination of any Pension Benefit Plan of Company or an ERISA
Affiliate of Company which is a defined benefit pension plan as
defined in Section 3(35) of ERISA while such defined benefit
pension plan has an accumulated funding deficiency, unless
Administrative Agent has been notified of such intent to
voluntarily terminate such plan and Requisite Lenders have given
their consent and agreed that such event shall not constitute an
Event of Default; or the plan administrator of any Pension
Benefit Plan of Company or an ERISA Affiliate of Company applies
under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(1) of the Code and Requisite
Lenders determine that the substantial business hardship upon
which the application for such waiver is based could subject
Company or any ERISA Affiliate of Company to a liability in
excess of $3,000,000; or
(j) Liquidation or Dissolution. Except as permitted by
this Agreement, any Borrower Party files a certificate of
dissolution under applicable state law or is liquidated or
dissolved, or has commenced against it any action or proceeding
<PAGE>
for its liquidation or dissolution which is not dismissed within
60 days, or takes any corporate action in furtherance thereof; or
(k) Seizure of Assets. Any property of any Borrower Party
which, in the aggregate, exceeds $10,000,000 is nationalized,
expropriated, seized or otherwise appropriated, or custody or
control of such property or of any Covered Person is assumed by
any Governmental Authority, unless the same is being contested in
good faith by appropriate proceedings diligently pursued and a
stay of enforcement is in effect; or
(l) Racketeering Proceeding. There is filed against a
Covered Person any criminal action, suit or proceeding under any
federal or state racketeering statute (including, without
limitation, the Racketeer Influenced and Corrupt Organization Act
of 1970), which action, suit or proceeding is not dismissed
within 120 days and could result in the confiscation or
forfeiture of property of such Covered Person that results or is
reasonably likely to result in a Material Adverse Effect; or
(m) Loan Documents. Any Loan Document ceases to be in full
force and effect or is terminated, revoked or declared void or
invalid; or any Borrower Party denies any further liability under
any Loan Document to which it is a party, or asserts that any
such Loan Document is unenforceable or void; or
(n) Qualified Audit Report. Any of the fiscal year-end
Financial Statements required under Section 6.01 to be delivered
to Administrative Agent contains an audit report which is
qualified; or
(o) Material Adverse Change. There occurs any event which
is reasonably likely to result in any Borrower being unable to
make payments of principal or interest as required hereunder.
8.02 Remedies Upon Event of Default. Without limiting any
other rights or remedies of Administrative Agent or Lenders
provided for elsewhere in this Agreement, or the other Loan
Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in
Section 8.01(g):
(i) Requisite Lenders may request Administrative Agent
to, and Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid
principal of all Loans, all interest accrued and unpaid
<PAGE>
thereon and all other amounts payable under the Loan
Documents to be immediately due and payable, whereupon the
same shall become and be immediately due and payable,
without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly
waived by each Borrower Party; and
(ii) Issuing Lender may, with the approval of
Administrative Agent on behalf of Requisite Lenders, but
subject to Section 2.03(b), demand immediate payment by
Borrowers of an amount equal to the aggregate amount of all
outstanding Letter of Credit Usage to be held in a Letter of
Credit Cash Collateral Account.
(b) Upon the occurrence of any Event of Default described
in Section 8.01(g):
(i) the Commitments and all other obligations of
Administrative Agent or Lenders shall automatically
terminate without notice to or demand upon any Borrower
Party, which are expressly waived by Borrower;
(ii) the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable
under the Loan Documents shall be immediately due and
payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are
expressly waived by each Borrower Party; and
(iii) subject to Section 2.03(b), an amount equal
to the aggregate amount of all outstanding Letter of Credit
Usage shall be immediately due and payable to Issuing Lender
without notice to or demand upon any Borrower Party, which
are expressly waived by each Borrower Party, to be held in a
Letter of Credit Cash Collateral Account.
(c) Upon the occurrence of any Event of Default, Lenders
and Administrative Agent, or any of them, without notice to
(except as expressly provided for in any Loan Document) or
demand, which are expressly waived by each Borrower Party (except
as to notices expressly provided for in any Loan Document), may
proceed to (but only with the consent of Requisite Lenders)
protect, exercise and enforce their rights and remedies under the
Loan Documents against any Borrower Party and such other rights
and remedies as are provided by Law or equity.
(d) Except as permitted by Section 10.05, no Lender may
exercise any rights or remedies with respect to the Obligations
<PAGE>
without the consent of Requisite Lenders in their sole and
absolute discretion. The order and manner in which
Administrative Agent's and Lenders' rights and remedies are to be
exercised shall be determined by Requisite Lenders in their sole
and absolute discretion. Regardless of how a Lender may treat
payments for the purpose of its own accounting, for the purpose
of computing the Obligations hereunder, payments shall be applied
first, to costs and expenses (including Attorney Costs) incurred
by Administrative Agent and each Lender, second, to the payment
of accrued and unpaid interest on the Loans to and including the
date of such application, third, to the payment of the unpaid
principal of the Loans, and fourth, to the payment of all other
amounts (including fees) then owing to Administrative Agent and
Lenders under the Loan Documents, in each case paid pro rata to
each Lender in the same proportions that the aggregate
Obligations owed to each Lender under the Loan Documents bear to
the aggregate Obligations owed under the Loan Documents to all
Lenders, without priority or preference among Lenders. No
application of payments will cure any Event of Default, or
prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or
continued exercise, of rights or remedies of Administrative Agent
and Lenders hereunder or thereunder or at Law or in equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably (subject to Section
9.09) appoints, designates and authorizes Administrative Agent to
take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document, Administrative
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall Administrative Agent have
or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against Administrative
Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with
reference to Administrative Agent is not intended to connote any
<PAGE>
fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as
Administrative Agent may agree at the request of Requisite
Lenders to act for such Issuing Lender with respect thereto;
provided, however, that Issuing Lender shall have all of the
benefits and immunities (i) provided to Administrative Agent in
this Section 9 with respect to any acts taken or omissions
suffered by Issuing Lender in connection with Letters of Credit
issued by it or proposed to be issued by it and the application
and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in
this Section 9 included Issuing Lender with respect to such acts
or omissions, and (ii) as additionally provided in this Agreement
with respect to Issuing Lender.
9.02 Delegation of Duties. Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document
by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful
misconduct.
9.03 Liability of Administrative Agent. No Administrative
Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set
forth herein), or (b) be responsible in any manner to any Lender
for any recital, statement, representation or warranty made by
any Borrower Party or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for
in, or received by Administrative Agent under or in connection
with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any
Borrower Party or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Administrative
<PAGE>
Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the
properties, books or records of any Borrower Party or any
Subsidiary or Affiliate thereof.
9.04 Reliance by Administrative Agent.
(a) Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and
upon advice and statements of legal counsel (including counsel to
any Borrower Party), independent accountants and other experts
selected by Administrative Agent. Administrative Agent shall be
fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or
concurrence of Requisite Lenders as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction
by 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. Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request
or consent of Requisite Lenders or all Lenders, if required
hereunder, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all of Lenders. Where
this Agreement expressly permits or prohibits an action unless
Requisite Lenders otherwise determine, and in all other
instances, Administrative Agent may, but shall not be required
to, initiate any solicitation for the consent or a vote of
Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 4.01, each Lender shall be deemed
to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by Administrative
Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
9.05 Notice of Default. Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to defaults in
<PAGE>
the payment of principal, interest and fees required to be paid
to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a
Lender or Company referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a
"notice of default". Administrative Agent will notify Lenders of
its receipt of any such notice. Administrative Agent shall take
such action with respect to such Default or Event of Default as
may be directed by Requisite Lenders in accordance with Section
8; provided, however, that unless and until Administrative Agent
has received any such direction, Administrative Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of
Lenders.
9.06 Credit Decision; Disclosure of Information by
Administrative Agent. Each Lender acknowledges that no
Administrative Agent-Related Person has made any representation
or warranty to it, and that no act by Administrative Agent
hereinafter taken, including any consent to and acceptance of any
assignment or review of the affairs of any Borrower Party or any
of its Subsidiaries or Affiliates, shall be deemed to constitute
any representation or warranty by any Administrative Agent-
Related Person to any Lender as to any matter, including whether
Administrative Agent-Related Persons have disclosed material
information in their possession. Each Lender, including any
Lender by assignment, represents to Administrative Agent that it
has, independently and without reliance upon any Administrative
Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of any
Borrower Party and its Subsidiaries and Affiliates, and all
applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to any Borrower Party hereunder.
Each Lender also represents that it will, independently and
without reliance upon any Administrative Agent-Related Person and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and
other condition and creditworthiness of any Borrower Party and
its Subsidiaries and Affiliates. Except for notices, reports and
other documents expressly required to be furnished to Lenders by
<PAGE>
Administrative Agent herein, Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects,
operations, property, financial and other condition or
creditworthiness of any Borrower Party or any of its Subsidiaries
or Affiliates which may come into the possession of any
Administrative Agent-Related Person.
9.07 Indemnification of Administrative Agent. Whether or
not the transactions contemplated hereby are consummated, Lenders
shall indemnify upon demand each Administrative Agent-Related
Person (to the extent not reimbursed by or on behalf of any
Borrower Party and without limiting the obligation of any
Borrower Party to do so), pro rata, and hold harmless each
Administrative Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that
no Lender shall be liable for the payment to any Administrative
Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Person's gross negligence or
willful misconduct; provided, however, that no action taken in
accordance with the directions of Requisite Lenders shall be
deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by Administrative Agent in
connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated
by or referred to herein, to the extent that Administrative Agent
is not reimbursed for such expenses by or on behalf of any
Borrower Party. The undertaking in this Section shall survive
the payment of all Obligations hereunder and the resignation or
replacement of Administrative Agent.
9.08 Administrative Agent in Individual Capacity. Bank of
America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with any
Borrower Party and its Subsidiaries and Affiliates as though Bank
of America were not Administrative Agent or Issuing Lender
hereunder and without notice to or consent of Lenders. Lenders
acknowledge that, pursuant to such activities, Bank of America or
its Affiliates may receive information regarding any Borrower
Party or its Affiliates (including information that may be
<PAGE>
subject to confidentiality obligations in favor of any Borrower
Party or such Affiliate) and acknowledge that Administrative
Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the
same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not Administrative
Agent or Issuing Lender.
9.09 Successor Administrative Agent. Administrative Agent
may, and at the request of Requisite Lenders shall, resign as
Administrative Agent upon 30 days' notice to Lenders. If
Administrative Agent resigns under this Agreement, Requisite
Lenders shall appoint from among Lenders a successor
administrative agent for Lenders which successor administrative
agent shall be subject to the prior written consent of Company at
all times other than during the existence of an Event of Default
(which approval of Company shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed
prior to the effective date of the resignation of Administrative
Agent, Administrative Agent may appoint, after consulting with
Lenders and Company, a successor administrative agent from among
Lenders, subject to the prior written consent of Company at all
times other than during the existence of an Event of Default
(which approval of Company shall not be unreasonably withheld or
delayed). Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative
agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring
Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Section 9 and Sections 10.03 and
10.13 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement. If no successor administrative agent has
accepted appointment as Administrative Agent by the date which is
30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and Lenders shall
perform all of the duties of Administrative Agent hereunder until
such time, if any, as Requisite Lenders appoint a successor agent
as provided for above. Notwithstanding the foregoing, however,
Bank of America may not be removed as Administrative Agent at the
request of Requisite Lenders unless Bank of America shall also
simultaneously be replaced as "Issuing Lender" hereunder pursuant
to documentation in form and substance reasonably satisfactory to
Bank of America.
<PAGE>
SECTION 10.
MISCELLANEOUS
10.01 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of
this Agreement or any other Loan Document, no approval or consent
thereunder, and no consent to any departure by any Borrower Party
therefrom shall be effective unless in writing signed by all
Borrowers and Requisite Lenders and acknowledged by
Administrative Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given. Except as otherwise expressly provided
herein, without the approval in writing of Administrative Agent
and all Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective to:
(a) Reduce the amount of principal or required principal
payments or prepayments of any Outstanding Obligations;
(b) Reduce the rate of interest payable on any Outstanding
Obligations or the amount of any fee or other amount payable to
any Lender under the Loan Documents (unless consented to by each
Lender entitled to receive such fee or other amount), including
in each case, any change in the way any financial covenant used
to determine the Applicable Amount is calculated;
(c) Waive an Event of Default consisting of the failure of
any Borrower to pay when due principal, interest or any
commitment fee;
(d) Postpone any date fixed for any payment of principal
of, prepayment of principal of, or any installment of interest
on, any Loan or any installment of any commitment fee, to extend
the term of, or increase the amount of, any Lender's Commitment
(it being understood that a waiver of any Event of Default not
referred to in subsection (c) above shall require only the
consent of Required Lenders) or modify the Pro Rata Share of any
Lender;
(e) Amend the definition of "Requisite Lenders" or the
provisions of Section 4, Section 9, this Section 10.01 or
Section 10.06; or
(f) Amend any provision of this Agreement that expressly
requires the consent or approval of all Lenders;
<PAGE>
provided, however, that (i) no amendment, waiver or consent
shall, unless in writing and signed by Issuing Lender in addition
to Requisite Lenders or all Lenders, as the case may be, affect
the rights or duties of Issuing Lender, (ii) no amendment, waiver
or consent shall, unless in writing and signed by Administrative
Agent in addition to Requisite Lenders or all Lenders, as the
case may be, affect the rights or duties of Administrative Agent,
and (iii) any fee letters may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section shall apply equally to, and
shall be binding upon, all Lenders and Administrative Agent.
10.02 Transmission and Effectiveness of Communications
and Signatures.
(a) Modes of Delivery. Except as otherwise provided in any
Loan Document, notices, requests, demands, directions, agreements
and documents delivered in connection with the Loan Documents
(collectively, "communications") shall be transmitted by
Requisite Notice to the number and address set forth on Schedule
10.02, may be delivered by the following modes of delivery, and
shall be effective as follows:
Mode of Delivery
Effective on earlier of actual receipt and:
Courier
Scheduled delivery date
Facsimile
When transmission in legible form complete
Mail
Fourth Business Day after deposit in U.S.
mail first class postage pre-paid
Personal delivery
When received
Telephone
When conversation completed
Electronic Mail
When received
provided, however, that communications delivered to
Administrative Agent pursuant to Section 2 shall not be effective
until actually received by Administrative Agent.
(b) Reliance by Administrative Agent and Lenders.
Administrative Agent and Lenders shall be entitled to rely and
act on any communications purportedly given by or on behalf of
any Borrower Party even if (i) such communications (A) were not
made in a manner specified herein, (B) were incomplete or (C)
were not preceded or followed by any other notice specified
herein, or (ii) the terms thereof, as understood by the
<PAGE>
recipient, varied from any subsequent related communications
provided for herein. Company shall indemnify Administrative
Agent and Lenders from any loss, cost, expense or liability as a
result of relying on any communications permitted herein.
(c) Effectiveness of Facsimile Documents and Signatures.
Loan Documents may be transmitted and/or signed by facsimile.
The effectiveness of any such documents and signatures shall,
subject to applicable Law, have the same force and effect as
hardcopies with manual signatures and shall be binding on all
Borrower Parties and Administrative Agent and Lenders.
Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed hardcopy thereof;
provided, however, that the failure to request or deliver any
such manually-signed hardcopy shall not affect the effectiveness
of any facsimile document or signature.
(d) Effectiveness of Electronic Mail. Electronic mail may
be used to distribute routine communications, such as financial
statements and other information and to distribute agreements and
other documents to be signed by Lenders; provided, however, that
no Request for Extension of Credit or executed or legally-binding
notice, agreement, waiver, amendment or other communication may
be sent by electronic mail.
10.03 Attorney Costs, Expenses and Taxes. Company
agrees (a) to pay or reimburse Administrative Agent for all costs
and expenses incurred in connection with the development,
preparation, negotiation and execution of any amendment, waiver,
consent, supplement or modification requested by Company to, any
Loan Documents, and any other documents prepared in connection
therewith, including all Attorney Costs, and (b) after the
occurrence of a Default or Event of Default (whether or not
waived) or in connection with transactions requested by Company,
to pay or reimburse Administrative Agent and each Lender for all
costs and expenses incurred in connection with any refinancing,
restructuring, reorganization (including a bankruptcy
reorganization) and enforcement or attempted enforcement, or
preservation of any rights under any Loan Documents, and any
other documents prepared in connection herewith or therewith, or
in connection with any refinancing, or restructuring of any such
documents in the nature of a "workout" or of any insolvency or
bankruptcy proceeding, including Attorney Costs. The foregoing
costs and expenses shall include all search, filing, recording,
title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by
Administrative Agent and the cost of independent public
accountants and other outside experts retained by Administrative
<PAGE>
Agent or any Lender. The agreements in this Section shall
survive repayment of all Obligations.
10.04 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which a
Borrower Party is a party will be binding upon and inure to the
benefit of each Borrower Party, Administrative Agent, Lenders and
their respective successors and assigns, except that, no Borrower
Party may assign its rights hereunder or thereunder or any
interest herein or therein without the prior written consent of
all Lenders and any such attempted assignment shall be void. Any
Lender may at any time pledge its Note or any other instrument
evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release such
Lender from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent foreclosure
of such pledge.
(b) From time to time following the Closing Date, each
Lender may assign to one or more Eligible Assignees all or any
portion of its Commitment and/or Extensions of Credit; provided
that (i) such assignment, if not to a Lender or an Affiliate of
the assigning Lender, shall be subject to the prior written
consent of Company at all times other than during the existence
of a Default or Event of Default and by Administrative Agent, and
Issuing Lender (which approval of Company shall not be
unreasonably withheld or delayed), (ii) a copy of a duly signed
and completed Assignment and Acceptance shall be delivered to
Administrative Agent, (iii) except in the case of an assignment
(A) to an Affiliate of the assigning Lender or to another Lender
or (B) of the entire remaining Commitment of the assigning
Lender, the portion of the Commitment assigned shall not be less
than the Minimum Amount therefor, (iv) the effective date of any
such assignment shall be as specified in the Assignment and
Acceptance, but not earlier than the date which is five Business
Days after the date Administrative Agent has received the
Assignment and Acceptance and (v) such assignee Lender shall
become a "Creditor" under and as defined in the Intercreditor
Agreement by executing and delivering a counterpart thereof and
complying with the provisions thereof. Upon obtaining any
consent required as set forth in the prior sentence and payment
of the requisite fee described below, the assignee named therein
shall be a Lender for all purposes of this Agreement, with the
Pro Rata Share therein set forth and, to the extent of such Pro
Rata Share, the assigning Lender shall be released from its
further obligations under this Agreement. Each Borrower agrees
that it shall execute and deliver upon request (against delivery
<PAGE>
by the assigning Lender to such Borrower of any Note) to such
assignee Lender, one or more Notes evidencing such assignee
Lender's Loans, and to the assigning Lender, if requested, one or
more Notes evidencing Loans under any Commitment retained by the
assigning Lender. Administrative Agent's consent to any
assignment shall not be deemed to constitute any representation
or warranty by any Administrative Agent-Related Person as to any
matter. For purposes hereof, each mutual fund that is an
Affiliate of a Lender shall be deemed to be a single Eligible
Assignee, whether or not such fund is managed by the same fund
manager as other mutual funds that are Affiliates of the same
Lender.
(c) After receipt of a completed Assignment and Acceptance,
and receipt of an assignment fee of $3,500 from such Eligible
Assignee (including in the case of assignments to Affiliates of
assigning Lenders), Administrative Agent shall, promptly
following the effective date thereof, provide to Company and
Lenders a revised Schedule 10.02 giving effect thereto.
(d) Each Lender may from time to time, without the consent
of any other Person, grant participations to one or more other
Person (including another Lender) all or any portion of its Pro
Rata Share of its Commitment and/or Extensions of Credit;
provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or
other financial institutions shall not be a Lender hereunder for
any purpose except, if the participation agreement so provides,
for the purposes of Section 3 (but only to the extent that the
cost of such benefits to Company does not exceed the cost which
Company would have incurred in respect of such Lender absent the
participation) and subject to Sections 10.05 and 10.06, (iv)
Borrowers, Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, (v) the participation agreement shall not restrict an
increase in the combined Commitments or in the granting Lender's
Commitment or Pro Rata Share, so long as the amount of the
participation interest is not increased, and (vi) the consent of
the holder of such participation interest shall not be required
for amendments or waivers of provisions of the Loan Documents;
provided, however, that the assigning Lender may, in any
agreement with a participant, give such participant the right to
consent to any matter which (A) extends the Maturity Date as to
such participant or any other date upon which any payment of
money is due to such participant, (B) reduces the rate of
<PAGE>
interest owing to such participant, any fee or any other monetary
amount owing to such participant, or (C) reduces the amount of
any installment of principal owing to such participant. Any
Lender that sells a participation to any Person that is a
"foreign corporation, partnership or trust" within the meaning of
the Code shall include in its participation agreement with such
Person a covenant by such Person that such Person will comply
with the provisions of Section 10.21 as if such Person were a
Lender and provide that Administrative Agent and Borrowers shall
be third party beneficiaries of such covenant.
10.05 Set-off. In addition to any rights and remedies
of Administrative Agent and Lenders or any assignee or
participant of any Lender or any Affiliate thereof (each, a
"Proceeding Party") provided by law, upon the occurrence and
during the continuance of any Event of Default, each Proceeding
Party is authorized at any time and from time to time, without
prior notice to any Borrower Party, any such notice being waived
by Borrower Parties to the fullest extent permitted by law, to
proceed directly, by right of set-off, banker's lien, or
otherwise, against any assets of the Borrower Parties which may
be in the hands of such Proceeding Party (including all general
or special, time or demand, provisional or other deposits and
other indebtedness owing by such Proceeding Party to or for the
credit or the account of a Borrower) and apply such assets
against the Obligations, irrespective of whether such Proceeding
Party shall have made any demand therefor and although such
Obligations may be unmatured. Each Lender agrees promptly to
notify Company and Administrative Agent after any such set-off
and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application.
10.06 Sharing of Payments. Each Lender agrees that if
it, through the exercise of any right of setoff, banker's lien or
counterclaim against any Borrower Party or otherwise, receives
payment of the Obligations held by it that is ratably more than
any other Lender receives in payment of the Obligations held by
such other Lender, then, subject to applicable Laws: (a) such
Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase,
and shall be deemed to have simultaneously purchased, from the
other Lender a participation in the Obligations held by the other
Lender and shall pay to the other Lender a purchase price in an
amount so that the share of the Obligations held by each Lender
after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of
<PAGE>
setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall
be made from time to time as shall be equitable to ensure that
all Lenders share any payment obtained in respect of the
Obligations ratably in accordance with each Lender's share of the
Obligations immediately prior to, and without taking into
account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of
the right of setoff, banker's lien, counterclaim or otherwise is
thereafter recovered from the purchasing Lender by a Borrower
Party or any Person claiming through or succeeding to the rights
of a Borrower Party, the purchase of a participation shall be
rescinded and the purchase price thereof shall be restored to the
extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this
Section shall from and after the purchase have the right to give
all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion
of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations
purchased. Each Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation
in an Obligation so purchased may exercise any and all rights of
setoff, banker's lien or counterclaim with respect to the
participation as fully as if Lender were the original owner of
the Obligation purchased.
10.07 No Waiver; Cumulative Remedies.
(a) No failure by any Lender or Administrative Agent to
exercise, and no delay by any Lender or Administrative Agent in
exercising, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege under
any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or
therein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by Law. Any decision by
Administrative Agent or any Lender not to require payment of any
interest (including Default Interest), fee, cost or other amount
payable under any Loan Document or to calculate any amount
payable by a particular method on any occasion shall in no way
limit or be deemed a waiver of Administrative Agent's or such
Lender's right to require full payment thereof, or to calculate
an amount payable by another method that is not inconsistent with
this Agreement, on any other or subsequent occasion.
<PAGE>
(c) Except with respect to Section 9.09, the terms and
conditions of Section 9 are for the sole benefit of
Administrative Agent and Lenders.
10.08 Usury. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate
of non-usurious interest permitted by applicable Law (the
"Maximum Rate"). If Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the
excessive interest shall be applied to the principal of the
Outstanding Obligations or, if it exceeds the unpaid principal,
refunded to the applicable Borrower. In determining whether the
interest contracted for, charged, or received by Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread
in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations.
10.09 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
10.10 Integration. This Agreement, together with the
other Loan Documents and any letter agreements referred to
herein, comprises the complete and integrated agreement of the
parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof. In
the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of
this Agreement shall control and govern; provided that the
inclusion of supplemental rights or remedies in favor of
Administrative Agent or Lenders in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair
meaning thereof.
10.11 Nature of Lenders' Obligations. Nothing contained
in this Agreement or any other Loan Document and no action taken
by Administrative Agent or Lenders or any of them pursuant hereto
or thereto may, or may be deemed to, make Lenders a partnership,
an association, a joint venture or other entity, either among
<PAGE>
themselves or with any Borrower or any Affiliate of any Borrower.
Each Lender's obligation to make any Extension of Credit pursuant
hereto is several and not joint or joint and several. A default
by any Lender will not increase the Pro Rata Share attributable
to any other Lender.
10.12 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other
Loan Document, certificate or statement delivered pursuant hereto
or thereto or in connection herewith or therewith shall survive
the execution and delivery thereof. Such representations and
warranties have been or will be relied upon by Administrative
Agent and each Lender, notwithstanding any investigation made by
Administrative Agent or any Lender or on their behalf.
10.13 Indemnity by Borrowers.
(a) Each Borrower agrees to indemnify, save and hold
harmless each Administrative Agent-Related Person and each Lender
and their respective Affiliates, directors, officers, agents,
attorneys and employees (collectively the "Indemnitees") from and
against: (i) any and all claims, demands, actions or causes of
action that are asserted against any Indemnitee by any Person
(other than Administrative Agent or any Lender) relating directly
or indirectly to a claim, demand, action or cause of action that
such Person asserts or may assert against any Borrower Party, any
of their Affiliates or any of their officers or directors; (ii)
any and all claims, demands, actions or causes of action (other
than by Administrative Agent or any Lender) arising out of or
relating to, the Loan Documents, any predecessor loan documents,
the Commitments, the use or contemplated use of the proceeds of
any Loan, or the relationship of any Borrower Party,
Administrative Agent and Lenders under this Agreement; (iii) any
administrative or investigative proceeding by any Governmental
Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (i) or (ii) above; and
(iv) any and all liabilities, losses, costs or expenses
(including Attorney Costs) that any Indemnitee suffers or incurs
as a result of the assertion of any foregoing claim, demand,
action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing
claim, demand, action, cause of action or proceeding, in all
cases, whether or not arising out of the negligence of an
Indemnitee, except as aforesaid, whether or not an Indemnitee is
a party to such claim, demand, action, cause of action or
proceeding (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence
<PAGE>
or willful misconduct or for any loss asserted against it by
another Indemnitee. The foregoing indemnity shall not extend to
any indirect or consequential damages. The agreements in this
Section shall survive repayment of all Obligations.
(b) Promptly after receipt by an Indemnitee of a notice of
the commencement of any action or proceeding that may give rise
to indemnification hereunder, such Indemnitee will notify
Administrative Agent, who shall promptly notify Company. Company
shall have the right to undertake, conduct and control through
counsel of its own choosing (which counsel shall be reasonably
acceptable to the Indemnitees) and at the sole expense of
Company, the conduct and settlement of any Indemnified
Liabilities, and the Indemnitees shall cooperate with Company in
connection therewith; provided that Company shall permit any
Indemnitee to participate in such conduct and settlement through
counsel chosen by such Indemnitee, but the fees and expenses of
such counsel shall be borne by such Indemnitee. Notwithstanding
the foregoing, if the interests of Company and any Indemnitee
become adverse in any such claim or course of action, such
Indemnitee shall have the right to employ its own counsel, and
the reasonable fees and expenses of such counsel shall be at
Company's costs and expense; provided, however, Company, in such
event, shall only be liable for the reasonable legal expenses of
one counsel for all of such Indemnitees. No Borrower shall be
liable for any settlement of any claim or action effected without
its prior written consent, such consent not to be unreasonably
withheld.
10.14 Nonliability of Lenders. Each Borrower
acknowledges and agrees that:
(a) Any inspections of any property of any Borrower Party
made by or through Administrative Agent or Lenders are for
purposes of administration of the Loan Documents only, and no
Borrower is entitled to rely upon the same (whether or not such
inspections are at the expense of a Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to Administrative Agent
or Lenders pursuant to the Loan Documents, neither Administrative
Agent nor Lenders shall be deemed to have warranted or
represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition
thereof, and such acceptance or approval thereof shall not
constitute a warranty or representation to anyone with respect
thereto by Administrative Agent or Lenders;
<PAGE>
(c) The relationship between Borrowers and Administrative
Agent and Lenders is, and shall at all times remain, solely that
of borrowers and lenders; neither Administrative Agent nor any
Lender shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary relationship
with any Borrower or its Affiliates, or to owe any fiduciary duty
to any Borrower or its Affiliates; neither Administrative Agent
nor any Lender undertakes or assumes any responsibility or duty
to any Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform any Borrower or its
Affiliates of any matter in connection with their property or the
operations of any Borrower or its Affiliates; each Borrower and
its Affiliates shall rely entirely upon their own judgment with
respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or
assumed by Administrative Agent or any Lender in connection with
such matters is solely for the protection of Administrative Agent
and Lenders and neither any Borrower nor any other Person is
entitled to rely thereon; and
(d) Neither Administrative Agent nor any Lender shall be
responsible or liable to any Person for any loss, damage,
liability or claim of any kind relating to injury or death to
Persons or damage to property caused by the actions, inaction or
negligence of a Borrower and/or its Affiliates, and each Borrower
hereby indemnifies and holds Administrative Agent and Lenders
harmless from any such loss, damage, liability or claim subject
to the procedures and limitations governing indemnification under
Section 10.13.
10.15 No Third Parties Benefited. This Agreement is
made for the purpose of defining and setting forth certain
obligations, rights and duties of Borrowers, Administrative Agent
and Lenders in connection with the Extensions of Credit, and is
made for the sole benefit of Borrowers, Administrative Agent and
Lenders, and Administrative Agent's and Lenders' successors and
assigns. Except as provided in Sections 10.04 and 10.13, no
other Person shall have any rights of any nature hereunder or by
reason hereof.
10.16 Severability. Any provision of the Loan Documents
that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
<PAGE>
10.17 Confidentiality. Administrative Agent and each
Lender shall use any confidential non-public information
concerning the Borrower Parties and their Subsidiaries that is
furnished to Administrative Agent or such Lender by or on behalf
of the Borrower Parties and their Subsidiaries in connection with
the Loan Documents (collectively, "Confidential Information")
solely for the purpose of evaluating and providing products and
services to them and administering and enforcing the Loan
Documents, and it will hold the Confidential Information in
confidence. Notwithstanding the foregoing, Administrative Agent
and each Lender may disclose Confidential Information (a) to
their affiliates or any of their or their affiliates' directors,
officers, employees, auditors, counsel, advisors, or
representatives (collectively, the "Representatives") whom it
determines need to know such information for the purposes set
forth in this Section; (b) to any bank or financial institution
or other entity to which such Lender has assigned or desires to
assign an interest or participation in the Loan Documents or the
Obligations, provided that any such foregoing recipient of such
Confidential Information agrees to keep such Confidential
Information confidential as specified herein; (c) to any
governmental agency or regulatory body having or claiming to have
authority to regulate or oversee any aspect of Administrative
Agent's or such Lender's business or that of their
Representatives in connection with the exercise of such authority
or claimed authority; (d) to the extent necessary or appropriate
to effect or preserve Administrative Agent's or such Lender's or
any of their Affiliates' security (if any) for any Obligation or
to enforce any right or remedy or in connection with any claims
asserted by or against Administrative Agent or such Lender or any
of their Representatives; and (e) pursuant to any subpoena or any
similar legal process. For purposes hereof, the term
"Confidential Information" shall not include information that (x)
is in Administrative Agent's or a Lender's possession prior to
its being provided by or on behalf of the Borrower Parties,
provided that such information is not known by Administrative
Agent or such Lender to be subject to another confidentiality
agreement with, or other legal or contractual obligation of
confidentiality to, a Borrower Party, (y) is or becomes publicly
available (other than through a breach hereof by Administrative
Agent or such Lender), or (z) becomes available to Administrative
Agent or such Lender on a nonconfidential basis, provided that
the source of such information was not known by Administrative
Agent or such Lender to be bound by a confidentiality agreement
or other legal or contractual obligation of confidentiality with
respect to such information.
<PAGE>
10.18 Further Assurances. Each Borrower Party shall,
and shall cause its Subsidiaries to, at their expense and without
expense to Lenders or Administrative Agent, do, execute and
deliver such further acts and documents as any Lender or
Administrative Agent from time to time reasonably requires for
the assuring and confirming unto Lenders or Administrative Agent
of the rights hereby created or intended now or hereafter so to
be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
10.19 Headings. Section headings in this Agreement and
the other Loan Documents are included for convenience of
reference only and are not part of this Agreement or the other
Loan Documents for any other purpose.
10.20 Time of the Essence. Time is of the essence of
the Loan Documents.
10.21 Foreign Lenders. Each Lender that is a "foreign
corporation, partnership or trust" within the meaning of the Code
shall deliver to Administrative Agent and Company, prior to
receipt of any payment subject to withholding under the Code (or
after accepting an assignment of an interest herein), two duly
signed completed copies of either Form W-8BEN or any successor
thereto (relating to such Person and entitling it to a complete
exemption from withholding on all payments to be made to such
Person by a Borrower pursuant to this Agreement) or Form W-8ECI
or any successor thereto (relating to all payments to be made to
such Person by a Borrower pursuant to this Agreement) of the IRS
or such other evidence satisfactory to Borrowers and
Administrative Agent that no withholding under the federal income
tax laws is required with respect to such Person. Thereafter and
from time to time, each such Person shall (a) promptly submit to
Administrative Agent and Company such additional duly completed
and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such
evidence as is satisfactory to Borrowers and Administrative Agent
of any available exemption from, United States withholding taxes
in respect of all payments to be made to such Person by a
Borrower pursuant to this Agreement, and (b) take such steps as
shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that a Borrower make any deduction
or withholding for taxes from amounts payable to such Person. If
such Persons fails to deliver the above forms or other
<PAGE>
documentation, then Administrative Agent or Borrowers may
withhold from any interest payment to such Person an amount
equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction. If any
Governmental Authority asserts that Administrative Agent or
Borrowers did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall
indemnify Administrative Agent therefor, including all penalties
and interest and costs and expenses (including Attorney Costs) of
Administrative Agent and such Borrower. The obligation of
Lenders under this Section shall survive the payment of all
Obligations and the resignation or replacement of Administrative
Agent.
10.22 Compelled Return of Payments or Proceeds. If
Administrative Agent or any Lender is for any reason compelled to
surrender any payment from a Borrower because such payment is for
any reason invalidated, declared fraudulent, set aside, or
determined to be void or voidable as a preference, an
impermissible setoff, or a diversion of trust funds, then each
Loan Document and the Obligations to which such payment was
applied or intended to be applied shall be revived with respect
thereto as if such application was never made; and such Borrower
shall be liable to pay to Administrative Agent and Lenders, and
shall indemnify Administrative Agent and Lenders for, and hold
Administrative Agent and Lenders harmless from, any loss with
respect to, the amount of such payment surrendered. This Section
shall be effective notwithstanding any contrary action
Administrative Agent or any Lender may take in reliance upon its
receipt of any such payment. Any such contrary action so taken
by Administrative Agent or any Lender shall be without prejudice
to Administrative Agent's and Lender's rights under this
Agreement and shall be deemed to have been conditioned upon the
application of such payment having become final and indefeasible.
The provisions of this Section shall survive termination of the
Commitment, the expiration of the Letters of Credit and the
payment and satisfaction of all Obligations.
10.23 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
<PAGE>
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF CALIFORNIA SITTING IN LOS ANGELES OR OF THE
UNITED STATES FOR THE CENTRAL DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER PARTY,
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER
PARTY, ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.24 Waiver of Right to Trial by Jury. EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
10.25 Termination of Existing Credit Agreement; this
Agreement as Replacement "Lender Facility."
(a) The parties hereto hereby agree that the Existing
Credit Agreement and all guaranties delivered pursuant thereto
shall terminate and be cancelled on the Closing Date and be of no
further force or effect thereafter, provided that the Company
shall remain liable for all amounts due and owing thereunder.
All parties hereto also agree that for purposes of the
Intercreditor Agreement this Agreement constitutes a replacement
of the "Lender Facility" as defined thereunder.
(b) At the Closing Date, the Administrative Agent shall
cancel and deliver to Company any and all guaranties delivered
under the existing Credit Facility.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By: s/Joseph A. White
----------------------------
Joseph A. White
Vice President and Chief
Financial Officer
BANK OF AMERICA, N.A., as
Administrative Agent
By: s/Gina Meador
-----------------------------
Gina Meador
Vice President
BANK OF AMERICA, N.A., as
a Lender, and Issuing Lender
By: s/Charles F. Lilygren
----------------------------
Charles F. Lilygren
Managing Director
<PAGE>
EXHIBIT A
FORM OF REQUEST FOR EXTENSION OF CREDIT
Date: , ___
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as
of March 30, 2000 among Insituform Technologies, Inc., a Delaware
corporation ("Company"), each Borrower from time to time party
thereto, each lender from time to time party hereto, and BANK OF
AMERICA, N.A., as Administrative Agent and Issuing Lender (as
amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined).
The undersigned hereby requests (select one):
___ A Borrowing of Loans ___ A Conversion or
Continuation of Loans as follows:
1. On .
2. In the amount of [$][C$] [L] [e] [other]
3. Comprised of .
[Offshore Rate Loans or Base Rate Loans]
4. If Offshore Rate Loans, with an Interest Period of
months.
The foregoing request complies with the requirements of
Section 2.01 of the Agreement. The undersigned hereby certifies
that the following statements are true on the date hereof, and
will be true on the above date, before and after giving effect
and to the application of the proceeds therefrom:
(a) The representations and warranties made by any
Borrower Party in the Agreement, or which are contained in
the Master Guaranty, any Compliance Certificate, the
Intercreditor Agreement or any other material certificate
furnished at any time under or in connection therewith, are
and will be correct on and as of the date of this Extension
of Credit in all material respects, except to the extent
<PAGE>
that such representations and warranties specifically refer
to any earlier date; and
(b) no Default or Event of Default
has occurred and is continuing on the
date hereof or after giving effect to
this Extension of Credit.
[BORROWER]
By:
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,______
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as
of March 30, 2000 among Insituform Technologies, Inc., a Delaware
corporation ("Company"), each Borrower from time to time party
thereto, each lender from time to time party hereto, and BANK OF
AMERICA, N.A., as Administrative Agent and Issuing Lender (as
amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined).
The undersigned Responsible Officer hereby certifies as of
the date hereof that he is the __________________ of Company, and
that, as such, he is authorized to execute and deliver this
Certificate to Administrative Agent on the behalf of Company, and
that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited
financial statements required by Section 6.01(a) of the Agreement
for the fiscal year of Company ended as of the above date,
together with the report and opinion of an independent certified
public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited
financial statements required by Section 6.01(b) of the Agreement
for the fiscal quarter of Company ended as of the above date.
Such financial statements fairly present in all material respects
the financial condition, results of operations and changes in
cash flows of Company and its Subsidiaries in accordance with
GAAP as at such date and for such periods, subject only to normal
year-end audit adjustments and the absence of footnotes.
<PAGE>
2. The undersigned has reviewed and is familiar with the
terms of the Agreement and has made, or has caused to be made
under his supervision, a detailed review of the transactions and
conditions (financial or otherwise) of Company during the
accounting period covered by the attached financial statements.
3. A review of the activities of Borrower Parties during
such fiscal period has been made under my supervision with a view
to determining whether during such fiscal period Borrower Parties
performed and observed all their respective Obligations under the
Loan Documents, and
[select one]
[The examinations described in paragraphs 2 and 3 above did
not disclose, and I have no knowledge of, the existence of any
condition or event which constitutes a Default or Event of
Default as of the date of this Compliance Certificate.]
- -or-
[The following is a list of each Default or Event of Default
and its nature and status:]
4. The following financial covenant analyses and
information set forth on Schedule 2 attached hereto are true and
accurate in all material respects on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of , .
INSITUFORM TECHNOLOGIES, INC.
By:
Name:
Title:
<PAGE>
For the Quarter/Year ended ______________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. Section 7.15(a) -- Minimum Fixed Charge
Coverage Ratio.
A. Consolidated Cash Flow Available for Fixed
Charges for four consecutive fiscal quarters
ending on above date ("Subject Period"):
1. Consolidated Net Earnings for
Subject Period: $
2. Provision for federal, state and
other income taxes for Subject
Period: $
3. Depreciation and amortization for
Subject Period: $
4. Consolidated Fixed Charges for Subject
Period:
a. Rentals for Subject Period: $
b. Interest Expense for Subject
Period: $
c. Total (Lines 4a + 4b) $
5. Total (Lines I.A.1 + 2 + 3 + 4c): $
B. Consolidated Fixed Charges for Subject
Period (Line I.A.4c):
C. Fixed Charge Coverage Ratio (Line I.A.5
Line I.B): to 1
Minimum Permitted: 2.50 to 1
II. Section 7.15(b) - Minimum Consolidated
Adjusted Net Worth.
A. Consolidated Adjusted Net Worth at
Statement Date: $
<PAGE>
B. 50% of Consolidated Net Earnings for each
fiscal year ending after December 31,
1996 (no reduction for losses): $
C. Minimum required Consolidated Adjusted
Net Worth (Line II.B plus $100,000,000): $
D. Excess (deficient) for covenant
compliance (Line II.A less Line II.C): $
III. Section 7.15(c) - Minimum Consolidated Total
Indebtedness Ratio.
A. Consolidated Total Indebtedness at
Statement Date, excluding Indebtedness
under any revolving credit agreement
(including the Agreement) reduced to zero
for at least 60 consecutive days within
prior 365 days because of payments from
general corporate funds) $
B. Consolidated Total Capitalization at
Statement Date:
1. Consolidated Total Indebtedness at
Statement Date (Line III.A): $
2 Consolidated Adjusted Net Worth at
Statement Date (Line II.A): $
3 Consolidated Total Capitalization
(Line III.B.1 + 2): $
D. Consolidated Total Indebtedness Ratio
(Line III.A. ? Line III.B.3): to 1
Maximum Permitted Ratio: 0.55 to 1
IV. Applicable Margin - Leverage Ratio.
A. Consolidated EBITDA for Subject Period:
1. Consolidated Net Income for Subject
Period: $
2. Consolidated Interest Charges for
Subject Period: $
3. Provision for income taxes for Subject
Period: $
<PAGE>
4. Depreciation expense for Subject
Period: $
5. Amortization expense for Subject
Period: $
6. Other non-cash charges not exceeding in
the aggregate 0.5% of revenues during
Subject Period: $
7. Losses on asset sales outside ordinary
course and other extraordinary losses: $
8. Gains on asset sales outside ordinary
course and other extraordinary gains: $
9. Consolidated EBITDA (Lines IV.A.1 + 2 +
3 + 4 + 5 + 6 + 7 less Line 8): $
B. Consolidated Funded Indebtedness at
Statement Date:
1. Obligations for borrowed money $
2. Financial letters of credit and similar
instruments supporting Indebtedness
owing to unrelated third parties: $
3. Capital leases: $
4. Restricted Guaranty Obligations: $
5. Consolidated Funded Indebtedness
(Lines IV.B.1 + 2 + 3 + 5): $
C. Leverage Ratio (Line IV.A.9 Line IV.B.5): to 1
Refer to definition of Applicable Margin for applicable pricing
level.
<PAGE>
EXHIBIT C
PROMISSORY NOTE
$_____________ March 30, 2000
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby
promises to pay to the order of _____________________________
("Lender"), on the Maturity Date (as defined in the Credit
Agreement referred to below) the Equivalent Amount of
____________________Dollars ($____________), or such lesser
principal amount of Loans (as defined in the Credit Agreement
referred to below) payable by Borrower to Lender on such Maturity
Date under that certain Credit Agreement dated as of as of March
30, 2000 among Insituform Technologies, Inc., a Delaware
corporation ("Company"), each Borrower from time to time party
thereto and, Lenders from time to time party thereto Bank of
America, N.A., as Administrative Agent and Issuing Lender (as
amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined).
Borrower promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until such
principal amount is paid in full, at such interest rates, and
payable at such times as are specified in the Agreement. All
payments of principal and interest shall be made to
Administrative Agent for the account of Lender in immediately
available funds in the currency of such Loan (or, with the
consent or at the request of Lender in each instance, the
Equivalent Amount in Dollars of the applicable Offshore Currency)
at Administrative Agent's Payment office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until
the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.
This Note is one of the "Notes" referred to in the
Agreement. Reference is hereby made to the Agreement for rights
and obligations of payment and prepayment, events of default and
the right of Lender to accelerate the maturity hereof upon the
occurrence of such events. Loans made by Lender shall be
evidenced by one or more loan accounts or records maintained by
Lender in the ordinary course of business. Lender may also
<PAGE>
attach schedules to this Note and endorse thereon the date,
amount and maturity of its Loans and payments with respect
thereto.
Borrower, for itself, its successors and assigns, hereby
waives diligence, presentment, protest and demand and notice of
protest, demand, dishonor and non-payment of this Note.
Borrower agrees to pay all collection expenses, court costs
and Attorney Costs (whether or not litigation is commenced) which
may be incurred by Lender in connection with the collection or
enforcement of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA.
[BORROWER]
By
Name
Title
<PAGE>
EXHIBIT D
MASTER GUARANTY
This MASTER GUARANTY ("Guaranty"), dated as of
March 30, 2000, is made by each of the corporations from time to
time party hereto (each, in its capacity hereunder, a "Guarantor"
and collectively "Guarantors"), jointly and severally in favor of
the Guarantied Parties referred to below with reference to the
following facts:
RECITALS
A. Pursuant to that Credit Agreement dated as of March 30,
2000 among Insituform Technologies, Inc., a Delaware corporation
("Company"), each Borrower from time to time party thereto, each
lender from time to time party thereto, and BANK OF AMERICA,
N.A., as Administrative Agent and Issuing Lender (as amended,
restated, extended, supplemented or otherwise modified in writing
from time to time, the "Credit Agreement;" the Lenders, the
Issuing Lender and the Administrative Agent (collectively, the
"Guarantied Parties") are making certain credit facilities
available to Borrowers.
B. As a condition to the availability of such credit
facilities, Guarantors are required to enter into this Master
Guaranty and to guaranty the Guarantied Obligations as here-
inafter provided.
C. Guarantors expect to realize direct and indirect
benefits as the result of the availability of the aforementioned
credit facilities to Borrowers, as the result of financial or
business support which will be provided to the Guarantors by
Borrowers.
AGREEMENT
NOW, THEREFORE, in order to induce the Guarantied Parties to
extend the aforementioned credit facilities, and for other good
and valuable consideration, the receipt and adequacy of which
hereby are acknowledged, Guarantors hereby covenant, agree and
guaranty as follows:
1. General. Unless the context of this Guaranty clearly
requires otherwise, (a) references to the plural include the
singular and vice versa, (b) references to any Person include
<PAGE>
such Person's successors and assigns but, if applicable, only if
such successors and assigns are permitted by this Guaranty, (c)
references to one gender include all genders, (d) "including" is
not limiting, (e) "or" has the inclusive meaning represented by
the phrase "and/or," (f) the words "hereof", "herein", "hereby",
"hereunder" and similar terms in this Guaranty refer to this
Guaranty as a whole, including its Exhibits, and not to any
particular provision of this Guaranty, (g) the word "Section" or
"section" and "Pages or "page" refer to a section or page,
respectively, of this Guaranty unless it expressly refers to
something else, (h) reference to any agreement, document, or
instrument, including this Guaranty, any other Loan Document and
any agreement, document or instrument defined herein, means such
agreement, document, or instrument as it may have been or may be
amended, restated, extended, renewed, replaced, or otherwise
modified and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof, and includes
all attachments thereto and instruments incorporated therein, if
any, and (i) general and specific references to any Law means
such Law as amended, modified, codified or reenacted, in whole or
in part, and in effect from time to time. Section captions are
for convenience only and do not affect the interpretation or
construction of this Guaranty.
2. Definitions. All capitalized terms not otherwise
defined herein have the meanings given them in the Credit
Agreement.
3. Acknowledgement of Capacity as a Covered Person Under
the Credit Agreement. Each Guarantor acknowledges that it has
reviewed the Credit Agreement and agrees that it is a "Covered
Person" (as that term is defined in the Credit Agreement and used
in the Credit Agreement and the other Loan Documents). All of
the representations and warranties, covenants, and agreements
contained in the Credit Agreement and the other Loan Documents
which are applicable to a Covered Person are incorporated into
this Guaranty by this reference and each Guarantor, as such a
Covered Person, hereby makes such representations and warranties
to, and makes such covenants and agreements with, the Guarantied
Parties. Each Guarantor further acknowledges and agrees that the
failure of a Guarantor to comply with any terms of the Credit
Agreement or the other Loan Documents applicable to such
Guarantor as a Covered Person will, subject to the terms of the
Credit Agreement, result in a Default and/or Event of Default
under the Credit Agreement and the other Loan Documents,
<PAGE>
entitling the Guarantied Parties to all of their remedies
thereunder and under applicable law and in equity.
4. Guaranty.
(a) Unlimited Guaranty of Payment and Performance.
Guarantors hereby jointly and severally guaranty to the
Guarantied Parties, for the benefit of the Guarantied Parties,
the full and prompt payment and performance of all Obligations of
Company, any Subsidiary Borrower and any other Borrower Party at
any time and from time to time owed to the Guarantied Parties
under one or more of the Loan Documents, whether due or to become
due, matured or unmatured, liquidated or unliquidated, or
contingent or noncontingent, including obligations of performance
as well as obligations of payment, and including interest that
accrues after the commencement of any bankruptcy or insolvency
proceeding by or against any Borrower, any Guarantor or any other
Person (collectively, the "Guarantied Obligations"). Subject to
Section 21, each Guarantor understands and acknowledges that
there is no limit on the Guarantied Obligations.
(b) Currency of Payment. Payments hereunder in respect of
any Guarantied Obligations shall be made in the currencies in
which such Guarantied Obligation is denominated (each, an
"Obligation Currency"), or if Administrative Agent so notifies
Company in writing, at the Guarantied Parties' sole and absolute
discretion, the greater of (i) the Equivalent Amount of such
Guarantied Obligation or any portion thereof, determined as of
the date or dates such Guarantied Obligation was incurred by any
Obligor, or (ii) such Equivalent Amount in Dollars determined as
of the date payment is made hereunder.
(c) Nature of Guaranty. This is a continuing, absolute and
unconditional guaranty of payment and performance and not merely
of collection. Each Guarantor's liability with respect to the
Guarantied Obligations is primary, not secondary. Upon the
occurrence of any Event of Default and at any time thereafter,
the Guarantied Parties may proceed directly against any Guarantor
without first proceeding against any Borrower, any other Person
liable for the payment or performance of the Guarantied
Obligations, or any collateral or other security for the
Guarantied Obligations. The Guarantied Parties will not be
required to mitigate damages or take any other action to reduce,
collect or enforce the Guarantied Obligations. Only upon Final
<PAGE>
Payment shall this Guaranty be released, subject to being
automatically reinstated as provided in Section 7 herein.
(d) Place for Performance. All obligations of Guarantors
under this Guaranty are performable and payable at the Lending
Office.
5. No Release of Guarantors. Each Guarantor's liability
under this Guaranty will not be reduced, extinguished, discharged
or released by, and no Guarantor is entitled to raise as a
defense, any:
(a) invalidity, irregularity or unenforceability of the
Guarantied Obligations, any Borrower's Obligations or other
obligations under the Loan Documents to which it is a party, or
of such Guarantor's obligations under the Loan Documents to which
it is a party, including this Guaranty;
(b) existing or future offset, claim, counterclaim or
defense of any Borrower, such Guarantor or any other party
against the Guarantied Parties or against payment of the
Obligations or the Guarantied Obligations (whether such offset,
claim, counterclaim or defense arises in connection with the
Obligations or the Guarantied Obligations or the transactions
creating the Obligations or the Guarantied Obligations or
otherwise);
(c) failure of such Guarantor to be given notice of a
Default or Event of Default by any Borrower;
(d) waivers of Defaults or Events of Default or other
waivers under the Loan Documents:
(e) extensions of due dates for payments, modifications of
interest rates or other payment terms with respect to the
Guarantied Obligations or any other accommodation, indulgence or
forbearance granted to any Borrower;
(f) reorganization, merger or consolidation of any Borrower
or such Guarantor into or with any other Person;
(g) release of or non-perfection with respect to any or all
of any collateral or any other security for the Guarantied
Obligations;
<PAGE>
(h) taking or accepting of any other security or collateral
for, or guaranty of, any or all of the Guarantied Obligations;
(i) the death of or release of, or settlement or compromise
with, any one or more other Persons who have guarantied, or are
otherwise liable for the payment or performance of, any or all of
the Guarantied Obligations;
(j) assignment or other transfer of, or granting of a
participation in, any of the Guarantied Obligations or any
collateral or other security therefor, by the Guarantied Parties;
(k) other acts or omissions which, in the absence of this
Section 5 would operate so as to reduce, extinguish, discharge or
release such Guarantor's liability under this Guaranty (except
for the full and indefeasible payment of the Guarantied
Obligations, cancellation or termination of the Commitment,
expiration of all Letters of Credit, and termination of any other
commitment to extend credit or make advances to or for the
account of any Borrower).
6. Waivers.
(a) Notice. Each Guarantor hereby waives notice of (i)
acceptance of this Guaranty, (ii) any amendment, restatement or
other modification of any of the Loan Documents (including
modifications to interest rates or other payment terms of the
Guarantied Obligations), (iii) Extensions of Credit to any
Borrowers by the Guarantied Parties and fundings of Extensions of
Credit to any Borrower by the Guarantied Parties, (iv) the
occurrence of a Default or Event of Default, (v) any matter
referred to in Section 5 of this Guaranty, and (vi) any other
action at any time taken or omitted by the Guarantied Parties,
and generally, all demands and notices of every kind in
connection with this Guaranty and the Loan Documents, except as
expressly provided herein and in the Credit Agreement.
(b) Right of Contribution, Etc. Each Guarantor hereby
waives any right of contribution, subrogation, reimbursement,
indemnity, or repayment, and any other "claim", as that term is
defined in the United States Bankruptcy Code, which such
Guarantor might now have or hereafter acquire against any
Borrower or any other Person liable for the payment or
performance of the Obligations (other than pursuant to this
<PAGE>
Guaranty) that arises from the existence or performance of such
Guarantor's obligations under this Guaranty; and such Guarantor
waives the right to participate in any existing or future
collateral or other security for the Guarantied Obligations.
Each Guarantor further agrees that such Guarantor will not enter
into any agreement providing, directly or indirectly, for any
contribution, subrogation, reimbursement, indemnity or repayment
by Borrowers on account of any payment made by such Guarantor
hereunder, and that any such agreement would be void. Until
payment in full of all Obligations and termination of the
Commitment, no Guarantor has any right of contribution,
subrogation, reimbursement, indemnity or repayment and no right
of recourse to or with respect to any assets or property of any
other guarantor (including any Guarantor) or other Person liable
for any of the Guarantied Obligations (other than pursuant to
Section 20 below).
(c) Other. Each Guarantor hereby waives (i) diligence,
presentment, demand for payment, protest or notice, whether of
nonpayment, dishonor, protest or otherwise, (ii) any and all
claims, counterclaims or defenses based upon, related to or
arising out of (a) any matter referred to in Section 5 of this
Guaranty, (b) any issue as to whether any sale or other
disposition of any security for the Guarantied Obligations was
conducted in a commercially reasonable fashion, (c) any election
of remedies by the Guarantied Parties, and (d) a theory that this
Guaranty should be strictly construed against the Guarantied
Parties, and (iv) all other defenses (except payment in full of
all Obligations and termination of the Commitment), including any
statute(s) of limitations, under applicable Law that would, but
for this clause (iv), be available to such Guarantor as a defense
against, or a reduction, extinguishment, discharge or release of
its obligations under, this Guaranty.
7. Reinstatement or Guaranty in Certain Circumstances.
Each Guarantor agrees that, if any or all of a payment made by or
on behalf of Borrowers of any Guarantied Obligation is returned
by any Person at any time for any reason, including pursuant to
any settlement, order (whether or not final) of a court of
competent jurisdiction, provision of any Debtor Relief Law or
other applicable Law or because of acts or omissions of
Borrowers, the Guarantied Obligations will not be deemed to have
been satisfied to the extent of the returned payment and the
obligations of such Guarantor will be deemed to be reinstated
automatically and to continue in full force and effect. If any
Borrower ceases to be liable to the Guarantied Parties for any
<PAGE>
of the Obligations (other than by reason of payment in full of
all Obligations and termination of the Commitment), then any
prior release or discharge from this Guaranty will be without
effect and this Guaranty and the obligations of each Guarantor
hereunder will be automatically reinstated and continue in full
force and effect.
8. Representations and Warranties. Each Guarantor
represents and warrants to the Guarantied Parties as follows:
(a) Authorization. Each Guarantor is duly authorized to
execute and perform this Guaranty, and this Guaranty has been
properly authorized by all requisite corporate, membership, or
partnership action (as the case may be) of such Guarantor. No
consent, approval or authorization of, or declaration or filing
with, any Governmental Authority or any other Person, is required
in connection with such Guarantor's execution, delivery or
performance of this Guaranty, except for those already duly
obtained.
(b) Due Execution. This Guaranty has been executed on
behalf of each Guarantor by a legally competent Person duly
authorized to do so.
(c) Enforceability. This Guaranty constitutes the legal,
valid and binding obligation of each Guarantor, enforceable
against such Guarantor in accordance with its terms, except to
the extent that the enforceability thereof against such Guarantor
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar Laws affecting creditor's rights generally
or by equitable principles of general application.
(d) Legal Restraints. The execution of this Guaranty by
each Guarantor, and the performance by such Guarantor of its
obligations under this Guaranty, will not violate or constitute a
default under the Charter Documents of such Guarantor, any
Material Agreement, or any Material Law, and will not, except as
expressly contemplated or permitted in this Guaranty, result in
any Security Interest being imposed on any of such Guarantor's
property.
(e) Independent Credit Evaluation. Each Guarantor has
independently, and without reliance on any information supplied
by the Guarantied Parties, taken, and will continue to take,
<PAGE>
whatever steps such Guarantor deems necessary to evaluate the
financial condition and affairs of Borrowers and each other
Guarantor. No Guarantied Party has any duty to advise any
Guarantor of information at any time known to it regarding the
financial condition or affairs of any Borrower or any other
Guarantor.
(f) No Representation by the Guarantied Parties. No
Guarantied Party has made any representation, warranty or
statement to any Guarantor to induce such Guarantor to execute
this Guaranty.
9. Survival of Representations. All representations,
warranties, and covenants of each Guarantor contained herein
survive the execution and delivery of this Guaranty, and
terminate only upon Final Payment.
10. Authorization to Charge Accounts. Each Guarantor
hereby authorizes each Guarantied Party, if and to the extent any
amount payable by such Guarantor under this Guaranty is not
otherwise paid when due, to charge such amount against any or all
of the accounts of such Guarantor with such Guarantied Party or
any Affiliate of such Guarantied Party, with such Guarantor
remaining liable for any deficiency.
11. Guarantied Parties' Offset Rights. Upon the occurrence
of any Event of Default and at any time and from time to time
thereafter, each Guarantied Party is hereby authorized, without
notice to any Guarantor (any such notice being expressly waived
by each Guarantor), to setoff against the Guarantied Obligations
any and all deposits (general or special, time or demand,
provisional or final) at any time held, or any other Indebtedness
at any time owing by such Guarantied Party to or for the credit
or the account of such Guarantor, irrespective of whether or not
demand has been made under the Credit Agreement, any Note, or
this Guaranty, and to remit the proceeds of such setoff to such
Guarantied Party for distribution to such Guarantied Party and
application to the Guarantied Obligations as provided in the
Credit Agreement.
12. Enforcement. Each Guarantor acknowledges that all of
the Guarantors are liable jointly and severally for the full
amount of the Guarantied Obligations. Suits for the enforcement
of this Guaranty may be brought, at the option of the Guarantied
<PAGE>
Parties, against all Guarantors, or successively against each
Guarantor, or against one or more but not against all Guarantors.
13. Attorney's Fees and Other Costs. If Guarantors fail to
pay the Guarantied Obligations as required by this Guaranty, then
Guarantors will pay all reasonable costs and expenses incurred by
the Guarantied Parties in enforcing this Guaranty, including
Attorney Costs (whether or not there is litigation), court costs
and all costs incurred in connection with any proceedings under
any Debtor Relief Law.
14. Records. The Guarantied Parties' books and records
showing the accounts between the Guarantied Parties and any
Borrower are admissible in evidence in any action or proceeding
with respect to this Guaranty and constitute prima facie proof of
the information therein.
15. Binding Nature of Certain Adjudications. Each
Guarantor will be conclusively bound by the final adjudication in
any action or proceeding, legal or otherwise, involving any
controversy arising under, in connection with, or in any way
related to, any of the Guarantied Obligations, and by a final
judgment, award or decree entered therein, if such Guarantor had
the right, or was given the opportunity, to participate in such
action or proceeding and was given notice of such action or
proceeding in time to exercise such right or avail itself of such
opportunity.
16. Application of Payments. All payments made under this
Guaranty will be allocated among the principal and interest and
other components of the Guarantied Obligations and the other
obligations of a Guarantor hereunder in such order and amount as
the Guarantied Parties may determine in their sole and absolute
discretion.
17. Limitation of Liability. No Guarantied Party will have
any liability with respect to, and each Guarantor hereby waives,
releases and agrees not to sue for, (a) any loss or damage
sustained by any Guarantor that may occur as a result of, in
connection with, or that is in any way related to, any act or
failure to act referred to in Section 5 of this Guaranty, or (b)
any special, indirect or consequential damages suffered by any
Guarantor in connection with any claim related to this Guaranty.
<PAGE>
18. Miscellaneous.
(a) Notices. All notices, consents, requests and demands
to or upon the respective parties hereto shall be given by
Requisite Notice at the address of Company set forth on Schedule
9.02 to the Credit Agreement. No notice given to or demand made
on any Guarantor by the Guarantied Parties in any instance
entitles any Borrower to notice or demand in any other instance.
(b) Amendments and Waivers. No amendment to, waiver of, or
departure from full compliance with any provision of this
Guaranty, or consent to any departure by any Guarantor herefrom,
will be effective unless it is in writing and signed by
authorized officers of such Guarantor and Administrative Agent;
provided, however, that any such waiver or consent will be
effective only in the specific instance and for the purpose for
which given. No failure by Lender to exercise, and no delay by
any Guarantied Party in exercising, any right, remedy, power or
privilege hereunder will operate as a waiver thereof, nor will
any single or partial exercise by any Guarantied Party of any
right, remedy, power or privilege hereunder preclude any other
exercise thereof, or the exercise of any other right, remedy,
power or privilege.
(c) Rights Cumulative. Each of the rights and remedies of
the Guarantied Parties under this Guaranty is in addition to all
of their other rights and remedies under applicable Law, and
nothing in this Guaranty may be construed as limiting any such
rights or remedies.
(d) Successors and Assigns. This Guaranty binds Guarantors
and their respective successors and assigns and inures to the
benefit of the Guarantied Parties, and each of its successors,
transferees, participants and assignees. No Guarantor may
delegate or transfer any of its obligations under this Guaranty
without the prior written consent of Administrative Agent and all
Lenders. With respect to each Guarantor's successors and
assigns, such successors and assigns include any receiver,
trustee or debtor-in-possession of or for such Guarantor.
(e) Severability. Any provision of this Guaranty which is
prohibited, unenforceable or not authorized in any jurisdiction
is, as to such jurisdiction, ineffective to the extent of such
<PAGE>
prohibition, unenforceability or nonauthorization without
invalidating the remaining provisions hereof or affecting the
validity, enforceability or legality of such provision in any
other jurisdiction.
(f) No Third Party Rights. This Guaranty is solely for the
benefit of the parties hereto and the Guarantied Parties, and
their respective successors and assigns, and no other Person has
any right, benefit, priority or interest under, or because of the
existence of, this Guaranty.
(g) Counterparts. This Guaranty may be executed by the
parties hereto on any number of separate counterparts, and all
such counterparts taken together constitute one and the same
instrument. It is not necessary in making proof of this Guaranty
to produce or account for more than one counterpart signed by the
party to be charged.
(h) Counterpart Facsimile Execution. For purposes of this
Guaranty, a document (or signature page thereto) signed and
transmitted by facsimile machine or telecopier is to be treated
as an original document. The signature of any Person thereon,
for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to
have the same binding effect as an original signature on an
original document. At the request of any party hereto, any
facsimile or telecopy document is to be re-executed in original
form by the Persons who executed the facsimile or telecopy
document. No party hereto may raise the use of a facsimile
machine or telecopier or the fact that any signature was
transmitted through the use of a facsimile or telecopier machine
as a defense to the enforcement of this Guaranty or any amendment
or other document executed in compliance with this Section.
(i) Final Expression; No Course of Dealing. This Guaranty,
together with the Credit Agreement, the other Loan Documents and
any other agreement executed in connection herewith or therewith,
is intended by the parties as a final expression of their
agreement and is intended as a complete and exclusive statement
of the terms and conditions thereof. Acceptance of or
acquiescence in a course of performance or course of dealing
rendered or taken under or with respect to this Guaranty, the
Credit Agreement or the other Loan Documents will not be relevant
to determine the meaning of this Guaranty,
<PAGE>
the Credit Agreement or the other Loan Documents even though the
accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
(j) Negotiated Transaction. Each Guarantor and Guarantied
Party represent to the other that in the negotiation and drafting
of this Guaranty each has been represented by and has relied upon
the advice of counsel of its choice. Each Guarantor and
Guarantied Party affirm that its counsel has had a substantial
role in the drafting and negotiation of this Guaranty; therefore,
this Guaranty will be deemed drafted by each of Borrowers and the
Guarantied Parties, and the rule of construction to the effect
that any ambiguities are to be resolved against the drafter will
not be employed in the interpretation of this Guaranty.
(k) Assignment By Guarantied Parties. To the extent
permitted in the Credit Agreement, the Guarantied Parties may
grant a participation interest in or assign or transfer to
another Person any instrument, document or agreement evidencing
any of the Guarantied Obligations and the Guarantied Parties'
rights under this Guaranty.
(l) Choice of Law, Forum. Waiver of Jury Trial.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORINA APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF CALIFORNIA SITTING IN LOS ANGELES OR OF THE
UNITED STATES FOR THE CENTRAL DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, EACH GUARANTOR,
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH GUARANTOR, ADMINISTRATIVE AGENT AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH
<PAGE>
GUARANTOR, ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
(c) EACH PARTY TO THIS GUARANTY HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS GUARANTY
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
19. Additional Guarantors. Any Person required to become a
Guarantor pursuant to Section 6.10 of the Credit Agreement shall,
upon complying with such section, be deemed a Guarantor and this
Guaranty shall be deemed amended to include such additional
Person as a party hereto as though a signatory hereto, with no
amendment or further action required hereunder, and thereafter,
all references to Guarantors shall include such additional
Person.
20. Right of Contribution. Each Guarantor hereby agrees
that to the extent that a Guarantor shall have paid more than its
proportionate share of all payments made hereunder, such
Guarantor shall be entitled to seek and receive contribution from
and against any other Guarantor hereunder who has not paid its
proportionate share of all such payments. The provisions of this
Section shall in no respect limit the obligations and liabilities
of any Guarantor to the Guarantied Parties, and, subject to the
provisions of Section 21 below, each Guarantor shall remain
liable to the Guarantied Parties for the full amount guaranteed
by such Guarantor hereunder. The "proportionate share" of any
Guarantor shall be a fraction (which shall in no event exceed
1.00) the numerator of which is the excess, if any, of the fair
value of the assets of such Guarantor over a fair estimate of the
liabilities of such Guarantor and the denominator of which is the
excess (but not less than $1.00) of the fair value of the
aggregate assets (without duplication) of
<PAGE>
all Guarantors over a fair estimate of the aggregate liabilities
(without duplication) of all Guarantors. All relevant
calculations shall be made as of the date such Guarantor became a
Guarantor.
21. Liability. Notwithstanding anything to the contrary
elsewhere contained herein or in any Loan Document to which any
Guarantor is a Party, the aggregate liability of each Guarantor
hereunder (other than Company) for payment and performance of the
Guarantied Obligations shall not exceed an amount which, in the
aggregate, is $1.00 less than that amount which if so paid or
performed would constitute or result in a "fraudulent transfer,"
"fraudulent conveyance" or terms of similar import, under
applicable state or federal Law, including without limitation,
Section 548 of the United States Bankruptcy Code. The liability
of each Guarantor hereunder is independent of any other
guaranties at any time in effect with respect to all or any part
of the Guarantied Obligations, and each Guarantor's liability
hereunder may be enforced regardless of the existence of any such
guaranties. Any termination by or release of any Guarantor in
whole or in part (whether it be another Guarantor under this
instrument or not) shall not affect the continuing liability of
any Guarantor hereunder, and no notice of any such termination or
release shall be required. The execution hereof by each
Guarantor is not founded upon an expectation or understanding
that there will be any other Guarantor of the Guarantied
Obligations.
22. Judgment Currencies. (a)If any claim arising under or
related to any Guarantied Obligation is reduced to a judgment
denominated in a Judgment Currency other than the Obligation
Currency, the judgment shall be for the greater of (i) the
equivalent in the Judgment Currency of the amount of the claim
denominated in the Obligation Currency (or each Obligation
Currency, if more than one) included in the judgment, determined
as of the date or dates the Guarantied Obligations related to
such claim were loaned to or incurred by Obligors, or (ii) such
equivalent determined as of the date of entry of such judgment.
The equivalent of any Obligation Currency amount in any Judgment
Currency shall be calculated at the spot rate for the purchase of
the Obligation Currency with the Judgment Currency quoted by Bank
on the date for determination specified above. "Judgment
Currency" means the currency in which any judgment on any claim
arising under or related to a Guarantied Obligation is
denominated.
<PAGE>
(b) Guarantors shall indemnify the Guarantied Parties
against and hold the Guarantied Parties harmless from all loss
and damage resulting from any change in exchange rates between
the date any claim is reduced to judgment and the date of payment
(or, in the case of partial payments, the date of each partial
payment) thereof by any Guarantor. This indemnity shall
constitute an obligation separate and independent from the other
obligations contained in this Guaranty, shall give rise to a
separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Guarantied Parties
from time to time, and shall continue in full force and effect
not-withstanding any judgment or order for a liquidated sum in
respect of an amount due hereunder or under any judgment or
order.
23. Payments Exempt From Taxes. (a) Any and all payments
by Guarantors to or for the account of the Guarantied Parties
hereunder shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges,
and all liabilities with respect thereto, excluding, in the case
of any Guarantied Party, taxes imposed on or measured by its net
income, branch profits or franchise taxes imposed on it (in lieu
of net income or branch profits taxes), by the United States of
America or by the jurisdiction (or any political subdivision
thereof) under the Laws of which such Guarantied Party is
organized, in which its principal office is located or in which
it maintains a lending office, and any other taxes withheld
because such Guarantied Party failed to timely deliver the forms
required pursuant to Section 10.21 of the Credit Agreement (all
such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes").
(b) If a Guarantor shall be required by any Laws to deduct
any Taxes from or in respect of any sum payable under any Loan
Document to any Guarantied Party, (i) the sum payable shall be
increased as necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section), such Guarantied Party receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make such
deductions, (iii) such Guarantor shall pay the full amount
deducted to the relevant taxation authority or other authority
<PAGE>
in accordance with applicable Laws, and (iv) within 30 days after
the date of such payment, such Guarantor shall furnish to
Administrative Agent (who shall forward the same to such
Guarantied Party) the original or a certified copy of a receipt
evidencing payment thereof.
(c) Each Guarantor will provide the Guarantied Parties with
original tax receipts, notarized copies of tax receipts, or such
other documentation as will prove payment of tax in a court of
law applying the United States Federal Rules of Evidence, for all
taxes paid by a Guarantor pursuant to subsection (b) above. Each
Guarantor will deliver receipts to Administrative Agent within 30
days after the due date for the related tax.
IN WITNESS WHEREOF, this Guaranty has been duly executed as
of the date first above written.
GUARANTORS:
INSITUFORM TECHNOLOGIES, INC.
AFFHOLDER, INC.
INA ACQUISITION CORP
INSITUFORM TECHNOLOGIES USA, INC.
By
Name
Title
Acknowledged:
BANK OF AMERICA, N.A.
By:
Charles F. Lilygren
Managing Director
<PAGE>
EXHIBIT E
INSTRUMENT OF JOINDER FOR
ADDITIONAL GUARANTORS AND BORROWERS
Dated: ______, _____
Reference is made to that certain Credit Agreement dated as
of March 30, 2000 among Insituform Technologies, Inc., a Delaware
corporation ("Company"), each Borrower from time to time party
thereto, each lender from time to time party hereto, and BANK OF
AMERICA, N.A., as Administrative Agent and Issuing Lender (as
amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined).
, a direct or indirect Material
Domestic Subsidiary of Company ("Subsidiary") hereby agrees to
become a (check applicable box(es)):
1. ___ Subsidiary Borrower
and agrees to be bound by all the terms and conditions of the
Agreement applicable to a Borrower from and after the date hereof
as if a signatory to the Credit Agreement. The undersigned
Subsidiary hereby represents and warrants to the matters set
forth in Section 5 of the Credit Agreement applicable to it as of
the date hereof.
2. ___ Guarantor
and agrees to be bound by all the terms and conditions of the
Guaranty applicable to a Guarantor from and after the date hereof
as if a signatory to the Guaranty. The undersigned Subsidiary
hereby represents and warrants to the matters set forth in
Section 15 of the Guaranty applicable to it as of the date
hereof.
<PAGE>
The undersigned hereby consent to the Subsidiary becoming a
party to the Guaranty or Credit Agreement. This Instrument of
Joinder is executed by the parties hereto as of the date first
written above.
"New Borrower/Guarantor"
By
Name
Title
Existing Borrowers party to the
Credit Agreement and Existing
Guarantors party to the Guaranty:
INSITUFORM TECHNOLOGIES, INC.
AFFHOLDER, INC.
INA ACQUISITION CORP
INSITUFORM TECHNOLOGIES USA, INC.
By
Name
Title
Consented:
BANK OF AMERICA, N.A.,
By:
Title:
<PAGE>
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE
, _____
Reference is made to that certain Credit Agreement dated as
of March 30, 2000 among Insituform Technologies, Inc., a Delaware
corporation ("Company"), each Borrower from time to time party
thereto, each lender from time to time party hereto, and BANK OF
AMERICA, N.A., as Administrative Agent and Issuing Lender (as
amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined).
The Assignor identified on Schedule l hereto ("Assignor")
and the Assignee identified on Schedule l hereto ("Assignee")
agree as follows:
1. Assignor hereby irrevocably sells and assigns to
Assignee without recourse to Assignor, and Assignee hereby
irrevocably purchases and assumes from Assignor without recourse
to Assignor, as of the Effective Date (as defined below), the
interest described in Schedule 1 hereto (the "Assigned Interest")
in and to Assignor's rights and obligations under the Agreement
with respect to the Commitment and principal amount of
Outstanding Obligations contained in the Agreement as are set
forth on Schedule 1 hereto (individually, an "Assigned
Commitment"; collectively, the "Assigned Commitments"), in the
principal amount for each Assigned Commitment as set forth on
Schedule 1 hereto.
2. Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that Assignor has
not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such
adverse claim; and (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of any Borrower Party or any of their Subsidiaries or any other
obligor or the performance or observance by any Borrower Party or
any of their Subsidiaries or
<PAGE>
any other obligor of any of their respective obligations under
the Agreement or any other Loan Document or any other instrument
or document furnished pursuant hereto or thereto.
3. Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b)
confirms that it has received a copy of the Agreement, together
with copies of the most recent financial statements delivered
pursuant to Section 4.01 or 6.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently
and without reliance upon Assignor, Administrative Agent 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 the
Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and
authorizes Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the
Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to
Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be
bound by the provisions of the Agreement and will perform in
accordance with its terms all the obligations which by the terms
of the Agreement are required to be performed by it as a Lender.
4. The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1
hereto (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to Administrative
Agent, Issuing Lender and Company for their consent (if such
consent is required) and, if such consent is granted, for
acceptance and recording by Administrative Agent pursuant to the
Agreement, effective as of the Effective Date (which shall not,
unless otherwise agreed to by Administrative Agent, be earlier
than five Business Days after the date of such acceptance and
recording by Administrative Agent.
5. Upon such consent, acceptance and recording, from and
after the Effective Date, Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to Assignee
whether such amounts have accrued prior to or on or after the
<PAGE>
Effective Date. Assignor and Assignee shall make all appropriate
adjustments in payments by Administrative Agent for periods prior
to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) Assignee shall
be a party to the Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the other Loan Documents and shall be
bound by the provisions thereof and (b) Assignor shall, subject
to the Agreement and to the extent provided in this Assignment
and Acceptance, relinquish its rights and be released from its
obligations under the Agreement.
7. From and after the Effective Date, Assignee shall for
all purposes of the Intercreditor Agreement constitute a Creditor
thereunder and shall, as a condition to the effectiveness of this
Assignment and Acceptance, comply with the provisions of Section
3.4 thereof.
8. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers on
Schedule 1 hereto.
<PAGE>
<TABLE>
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
<CAPTION>
Assigned Commitment
Outstanding Obligations:
Dollar Amount
As a percentage of
combined
Commitments
Borrower
Principal amount
assigned
<S>
$
<C>
%
<C>
<C>
[$]
[$]
</TABLE>
Effective Date of Assignment: ____________, ________
[ASSIGNOR]
By:
Name:
Title:
[ASSIGNEE]
By:
Name:
Title:
The undersigned hereby consent to the within assignment:
INSITUFORM TECHNOLOGIES, INC.
By:
Name:
Title:
<PAGE>
BANK OF AMERICA, N.A., as Administrative Agent and
Issuing Lender
By:
Name:
Title: _
Exhibit 10.1
(244646.11) - 4 - 5/11/2000
(244673) B - 5 5/11/2000
Form of Compliance Certificate
(244673) C - 2 5/11/2000
Form Promissory Note
(244673) D - 9 5/11/2000
Form of Master Guaranty
(244673) E - 2 5/11/2000
Instrument of Joinder For
Additional Guarantors and Borrowers
(244646) - 6 - 5/11/00
Exhibit 10.2
MASTER GUARANTY
This MASTER GUARANTY ("Guaranty"), dated as of
March 30, 2000, is made by each of the corporations from
time to time party hereto (each, in its capacity hereunder,
a "Guarantor" and collectively "Guarantors"), jointly and
severally in favor of the Guarantied Parties referred to
below with reference to the following facts:
RECITALS
A. Pursuant to that Credit Agreement dated as of
March 30, 2000 among Insituform Technologies, Inc., a
Delaware corporation ("Company"), each Borrower from time
to time party thereto, each lender from time to time party
thereto, and BANK OF AMERICA, N.A., as Administrative Agent
and Issuing Lender (as amended, restated, extended,
supplemented or otherwise modified in writing from time to
time, the "Credit Agreement;" the Lenders, the Issuing
Lender and the Administrative Agent (collectively, the
"Guarantied Parties") are making certain credit facilities
available to Borrowers.
B. As a condition to the availability of such credit
facilities, Guarantors are required to enter into this
Master Guaranty and to guaranty the Guarantied Obligations
as hereinafter provided.
C. Guarantors expect to realize direct and indirect
benefits as the result of the availability of the aforemen-
tioned credit facilities to Borrowers, as the result of
financial or business support which will be provided to the
Guarantors by Borrowers.
AGREEMENT
NOW, THEREFORE, in order to induce the Guarantied
Parties to extend the aforementioned credit facilities, and
for other good and valuable consideration, the receipt and
adequacy of which hereby are acknowledged, Guarantors
hereby covenant, agree and guaranty as follows:
1. General. Unless the context of this Guaranty
clearly requires otherwise, (a) references to the plural
include the singular and vice versa, (b) references to any
Person include such Person's successors and assigns but, if
applicable, only if such successors and assigns are
<PAGE>
permitted by this Guaranty, (c) references to one gender
include all genders, (d) "including" is not limiting, (e)
"or" has the inclusive meaning represented by the phrase
"and/or," (f) the words "hereof", "herein", "hereby",
"hereunder" and similar terms in this Guaranty refer to
this Guaranty as a whole, including its Exhibits, and not
to any particular provision of this Guaranty, (g) the word
"Section" or "section" and "Pages or "page" refer to a
section or page, respectively, of this Guaranty unless it
expressly refers to something else, (h) reference to any
agreement, document, or instrument, including this
Guaranty, any other Loan Document and any agreement,
document or instrument defined herein, means such
agreement, document, or instrument as it may have been or
may be amended, restated, extended, renewed, replaced, or
otherwise modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the
terms hereof, and includes all attachments thereto and
instruments incorporated therein, if any, and (i) general
and specific references to any Law means such Law as
amended, modified, codified or reenacted, in whole or in
part, and in effect from time to time. Section captions
are for convenience only and do not affect the
interpretation or construction of this Guaranty.
2. Definitions. All capitalized terms not otherwise
defined herein have the meanings given them in the Credit
Agreement.
3. Acknowledgement of Capacity as a Covered Person
Under the Credit Agreement. Each Guarantor acknowledges
that it has reviewed the Credit Agreement and agrees that
it is a "Covered Person" (as that term is defined in the
Credit Agreement and used in the Credit Agreement and the
other Loan Documents). All of the representations and
warranties, covenants, and agreements contained in the
Credit Agreement and the other Loan Documents which are
applicable to a Covered Person are incorporated into this
Guaranty by this reference and each Guarantor, as such a
Covered Person, hereby makes such representations and
warranties to, and makes such covenants and agreements
with, the Guarantied Parties. Each Guarantor further
acknowledges and agrees that the failure of a Guarantor to
comply with any terms of the Credit Agreement or the other
Loan Documents applicable to such Guarantor as a Covered
Person will, subject to the terms of the Credit Agreement,
<PAGE>
result in a Default and/or Event of Default under the
Credit Agreement and the other Loan Documents, entitling
the Guarantied Parties to all of their remedies thereunder
and under applicable law and in equity.
4. Guaranty.
(a) Unlimited Guaranty of Payment and Performance.
Guarantors hereby jointly and severally guaranty to the
Guarantied Parties, for the benefit of the Guarantied
Parties, the full and prompt payment and performance of all
Obligations of Company, any Subsidiary Borrower and any
other Borrower Party at any time and from time to time owed
to the Guarantied Parties under one or more of the Loan
Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well
as obligations of payment, and including interest that
accrues after the commencement of any bankruptcy or
insolvency proceeding by or against any Borrower, any
Guarantor or any other Person (collectively, the
"Guarantied Obligations"). Subject to Section 21, each
Guarantor understands and acknowledges that there is no
limit on the Guarantied Obligations.
(b) Currency of Payment. Payments hereunder in
respect of any Guarantied Obligations shall be made in the
currencies in which such Guarantied Obligation is
denominated (each, an "Obligation Currency"), or if
Administrative Agent so notifies Company in writing, at the
Guarantied Parties' sole and absolute discretion, the
greater of (i) the Equivalent Amount of such Guarantied
Obligation or any portion thereof, determined as of the
date or dates such Guarantied Obligation was incurred by
any Obligor, or (ii) such Equivalent Amount in Dollars
determined as of the date payment is made hereunder.
(c) Nature of Guaranty. This is a continuing,
absolute and unconditional guaranty of payment and
performance and not merely of collection. Each Guarantor's
liability with respect to the Guarantied Obligations is
primary, not secondary. Upon the occurrence of any Event
of Default and at any time thereafter, the Guarantied
Parties may proceed directly against any Guarantor without
first proceeding against any Borrower, any other Person
liable for the payment or performance of the Guarantied
<PAGE>
Obligations, or any collateral or other security for the
Guarantied Obligations. The Guarantied Parties will not be
required to mitigate damages or take any other action to
reduce, collect or enforce the Guarantied Obligations.
Only upon Final Payment shall this Guaranty be released,
subject to being automatically reinstated as provided in
Section 7 herein.
(d) Place for Performance. All obligations of
Guarantors under this Guaranty are performable and payable
at the Lending Office.
5. No Release of Guarantors. Each Guarantor's
liability under this Guaranty will not be reduced,
extinguished, discharged or released by, and no Guarantor
is entitled to raise as a defense, any:
(a) invalidity, irregularity or unenforceability of
the Guarantied Obligations, any Borrower's Obligations or
other obligations under the Loan Documents to which it is a
party, or of such Guarantor's obligations under the Loan
Documents to which it is a party, including this Guaranty;
(b) existing or future offset, claim, counterclaim or
defense of any Borrower, such Guarantor or any other party
against the Guarantied Parties or against payment of the
Obligations or the Guarantied Obligations (whether such
offset, claim, counterclaim or defense arises in connection
with the Obligations or the Guarantied Obligations or the
transactions creating the Obligations or the Guarantied
Obligations or otherwise);
(c) failure of such Guarantor to be given notice of a
Default or Event of Default by any Borrower;
(d) waivers of Defaults or Events of Default or other
waivers under the Loan Documents:
(e) extensions of due dates for payments,
modifications of interest rates or other payment terms with
respect to the Guarantied Obligations or any other
accommodation, indulgence or forbearance granted to any
Borrower;
(f) reorganization, merger or consolidation of any
Borrower or such Guarantor into or with any other Person;
<PAGE>
(g) release of or non-perfection with respect to any
or all of any collateral or any other security for the
Guarantied Obligations;
(h) taking or accepting of any other security or
collateral for, or guaranty of, any or all of the
Guarantied Obligations;
(i) the death of or release of, or settlement or
compromise with, any one or more other Persons who have
guarantied, or are otherwise liable for the payment or
performance of, any or all of the Guarantied Obligations;
(j) assignment or other transfer of, or granting of a
participation in, any of the Guarantied Obligations or any
collateral or other security therefor, by the Guarantied
Parties;
(k) other acts or omissions which, in the absence of
this Section 5 would operate so as to reduce, extinguish,
discharge or release such Guarantor's liability under this
Guaranty (except for the full and indefeasible payment of
the Guarantied Obligations, cancellation or termination of
the Commitment, expiration of all Letters of Credit, and
termination of any other commitment to extend credit or
make advances to or for the account of any Borrower).
6. Waivers.
(a) Notice. Each Guarantor hereby waives notice of
(i) acceptance of this Guaranty, (ii) any amendment,
restatement or other modification of any of the Loan
Documents (including modifications to interest rates or
other payment terms of the Guarantied Obligations), (iii)
Extensions of Credit to any Borrowers by the Guarantied
Parties and fundings of Extensions of Credit to any
Borrower by the Guarantied Parties, (iv) the occurrence of
a Default or Event of Default, (v) any matter referred to
in Section 5 of this Guaranty, and (vi) any other action at
any time taken or omitted by the Guarantied Parties, and
generally, all demands and notices of every kind in
connection with this Guaranty and the Loan Documents,
except as expressly provided herein and in the Credit
Agreement.
<PAGE>
(b) Right of Contribution, Etc. Each Guarantor
hereby waives any right of contribution, subrogation,
reimbursement, indemnity, or repayment, and any other
"claim", as that term is defined in the United States
Bankruptcy Code, which such Guarantor might now have or
hereafter acquire against any Borrower or any other Person
liable for the payment or performance of the Obligations
(other than pursuant to this Guaranty) that arises from the
existence or performance of such Guarantor's obligations
under this Guaranty; and such Guarantor waives the right to
participate in any existing or future collateral or other
security for the Guarantied Obligations. Each Guarantor
further agrees that such Guarantor will not enter into any
agreement providing, directly or indirectly, for any
contribution, subrogation, reimbursement, indemnity or
repayment by Borrowers on account of any payment made by
such Guarantor hereunder, and that any such agreement would
be void. Until payment in full of all Obligations and
termination of the Commitment, no Guarantor has any right
of contribution, subrogation, reimbursement, indemnity or
repayment and no right of recourse to or with respect to
any assets or property of any other guarantor (including
any Guarantor) or other Person liable for any of the
Guarantied Obligations (other than pursuant to Section 20
below).
(c) Other. Each Guarantor hereby waives (i)
diligence, presentment, demand for payment, protest or
notice, whether of nonpayment, dishonor, protest or
otherwise, (ii) any and all claims, counterclaims or
defenses based upon, related to or arising out of (a) any
matter referred to in Section 5 of this Guaranty, (b) any
issue as to whether any sale or other disposition of any
security for the Guarantied Obligations was conducted in a
commercially reasonable fashion, (c) any election of
remedies by the Guarantied Parties, and (d) a theory that
this Guaranty should be strictly construed against the
Guarantied Parties, and (iv) all other defenses (except
payment in full of all Obligations and termination of the
Commitment), including any statute(s) of limitations, under
applicable Law that would, but for this clause (iv), be
available to such Guarantor as a defense against, or a
reduction, extinguishment, discharge or release of its
obligations under, this Guaranty.
<PAGE>
7. Reinstatement or Guaranty in Certain
Circumstances. Each Guarantor agrees that, if any or all
of a payment made by or on behalf of Borrowers of any
Guarantied Obligation is returned by any Person at any time
for any reason, including pursuant to any settlement, order
(whether or not final) of a court of competent
jurisdiction, provision of any Debtor Relief Law or other
applicable Law or because of acts or omissions of
Borrowers, the Guarantied Obligations will not be deemed to
have been satisfied to the extent of the returned payment
and the obligations of such Guarantor will be deemed to be
reinstated automatically and to continue in full force and
effect. If any Borrower ceases to be liable to the
Guarantied Parties for any of the Obligations (other than
by reason of payment in full of all Obligations and
termination of the Commitment), then any prior release or
discharge from this Guaranty will be without effect and
this Guaranty and the obligations of each Guarantor
hereunder will be automatically reinstated and continue in
full force and effect.
8. Representations and Warranties. Each Guarantor
represents and warrants to the Guarantied Parties as
follows:
(a) Authorization. Each Guarantor is duly authorized
to execute and perform this Guaranty, and this Guaranty has
been properly authorized by all requisite corporate,
membership, or partnership action (as the case may be) of
such Guarantor. No consent, approval or authorization of,
or declaration or filing with, any Governmental Authority
or any other Person, is required in connection with such
Guarantor's execution, delivery or performance of this
Guaranty, except for those already duly obtained.
(b) Due Execution. This Guaranty has been executed
on behalf of each Guarantor by a legally competent Person
duly authorized to do so.
(c) Enforceability. This Guaranty constitutes the
legal, valid and binding obligation of each Guarantor,
enforceable against such Guarantor in accordance with its
terms, except to the extent that the enforceability thereof
against such Guarantor may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Laws
<PAGE>
affecting creditor's rights generally or by equitable
principles of general application.
(d) Legal Restraints. The execution of this Guaranty
by each Guarantor, and the performance by such Guarantor of
its obligations under this Guaranty, will not violate or
constitute a default under the Charter Documents of such
Guarantor, any Material Agreement, or any Material Law, and
will not, except as expressly contemplated or permitted in
this Guaranty, result in any Security Interest being
imposed on any of such Guarantor's property.
(e) Independent Credit Evaluation. Each Guarantor
has independently, and without reliance on any information
supplied by the Guarantied Parties, taken, and will
continue to take, whatever steps such Guarantor deems
necessary to evaluate the financial condition and affairs
of Borrowers and each other Guarantor. No Guarantied Party
has any duty to advise any Guarantor of information at any
time known to it regarding the financial condition or
affairs of any Borrower or any other Guarantor.
(f) No Representation by the Guarantied Parties. No
Guarantied Party has made any representation, warranty or
statement to any Guarantor to induce such Guarantor to
execute this Guaranty.
9. Survival of Representations. All
representations, warranties, and covenants of each
Guarantor contained herein survive the execution and
delivery of this Guaranty, and terminate only upon Final
Payment.
10. Authorization to Charge Accounts. Each Guarantor
hereby authorizes each Guarantied Party, if and to the
extent any amount payable by such Guarantor under this
Guaranty is not otherwise paid when due, to charge such
amount against any or all of the accounts of such Guarantor
with such Guarantied Party or any Affiliate of such
Guarantied Party, with such Guarantor remaining liable for
any deficiency.
11. Guarantied Parties' Offset Rights. Upon the
occurrence of any Event of Default and at any time and from
time to time thereafter, each Guarantied Party is hereby
authorized, without notice to any Guarantor (any such
<PAGE>
notice being expressly waived by each Guarantor), to setoff
against the Guarantied Obligations any and all deposits
(general or special, time or demand, provisional or final)
at any time held, or any other Indebtedness at any time
owing by such Guarantied Party to or for the credit or the
account of such Guarantor, irrespective of whether or not
demand has been made under the Credit Agreement, any Note,
or this Guaranty, and to remit the proceeds of such setoff
to such Guarantied Party for distribution to such
Guarantied Party and application to the Guarantied
Obligations as provided in the Credit Agreement.
12. Enforcement. Each Guarantor acknowledges that
all of the Guarantors are liable jointly and severally for
the full amount of the Guarantied Obligations. Suits for
the enforcement of this Guaranty may be brought, at the
option of the Guarantied Parties, against all Guarantors,
or successively against each Guarantor, or against one or
more but not against all Guarantors.
13. Attorney's Fees and Other Costs. If Guarantors
fail to pay the Guarantied Obligations as required by this
Guaranty, then Guarantors will pay all reasonable costs
and expenses incurred by the Guarantied Parties in
enforcing this Guaranty, including Attorney Costs (whether
or not there is litigation), court costs and all costs
incurred in connection with any proceedings under any
Debtor Relief Law.
14. Records. The Guarantied Parties' books and
records showing the accounts between the Guarantied Parties
and any Borrower are admissible in evidence in any action
or proceeding with respect to this Guaranty and constitute
prima facie proof of the information therein.
15. Binding Nature of Certain Adjudications. Each
Guarantor will be conclusively bound by the final
adjudication in any action or proceeding, legal or
otherwise, involving any controversy arising under, in
connection with, or in any way related to, any of the
Guarantied Obligations, and by a final judgment, award or
decree entered therein, if such Guarantor had the right, or
was given the opportunity, to participate in such action or
proceeding and was given notice of such action or
proceeding in time to exercise such right or avail itself
of such opportunity.
<PAGE>
16. Application of Payments. All payments made under
this Guaranty will be allocated among the principal and
interest and other components of the Guarantied Obligations
and the other obligations of a Guarantor hereunder in such
order and amount as the Guarantied Parties may determine in
their sole and absolute discretion.
17. Limitation of Liability. No Guarantied Party
will have any liability with respect to, and each Guarantor
hereby waives, releases and agrees not to sue for, (a) any
loss or damage sustained by any Guarantor that may occur as
a result of, in connection with, or that is in any way
related to, any act or failure to act referred to in
Section 5 of this Guaranty, or (b) any special, indirect or
consequential damages suffered by any Guarantor in
connection with any claim related to this Guaranty.
18. Miscellaneous.
(a) Notices. All notices, consents, requests and
demands to or upon the respective parties hereto shall be
given by Requisite Notice at the address of Company set
forth on Schedule 9.02 to the Credit Agreement. No notice
given to or demand made on any Guarantor by the Guarantied
Parties in any instance entitles any Borrower to notice or
demand in any other instance.
(b) Amendments and Waivers. No amendment to, waiver
of, or departure from full compliance with any provision of
this Guaranty, or consent to any departure by any Guarantor
herefrom, will be effective unless it is in writing and
signed by authorized officers of such Guarantor and
Administrative Agent; provided, however, that any such
waiver or consent will be effective only in the specific
instance and for the purpose for which given. No failure
by Lender to exercise, and no delay by any Guarantied Party
in exercising, any right, remedy, power or privilege
hereunder will operate as a waiver thereof, nor will any
single or partial exercise by any Guarantied Party of any
right, remedy, power or privilege hereunder preclude any
other exercise thereof, or the exercise of any other right,
remedy, power or privilege.
(c) Rights Cumulative. Each of the rights and
remedies of the Guarantied Parties under this Guaranty is
in addition to all of their other rights and remedies under
<PAGE>
applicable Law, and nothing in this Guaranty may be
construed as limiting any such rights or remedies.
(d) Successors and Assigns. This Guaranty binds
Guarantors and their respective successors and assigns and
inures to the benefit of the Guarantied Parties, and each
of its successors, transferees, participants and assignees.
No Guarantor may delegate or transfer any of its
obligations under this Guaranty without the prior written
consent of Administrative Agent and all Lenders. With
respect to each Guarantor's successors and assigns, such
successors and assigns include any receiver, trustee or
debtor-in-possession of or for such Guarantor.
(e) Severability. Any provision of this Guaranty
which is prohibited, unenforceable or not authorized in any
jurisdiction is, as to such jurisdiction, ineffective to
the extent of such prohibition, unenforceability or
nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability
or legality of such provision in any other jurisdiction.
(f) No Third Party Rights. This Guaranty is solely
for the benefit of the parties hereto and the Guarantied
Parties, and their respective successors and assigns, and
no other Person has any right, benefit, priority or
interest under, or because of the existence of, this
Guaranty.
(g) Counterparts. This Guaranty may be executed by
the parties hereto on any number of separate counterparts,
and all such counterparts taken together constitute one and
the same instrument. It is not necessary in making proof
of this Guaranty to produce or account for more than one
counterpart signed by the party to be charged.
(h) Counterpart Facsimile Execution. For purposes of
this Guaranty, a document (or signature page thereto)
signed and transmitted by facsimile machine or telecopier
is to be treated as an original document. The signature of
any Person thereon, for purposes hereof, is to be
considered as an original signature, and the document
transmitted is to be considered to have the same binding
effect as an original signature on an original document.
At the request of any party hereto, any facsimile or
telecopy document is to be re-executed in original form by
<PAGE>
the Persons who executed the facsimile or telecopy
document. No party hereto may raise the use of a facsimile
machine or telecopier or the fact that any signature was
transmitted through the use of a facsimile or telecopier
machine as a defense to the enforcement of this Guaranty or
any amendment or other document executed in compliance with
this Section.
(i) Final Expression; No Course of Dealing. This
Guaranty, together with the Credit Agreement, the other
Loan Documents and any other agreement executed in
connection herewith or therewith, is intended by the
parties as a final expression of their agreement and is
intended as a complete and exclusive statement of the terms
and conditions thereof. Acceptance of or acquiescence in a
course of performance or course of dealing rendered or
taken under or with respect to this Guaranty, the Credit
Agreement or the other Loan Documents will not be relevant
to determine the meaning of this Guaranty, the Credit
Agreement or the other Loan Documents even though the
accepting or acquiescing party had knowledge of the nature
of the performance and opportunity for objection.
(j) Negotiated Transaction. Each Guarantor and
Guarantied Party represent to the other that in the
negotiation and drafting of this Guaranty each has been
represented by and has relied upon the advice of counsel of
its choice. Each Guarantor and Guarantied Party affirm
that its counsel has had a substantial role in the drafting
and negotiation of this Guaranty; therefore, this Guaranty
will be deemed drafted by each of Borrowers and the
Guarantied Parties, and the rule of construction to the
effect that any ambiguities are to be resolved against the
drafter will not be employed in the interpretation of this
Guaranty.
(k) Assignment By Guarantied Parties. To the extent
permitted in the Credit Agreement, the Guarantied Parties
may grant a participation interest in or assign or transfer
to another Person any instrument, document or agreement
evidencing any of the Guarantied Obligations and the
Guarantied Parties' rights under this Guaranty.
<PAGE>
(l) Choice of Law, Forum. Waiver of Jury Trial.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORINA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE; PROVIDED THAT ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF CALIFORNIA SITTING IN LOS
ANGELES OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY,
EACH GUARANTOR, ADMINISTRATIVE AGENT AND EACH LENDER
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
GUARANTOR, ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY
LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH
GUARANTOR, ADMINISTRATIVE AGENT AND EACH LENDER WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF SUCH STATE.
(c) EACH PARTY TO THIS GUARANTY HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY
TO THIS GUARANTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY
OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
<PAGE>
19. Additional Guarantors. Any Person required to
become a Guarantor pursuant to Section 6.10 of the Credit
Agreement shall, upon complying with such section, be
deemed a Guarantor and this Guaranty shall be deemed
amended to include such additional Person as a party hereto
as though a signatory hereto, with no amendment or further
action required hereunder, and thereafter, all references
to Guarantors shall include such additional Person.
20. Right of Contribution. Each Guarantor hereby
agrees that to the extent that a Guarantor shall have paid
more than its proportionate share of all payments made
hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor
hereunder who has not paid its proportionate share of all
such payments. The provisions of this Section shall in no
respect limit the obligations and liabilities of any
Guarantor to the Guarantied Parties, and, subject to the
provisions of Section 21 below, each Guarantor shall remain
liable to the Guarantied Parties for the full amount
guaranteed by such Guarantor hereunder. The "proportionate
share" of any Guarantor shall be a fraction (which shall in
no event exceed 1.00) the numerator of which is the excess,
if any, of the fair value of the assets of such Guarantor
over a fair estimate of the liabilities of such Guarantor
and the denominator of which is the excess (but not less
than $1.00) of the fair value of the aggregate assets
(without duplication) of all Guarantors over a fair
estimate of the aggregate liabilities (without duplication)
of all Guarantors. All relevant calculations shall be made
as of the date such Guarantor became a Guarantor.
21. Liability. Notwithstanding anything to the
contrary elsewhere contained herein or in any Loan Document
to which any Guarantor is a Party, the aggregate liability
of each Guarantor hereunder (other than Company) for
payment and performance of the Guarantied Obligations shall
not exceed an amount which, in the aggregate, is $1.00 less
than that amount which if so paid or performed would
constitute or result in a "fraudulent transfer,"
"fraudulent conveyance" or terms of similar import, under
applicable state or federal Law, including without
limitation, Section 548 of the United States Bankruptcy
Code. The liability of each Guarantor hereunder is
independent of any other guaranties at any time in effect
with respect to all or any part of the Guarantied
<PAGE>
Obligations, and each Guarantor's liability hereunder may
be enforced regardless of the existence of any such
guaranties. Any termination by or release of any Guarantor
in whole or in part (whether it be another Guarantor under
this instrument or not) shall not affect the continuing
liability of any Guarantor hereunder, and no notice of any
such termination or release shall be required. The
execution hereof by each Guarantor is not founded upon an
expectation or understanding that there will be any other
Guarantor of the Guarantied Obligations.
22. Judgment Currencies. (a) If any claim
arising under or related to any Guarantied Obligation is
reduced to a judgment denominated in a Judgment Currency
other than the Obligation Currency, the judgment shall be
for the greater of (i) the equivalent in the Judgment
Currency of the amount of the claim denominated in the
Obligation Currency (or each Obligation Currency, if more
than one) included in the judgment, determined as of the
date or dates the Guarantied Obligations related to such
claim were loaned to or incurred by Obligors, or (ii) such
equivalent determined as of the date of entry of such
judgment. The equivalent of any Obligation Currency amount
in any Judgment Currency shall be calculated at the spot
rate for the purchase of the Obligation Currency with the
Judgment Currency quoted by Bank on the date for
determination specified above. "Judgment Currency" means
the currency in which any judgment on any claim arising
under or related to a Guarantied Obligation is denominated.
(b) Guarantors shall indemnify the Guarantied Parties
against and hold the Guarantied Parties harmless from all
loss and damage resulting from any change in exchange rates
between the date any claim is reduced to judgment and the
date of payment (or, in the case of partial payments, the
date of each partial payment) thereof by any Guarantor.
This indemnity shall constitute an obligation separate and
independent from the other obligations contained in this
Guaranty, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence
granted by the Guarantied Parties from time to time, and
shall continue in full force and effect not-withstanding
any judgment or order for a liquidated sum in respect of an
amount due hereunder or under any judgment or order.
<PAGE>
23. Payments Exempt From Taxes. (a) Any and all
payments by Guarantors to or for the account of the
Guarantied Parties hereunder shall be made free and clear
of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities
with respect thereto, excluding, in the case of any
Guarantied Party, taxes imposed on or measured by its net
income, branch profits or franchise taxes imposed on it (in
lieu of net income or branch profits taxes), by the United
States of America or by the jurisdiction (or any political
subdivision thereof) under the Laws of which such
Guarantied Party is organized, in which its principal
office is located or in which it maintains a lending
office, and any other taxes withheld because such
Guarantied Party failed to timely deliver the forms
required pursuant to Section 10.21 of the Credit Agreement
(all such non-excluded taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as
"Taxes").
(b) If a Guarantor shall be required by any Laws to
deduct any Taxes from or in respect of any sum payable
under any Loan Document to any Guarantied Party, (i) the
sum payable shall be increased as necessary so that after
making all required deductions (including deductions
applicable to additional sums payable under this Section),
such Guarantied Party receives an amount equal to the sum
it would have received had no such deductions been made,
(ii) such Guarantor shall make such deductions, (iii) such
Guarantor shall pay the full amount deducted to the
relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, such Guarantor shall
furnish to Administrative Agent (who shall forward the same
to such Guarantied Party) the original or a certified copy
of a receipt evidencing payment thereof.
(c) Each Guarantor will provide the Guarantied
Parties with original tax receipts, notarized copies of tax
receipts, or such other documentation as will prove payment
of tax in a court of law applying the United States Federal
Rules of Evidence, for all taxes paid by a Guarantor
pursuant to subsection (b) above. Each Guarantor will
<PAGE>
deliver receipts to Administrative Agent within 30 days
after the due date for the related tax.
IN WITNESS WHEREOF, this Guaranty has been duly
executed as of the date first above written.
GUARANTORS:
INSITUFORM TECHNOLOGIES, INC.
By
Name Joseph A. White
Title Vice-President-Chief
Financial Officer
AFFHOLDER, INC.
INA ACQUISITION CORP.
INSITUFORM TECHNOLOGIES USA, INC.
By
Name Joseph A. White
Title Vice President
Acknowledged:
BANK OF AMERICA, N.A.
By:
Charles F. Lilygren
Managing Director
(322975.1) - 17 -
Exhibit 10.3
INSITUFORM TECHNOLOGIES, INC.
___________________________________
Second Amendment
Dated as of March 30, 2000
to
NOTE PURCHASE AGREEMENTS
Dated as of February 14, 1997
___________________________________
Re: $110,000,000 7.88% Senior Notes, Series A,
Due February 14, 2007
<PAGE>
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS SECOND AMENDMENT dated as of March 30, 2000 (the or this
"Second Amendment") to the separate and several Note Purchase
Agreements, each dated as of February 14, 1997, is between
INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and each of the institutions which is a signatory to
this Second Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore
entered into separate and several Note Purchase Agreements, each
dated as of February 14, 1997, as amended by the First Amendment
dated as of August 20, 1997 (collectively, the "Note
Agreements"), pursuant to which the Company has heretofore issued
its 7.88% Senior Notes, Series A, due February 14, 2007, in the
aggregate principal amount of $110,000,000 (the "Notes"). The
Noteholders are the holders of more than 66-2/3% of the
outstanding principal amount of the Notes.
B. The Company proposes to enter into that certain
Multicurrency Credit Agreement dated as of March 30, 2000 (the
"Loan Agreement"), by and among the Company, each Subsidiary (as
defined therein) of the Company from time to time designated by
the Company as a borrower thereunder, each lender from time to
time a party thereto (the "Banks") and Bank of America, N.A., as
Administrative Agent and as Issuing Lender, pursuant to which the
Banks will refinance the Company's existing loan agreement with
Bank of America, N.A. and in connection therewith increase the
aggregate principal amount in revolving credit facilities
available to the Company from $20,000,000 to $50,000,000.
C. The Obligations of the Company under the Loan Agreement
will be guaranteed by certain Subsidiaries of the Company.
D. The Company has increased its equity interest in
Insituform Linings Plc ("ILP") to 75% of the outstanding
ownership interests of ILP and withdrawn from Midsouth Partners.
E. The Company and the Noteholders now desire to amend the
Note Agreements in the respects, but only in the respects,
hereinafter set forth in order to reflect certain agreements
<PAGE>
between the Company and the Noteholders arising in connection
with the consummation of the Loan Agreement and to include ILP as
a "Subsidiary" as defined in the Note Agreements.
F. Capitalized terms used herein shall have the respective
meanings ascribed thereto in the Note Agreements unless herein
defined or the context shall otherwise require.
G. All requirements of law have been fully complied with
and all other acts and things necessary to make this Second
Amendment a valid, legal and binding instrument according to its
terms for the purposes herein expressed have been done or
performed.
NOW, THEREFORE, upon the full and complete satisfaction of
the conditions precedent to the effectiveness of this Second
Amendment set forth in Section 3.1 hereof, and in consideration
of good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS.
Section 1.1. Section 7.4 of the Note Agreements shall be and is
hereby deleted in its entirety.
Section 1.2. The preamble of Section 10.7(a) of the Note
Agreements, and clause (i) of said section, shall be and is
hereby amended in its entirety to read as follows:
Section 10.7. Mergers, Consolidations and Sales of
Assets. (a) The Company will not, and will not permit any
Subsidiary to, consolidate with or be a party to a merger
with any other Person, or sell, lease or otherwise dispose
of all or substantially all of its assets (other than in a
transaction not prohibited by Section 10.7 (b) hereof);
provided that:
(i) any Subsidiary may merge or consolidate with
or into the Company or any other Person so long as in
(1) any merger or consolidation involving the Company,
the Company shall be the surviving or continuing
corporation and (2) any merger or consolidation
<PAGE>
involving any other Person, a Wholly-owned Subsidiary
shall be the surviving or continuing corporation; and
Section 1.3. Clause (z) contained in Section 10.7(b) of the Note
Agreements shall be and is hereby amended in its entirety to read
as follows:
(z) provided further that in no event will the Company or
any of its Subsidiaries transfer title to any patent to
Insituform Linings Plc.
Section 1.4. The definition of "Loan Agreement" appearing in
Exhibit B of the Note Agreements shall be and is hereby amended
in its entirety to read as follows:
"Loan Agreement" means that certain Multicurrency
Credit Agreement dated as of March 30, 2000, by and among
the Company, each Subsidiary (as defined therein) of the
Company from time to time designated by the Company as a
borrower thereunder, each lender from time to time a party
thereto, and Bank of America, N.A., as Administrative Agent
and as Issuing Lender, providing for up to $50,000,000
aggregate principal amount in revolving credit facilities,
and any amendment, renewal, replacement, refunding or
refinancing thereof on terms no less favorable to the
Company in any material respect and without increase in the
aggregate principal amount of credit available thereunder.
Section 1.5. The definition of "Subsidiary" appearing in Exhibit
B of the Note Agreements shall be and is hereby amended in its
entirety to read as follows:
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or
one or more of its Subsidiaries or such Person and one or
more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in
the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by
such Person or one or more of its Subsidiaries or such
<PAGE>
Person and one or more of its Subsidiaries (unless such
partnership can and does ordinarily take major business
actions without the prior approval of such Person or one or
more of its Subsidiaries), provided, however, that for all
purposes of this Agreement, the term "Subsidiary" shall not
include dormant Persons otherwise constituting
"Subsidiaries" pursuant to the terms hereof which, taken as
a group, (1) own less than 1.0% of Consolidated Total Assets
and (2) contribute less than 1.0% of Consolidated Net
Earnings in any fiscal year. Unless the context otherwise
clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver
this Second Amendment, the Company represents and warrants (which
representations shall survive the execution and delivery of this
Second Amendment) to the Noteholders that:
(a) this Second Amendment has been duly authorized,
executed and delivered by it and this Second Amendment
constitutes the legal, valid and binding obligation,
contract and agreement of the Company enforceable against it
in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating
to or limiting creditors' rights generally;
(b) the Note Agreements, as amended by this Second
Amendment, constitute the legal, valid and binding
obligations, contracts and agreements of the Company
enforceable against it in accordance with their respective
terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors'
rights generally;
(c) the execution, delivery and performance by the
Company of this Second Amendment (i) has been duly
authorized by all requisite corporate action and, if
<PAGE>
required, shareholder action, (ii) does not require the
consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision
of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any
rule, regulation or order of any other agency or government
binding upon it, or (3) any provision of any material
indenture, agreement or other instrument to which it is a
party or by which its properties or assets are or may be
bound, including, without limitation, the Loan Agreement, or
(B) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under any
indenture, agreement or other instrument referred to in
clause (iii)(A)(3) of this Section 2.1(c), other than any
violation, breach or default which individually or in the
aggregate could not reasonably be expected to have a
Material Adverse Effect;
(d) as of the date hereof and after giving effect to
this Second Amendment, no Default or Event of Default has
occurred which is continuing;
(e) all the representations and warranties contained
in Section 5 of the Loan Agreement are true and correct in
all material respects and are incorporated herein by
reference (including schedules referred to therein and the
related definitions contained or referenced in Section 1
thereof) with the same force and effect as if made by the
Company directly to the Noteholders on and as of the date
hereof, except that all references to (i) any "Loan
Document" shall be references to the Second Amendment,
(ii) the "Lenders" shall be references to the Noteholders,
(iii) any "Default" or "Event of Default" shall be
references to a Default or Event of Default under the Note
Agreements, and (iv) a "Material Adverse Effect" shall be
references to a Material Adverse Effect under the Note
Agreements; and
(f) the Company and the Subsidiaries of the Company
identified as Guarantors on Schedule 4.01(b) to the Loan
Agreement are the successors in interest to Insituform
Southwest, Inc. and the Subsidiaries of the Company
<PAGE>
identified as Guarantors on Schedule I to the Guaranty
Agreement dated as of August 20, 1997 by such Subsidiaries
to the Noteholders.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS SECOND AMENDMENT.
Section 3.1. This Second Amendment shall not become effective
until, and shall become effective when, each and every one of the
following conditions shall have been satisfied:
(a) executed counterparts of this Second Amendment,
duly executed by the Company and the holders of at least 66-
2/3% of the outstanding principal of the Notes, shall have
been delivered to the Noteholders;
(b) executed counterparts of the Amended and Restated
Intercreditor Agreement dated as of March 30, 2000, among
the Noteholders, the Banks, the Company and each Subsidiary
delivering a guaranty to the Banks in respect of the Loan
Agreement, duly executed by the parties thereto, shall have
been delivered to the Noteholders;
(c) copies of the final executed form of the Loan
Agreement between the Company and the Banks shall have been
delivered to the Noteholders together with copies of each of
the Guaranties delivered by the Subsidiaries in connection
therewith, which Loan Agreement and Guaranties shall be in
form and substance satisfactory to the Noteholders; and
(d) the representations and warranties of the Company
set forth in Section 2 hereof are true and correct on and
with respect to the date hereof and a certificate of a
Responsible Officer certifying the same shall have been
delivered to the Noteholders.
Upon receipt of all of the foregoing, this Second Amendment shall
become effective as of the date hereof, except that, for purposes
of the reporting requirements under Section 7.1(a) and (b) and
7.4 of the Note Agreements, and compliance with the covenants
under Sections 9 and 10 thereof, Sections 1.1 and 1.5 hereof
shall have effect in respect of fiscal periods from January 1,
<PAGE>
2000. Delivery of this Second Amendment to the Company, duly
executed by the holders of at least 66-2/3% of the outstanding
principal amount of the Notes, shall acknowledge satisfaction of
the foregoing conditions.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company agrees to pay upon demand, the
reasonable fees and expenses of Chapman and Cutler, counsel to
the Noteholders, in connection with the negotiation, preparation,
approval, execution and delivery of this Second Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This Second Amendment shall be construed in
connection with and as part of each of the Note Agreements, and
except as modified and expressly amended by this Second
Amendment, all terms, conditions and covenants contained in the
Note Agreements and the Notes are hereby ratified and shall be
and remain in full force and effect.
Section 5.2. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and
delivery of this Second Amendment may refer to the Note
Agreements without making specific reference to this Second
Amendment but nevertheless all such references shall include this
Second Amendment unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or
parts of this Second Amendment are for convenience only and shall
not affect the meaning or construction of any of the provisions
hereof.
Section 5.4. This Second Amendment shall be governed by and
construed in accordance with Illinois law.
[INTENTIONALLY BLANK]
<PAGE>
Section 5.5. The execution hereof by you shall constitute a
contract between us for the uses and purposes hereinabove set
forth, and this Second Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original,
but all together only one agreement.
INSITUFORM TECHNOLOGIES, INC.
By s/Joseph A. White
----------------------------
Its Vice President-Chief
Financial Officer
<PAGE>
Accepted and agreed to as of the date first written above:
THE NORTHWESTERN MUTUAL LIFE LIBERTY LIFE INSURANCE
INSURANCE COMPANY COMPANY (formally known
As Pierce National Life
Insurance Company)
By s/Richard A. Strait By s/Patrick M. Dodd
--------------------------- -------------------------
ALLSTATE LIFE INSURANCE COMPANY THE SECURITY MUTUAL LIFE
INSURANCE COMPANY OF
LINCOLN, NEBRASKA
By s/ By s/Kevin W. Hammond
--------------------------- -------------------------
Kevin W. Hammond
Authorized Signatories Vice President
Chief Investment Officer
By s/
---------------------------
Authorized Signatories
<PAGE>
NORTHERN LIFE INSURANCE COMPANY CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By s/James V. Wittich ACE PROPERTY AND CASUALTY
--------------------------- INSURANCE COMPANY (for-
James V. Wittich mally known as CIGNA
Assistant Treasurer Property and Casualty
Insurance Company)
RELIASTAR LIFE INSURANCE COMPANY CONNECTICUT GENERAL LIFE
Successor by merger to INSURANCE COMPANY, on
RELIASTAR UNITED SERVICES LIFE behalf of one or more
INSURANCE COMPANY separate accounts
By s/James V. Wittich LIFE INSURANCE COMPANY OF
--------------------------- NORTH AMERICA
James V. Wittich
Authorized Representative By: CIGNA Investments, Inc.
RELIASTAR LIFE INSURANCE COMPANY
OF NEW YORK (formally known as By s/Stephen A. Osborn
ReliaStar Bankers Security ---------------------------
Life Insurance Company) Stephen A. Osborn
Managing Director
By s/James V. Wittich
---------------------------
James V. Wittich
Vice President, Investments
RELIASTAR LIFE INSURANCE COMPANY
By s/James V. Wittich
---------------------------
James V. Wittich
Authorized Representative
<PAGE>
JEFFERSON-PILOT LIFE
INSURANCE COMPANY
By s/Robert E. Whalen II
-------------------------
Robert E. Whalen II
Vice President
ALEXANDER HAMILTON LIFE
INSURANCE COMPANY OF
AMERICA
By s/Robert E. Whalen II
-------------------------
Robert E. Whalen II
Vice President
Exhibit 10.4
AMENDED AND RESTATED INTERCREDITOR AGREEMENT
Dated as of March 30, 2000
AMONG
THE BANKS
AND
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
PRINCIPAL LIFE INSURANCE COMPANY
ALLSTATE LIFE INSURANCE COMPANY
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
ACE PROPERTY AND CASUALTY INSURANCE COMPANY
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, ON BEHALF OF ONE
OR MORE SEPARATE ACCOUNTS
JEFFERSON-PILOT LIFE INSURANCE COMPANY
ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF AMERICA
LIFE INSURANCE COMPANY OF NORTH AMERICA
NORTHERN LIFE INSURANCE COMPANY
RELIASTAR UNITED SERVICES LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
RELIASTAR LIFE INSURANCE COMPANY
LIBERTY LIFE INSURANCE COMPANY
AND
THE SECURITY MUTUAL LIFE INSURANCE COMPANY OF LINCOLN, NEBRASKA
<PAGE>
TABLE OF CONTENTS
SECTION HEADING PAGE
Parties 2
Recitals 2
SECTION 1. DEFINITIONS 4
SECTION 2. SHARING OF RECOVERIES 8
Section 2.1. Pro Rata Share 8
Section 2.2. Letters of Credit 9
SECTION 3. AGREEMENTS AMONG THE CREDITORS 9
Section 3.1. Independent Actions by Creditors 9
Section 3.2. Relation of Creditors 10
Section 3.3. Acknowledgment of Guaranties 10
Section 3.4. Additional Creditors 10
SECTION 4. MISCELLANEOUS 10
Section 4.1. Entire Agreement 10
Section 4.2. Notices 11
Section 4.3. Successors and Assigns 11
Section 4.4. Consents, Amendment, Waivers 11
Section 4.5. Governing Law 11
Section 4.6. Counterparts 11
Section 4.7. Sale of Interest 11
Section 4.8. Severability 12
Section 4.9. Expenses 12
Section 4.10. Term of Agreement 12
Signature Page 16
<PAGE>
AMENDED AND RESTATED INTERCREDITOR AGREEMENT
This AMENDED AND RESTATED INTERCREDITOR AGREEMENT (the or this
"Agreement"), dated as of March 30, 2000, is made among (i) the
Banks (as hereinafter defined) and (ii) each of the Noteholders
(as hereinafter defined); the Noteholders, the Banks and each of
the additional Persons, if any, that become Creditors hereunder
as contemplated by Section 3.4 hereof are individually referred
to herein as a "Creditor" and are collectively referred to herein
as the "Creditors".
R E C I T A L S:
A. Under and pursuant to the separate and several Note
Purchase Agreements, each dated as of February 14, 1997 (as
amended by the First Amendment to Note Purchase Agreements dated
as of August 20, 1997, the Second Amendment to Note Purchase
Agreements dated as of March 30, 2000 (the "Second Amendment")
and as such agreements may be amended or modified from time to
time, collectively, the "Note Purchase Agreements"), between
Insituform Technologies, Inc., a Delaware corporation (the
"Company"), and each of the Purchasers named on Schedule A
attached thereto respectively, the Company has heretofore issued
and sold its 7.88% Senior Notes, Series A, due February 14, 2007,
in the aggregate principal amount of $110,000,000 (the "Notes").
The holders of the Notes currently outstanding are referred to
herein individually as a "Noteholder" and collectively as the
"Noteholders."
B. Under and pursuant to the Guaranty Agreement dated as of
August 20, 1997 (as it may be modified, amended, renewed or
replaced, the "Initial Noteholder Guaranty"), the Subsidiaries of
the Company party thereto (the "Initial Noteholder Subsidiary
Guarantors") irrevocably, absolutely and unconditionally
guaranteed to the Noteholders the payment of the principal of,
premium, if any, and interest on the Notes and the payment and
performance of all other obligations of the Company under the
Note Purchase Agreements. Under and pursuant to the Guaranty
Agreement dated as of March 31, 1998 (as it may be modified,
amended, renewed or replaced, the "Additional Noteholder
Guaranty"), Insituform Southwest, Inc. (the "Additional Note-
<PAGE>
holder Subsidiary Guarantor"), successor in interest to
Insituform Southwest, irrevocably, absolutely and unconditionally
guaranteed to the Noteholders the payment of the principal of,
premium, if any, and interest on the Notes and the payment and
performance of all other obligations of the Company under the
Note Purchase Agreements. The Initial Noteholder Guaranty, the
Additional Noteholder Guaranty and any additional guaranties
delivered to the Noteholders as a result of a guaranty being
delivered to the Banks (as defined below), as such additional
guaranty may be modified, amended, renewed or replaced from time
to time, are hereinafter referred to collectively as the
"Noteholder Guaranty." Affholder, Inc., INA Acquisition Corp and
Insituform Technologies USA, Inc., together with the Company, are
the successors in interest to the Initial Noteholder Subsidiary
Guarantors and the Additional Noteholder Subsidiary Guarantor.
C. Under and pursuant to the Multicurrency Credit
Agreement dated as of March 30, 2000 (as such agreement may be
amended, modified, renewed or replaced from time to time, the
"Loan Agreement"), by and among the Company, each Subsidiary (as
defined therein) of the Company from time to time designated by
the Company as a borrower thereunder (the "Subsidiary Borrowers";
the Subsidiary Borrowers and the Company being hereinafter
referred to individually as an "Obligor" and collectively as the
"Obligors"), each Lender from time to time party thereto (the
"Lenders") and Bank of America, N.A., as Administrative Agent and
as Issuing Lender ("BofA"; BofA and the Lenders being hereinafter
referred to collectively as the "Banks"), the Banks have made
available to the Obligors certain revolving credit facilities in
a current aggregate principal amount of up to $50,000,000 (all
obligations in respect of said credit facilities being
hereinafter collectively referred to as the "Loans").
D. Under and pursuant to the Master Guaranty dated as of
March 30, 2000 (as may be modified, amended, renewed or replaced
from time to time, and together with any additional guaranty
executed and delivered to the Banks in respect of the Loan
Agreement, the "Bank Guaranty"), Affholder, Inc., INA Acquisition
Corp., Insituform Technologies USA, Inc. and the Company
irrevocably, absolutely and unconditionally guarantee to the
Banks the payment and performance of all obligations of the
Obligors under the Loan Agreement.
<PAGE>
E. The Noteholders have required as a condition precedent
to their entering into the Second Amendment that the Noteholders
and the Banks enter into this Agreement, providing for, inter
alia, the equal and ratable sharing of payments received from the
Subsidiary Guarantors (as defined below) under the Bank Guaranty
and the Noteholder Guaranty, and that this Agreement shall amend,
restate and supersede in its entirety the Intercreditor Agreement
dated as of August 20, 1997 among the Noteholders and BofA (as
successor in interest to NationsBank, N.A.), as supplemented by
Supplement No. 1 thereto dated as of March 31, 1998 (the
"Original Intercreditor Agreement"). The Bank Guaranty and the
Noteholder Guaranty are hereinafter referred to collectively as
the "Subsidiary Agreements." "Subsidiary Guarantors" means any
Subsidiary of the Company that delivers or is required to deliver
a Subsidiary Agreement.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS.
The following terms shall have the meanings assigned to them
below in this Section 1 or in the provisions of this Agreement
referred to below:
"Additional Noteholder Guaranty" shall have the meaning set
forth in the Recitals hereof.
"Additional Noteholder Subsidiary Guarantor" shall have the
meaning set forth in the Recitals hereof.
"Bankruptcy Proceeding" shall mean, with respect to any
person, (i) the filing by such person, or consent by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other
similar law of any jurisdiction, (ii) the making of an assignment
for the benefit of such person's creditors, (iii) consent by such
person to the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to such person or
with respect to any substantial part of its property, (iv) the
<PAGE>
adjudication of such person as insolvent or to be liquidated,
(v) the taking by such person of corporate action for the purpose
of any of the foregoing, or (vi) the entry by a court or
governmental authority of competent jurisdiction of an order
appointing, without consent by such person, a custodian,
receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its
property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of such person.
"Banks" shall have the meanings assigned thereto in the
introductory paragraph hereto.
"Bank Guaranty" shall have the meaning assigned thereto in
the Recitals hereof.
"BofA" shall have the meaning assigned thereto in the
Recitals hereof.
"Company" shall have the meaning assigned thereto in the
Recitals hereof.
"Credit Documents" shall mean, collectively, the Note
Purchase Agreements, the Loan Agreement and each other agreement
or document pursuant to which any Person becomes an additional
Creditor pursuant to Section 3.4.
"Creditor" shall have the meaning assigned thereto in the
introductory paragraph hereto.
"Excess Subsidiary Payment" shall mean as to any Creditor an
amount equal to the Subsidiary Payment received by such Creditor
less the Pro Rata Share of Subsidiary Payments to which such
Creditor is then entitled.
"Initial Noteholder Guaranty" shall have the meaning set
forth in the Recitals hereof.
"Initial Noteholder Subsidiary Guarantors" shall have the
meaning set forth in the Recitals hereof.
<PAGE>
"Lenders" shall have the meaning set forth in the Recitals
hereof.
"Loan Agreement" shall have the meaning assigned thereto in
the Recitals hereof.
"Loans" shall have the meaning assigned thereto in the
Recitals hereof.
"Note Purchase Agreements" shall have the meaning assigned
thereto in the Recitals hereof.
"Noteholder" and "Noteholders" shall have the meanings
assigned thereto in the Recitals hereof.
"Noteholder Guaranty" shall have the meaning assigned
thereto in the Recitals hereof.
"Notes" shall have the meaning assigned thereto in the
Recitals hereof.
"Obligors" shall have the meaning assigned thereto in the
Recitals hereof.
"Original Intercreditor Agreement" shall have the meaning
assigned thereto in the Recitals hereof.
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated
organization, and a government or agency or political subdivision
thereof.
"Pro Rata Share of Subsidiary Payments" shall mean as of the
date of any Subsidiary Payment to a Creditor in respect to a
Subsidiary Agreement an amount equal to the product obtained by
multiplying (x) the amount of all Subsidiary Payments made by the
Subsidiary Guarantors to all Creditors concurrently with the
payments to such Creditor less all reasonable costs incurred by
such Creditors in connection with the collection of such
Subsidiary Payments by (y) a fraction, the numerator of which
shall be the Specified Amount owing to such Creditor, and the
denominator of which is the aggregate amount of all outstanding
Subject Obligations (without giving effect to the application of
any such Subsidiary Payments).
<PAGE>
"Receiving Creditor" shall have the meaning assigned thereto
in Section 2.
"Second Amendment" shall have the meaning assigned thereto
in the Recitals hereof.
"Special Trust Account" shall have the meaning assigned
thereto in Section 2.2.
"Specified Amount" shall mean, as to any Creditor, the
aggregate amount of the Subject Obligations owed to such
Creditor.
"Subject Obligations" shall mean (i) all principal of,
premium, if any, and interest on, the Notes and the Loans and all
other obligations of any of the Obligors under or in respect of
the Notes and the Loans and under the Note Purchase Agreements
and the Loan Agreement and any other obligations of any of the
Obligors to the Banks or the Noteholders which are guaranteed by
the Bank Guaranty or the Noteholder Guaranty and (ii) all
principal of, premium, if any, and interest on, the obligations
of the Subsidiary Guarantors under or in respect of the
agreements and documents referred to in Section 3.4 hereof
pursuant to which other Persons have become creditors of the
Subsidiary Guarantors and "Creditors" hereunder as contemplated
in Section 3.4 hereof; provided that any amount of such Subject
Obligations which is not allowed as a claim enforceable against
an Obligor in a Bankruptcy Proceeding under applicable law shall
be excluded from the computation of "Subject Obligations"
hereunder.
"Subsidiary" shall have the meaning set forth in the Note
Purchase Agreements as in effect on the date hereof.
"Subsidiary Agreements" shall have the meaning assigned
thereto in the Recitals hereof.
"Subsidiary Borrowers" shall have the meaning set forth in
the Recitals hereof.
"Subsidiary Guarantors" shall have the meaning assigned
thereto in the Recitals hereof.
<PAGE>
"Subsidiary Payments" shall have the meaning assigned
thereto in Section 2.
SECTION 2. SHARING OF RECOVERIES.
Section 2.1. Pro Rata Share. Each Creditor hereby agrees with
each other Creditor that payments (including payments made
through setoff of deposit balances or otherwise or payments or
recoveries from any security interest granted to any Creditor
securing any Subsidiary Agreement) made by a Subsidiary Guarantor
pursuant to the terms of the Subsidiary Agreements ("Subsidiary
Payments") (x) within 90 days prior to the commencement of a
Bankruptcy Proceeding with respect to any of the Subsidiary
Guarantors or the Obligors, as the case may be, or (y) following
the acceleration of the Notes generally or the Loans or the
acceleration of any other Subject Obligation, shall be shared so
that each Creditor shall receive its Pro Rata Share of Subsidiary
Payments. Accordingly, each Creditor hereby agrees that in the
event (a) an event described in clauses (x) or (y) above shall
have occurred, (b) any Creditor shall receive a Subsidiary
Payment (a "Receiving Creditor"), and (c) any other Creditor
shall not concurrently receive its Pro Rata Share of Subsidiary
Payments from the Subsidiary Guarantors, then the Receiving
Creditor shall promptly remit the Excess Subsidiary Payment to
each other Creditor who shall then be entitled thereto so that
after giving effect to such payment (and any other payments then
being made by any other Receiving Creditor pursuant to this
Section 2) each Creditor shall have received its Pro Rata Share
of Subsidiary Payments.
Any such payments shall be deemed to be and shall be made in
consideration of the purchase for cash at face value, but without
recourse, ratably from the other Creditors of such amount of
Notes or Loans (or interest therein), as the case may be
(exclusive of any lien or security interest granted to such other
Creditors and not securing a Subsidiary Agreement), necessary to
cause such Creditor to share such Excess Subsidiary Payment with
the other Creditors as hereinabove provided; provided, however,
that if any such purchase or payment is made by any Receiving
Creditor and if such Excess Subsidiary Payment or part thereof is
thereafter recovered from such Receiving Creditor by the
Subsidiary Guarantors (including, without limitation, by any
trustee in bankruptcy of the Subsidiary Guarantors or any
creditor thereof), the related purchase from the other Creditors
<PAGE>
shall be rescinded ratably and the purchase price restored as to
the portion of such Excess Subsidiary Payment so recovered, but
without interest; and provided further nothing herein contained
shall obligate any Creditor to resort to any setoff, application
of deposit balance or other means of payment under any Subsidiary
Agreement or avail itself of any recourse by resort to any
property of the Company or the Subsidiary Guarantors, the taking
of any such action to remain within the absolute discretion of
such Creditor without obligation of any kind to the other
Creditors to take any such action.
Section 2.2. Letters of Credit. Notwithstanding anything herein
to the contrary, any amounts to be distributed to the Banks after
an event described in clause (x) or (y) of Section 2.1 above for
application as provided in the Loan Agreement with respect to the
undrawn portion of any outstanding letters of credit issued by
the Banks shall be held by the Banks receiving the same in an
interest bearing trust account (the "Special Trust Account") as
collateral security for such liabilities until a drawing thereon,
at which time such amounts, together with the interest accrued
thereon, shall be applied to such letter of credit liabilities.
If any such letters of credit expire without having been drawn
upon in full, amounts held in the Special Trust Account with
respect to the undrawn portion of such letters of credit,
together with the interest accrued thereon, shall be treated as a
Subsidiary Payment and shared in the manner provided in Section
2.1 hereof.
SECTION 3. AGREEMENTS AMONG THE CREDITORS.
Section 3.1. Independent Actions by Creditors. Nothing
contained in this Agreement shall prohibit any Creditor from
accelerating the maturity of, or demanding payment from the
Subsidiary Guarantors on, any Subject Obligation of any Obligor
to such Creditor or from instituting legal action against any
Obligor or Subsidiary Guarantor or to obtain a judgment or other
legal process in respect of such Subject Obligation, but any
funds received from the Subsidiary Guarantors in connection with
any recovery under any Subsidiary Agreement (exclusive of
recoveries arising from liens or security interests granted to
other Creditors and not securing any Subsidiary Agreement) shall
be subject to the terms of this Agreement.
<PAGE>
Section 3.2. Relation of Creditors. This Agreement is entered
into solely for the purposes set forth herein, and no Creditor
assumes any responsibility to any other party hereto to advise
such other party of information known to such regarding the
financial condition of the Obligors or the Subsidiary Guarantors
or of any other circumstances bearing upon the risk of nonpayment
of the Subject Obligations. Each Creditor specifically
acknowledges and agrees that nothing contained in this Agreement
is or is intended to be for the benefit of the Obligors or the
Subsidiary Guarantors and nothing contained herein shall limit or
in any way modify any of the obligations of the Obligors or the
Subsidiary Guarantors to the Creditors.
Section 3.3. Acknowledgment of Guaranties. The Banks hereby
expressly acknowledge the existence of the Noteholder Guaranty
and the Noteholders hereby expressly acknowledge the existence of
the Bank Guaranty.
Section 3.4. Additional Creditors. Additional Persons which
receive a "Guaranty" of "Indebtedness" of the Company (as such
terms are defined in the Note Purchase Agreements) as
contemplated in Section 9.8 of the Note Purchase Agreements may
become "Creditors" hereunder by executing and delivering to each
of the then existing Creditors (i) a copy of this Agreement so
executed and (ii) a copy of the agreement or documents pursuant
to which such Person becomes a creditor of the Company.
Accordingly, upon the execution and delivery of any such copy of
this Agreement by any such Person, such Person shall thereinafter
become a Creditor for all purposes of this Agreement.
Notwithstanding the foregoing or any other provision of this
Agreement, the provisions hereof shall not in any manner modify
any covenant, obligation or agreement of the Company and its
Subsidiaries contained in the Credit Documents with respect to
(x) limitations on additional indebtedness of the Company or any
Subsidiary permitted under any Credit Document or (y) limitations
on liens or security interests which may be created or granted by
the Company or any Subsidiary under such Credit Document.
SECTION 4. MISCELLANEOUS.
Section 4.1. Entire Agreement. This Agreement represents the
entire Agreement among the Creditors and, except as otherwise
provided, this Agreement may not be altered, amended or modified
<PAGE>
except in a writing executed by all the parties to this
Agreement. This Agreement shall in all respects amend, restate
and supersede the Original Intercreditor Agreement.
Section 4.2. Notices. Notices hereunder shall be given to the
Creditors at their addresses as set forth in the Note Purchase
Agreements or the Loan Agreement, as the case may be, or at such
other address as may be designated by each in a written notice to
the other parties hereto.
Section 4.3. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of each of the Creditors
and their respective successors and assigns, whether so expressed
or not, and, in particular, shall inure to the benefit of and be
enforceable by any future holder or holders of any Subject
Obligations, and the term "Creditor" shall include any such
subsequent holder of Subject Obligations, wherever the context
permits.
Section 4.4. Consents, Amendment, Waivers. All amendments,
waivers or consents of any provision of this Agreement shall be
effective only if the same shall be in writing and signed by all
of the Creditors. The Required Holders (as defined in the Note
Purchase Agreements) may enter into any such amendment, waiver or
consent on behalf of all Noteholders.
Section 4.5. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Illinois.
Section 4.6. 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.
Section 4.7. Sale of Interest. No Creditor will sell, transfer
or otherwise dispose of any interest in the Subject Obligations
unless such purchaser or transferee shall agree, in writing, to
be bound by the terms of this Agreement, or unless the Subject
Obligations are sold, transferred or disposed of at a time when
the Subsidiary Agreements are no longer in effect for the benefit
of such Subject Obligations.
<PAGE>
Section 4.8. Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal
or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Agreement
shall not in any way be affected or impaired thereby.
Section 4.9. Expenses. In the event of any litigation to
enforce this Agreement, the prevailing party shall be entitled to
its reasonable attorney's fees (including the allocated costs of
in-house counsel).
Section 4.10. Term of Agreement. This Agreement shall terminate
when all Subject Obligations are paid in full and such payments
are not subject to any possibility of revocation or rescission or
until all of the parties hereto mutually agree in a writing to
terminate this Agreement.
[Intentionally Blank]
<PAGE>
The undersigned hereby acknowlege and agree to the foregoing
Agreement.
INSITUFORM TECHNOLOGIES, INC.
By s/Joseph A. White
--------------------------
Its Vice President-Chief
Financial Officer
AFFHOLDER, INC.
INA ACQUISITION CORP.
INSITUFORM TECHNOLOGIES USA, INC.
By s/Joseph A. White
----------------------------
Vice President of each of the
Foregoing entities
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first above written.
BANK OF AMERICA, N.A. THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By s/Charles F. Lilygren By s/Richard A. Strait
-------------------------- ---------------------------
Charles F. Lilygren Richard A. Strait
Managing Director Authorized Representative
PRINCIPAL LIFE INSURANCE COMPANY LIBERTY LIFE INSURANCE COMPANY
(formerly known as Principal (formerly known as Pierce
Mutual Life Insurance Company) National Life Insurance
Company)
By s/JoEllen J. Watts By s/Patrick M. Dodd
------------------------- ---------------------------
JoEllen J. Watts Patrick M. Dodd
Authorized Representative
By s/Jon C. Heiny
--------------------------
Jon C. Heiny
NORTHERN LIFE INSURANCE COMPANY CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By s/James V. Wittich ACE PROPERTY AND CASUALTY
--------------------------- INSURANCE COMPANY (for-
James V. Wittich mally known as CIGNA
Assistant Treasurer Property and Casualty
Insurance Company)
RELIASTAR LIFE INSURANCE COMPANY CONNECTICUT GENERAL LIFE
Successor by merger to INSURANCE COMPANY, on
RELIASTAR UNITED SERVICES LIFE behalf of one or more
INSURANCE COMPANY separate accounts
By s/James V. Wittich LIFE INSURANCE COMPANY OF
--------------------------- NORTH AMERICA
James V. Wittich
Authorized Representative By: CIGNA Investments, Inc.
RELIASTAR LIFE INSURANCE COMPANY
OF NEW YORK (formally known as By s/Stephen A. Osborn
ReliaStar Bankers Security ---------------------------
Life Insurance Company) Stephen A. Osborn
Managing Director
By s/James V. Wittich
---------------------------
James V. Wittich
Vice President, Investments
RELIASTAR LIFE INSURANCE COMPANY
By s/James V. Wittich
---------------------------
James V. Wittich
Authorized Representative
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY JEFFERSON-PILOT LIFE
INSURANCE COMPANY
By s/ By s/Robert E. Whalen II
-------------------------- -------------------------
Robert E. Whalen II
Authorized Representative Vice President
By s/ ALEXANDER HAMILTON LIFE
-------------------------- INSURANCE COMPANY OF
AMERICA
Authorized Representative
By s/Robert E. Whalen II
THE SECURITY MUTUAL LIFE -------------------------
INSURANCE COMPANY OF Robert E. Whalen II
LINCOLN, NEBRASK Vice President
By s/Kevin W. Hammond
---------------------------
Kevin W. Hammond
Vice President
Chief Investment Officer
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<ALLOWANCES> 2,970
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<TOTAL-COSTS> 69,913
<OTHER-EXPENSES> 18,751
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,400
<INCOME-PRETAX> 10,321
<INCOME-TAX> 4,128
<INCOME-CONTINUING> 6,193
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,193
<EPS-BASIC> 0.25
<EPS-DILUTED> 0.24
</TABLE>
