funds for other general corporate purposes
of Borrower and its Subsidiaries, and in furtherance thereof the parties hereto
desire to amend and restate the Existing Credit Agreement in its entirety, upon
the terms and conditions set forth herein;
WHEREAS, Borrower desires that all of its Obligations (as hereinafter defined)
under the Loan Documents (as hereinafter defined) continue to be fully secured
by reaffirming the continuing Lien of Agent, for the benefit of Agent and
Lenders, a security interest in and lien upon substantially all of its personal
and real property; and
WHEREAS, all capitalized terms herein shall have the meanings ascribed thereto
in Annex A hereto which is incorporated herein by reference.
1
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, Borrower, Lenders and Agent hereby amend and
restate the Existing Credit Agreement in its entirety, without effecting a
novation of the Obligations existing thereunder, and otherwise agree as follows:
SECTION 1.
AMOUNTS AND TERMS OF LOANS
1.1
LOANS.
SUBJECT TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT AND IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES OF
BORROWER CONTAINED HEREIN:
(A)
REVOLVING LOANS.
(I)
EACH REVOLVING LENDER AGREES, SEVERALLY
AND NOT JOINTLY, TO MAKE AVAILABLE TO BORROWER FROM TIME TO TIME UNTIL THE
COMMITMENT TERMINATION DATE ITS PRO RATA SHARE OF ADVANCES (EACH A "REVOLVING
CREDIT ADVANCE") REQUESTED BY BORROWER HEREUNDER.
THE PRO RATA SHARE OF THE
REVOLVING LOAN OF ANY REVOLVING LENDER (INCLUDING, WITHOUT DUPLICATION, SWING
LINE LOANS) SHALL NOT AT ANY TIME EXCEED ITS SEPARATE REVOLVING LOAN
COMMITMENT.
REVOLVING CREDIT ADVANCES MAY BE REPAID AND RE-BORROWED; PROVIDED,
THAT THE AMOUNT OF ANY REVOLVING CREDIT ADVANCE TO BE MADE AT ANY TIME SHALL NOT
EXCEED BORROWING AVAILABILITY.
BORROWING AVAILABILITY MAY BE FURTHER REDUCED BY
RESERVES IMPOSED BY AGENT IN ITS PERMITTED DISCRETION.
ALL REVOLVING LOANS
SHALL BE REPAID IN FULL ON THE COMMITMENT TERMINATION DATE.
BORROWER SHALL
EXECUTE AND DELIVER TO EACH REVOLVING LENDER A NOTE TO EVIDENCE THE REVOLVING
LOAN COMMITMENT OF THAT REVOLVING LENDER.
EACH NOTE SHALL BE IN THE PRINCIPAL
AMOUNT OF THE REVOLVING LOAN COMMITMENT OF THE APPLICABLE REVOLVING LENDER,
DATED THE RESTATEMENT EFFECTIVE DATE AND SUBSTANTIALLY IN THE FORM OF EXHIBIT
1.1(A)(I) (EACH A "REVOLVING NOTE" AND, COLLECTIVELY, THE "REVOLVING NOTES").
OTHER THAN PURSUANT TO SECTION 1.1(A)(II), IF AT ANY TIME THE OUTSTANDING
REVOLVING LOANS (INCLUDING, WITHOUT DUPLICATION, SWING LINE LOANS) EXCEED THE
BORROWING BASE (ANY SUCH EXCESS REVOLVING LOANS ARE HEREIN REFERRED TO
COLLECTIVELY AS "OVERADVANCES"), LENDERS SHALL NOT BE OBLIGATED TO MAKE
REVOLVING CREDIT ADVANCES, NO ADDITIONAL LETTERS OF CREDIT SHALL BE ISSUED AND,
EXCEPT AS PROVIDED IN SECTION 1.1(A)(II) BELOW, REVOLVING LOANS MUST BE REPAID
IMMEDIATELY AND LETTERS OF CREDIT CASH COLLATERALIZED IN AN AMOUNT SUFFICIENT TO
ELIMINATE ANY OVERADVANCES.
ALL OVERADVANCES SHALL CONSTITUTE INDEX RATE LOANS
AND, TO THE EXTENT NOT PERMITTED UNDER SECTION 1.1(A)(II) BELOW, SHALL BEAR
INTEREST AT THE DEFAULT RATE.
REVOLVING LOANS WHICH ARE INDEX RATE LOANS MAY BE
REQUESTED IN ANY AMOUNT WITH ONE (1) BUSINESS DAY PRIOR