Exhibit 10.17
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 22,
2001 (as amended, modified, restated or supplemented from time to time, this
"Credit Agreement"), is by and among RESORTQUEST INTERNATIONAL, INC., a Delaware
corporation (the "Borrower"), the Guarantors (as defined herein), the Lenders
(as defined herein), CITIBANK, N.A. (together with its successors and permitted
assigns, "Citibank"), as administrative agent for the Lenders (in such capacity,
the "Agent"), BANK OF AMERICA, N.A., as documentation agent (in such capacity,
the "Documentation Agent"), CREDIT LYONNAIS NEW YORK BRANCH, as syndication
agent (in such capacity, the "Syndication Agent") and SALOMON SMITH BARNEY INC.,
as arranger (in such capacity, the "Arranger").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of May
26, 1998 (as amended by a letter agreement dated as of September 30, 1998, a
Second Amendment dated as of December 7, 1998, a Third Amendment dated as of
April 16, 1999, a Fourth Amendment dated as of June 1, 1999 and a Fifth
Amendment dated as of December 31, 1999, collectively, the "Existing
Agreement"), among the Borrower, the guarantors party thereto, the lenders
described therein, Societe Generale, as Co-Agent, and Bank of America, N.A.,
formerly NationsBank, N.A., as agent for the lenders described in the Existing
Agreement (in such capacity, the "Existing Agent"), such lenders extended
certain commitments to make certain credit facilities available to the Borrower;
and
WHEREAS, the Borrower, the Agent, the Existing Agent, the lenders
described in the Existing Agreement and the New Lenders (as defined herein)
desire to amend and restate the Existing Agreement (i) to modify the credit
facilities provided thereunder and to make certain other amendments to the
Existing Agreement, (ii) to add certain Lenders not party to the Existing
Agreement, (iii) to remove the Departing Lenders (as defined herein), (iv) to
provide for the resignation of the Existing Agent as agent, and (v) to provide
for the appointment of the Agent, as agent for the Lenders,
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to amend and restate the Existing
Agreement to read in its entirety as follows:
SECTION 1.
DEFINITIONS
1.1 Definitions. As used in this Credit Agreement, the following
terms shall have the meanings specified below unless the context otherwise
requires:
"Acquisition" means the acquisition by any Person of all of the
Capital Stock or all or substantially all of the Property of another Person,
whether or not involving a merger or consolidation with such Person.
"Additional Credit Party" means each Person that becomes a Guarantor
after the Closing Date by execution of a Joinder Agreement.
"Additional Creditors" shall have the meaning assigned to such term
in the Intercreditor Agreement.
"Additional Facility Documents" shall have the meaning assigned to
such term in the Intercreditor Agreement.
"Additional Revolving Commitment" means the commitment of a Lender
to make Additional Revolving Loans pursuant to Section 2.1(a)(iii).
"Additional Revolving Facility Supplement" means an amendment to
this Credit Agreement executed and delivered by the Borrower, the Agent, and one
or more of the Lenders which sets forth (a) the Additional Revolving Commitments
of each such Lender, and (b) any fees to be paid in connection with such
Additional Revolving Commitments in addition to the fees payable pursuant to
Section 3.5.
"Additional Revolving Loan" means any Loan made by a Lender to the
Borrower pursuant to subsection 2.1(a)(iii).
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person, (ii) directly or indirectly owning or holding
five percent (5%) or more of the equity interest in such Person, or (iii) that
is a director or officer of such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agency Services Address" means Citibank, N.A., Two Penns Way, Suite
200, New Castle, Delaware 19720, Attention: Jackie Roman, or such other address
as may be identified by written notice from the Agent to the Borrower.
"Agent" shall have the meaning assigned to such term in the heading
hereof, together with any successors or assigns.
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"Agent's Fee Letter" means that certain letter agreement, dated
September 14, 2000, among CAN, the Arranger and the Borrower, as amended,
modified, restated or supplemented from time to time.
"Agent's Fees" shall have the meaning assigned to such term in
Section 3.5(c).
"Applicable Lending Office" means, for each Lender, the office of
such Lender (or of an Affiliate of such Lender) as such Lender may from time to
time specify to the Agent and the Borrower by written notice as the office by
which its Eurodollar Loans are made and maintained.
"Applicable Percentage" means, for purposes of calculating (i) the
applicable interest rate for any day for any Base Rate Loan, (ii) the applicable
interest rate for any Eurodollar Loan, and (iii) the applicable rate of the
Unused Fee for any day for purposes of Section 3.5(a), the appropriate
applicable percentage corresponding to the Consolidated Leverage Ratio in effect
as of the most recent Calculation Date, as shown in the following table:
==============================================================================
Consolidated Applicable Applicable Applicable
Leverage Percentage For Percentage For Percentage For
Pricing Level Ratio Eurodollar Loans Base Rate Loans Unused Fees
------------------------------------------------------------------------------
I < = 2.0 to 1.0 2.0 % 1.0% 0.375%
------------------------------------------------------------------------------
II > 2.0 to 1.0 2.0% 1.0% 0.500%
==============================================================================
The Applicable Percentages shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five (5) Business Days after the date by which
the Borrower is required to provide the officer's certificate in accordance with
the provisions of Section 7.1(c) for the most recently ended fiscal quarter of
the Consolidated Parties; provided, however, that (i) the initial Applicable
Percentages shall be based on Pricing Level I (as shown above) and shall remain
at Pricing Level I until the first Calculation Date occurring subsequent to
September, 2000 and, thereafter, the Applicable Percentage shall be determined
by the Consolidated Leverage Ratio as of the last day of the most recently ended
fiscal quarter of the Consolidated Parties preceding the applicable Calculation
Date, and (ii) if the Borrower fails to provide the officer's certificate to the
Agency Services Address as required by Section 7.1(c) for the last day of the
most recently ended fiscal quarter of the Consolidated Parties preceding the
applicable Calculation Date, the Applicable Percentage from such Calculation
Date shall be based on Pricing Level II until such time as an appropriate
officer's certificate is provided, whereupon the Applicable Percentage shall be
determined by the Consolidated Leverage Ratio as of the last day of the most
recently ended fiscal quarter of the Consolidated Parties preceding such
Calculation Date. Each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentages shall be applicable to all existing Revolving Loans as
well as any new Revolving Loans made or issued.
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"Arranger" shall have the meaning assigned to such term in the
preamble to this Credit Agreement, it being understood and agreed that the
Arranger shall have no obligations or duties for or on behalf of any party to
this Credit Agreement or any other Credit Document.
"Asset Disposition" means the disposition of any or all of the
assets of any Consolidated Party, whether by sale, lease, transfer or otherwise
unless such disposition is permitted by the terms of Section 8.13(i) or (ii)
hereof.
"Assigned Rights and Obligations" shall have the meaning assigned to
such term in Section 1.2(a).
"Assignment and Acceptance" has the meaning set forth in Section
11.3(b)(v).
"Aston Management Agreements" means those certain management
agreements between The Hotel Corporation of the Pacific d/b/a Aston Hotels &
Resorts, as manager, and certain property owners that provide for certain
guaranteed rental returns to such property owners.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time to
time.
"Bankruptcy Event" means, with respect to any Person, the occurrence
of any of the following with respect to such Person: (i) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its Property
or ordering the winding up or liquidation of its affairs; or (ii) there shall be
commenced against such Person an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or liquidation
of its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded for a period of sixty
(60) consecutive days; or (iii) such Person shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its Property
or make any general assignment for the benefit of creditors; or (iv) such Person
shall be unable to, or shall admit in writing its inability to, pay its debts
generally as they become due.
"Base Rate" means, for any day, the rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus one-half of one percent
(.5%) and (b) the Prime Rate for such day. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or Federal Funds Rate.
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"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means the Person identified as such in the heading
hereof, together with any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close, except that, when used in connection with a Eurodollar Loan,
such day shall also be a day on which dealings between banks are carried on in
U.S. dollar deposits in London, England.
"Businesses" shall have the meaning assigned to such term in Section
6.15(a).
"Calculation Date" has the meaning set forth in the definition of
"Applicable Percentage" set forth in this Section 1.1.
"CAN" means Citicorp North America, Inc.
"Canadian Subsidiaries" means Whistler Chalets Holding Corp., a
Canada corporation, and Whistler Chalets Ltd., a British Columbia corporation.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time deposits and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase agreements
with a bank or trust company (including any of the
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Lenders) or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which any Credit Party shall have a perfected first
priority security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"Change of Control" means the occurrence of any of the following
events: (i) any Person or two or more Persons acting in concert shall have
acquired "beneficial ownership," directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of,
control over, Voting Stock of the Borrower (or other securities convertible into
such Voting Stock) sufficient to elect a majority of the Borrower's Board of
Directors or (ii) during any period of up to 24 consecutive months, commencing
after the Closing Date, individuals who at the beginning of such 24 month period
were directors of the Borrower (together with any new director whose election by
the Borrower's Board of Directors or whose nomination for election by the
Borrower's shareholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the directors of the
Borrower then in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13d-3 of the Securities and Exchange Commission under
the Securities Act of 1934.
"Citibank" shall have the meaning assigned to such term in the
preamble to this Credit Agreement.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"Collateral" means a collective reference to the collateral which is
identified in, and at any time will be covered by, the Collateral Documents.
"Collateral Agent" means Citibank, N.A., in its capacity as
collateral agent for the Lenders, the Noteholders and the Additional Creditors
pursuant to the Intercreditor Agreement.
"Collateral Documents" means a collective reference to the Security
Agreement, the Pledge Agreement, any collateral documents executed pursuant to
Section 7.12 and such other documents executed and delivered in connection with
the attachment and perfection of the
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Collateral Agent's security interests in the assets of the Credit Parties,
including without limitation, UCC financing statements and patent and trademark
filings.
"Commitment" means (i) with respect to each Lender, the Revolving
Commitment of such Lender, (ii) with respect to the Issuing Lender, the LOC
Commitment, and (iii) with respect to the Swingline Lender, the Swingline
Commitment.
"Consolidated Capital Expenditures" means, for any period, all
capital expenditures of the Consolidated Parties on a consolidated basis for
such period, as determined in accordance with GAAP. In each fiscal year,
Consolidated Capital Expenditures shall be computed on a non-cumulative basis
with Consolidated Capital Expenditures for prior fiscal years.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(A) Consolidated Interest Expense for such period, (B) total federal, state,
local and foreign income, value added and similar taxes for such period and (C)
depreciation and amortization expense for such period, all as determined in
accordance with GAAP; provided, however, at the option of the Borrower,
Consolidated EBITDA would also include Consolidated EBITDA attributable to each
acquisition made during such period in an amount equal to:
(1) when computing Consolidated EBITDA for use in determining the
Fixed Charge Coverage Ratio, the greater of (a) the actual Consolidated
EBITDA attributable to the Property acquired for the period from the
acquisition date to the applicable calculation date, or (b) an amount
equal to (I) Consolidated EBITDA computed on a pro forma basis with
respect to the Property acquired as if the acquisition date had occurred
12 months prior to the applicable calculation date, divided by (II) twelve
(12), multiplied by (III) the number of full calendar months that have
elapsed between the actual acquisition date and the applicable calculation
date; and
(2) when computing Consolidated EBITDA for any other purpose, an
amount equal to Consolidated EBITDA computed on a pro forma basis with
respect to the Property acquired as if the acquisition date had occurred
12 months prior to the applicable calculation date.
"Consolidated Fixed Charges" means, for any period, the sum of
Consolidated Interest Expense for the applicable period plus Consolidated
Scheduled Funded Debt Payments for the applicable period plus Consolidated Rent
Expense for the applicable period plus dividends paid for the applicable period
plus Major Earnout Payments for the applicable period plus Net Aston Guaranty
Payments for the applicable period.
"Consolidated Fixed Debt" means, with respect to the Consolidated
Parties on a consolidated basis in accordance with GAAP, Indebtedness for
borrowed money bearing interest at a fixed rate.
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"Consolidated Interest Expense" means, for any period, interest
expense (including the interest component under Capital Leases and the implied
interest component under Synthetic Leases) of the Consolidated Parties on a
consolidated basis for such period, as determined in accordance with GAAP.
"Consolidated Leverage Ratio" means, with respect to the
Consolidated Parties on a consolidated basis for the twelve month period ending
on the last day of any fiscal quarter, the ratio of (a) Funded Indebtedness of
the Consolidated Parties as at such day to (b) Consolidated EBITDA of the
Consolidated Parties for the consecutive four fiscal quarters ending on such
day.
"Consolidated Net Income" means, for any period, net income
(excluding extraordinary items) after taxes for such period of the Consolidated
Parties on a consolidated basis, as determined in accordance with GAAP.
"Consolidated Net Worth" means, as of any date, shareholders' equity
or net worth of the Consolidated Parties on a consolidated basis, as determined
in accordance with GAAP.
"Consolidated Parties" means a collective reference to the Borrower
and its Subsidiaries, and "Consolidated Party" means any one of them.
"Consolidated Rent Expense" means, for any period, the total rental
expense for Operating Leases of the Consolidated Parties (whether a lease of
real property, personal property or mixed), as determined in accordance with
GAAP.
"Consolidated Revenues" means, for any period, the gross revenues,
receipts and income (excluding extraordinary items) for such period of the
Consolidated Parties on a consolidated basis (including, without limitation and
without duplication, all management fees, service fees, marketing fees, any
other fees or items of payment or collection received by any Consolidated Party
during such period), as determined in accordance with GAAP.
"Consolidated Scheduled Funded Debt Payments" means, as of the end
of each fiscal quarter of the Consolidated Parties, for the Consolidated Parties
on a consolidated basis, the sum of all scheduled payments of principal on
Funded Indebtedness for the applicable period ending on such date (including the
principal component of payments due on Capital Leases during the applicable
period ending on such date); it being understood that Consolidated Scheduled
Funded Debt Payments shall not include voluntary prepayments or the mandatory
prepayments required pursuant to Section 3.3.
"Consolidated Total Debt" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of the
Consolidated Parties, determined on a consolidated basis in accordance with
GAAP.
"Contingent Obligation", as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person (i) with respect
to any Indebtedness, lease, dividend or other obligation of another if the
primary purpose or intent thereof by the Person
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incurring the Contingent Obligation is to provide assurance to the obligee of
such obligation of another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof, (ii) with respect to any letter of credit
issued for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings, or (iii) under Interest Rate Agreements.
Contingent Obligations shall include (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of non-performance by any other party or
parties to an agreement, and (c) any liability of such Person for the obligation
of another through any agreement (contingent or otherwise) (1) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(2) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (1) or (2) of this sentence, the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"Contribution Share" shall have the meaning assigned to such term in
Section 4.6.
"Credit Documents" means a collective reference to this Credit
Agreement, the Revolving Notes, the LOC Documents, each Joinder Agreement, the
Agent's Fee Letter, the Collateral Documents, the Intercreditor Agreement and
all other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto (in each case as the same may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time), and "Credit Document" means any one of them.
"Credit Parties" means a collective reference to the Borrower, the
Guarantors and the Canadian Subsidiaries, and "Credit Party" means any one of
them.
"Credit Party Obligations" means, without duplication, (i) all of
the obligations of the Credit Parties to the Lenders (including the Issuing
Lender and Swingline Lender) and the Agent, whenever arising, under this Credit
Agreement, the Revolving Notes, the Collateral Documents or any of the other
Credit Documents (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to any Credit Party, regardless of
whether such interest is an allowed claim under the Bankruptcy Code) and (ii)
all liabilities and obligations, whenever arising, owing from the Borrower to
any Lender, or any Affiliate of a Lender, arising under any Hedging Agreement.
"Debt Issuance" means the issuance of any Indebtedness for borrowed
money by any Consolidated Party.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
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"Defaulting Lender" means, at any time, any Lender that (a) has
failed to make a Loan or purchase a Participation Interest required pursuant to
the term of this Credit Agreement within one Business Day of when due, (b) other
than as set forth in (a) above, has failed to pay to the Agent or any Lender an
amount owed by such Lender pursuant to the terms of this Credit Agreement within
one Business Day of when due, unless such amount is subject to a good faith
dispute or (c) has been deemed insolvent or has become subject to a bankruptcy
or insolvency proceeding or with respect to which (or with respect to any of
assets of which) a receiver, trustee or similar official has been appointed.
"Departing Lender" means each "Lender" party to, and as defined in,
the Existing Agreement which will not be a Lender under this Credit Agreement on
the Closing Date.
"Departing Lender Consent" means the consent made by each Departing
Lender, substantially in the form of Exhibit 5.1(o) annexed hereto.
"Documentation Agent" shall have the meaning assigned to such term
in the preamble to this Credit Agreement, it being understood and agreed that
the Documentation Agent shall have no obligations or duties as agent for or on
behalf of any party to this Credit Agreement or any other Credit Document.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent (such approval not to
be unreasonably withheld or delayed by the Agent) and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section 11.3, the Borrower (such approval not to be unreasonably
withheld or delayed by the Borrower and such approval to be deemed given by the
Borrower if no objection is received by the assigning Lender and the Agent from
the Borrower within two Business Days after notice of such proposed assignment
has been provided by the assigning Lender to the Borrower); provided, however,
that neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee. If a Lender, prior to the occurrence of an Event of Default
hereunder, proposes to assign its right, interest and obligations hereunder to a
Person that is at the time of such assignment either (i) a competitor of the
Borrower, or (ii) an Affiliate of a competitor of the Borrower or a Person who
is not engaged in the business of making commercial loans in the ordinary course
of its business, then it shall be within the Borrower's sole discretion whether
such Person is an Eligible Assignee.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Government Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection
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with any Materials of Environmental Concern or any actual or alleged Hazardous
Materials Activity, or (iii) in connection with any actual or alleged damage,
injury, threat or harm to health, safety, natural resources or the environment.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases of
Materials of Environmental Concern into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.
"Equity Issuance" means any issuance by any Consolidated Party to
any Person which is not a Credit Party of (a) shares of its Capital Stock, (b)
any shares of its Capital Stock pursuant to the exercise of options or warrants
or (c) any shares of its Capital Stock pursuant to the conversion of any debt
securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common control with
any Credit Party within the meaning of Section 4001(a)(14) of ERISA, or is a
member of a group which includes the Borrower and which is treated as a single
employer under Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of
a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by any Consolidated
Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year in
which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan; (iii) the
distribution of a notice of intent to terminate or the actual termination of a
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution of
proceedings to terminate or the actual termination of a Plan by the PBGC under
Section 4042 of ERISA; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (vi) the complete or partial withdrawal of any
Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA exist with
respect to any Plan; or (vii) the adoption of an amendment to any Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA.
"Eurodollar Loan" means any Revolving Loan that bears interest at a
rate based upon the Eurodollar Rate.
11
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Agent to be equal to the quotient
obtained by dividing (a) the Interbank Offered Rate for such Eurodollar Loan for
such Interest Period by (b) 1 minus the Eurodollar Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the maximum
rate at which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) by member banks of the Federal Reserve System
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Eurodollar Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by
reference to which the Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar Loans.
The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Requirement.
"Event of Default" means such term as defined in Section 9.1.
"Excess Share" shall have the meaning assigned to such term in
Section 4.6.
"Existing Agent" shall have the meaning assigned to such term in the
recitals hereof.
"Existing Agreement" shall have the meaning assigned to such term in
the recitals hereof.
"Existing Letters of Credit" means the letters of credit issued
pursuant to Section 2.2 of the Existing Agreement listed on Schedule 2.2 annexed
hereto which will, as of the Closing Date, be deemed outstanding as Letters of
Credit issued pursuant to Section 2.2 of this Credit Agreement.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, 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 of New York 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 the Agent (in its
individual capacity) on such day on such transactions as determined by the
Agent.
12
"Fixed Charge Coverage Ratio" means, as of the end of each fiscal
quarter of the Borrower for the twelve month period ending on such date, the
ratio of (a) Consolidated EBITDA for the applicable period plus Consolidated
Rent Expense for the applicable period to (b) Consolidated Fixed Charges for the
applicable period.
"Fixed Debt to Total Debt Ratio" means, as of any date of
determination, the ratio (expressed as a percentage) of Consolidated Fixed Debt
to Consolidated Total Debt, computed as of the last day of the immediately
preceding fiscal quarter.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such Person.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations of such Person issued
or assumed as the deferred purchase price of Property or services purchased by
such Person (other than trade debt incurred in the ordinary course of business)
which would appear as liabilities on a balance sheet of such Person, (e) the
principal portion of all obligations of such Person under Capital Leases, (f)
the maximum amount of all standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (g) all
preferred Capital Stock issued by such Person and required by the terms thereof
to be redeemed, or for which mandatory sinking fund payments are due, by a fixed
date, (h) the principal portion of all obligations of such Person under
Synthetic Leases, (i) all Indebtedness of another Person of the type referred to
in clause (a)-(h) above secured by (or for which the holder of such Funded
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production from, Property owned
or acquired by such Person, whether or not the obligations secured thereby have
been assumed, (j) all Guaranty Obligations of such Person with respect to
Indebtedness of the type referred to in clauses (a)-(h) above of another Person
and (k) Indebtedness of the type referred to in clauses (a)-(h) above of any
partnership or unincorporated joint venture for which such Person is legally
obligated or has a reasonable expectation of being liable with respect thereto.
Notwithstanding the foregoing, the obligations of the Borrower under any Hedging
Agreement required under Section 7.15 of this Credit Agreement shall be excluded
in the calculation of Funded Indebtedness of the Borrower and the Consolidated
Parties.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3.
"Government Acts" shall have the meaning assigned to such term in
Section 2.2(i).
13
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantors" means each Subsidiary listed on the signature pages to
this Credit Agreement and any Subsidiary which may hereafter execute a Joinder
Agreement, together with their successors and permitted assigns, and "Guarantor"
means any one of them.
"Guaranteed Obligations" shall have the meaning assigned to such
term in Section 4.6.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any Property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (iii) to lease or
purchase Property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (iv) to otherwise assure or hold harmless
the holder of such Indebtedness against loss in respect thereof. The amount of
any Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Materials of
Environmental Concern, including the use, manufacture, possession, storage,
holding, presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, construction, treatment,
abatement, removal, remediation, disposal, disposition or handling of any
Materials of Environmental Concern, and any corrective action or response action
with respect to any of the foregoing.
"Hedging Agreements" means any interest rate protection agreement or
foreign currency exchange agreement between any Credit Party and any Lender, or
any Affiliate of a Lender.
"Indebtedness" of any Person means (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments
are customarily made, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d)
all obligations of such Person issued or assumed as the deferred purchase price
of Property or services purchased
14
by such Person (other than trade debt incurred in the ordinary course of
business) which would appear as liabilities on a balance sheet of such Person,
(e) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all Guaranty Obligations of
such Person, (h) the principal portion of all obligations of such Person under
Capital Leases, (i) all obligations of such Person under Hedging Agreements, (j)
the maximum amount of all standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all
preferred Capital Stock issued by such Person and required by the terms thereof
to be redeemed, or for which mandatory sinking fund payments are due, by a fixed
date (l) the principal portion of all obligations of such Person under Synthetic
Leases, and (m) the Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer.
"Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or abate any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnified Parties in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnified Party shall be designated as a
party or a potential party thereto, and any fees or expenses incurred by the
Indemnified Parties in enforcing the indemnity contained in Section 7.13(c)),
whether direct, indirect or consequential and whether based on any federal,
state or foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnified Party, in any manner
relating to or arising out of (i) this Credit Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby (including the
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds thereof or the issuance of Letters of Credit hereunder or the use or
intended use of any thereof, or any enforcement of any of the Credit Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranteed Obligations), (ii) the
statements contained in the commitment letter delivered by any Lender to the
Borrower with respect thereto, or (iii) any Environmental Claim or any Hazardous
Materials Activity relating to or arising from, directly or indirectly, any past
or present activity, operation, land ownership, or practice of the Borrower or
any of its Subsidiaries.
"Indemnified Party" shall have the meaning assigned to such term in
Section 7.13(c).
"Intellectual Property" shall have the meaning assigned to such term
in Section 6.16.
15
"Interbank Offered Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Market Screen Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered Rate" shall
mean, for any Eurodollar Loan for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Intercreditor Agreement" means the Amended and Restated
Intercreditor and Collateral Agency Agreement, dated as of even date herewith,
by and among the Collateral Agent, the Noteholders, the Agent, the Lenders and
the Additional Creditors, substantially in the form of Exhibit 1.1(a) annexed
hereto, as amended, modified, supplemented or restated from time to time.
"Interest Payment Date" means (a) as to Base Rate Loans and
Swingline Loans, the last Business Day of each calendar month, the date of any
prepayment thereof and the Maturity Date, and (b) as to Eurodollar Loans, the
last day of each applicable Interest Period, the date of any prepayment thereof
and the Maturity Date, and in addition where the applicable Interest Period for
a Eurodollar Loan is greater than one month, then also the date one month from
the beginning of the Interest Period and each month thereafter.
"Interest Period" means as to Eurodollar Loans which constitute all
or part of the Revolving Loans, a period of seven days' or one, two, three or
six months' duration, as the Borrower may elect, commencing, in each case, on
the date of the borrowing (including continuations and conversions thereof);
provided, however, (a) if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business Day), (b) no
Interest Period shall extend beyond the Maturity Date, and (c) where an Interest
Period of one, two, three or six months' duration begins on a day for which
there is no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last Business
Day of such calendar month.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
interest rate protection agreement or arrangement to which a Credit Party is a
party.
"Investment" means (a) the acquisition (whether for cash, property,
services, assumption of Indebtedness, securities or otherwise) of assets, shares
of Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of
16
any Person or (b) any deposit with, or advance, loan or other extension of
credit to, any Person (other than deposits made in connection with the purchase
of equipment or other assets in the ordinary course of business) or (c) any
other capital contribution to or investment in such Person, including, without
limitation, any Guaranty Obligations (including any support for a letter of
credit issued on behalf of such Person) incurred for the benefit of such Person.
"Issuing Lender" means (i) with respect to any Letter of Credit
issued from and after the Closing Date, CAN, and (ii) with respect to any
Existing Letter of Credit, Bank of America, N.A., formerly NationsBank, N.A.
"Issuing Lender Fees" shall have the meaning assigned to such term
in Section 3.5(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.12 hereto, executed and delivered by an Additional Credit
Party in accordance with the provisions of Section 7.12.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, any Person which may become a Lender by way of
assignment in accordance with the terms hereof, and any Supplemental Lender,
together with their respective successors and permitted assigns.
"Lending Party" shall have the meaning assigned to such term in
Section 11.15.
"Letter of Credit" means (i) any letter of credit issued by an
Issuing Lender for the account of the Borrower in accordance with the terms of
Section 2.2, and (ii) any Existing Letter of Credit.
"Letter of Credit Fee" shall have the meaning assigned to such term
in Section 3.5(b)(i).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
other similar recording or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans and/or the Swingline
Loans, individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to issue
Letters of Credit from and after the Closing Date in an aggregate face amount at
any time outstanding (including the face amount of each Existing Letters of
Credit then outstanding), together with the amounts of any unreimbursed drawings
thereon, of up to the LOC Committed Amount.
17
"LOC Committed Amount" means TWO MILLION FIVE HUNDRED THOUSAND
DOLLARS ($2,500,000).
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for such
obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (ii) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed by the Borrower.
"Locations" shall have the meaning assigned to such term in Section
6.15(a) hereof.
"Major Earnout Payments" means, for any period of determination,
earnout payments made during such period to the sellers of any companies
acquired by the Borrower that (i) have a duration of more than 36 calendar
months and (ii) are expected to exceed $500,000 on a cumulative basis with
respect to any single company.
"Major Subsidiary" means, at any time, any Subsidiary of the
Borrower owning Property which generates Consolidated EBITDA, computed for the
preceding four fiscal quarters on the basis of historical financial statements,
of $1,000,000 or more. A Major Subsidiary shall also constitute a Material
Subsidiary for purposes of this Credit Agreement.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition (financial or otherwise), operations, performance,
Properties or prospects of the Consolidated Parties (taken as a whole), (ii) the
ability of any Credit Party to perform any material obligation under the Credit
Documents to it is a party or (iii) the legality, validity or enforceability of
the Credit Documents or the material rights and remedies of the Agent or the
Lenders thereunder.
"Material Agreement" means any contract, lease, loan agreement,
indenture, mortgage, deed of trust, security agreement or other agreement,
instrument, obligation or arrangement to which any of the Consolidated Parties
is a party or by which any of their respective properties is bound (other than
the Credit Documents) for which breach, nonperformance, cancellation or failure
to renew could reasonably be expected to have a Material Adverse Effect.
"Material Subsidiary" means, at any time, any Subsidiary of the
Borrower owning Property which generates Consolidated EBITDA, computed for the
preceding four fiscal quarters on the basis of historical financial statements,
of $300,000 or more.
18
"Material Foreign Subsidiary" means any Material Subsidiary of the
Borrower which is a Foreign Subsidiary.
"Materials of Environmental Concern" means (i) any chemical,
material or substance at any time defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", acutely hazardous waste", "radioactive waste", "biohazardous
waste", "pollutant", "toxic pollutant", "contaminant", "restricted hazardous
waste", "infectious waste", "toxic substances", or any other term or expression
intended to define, list or classify substances by reason of properties harmful
to health, safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Government Authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the vicinity of any
Location or to the indoor or outdoor environment.
"Maturity Date" means January 22, 2004.
"Moody's" means Moody's Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which any Consolidated Party
or any ERISA Affiliate and at least one employer other than the Consolidated
Parties or any ERISA Affiliate are contributing sponsors.
"Net Aston Guaranty Payments" means, for any period of
determination, an amount equal to the remainder, which shall not be less than
zero, of (i) all payments made during such period by any Consolidated Party
pursuant to the Aston Management Agreements, minus (ii) all management fees,
service fees, marketing fees, any other fees and any other income paid during
such period to any Consolidated Party pursuant to the Aston Management
Agreements.
"Net Cash Proceeds" means the aggregate cash proceeds received by a
Consolidated Party in respect of any Equity Issuance, any Debt Issuance or any
Asset Disposition, net of (a) direct costs (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and (b)
taxes paid or payable as a result thereof; it being understood that "Net Cash
Proceeds" with respect to any Asset Disposition shall
19
include, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received by any Consolidated Party in
connection with such Asset Disposition.
"New Lenders" means all of the "Lenders" party to, and as defined
in, this Credit Agreement which are not Lenders under the Existing Agreement
immediately prior to the Closing Date.
"Note Purchase and Guarantee Agreement" means the Note Purchase and
Guarantee Agreement, dated as of June 1, 1999, among the Credit Parties and the
Noteholders, as amended, modified, supplemented or restated from time to time.
"Noteholders" means the noteholders party from time to time to the
Note Purchase and Guarantee Agreement.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section 2.1(b)(i) or
Section 2.3(b).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as required by
Section 3.2.
"Obligations" means, collectively, the Revolving Loans, the
Swingline Loans and the LOC Obligations.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any Property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Participation Interest" means a purchase by a Lender of a
participation in (a) Letters of Credit or LOC Obligations as provided in Section
2.2, (b) Swingline Loans as provided in Section 2.3(b)(iii) and (c) any
Revolving Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Acquisition" means an Acquisition by the Borrower or any
Subsidiary of the Borrower for the fair market value of the Property acquired,
provided that (i) the Property acquired in such Acquisition relates to a line of
business similar or complimentary to the business of the Borrower or any of its
Subsidiaries engaged in on the Closing Date, (ii) in the case of an Acquisition
of the capital stock of another Person, (A) the board of directors (or other
comparable governing body) of such other Person shall have duly approved such
Acquisition and (B) such Person shall become a wholly-owned direct or indirect
Subsidiary of the Borrower, (iii) the representations and warranties made by the
Credit Parties in any Credit Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (after giving
effect thereto) except to the extent such representations and warranties
expressly
20
relate to an earlier date and no Default or Event of Default exists as of the
date of such Acquisition (after giving effect thereto), (iv) if the Acquisition
shall exceed $500,000, the Borrower shall have delivered to the Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving effect to the
Acquisition on a pro forma basis, the Credit Parties will be in compliance with
all of the covenants set forth in Section 7.11, and the Borrower shall have
delivered to the Lender a certificate that, upon giving effect to the
Acquisition, the Borrower shall have liquidity (i.e. unused availability of
Loans plus cash and Cash Equivalents) of at least $5,000,000, (v) the aggregate
consideration (including cash and non-cash consideration) and any assumption of
liabilities for (A) all such Acquisitions occurring during any calendar year
shall not exceed $50,000,000 (computed on a non-cumulative basis), and (B) any
single Acquisition occurring after the Closing Date shall not exceed 20% of
Consolidated Net Worth and (vi) the aggregate cash consideration for all such
Acquisitions occurring during any calendar year shall not exceed $30,000,000
(computed on a non-cumulative basis).
"Permitted Investments" means any of the following Investments:
(i) Cash and Cash Equivalents;
(ii) accounts receivable created, acquired or made by any
Consolidated Party in the ordinary course of business and
payable or dischargeable in accordance with customary trade
terms;
(iii) Investments consisting of Capital Stock, obligations,
securities or other property received by any Consolidated
Party in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors;
(iv) Investments existing as of the Closing Date and set forth in
Schedule 1.1(a);
(v) transactions permitted by Section 8.8;
(vi) advances or loans to agents, customers or suppliers that do
not exceed $250,000 in the aggregate at any one time
outstanding for all of the Consolidated Parties;
(vii) Investments in any Credit Party; provided, however, that (A)
no Credit Party other than the Borrower shall be permitted to
purchase shares of Capital Stock of the Borrower, and (B) in
addition to the Investments permitted under clause (x) of this
definition below, the Borrower shall be permitted to
repurchase shares of Capital Stock of the Borrower provided
that (1) the aggregate amount applied to any such repurchase
shall not in any fiscal quarter exceed 20% of Trailing Twelve
Month Net Income, (2) after giving effect to such repurchase
as on the date of such repurchase, the Consolidated Leverage
Ratio shall be less than 2.0 to 1.0, and (3) no
21
Default or Event of Default shall have occurred and be
continuing as of the date of such repurchase or will occur as
a result of such repurchase;
(viii) Permitted Acquisitions;
(ix) earnout payments (other than Major Earnout Payments) made to
sellers of companies acquired by the Borrower during the
applicable period;
(x) the acquisition by the Borrower of not more than 1,000,000
shares of the capital stock of the Borrower in exchange for
the cancellation, in whole or in part, of two promissory notes
payable by Andre S. Tatibouet to the Borrower in the aggregate
principal amount of $5,000,000; and
(xi) other loans, advances and investments of a nature not
contemplated in the foregoing subsections in an amount not to
exceed $500,000 in the aggregate at any time outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Collateral Agent to secure the Credit
Party Obligations and the obligations of the Credit Parties
under the Senior Note Documents;
(ii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet
due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined
in accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other
Liens imposed by law or pursuant to customary reservations or
retentions of title arising in the ordinary course of
business, provided that such Liens secure only amounts not yet
due and payable or, if due and payable, are unfiled and no
other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by any Consolidated Party in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts,
22
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of
borrowed money);
(v) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured
shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or
shall have been discharged within 30 days after the expiration
of any such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and
other similar charges or encumbrances not, in any material
respect, impairing the use of the encumbered Property for its
intended purposes;
(vii) Liens on Property securing purchase money Indebtedness
(including Capital Leases and Synthetic Leases) to the extent
permitted under Section 8.1(c), provided that any such Lien
attaches to such Property concurrently with or within 90 days
after the acquisition thereof;
(viii) leases or subleases granted to others not interfering in any
material respect with the business of any Consolidated Party;
(ix) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating
to, leases permitted by this Credit Agreement;
(x) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions; and
(xi) Liens existing as of the Closing Date and set forth on
Schedule 1.1(b); provided that (a) no such Lien shall at any
time be extended to or cover any Property other than the
Property subject thereto on the Closing Date and (b) the
principal amount of the Indebtedness secured by such Liens
shall not be extended, renewed, refunded or refinanced.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which any Consolidated
Party or any ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" within the
meaning of Section 3(5) of ERISA.
23
"Pledge Agreement" means the amended and restated pledge agreement
dated as of even date herewith executed and delivered by the Borrower, the
Guarantors and the Canadian Subsidiaries in favor of the Collateral Agent, for
the benefit of the Secured Parties on a pari passu basis, to secure the Secured
Obligations, substantially in the form of Exhibit 1.1(b) annexed hereto, as
amended, modified, restated or supplemented from time to time.
"Prime Rate" means the per annum rate of interest established from
time to time by Citibank, N.A. as its base rate, which rate may not be the
lowest rate of interest charged by Citibank, N.A. to its customers.
"Principal Office" means the principal office of Citibank, presently
located at New York, New York.
"Pro Forma Compliance Certificate" means a certificate of an officer
of the Borrower delivered to the Agent in connection with a Permitted
Acquisition stating that no Default or Event of Default exists and containing
reasonably detailed calculations demonstrating that, upon giving effect to the
applicable transaction on a pro forma basis, the Credit Parties shall be in
compliance with the financial covenants contained in Section 7.11.
"Pro Rata Share" shall have the meaning assigned to such term in
Section 4.6.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, including, without
limitation, Capital Stock.
"Proposed Increased Commitment" shall have the meaning assigned to
such term in Section 1.2(a)(iii).
"Purchasing Lender" shall have the meaning assigned to such term in
Section 1.2(a).
"Quoted Rate" means, with respect to a Swingline Loan, the rate per
annum offered by the Swingline Lender and accepted by the Borrower with respect
to such Swingline Loan.
"Register" shall have the meaning assigned to such term in Section
11.3(c).
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment (including, without limitation, the abandonment or discarding of
barrels, containers and other closed receptacles containing any Materials of
Environmental Concern).
24
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
"Required Lenders" means, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Agent) and
having or holding in the aggregate more than 50% of (i) the outstanding Loans
(exclusive of principal amounts subject to Participation Interests), LOC
Obligations (exclusive of amounts subject to Participation Interests) and
Participation Interests, or (ii) if no Loans, LOC Obligations or Participation
Interests shall be outstanding, the Commitments (and Participation Interests
therein).
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property is subject.
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
any Consolidated Party, now or hereafter outstanding, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of Capital Stock of any
Consolidated Party, now or hereafter outstanding, and (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of any Consolidated
Party, now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving Loans in accordance with the
provisions of Section 2.1(a) and (ii) to purchase Participation Interests in
accordance with the provisions of Sections 2.2, 2.3(b)(iii) and 3.14. The
aggregate principal amount on the date hereof of each Lender's Revolving
Percentage of the Revolving Committed Amount is set forth on Schedule 2.1(a). A
Lender's Revolving Commitment may be increased in accordance with the provisions
of Section 2.1(a)(iii).
"Revolving Commitment Percentage" means, for any Lender, the
percentage identified as its Revolving Commitment Percentage on Schedule 2.1(a),
as such percentage may be modified (i) to account for any Additional Revolving
Commitment made pursuant to Section 2.1(a)(iii) or (ii) in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Revolving Committed Amount" means FORTY MILLION DOLLARS
($40,000,000), as the same may be increased by the aggregate amount of any
Additional Revolving Commitments made pursuant to Section 2.1(a)(iii), or such
lesser amount as the Revolving Committed Amount may be reduced pursuant to
Section 3.4.
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.1(a).
25
"Revolving Note" or "Revolving Notes" means the amended and restated
promissory notes of the Borrower in favor of each of the Lenders, which (i)
amend and restate the "Revolving Notes" issued by the Borrower pursuant to the
Existing Agreement, and (ii) evidence the Revolving Loans provided pursuant to
Section 2.1(e), individually or collectively, as appropriate, as such promissory
notes may be amended, modified, restated, supplemented, extended, renewed or
replaced from time to time.
"Revolving Obligations" means, collectively, Revolving Loans,
Swingline Loans and LOC Obligations.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to any Consolidated Party of any Property, whether owned by such
Consolidated Party as of the Closing Date or later acquired, which has been or
is to be sold or transferred by such Consolidated Party to such Person or to any
other Person from whom funds have been, or are to be, advanced by such Person on
the security of such Property.
"Secured Documents" means the Credit Documents, the Senior Note
Documents and the Additional Facility Documents.
"Secured Obligations" means the Credit Party Obligations, the
obligations of the Credit Parties under the Senior Note Documents and the
Additional Facility Documents and all other obligations of the Credit Parties
secured by the Collateral Documents.
"Secured Parties" means the Lenders, the Noteholders, the Additional
Creditors and their successors and permitted assigns.
"Security Agreement" means the amended and restated security
agreement dated as of even date herewith executed and delivered by the Borrower
and the Guarantors in favor of the Collateral Agent, for the benefit of the
Secured Parties on a pari passu basis, to secure the Secured Obligations,
substantially in the form of Exhibit 1.1(c) annexed hereto, as amended,
modified, restated or supplemented from time to time.
"Selling Lender" shall have the meaning assigned to such term in
Section 2.1(a).
"Senior Note Documents" means the Note Purchase and Guarantee
Agreement, the Senior Notes, the Collateral Documents and all other mortgages,
security agreements, documents, certificates and instruments relating to,
arising out of, or in any way connected therewith or any of the transactions
contemplated thereby.
"Senior Notes" means the $50,000,000 9.06% Guaranteed Senior Secured
Notes issued by the Borrower to the Noteholders pursuant to the Note Purchase
and Guarantee Agreement.
26
"Single Employer Plan" means any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Software Expenditures" means, for any period, all capital
expenditures of the Consolidated Parties incurred for computer software systems,
software development, computer hardware and related items, computed on a
consolidated basis for such period, as determined in accordance with GAAP.
Software Expenditures shall be subject to the restrictions set forth in Section
7.11(d).
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature in their ordinary course, (iii) such Person is not engaged in a business
or a transaction, and is not about to engage in a business or a transaction, for
which such Person's Property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged or is to engage, (iv) the fair value of the Property of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (v) the present fair
salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts as they
become absolute and matured. In computing the amount of contingent liabilities
at any time, it is intended that such liabilities will be computed at the amount
which, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Subsidiary" means, as to any Person, (a) any corporation more than
50% of whose Capital Stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture,
limited liability company or other entity in which such Person directly or
indirectly through Subsidiaries has more than 50% equity interest at any time.
"Supermajority Lenders" means, at any time, Lenders which are then
in compliance with their obligations hereunder (as determined by the Agent) and
having or holding in the aggregate 66.67% or more of (i) the outstanding Loans
and Participation Interests (including the Participation Interests of the
Issuing Lender in any Letters of Credit), or (ii) if no Loans or Participation
Interests shall be outstanding, the Commitments (and Participation Interests
therein).
"Supplemental Lender" shall have the meaning assigned to such term
in Section 2.1(a)(iii).
27
"Swingline Commitment" means the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time outstanding
of up to the Swingline Committed Amount.
"Swingline Committed Amount" means TWO MILLION FIVE HUNDRED THOUSAND
DOLLARS ($2,500,000).
"Swingline Lender" means CAN.
"Swingline Loans" shall have the meaning assigned to such term in
Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower in favor
of the Swingline Lender in the original principal amount of $2,500,000, as such
promissory note may be amended, modified, restated or replaced from time to
time.
"Syndication Agent" shall have the meaning assigned to such term in
the preamble to this Credit Agreement, it being understood and agreed that the
Syndication Agent shall have no obligations or duties as agent for or on behalf
of any party to this Credit Agreement or any other Credit Document.
"Synthetic Leases" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with GAAP.
"Taxes" shall have the meaning assigned to such term in Section
3.11.
"Total Assets" means, as at any date, all items, which in accordance
with GAAP, would be classified as assets of the Consolidated Parties on a
consolidated basis.
"Total Utilization of Commitments" means, as of any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Loans, plus (ii) all outstanding LOC Obligations.
"Trailing Twelve Month Net Income" means, as of any date of
determination, net income (excluding extraordinary items) after taxes of the
Consolidated Parties on a consolidated basis for the 12 consecutive months
ending on the last day of the fiscal quarter immediately preceding such date of
determination, as determined in accordance with GAAP.
"UCC" means the Uniform Commercial Code as adopted and in effect in
any relevant jurisdiction or other similar recording or notice statute in effect
in any relevant jurisdiction, in each case as amended, and any successor statute
thereto.
"UCP" shall have the meaning assigned to such term in Section
2.2(h).
"United States" means the United States of America.
28
"Unused Fee" shall have the meaning assigned to such term in Section
3.5(a).
"Unused Fee Calculation Period" shall have the meaning assigned to
such term in Section 3.5(a).
"Unused Revolving Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount exceeds (b)
the daily average sum for such period of (i) the outstanding aggregate principal
amount of all Revolving Loans plus (ii) the outstanding aggregate principal
amount of all LOC Obligations.
"Voting Stock" means, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, including any such Capital Stock
as to which the right so to vote has been suspended by the happening of such a
contingency.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary 100% of
whose Voting Stock or other equity interests are at the time owned by such
Person directly or indirectly through other Wholly Owned Subsidiaries.
1.2 Computation of Time Periods. For purposes of computation of
periods of time hereunder, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding."
1.3 Accounting Terms. Except as otherwise expressly provided herein,
all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. Calculations in connection with the definitions,
covenants and other provisions of this Credit Agreement shall utilize GAAP as in
effect on the date of determination, applied in a manner consistent with that
used in preparing the financial statements referred to in Section 7.1. If at any
time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Credit Document, and the Borrower, the Agent or
Required Lenders shall so request, the Agent, the Lenders and the Borrower 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 Required Lenders), provided that, until so amended, such ratio or requirement
shall continue to be computed in accordance with GAAP prior to such change
therein and the Borrower shall provide to the Agent and the Lenders
reconciliation statements provided for in Section 7.1(d).
Notwithstanding the above, the parties hereto acknowledge and agree that,
for purposes of all calculations made under the financial covenants set forth in
Section 7.11 (including without limitation for purposes of the definitions of
"Applicable Percentage" set forth in Section 1.1), so long as the Borrower shall
have provided the Agent with a Pro Forma Compliance Certificate with respect to
the applicable Permitted Acquisition, income statement items (whether positive
or negative) attributable to any Property acquired in any Permitted Acquisition
described in clause (viii) of the definition of "Permitted Investment" and any
Indebtedness incurred by the
29
Borrower or any of its Subsidiaries in order to consummate such Permitted
Acquisition shall be included to the extent relating to any period applicable in
such calculations occurring after the date of such Permitted Acquisition (and,
notwithstanding the foregoing, during the first four fiscal quarters following
the date of such Permitted Acquisition, such Permitted Acquisition and any
Indebtedness incurred by the Borrower or any of its Subsidiaries in order to
consummate such Permitted Acquisition (A) shall be deemed to have occurred on
the first day of the four fiscal quarter period immediately preceding the date
of such Permitted Acquisition and (B) if such Indebtedness has a floating or
formula rate, then the implied rate of interest for such Indebtedness for the
applicable period shall be determined by utilizing the rate which is or would be
in effect with respect to such Indebtedness as at the relevant date of
determination).
SECTION 2.
CREDIT FACILITIES
2.1 Revolving Loans.
(a) (i) Revolving Commitments. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make available to the
Borrower such Lender's Revolving Commitment Percentage of revolving
credit loans requested by the Borrower in Dollars ("Revolving
Loans") from time to time from the Closing Date until the Business
Day prior to the Maturity Date, or such earlier date as the
Revolving Commitments shall have been terminated as provided herein
for the purposes hereinafter set forth; provided, however, that (i)
with regard to the Lenders collectively, the sum of the aggregate
principal amount of outstanding Revolving Loans plus LOC Obligations
outstanding plus Swingline Loans outstanding shall not exceed the
Revolving Committed Amount and (ii) with regard to each Lender
individually, such Lender's outstanding Revolving Loans shall not
exceed (A) such Lender's Revolving Commitment Percentage, multiplied
by (B) the Revolving Committed Amount less all LOC Obligations
outstanding less all Swingline Loans outstanding. Revolving Loans
may consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided,
however, that no more than five (5) Eurodollar Loans shall be
outstanding hereunder at any time. For purposes hereof, Eurodollar
Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date,
although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single
Interest Period. Revolving Loans hereunder may be repaid and
reborrowed in accordance with the provisions hereof.
(ii) Reallocation of Revolving Commitment Percentages. On the
Closing Date, each Lender that will have a greater Revolving
Commitment Percentage upon the Closing Date than its Revolving
Commitment Percentage (under and as defined in the Existing
Agreement) immediately prior to the
30
Closing Date (including any New Lender) (each a "Purchasing
Lender"), without executing an Assignment and Acceptance, shall be
deemed to have automatically purchased assignments pro rata from
each Departing Lender and each Lender that will have a smaller
Revolving Commitment Percentage upon the Closing Date than its
Revolving Commitment Percentage (under and as defined in the
Existing Agreement) immediately prior to the Closing Date (each a
"Selling Lender") in all such Selling Lenders' rights and
obligations under this Credit Agreement and the other Loan
Documents, including with respect to Revolving Commitments, the
commitments of Lenders to purchase Participation Interests
(collectively, except as set forth below, the "Assigned Rights and
Obligations") so that, after giving effect to such assignments, each
Lender shall have its respective Revolving Commitment Percentage as
set forth in Schedule 2.1(a) (as modified as required under the
definition of Revolving Commitment Percentage) of the Assigned
Rights and Obligations. Each such purchase hereunder shall be at par
for a purchase price equal to the principal amount of Loans and
without recourse, representation or warranty, except that, each
Selling Lender shall be deemed to represent and warrant to each
Purchasing Lender that the Assigned Rights and Obligations of such
Selling Lender are not subject to any Liens created by that Selling
Lender.
The Agent shall calculate the net amount to be paid or
received by each Lender in connection with the assignments effected
hereunder on the Closing Date. Each Purchasing Lender required to
make a payment shall make the net amount of its required payment
available to the Agent, in same day funds, at the office of Agent
located at Two Penns Way, Suite 200, New Castle, Delaware 19720,
Attention: Jackie Roman, not later than 12:00 Noon (New York time)
on the Closing Date. The Agent shall distribute on the Closing Date
the proceeds of such amounts to the Selling Lenders entitled to
receive payments, pro rata in proportion to the amount each Selling
Lender is entitled to receive at the primary address set forth in
Schedule 2.1(A) or at such other address as such Selling Lender may
request in writing to the Agent.
(iii) Revolving Commitment Increase. The Borrower shall have
the right exercisable on or before the date that is six months prior
to the Maturity Date, to request in writing Additional Revolving
Commitments from the Lenders in an amount equal to $10,000,000 in
the aggregate, provided that (A) no Default or Event of Default
shall have occurred and be continuing, and (B) the Revolving
Commitments shall not have terminated or been reduced to zero.
Within 15 Business Days after such request, each Lender shall notify
the Agent, whether or not, in the exercise of its sole discretion,
it is willing to commit to make Additional Revolving Loans and the
maximum amount to which it is willing to commit (a "Proposed
Increased Commitment") and the Agent shall promptly notify the
Borrower and each other Lender of each Lender's decision and shall
allocate the Additional Revolving Commitments among the Lenders
based on the ratio of each Lender's Proposed Increased Commitment,
if any, to the aggregate
31
amount of all Proposed Increased Commitments. Any Lender that does
not so notify the Agent within such period shall not be deemed to
have committed to any such requested Additional Revolving
Commitments. If the Lenders are not willing to commit to the
requested Additional Revolving Commitments in the requested amount,
then within 45 Business Days after the Borrower's original request,
with notice thereof to the other Lenders, another one or more
financial institutions that qualify under this Credit Agreement as
Eligible Assignees (each a "Supplemental Lender") may commit to
provide the remainder of the required Additional Credit Commitment.
Upon receipt of notice from the Agent to the Lenders and the
Borrower that the Lenders, or certain of the Lenders and
Supplemental Lenders, have agreed to commit to an aggregate amount
equal to $10,000,000 (or such lesser amount as the Borrower shall
agree, which shall be at least $5,000,000 and an integral multiple
of $1,000,000), then, provided that (i) no Default or Event of
Default shall have occurred and be continuing at such time or after
giving effect to the requested Additional Revolving Commitments,
(ii) the Revolving Commitments shall not have terminated or been
reduced to zero, and (iii) the Borrower and the other Credit Parties
shall have satisfied such other terms and conditions as may be
imposed at the time of such increase by the Agent and the Lenders
and Supplemental Lenders (if any) willing to provide such Additional
Revolving Commitments following consultations with the Borrower,
then (A) the Borrower, the Agent and such Lenders and Supplemental
Lenders (if any) shall execute and deliver to the Agent an
Additional Revolving Facility Supplement, and (B) the Credit Parties
shall execute and deliver to the Agent, the Lenders and the
Supplemental Lenders (if any) such supplemental Revolving Notes and
such other supplemental or amended Credit Documents (including,
without limitation, officer's certificates) as may be reasonably
necessary or desirable in connection therewith.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by telephonic notice (promptly confirmed in
writing) to the Agent not later than 11:00 A.M. (New York time) on
the Business Day prior to the date of the requested borrowing in the
case of Base Rate Loans, and on the third Business Day prior to the
date of the requested borrowing in the case of Eurodollar Loans.
Each such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar Loans or
a combination thereof, and if Eurodollar Loans are requested, the
Interest Period(s) therefor. If the Borrower shall fail to specify
in any such Notice of Borrowing (I) an applicable Interest Period in
the case of a Eurodollar Loan, then such notice shall be deemed to
be a request for an Interest Period of one month, or (II) the type
of Revolving Loan requested, then such
32
notice shall be deemed to be a request for a Base Rate Loan
hereunder. The Agent shall give notice to each affected Lender
promptly upon receipt of each Notice of Borrowing pursuant to this
Section 2.1(b)(i), the contents thereof and each such Lender's share
of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Base Rate Loan that is a Revolving
Loan shall be in a minimum aggregate principal amount of $250,000
and integral multiples of $250,000 in excess thereof (or the
remaining amount of the Revolving Committed Amount, if less). Each
Eurodollar Loan that is a Revolving Loan shall be in a minimum
aggregate principal amount of $1,500,000 and integral multiples of
$500,000 in excess thereof (or the remaining amount of the Revolving
Committed Amount, if less).
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Agent
for the account of the Borrower as specified in Section 3.15(a), or
in such other manner as the Agent may specify in writing, by 3:00
P.M. (New York time) on the date specified in the applicable Notice
of Borrowing in Dollars and in funds immediately available to the
Agent. Such borrowing will then be made available to the Borrower by
the Agent by crediting the account of the Borrower on the books of
such office with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Maturity Date, unless accelerated sooner
pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1:
(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the
Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to
the Adjusted Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans made by each Lender shall
be evidenced by a duly executed Revolving Note of the Borrower to such
Lender in an original principal amount equal to such Lender's Revolving
Commitment Percentage of the Revolving Committed Amount and in
substantially the form of Exhibit 2.1(e).
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2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the
Issuing Lender may reasonably require and in reliance upon the
representations and warranties set forth herein, the Issuing Lender agrees
to issue, and each Lender severally agrees to participate in the issuance
by the Issuing Lender of, standby and trade Letters of Credit in Dollars
from time to time from the Closing Date until the Business Day prior to
the Maturity Date as the Borrower may request, in a form acceptable to the
Issuing Lender; provided, however, that (i) the LOC Obligations
outstanding shall not at any time exceed the LOC Committed Amount and (ii)
the sum of the aggregate principal amount of outstanding Revolving Loans
plus LOC Obligations outstanding plus Swingline Loans shall not at any
time exceed the Revolving Committed Amount. No Letter of Credit shall (x)
have an original expiry date more than one year from the date of issuance
or (y) as originally issued or as extended, have an expiry date extending
beyond the Maturity Date. Each Letter of Credit shall comply with the
related LOC Documents. The issuance and expiry dates of each Letter of
Credit shall be Business Days.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least
three (3) Business Days prior to the requested date of issuance. Such
request shall be in substantially the form of the Notice of Request for
Letter of Credit attached hereto as Exhibit 2.2(b). The Issuing Lender
will disseminate to each of the Lenders on a monthly basis a detailed
report specifying the Letters of Credit which are then issued and
outstanding and any activity with respect thereto which may have occurred
since the date of the prior report, and including therein, among other
things, the beneficiary, the face amount and the expiry date, as well as
any payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Letter of Credit,
and as of the Closing Date, with respect to each Existing Letter of
Credit, shall be deemed to have purchased without recourse a Participation
Interest from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its pro rata share of the obligations
under such Letter of Credit (based on the respective Revolving Commitment
Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume and be obligated to pay to the Issuing Lender and
discharge when due, its pro rata share of the obligations arising under
such Letter of Credit. Without limiting the scope and nature of each
Lender's Participation Interest in any Letter of Credit, to the extent
that the Issuing Lender has not been reimbursed as required hereunder or
under any such Letter of Credit, each such Lender shall pay to the Issuing
Lender its pro rata share of such unreimbursed drawing in same day funds
on the day of notification by the Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) below. The obligation
of each Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of
34
the Borrower to reimburse the Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower
intends to otherwise reimburse the Issuing Lender for such drawing, the
Borrower shall be deemed to have requested that the Lenders make a
Revolving Loan in the amount of the drawing as provided in subsection (e)
below on the related Letter of Credit, the proceeds of which will be used
to satisfy the related reimbursement obligations. The Borrower promises to
reimburse the Issuing Lender on the day of drawing under any Letter of
Credit (either with the proceeds of a Revolving Loan obtained hereunder or
otherwise) in same day funds. If the Borrower shall fail to reimburse the
Issuing Lender as provided hereinabove, the unreimbursed amount of such
drawing shall bear interest at a per annum rate equal to the Adjusted Base
Rate plus 2%. The Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any
rights of setoff, counterclaim or defense to payment the Borrower may
claim or have against the Issuing Lender, the Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of the
Borrower or any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit
or any other Credit Document. The Issuing Lender will promptly notify the
other Lenders of the amount of any unreimbursed drawing and each Lender
shall promptly pay to the Agent for the account of the Issuing Lender in
Dollars and in immediately available funds, the amount of such Lender's
pro rata share of such unreimbursed drawing. Such payment shall be made on
the day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M. (New York time) otherwise
such payment shall be made at or before 12:00 Noon (New York time) on the
Business Day next succeeding the day such notice is received. If such
Lender does not pay such amount to the Issuing Lender in full upon such
request, such Lender shall, on demand, pay to the Agent for the account of
the Issuing Lender interest on the unpaid amount during the period from
the date of such drawing until such Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such Lender is required to make payments of
such amount pursuant to the preceding sentence, the Federal Funds Rate and
thereafter at a rate equal to the Base Rate. Each Lender's obligation to
make such payment to the Issuing Lender, and the right of the Issuing
Lender to receive the same, shall be absolute and unconditional, shall not
be affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any
offset, abatement, withholding or reduction whatsoever. Simultaneously
with the making of each such payment by a Lender to the Issuing Lender,
such Lender shall, automatically and without any further action on the
part of the Issuing Lender or such Lender, acquire a Participation
Interest in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Lender)
35
in the related unreimbursed drawing portion of the LOC Obligation and in
the interest thereon and in the related LOC Documents, and shall have a
claim against the Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan
advance to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Lenders that a Revolving Loan has been requested or
deemed requested by the Borrower to be made in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan advance comprised
of Base Rate Loans (or Eurodollar Loans to the extent the Borrower has
complied with the procedures of Section 2.1(b)(i) with respect thereto)
shall be immediately made to the Borrower by all Lenders (notwithstanding
any termination of the Commitments pursuant to Section 9.2) pro rata based
on the respective Revolving Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2) and the proceeds thereof shall be paid directly
to the Issuing Lender for application to the respective LOC Obligations.
Each such Lender hereby irrevocably agrees to make its pro rata share of
each such Revolving Loan immediately upon any such request or deemed
request in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (i) the amount of such borrowing may
not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or deemed request
for Revolving Loan to be made by the time otherwise required hereunder,
(v) whether the date of such borrowing is a date on which Revolving Loans
are otherwise permitted to be made hereunder or (vi) any termination of
the Commitments relating thereto immediately prior to or contemporaneously
with such borrowing. In the event that any Revolving Loan cannot for any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any Credit Party), then
each such Lender hereby agrees that it shall forthwith purchase (as of the
date such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to
such purchase) from the Issuing Lender such Participation Interests in the
outstanding LOC Obligations as shall be necessary to cause each such
Lender to share in such LOC Obligations ratably (based upon the respective
Revolving Commitment Percentages of the Lenders (determined before giving
effect to any termination of the Commitments pursuant to Section 9.2)),
provided that at the time any purchase of Participation Interests pursuant
to this sentence is actually made, the purchasing Lender shall be required
to pay to the Issuing Lender, to the extent not paid to the Issuing Lender
by the Borrower in accordance with the terms of subsection (d) above,
interest on the principal amount of Participation Interests purchased for
each day from and including the day upon which such borrowing would
otherwise have occurred to but excluding the date of payment for such
Participation Interests, at the rate equal to, if paid within two (2)
Business Days of the date of the Revolving Loan advance, the Federal Funds
Rate, and thereafter at a rate equal to the Base Rate.
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(f) Designation of Consolidated Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a), a Letter of Credit
issued hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Consolidated Party other than the
Borrower, provided that notwithstanding such statement, the Borrower shall
be the actual account party for all purposes of this Credit Agreement for
such Letter of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as
the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may require
that the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), in which case the UCP may
be incorporated therein and deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.2, the Borrower hereby agrees to pay, and protect, indemnify and
save each Lender harmless from and against, any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that such Lender may incur or
be subject to as a direct consequence of (A) the issuance of any
Letter of Credit or (B) the failure of such Lender to honor a
drawing under a Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Lenders (including the
Issuing Lender), the Borrower shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary
thereof. No Lender (including the Issuing Lender) shall be
responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason;
(C) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (D) any loss or delay
in the transmission or otherwise of any document required in order
to make a drawing
37
under a Letter of Credit or of the proceeds thereof; and (E) any
consequences arising from causes beyond the control of such Lender,
including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by any Lender (including the Issuing Lender) under or in
connection with any Letter of Credit or the related certificates, if
taken or omitted in good faith, shall not put such Lender under any
resulting liability to the Borrower or any other Credit Party. It is
the intention of the parties that this Credit Agreement shall be
construed and applied to protect and indemnify each Lender
(including the Issuing Lender) against any and all risks involved in
the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower (on behalf of itself and each of the other
Credit Parties), including, without limitation, any and all
Government Acts. No Lender (including the Issuing Lender) shall, in
any way, be liable for any failure by such Lender or anyone else to
pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of such
Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection
(d) above. The obligations of the Borrower under this subsection (i)
shall survive the termination of this Credit Agreement. No act or
omissions of any current or prior beneficiary of a Letter of Credit
shall in any way affect or impair the rights of the Lenders
(including the Issuing Lender) to enforce any right, power or
benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify
any Lender (including the Issuing Lender) in respect of any
liability incurred by such Lender (A) arising solely out of the
gross negligence or willful misconduct of such Lender, as determined
by a court of competent jurisdiction, or (B) caused by such Lender's
failure to pay under any Letter of Credit after presentation to it
of a request strictly complying with the terms and conditions of
such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Lenders
are only those expressly set forth in this Credit Agreement and that the
Issuing Lender shall be entitled to assume that the conditions precedent
set forth in Section 5.2 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been satisfied;
provided, however, that nothing set forth in this Section 2.2 shall be
deemed to prejudice the right of any Lender to recover from the Issuing
Lender any amounts made available by such Lender to the Issuing Lender
pursuant to this Section 2.2 in the event that it is
38
determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful
misconduct on the part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any letter
of credit application), this Credit Agreement shall control.
(l) Existing Letters of Credit. Notwithstanding anything to the
contrary herein, as of the Closing Date, all of the Existing Letters of
Credit shall be deemed to be Letters of Credit issued hereunder and shall
be subject to all of the terms and provisions of this Credit Agreement,
including all terms and provisions applicable to Letters of Credit under
this Credit Agreement. Each Lender agrees that its obligations with
respect to Letters of Credit pursuant to this Section 2.2 shall include
the Existing Letters of Credit as of the Closing Date. With respect to
each Existing Letter of Credit, for the period commencing on the Closing
Date to and including the expiration date of any such Existing Letter of
Credit, the Borrower shall pay all fees and commissions set forth in
Section 3.5(b) at the times and in the manner set forth therein.
2.3 Swingline Loans.
(a) Swingline Commitment. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties herein set forth,
the Swingline Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower in Dollars (each a "Swingline Loan"
and, collectively, the "Swingline Loans") from time to time from the
Closing Date until the Business Day prior to the Maturity Date, or such
earlier date as the Swingline Commitment shall have been terminated as
provided herein for the purposes hereinafter set forth; provided, however,
(i) the aggregate principal amount of Swingline Loans outstanding at any
time shall not exceed the Swingline Committed Amount, and (ii) with regard
to the Lenders collectively, the aggregate principal amount of outstanding
Revolving Loans plus LOC Obligations outstanding plus Swingline Loans
outstanding at any time shall not exceed the Revolving Committed Amount.
As more particularly set forth in Section 2.3(c)(i), Swingline Loans shall
bear interest at a rate per annum equal to the Quoted Rate. Swingline
Loans shall be repaid and may be reborrowed in accordance with the
provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. The Borrower shall request a
Swingline Loan borrowing by telephonic notice (promptly confirmed in
writing) to the Agent not later than 12:00 Noon (New York time) on
the date of the requested borrowing. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Swingline Loan is
requested, (B) the date of the requested borrowing, and (C) the
aggregate principal amount to be borrowed.
39
(ii) Minimum Amount. Each Swingline Loan shall be in a minimum
aggregate principal amount of $100,000 and integral multiples of
$100,000 in excess thereof (or the remaining amount of the Swingline
Committed Amount, if less).
(iii) Advances. The Swingline Lender will make each Swingline
Loan borrowing available to the Borrower on the date specified in
the applicable Notice of Borrowing in Dollars by crediting the
account of the Borrower on the books of Swingline Lender's Principal
Office in immediately available funds.
(iv) Repayment of Swingline Loans. If not theretofore repaid,
the principal amount of all Swingline Loans shall be due and payable
in full on the Maturity Date. The Swingline Lender may, at any time,
in its sole discretion, by written notice to the Borrower and the
Lenders, demand repayment of its Swingline Loans by way of a
Revolving Loan advance, in which case the Borrower shall be deemed
to have requested a Revolving Loan advance comprised solely of Base
Rate Loans in the amount of such Swingline Loans; provided, however,
that any such demand shall be deemed to have been given one Business
Day prior to the Maturity Date and on the date of the occurrence of
any Event of Default described in Section 9.1 and upon acceleration
of the indebtedness hereunder and the exercise of remedies in
accordance with the provisions of Section 9.2. On the Business Day
following any such demand, a Revolving Loan advance comprised of
Base Rate Loans shall be immediately made to the Borrower by all
Lenders (notwithstanding any termination of the Commitments pursuant
to Section 9.2) pro rata based on the respective Revolving
Commitment Percentages of the Lenders (determined before giving
effect to any termination of the Commitments pursuant to Section
9.2) and the proceeds thereof shall be paid directly to the
Swingline Lender for application to the respective Swingline Loans.
Each Lender hereby irrevocably agrees to make its pro rata share of
each such Revolving Loan in the amount, in the manner and on the
date specified in the preceding sentence notwithstanding (I) the
amount of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required hereunder, (II)
whether any conditions specified in Section 5.2 are then satisfied,
(III) whether a Default or Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving Loan to
be made by the time otherwise required hereunder, (V) whether the
date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made hereunder or (VI) any termination of
the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect
to the Borrower or any other Credit Party), then each Lender hereby
agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and
40
prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be
necessary to cause each such Lender to share in such Swingline Loans
ratably based upon its respective Revolving Commitment Percentage
(determined before giving effect to any termination of the
Commitments pursuant to Section 9.2), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective
participation is purchased and (B) at the time any purchase of
Participation Interests pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay to the Issuing
Lender, to the extent not paid to the Issuing Lender by the Borrower
in accordance with the terms of subsection (c)(ii) below, interest
on the principal amount of Participation Interests purchased for
each day from and including the day upon which such borrowing would
otherwise have occurred to but excluding the date of payment for
such Participation Interests, at the rate equal to the Federal Funds
Rate.
(c) Interest on Swingline Loans.
(i) Subject to the provisions of Section 3.1, each Swingline
Loan shall bear interest at a per annum rate (computed on the basis
of the actual number of days elapsed over a 365-day or 366-day year,
as the case may be) equal to the Quoted Rate. Swingline Loans shall
not be entitled to be converted into Eurodollar Loans.
(ii) Interest on Swingline Loans shall be payable in arrears
on each applicable Interest Payment Date (or at such other times as
may be specified herein).
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in
substantially the form of Exhibit 2.3(d).
2.4 Termination of Commitments. If at any time after the Closing
Date the Total Utilization of Commitments shall be zero, then all Commitments
hereunder shall immediately and automatically terminate and be of no further
force or effect, and no further Loans or extensions of credit under this Credit
Agreement or any of the other Credit Documents shall thereafter be available to
the Borrower or any other Credit Party.
SECTION 3.
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate. Upon the occurrence, and during the continuance,
of an Event of Default, the principal of and, to the extent permitted by law,
interest on the Loans and any other amounts owing hereunder or under the other
Credit Documents shall bear interest, payable on demand, at a rate per annum
equal to the Adjusted Base Rate plus two percent (2.00%).
41
3.2 Extension and Conversion. Subject to the terms of Section 5.2,
the Borrower shall have the option, on any Business Day, to extend existing
Loans into a subsequent permissible Interest Period or to convert Loans into
Loans of another interest rate type; provided, however, that (i) except as
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
only on the last day of the Interest Period applicable thereto, (ii) Eurodollar
Loans may be extended, and Base Rate Loans may be converted into Eurodollar
Loans, only if no Default or Event of Default is in existence on the date of
extension or conversion, (iii) Loans extended as, or converted into, Eurodollar
Loans shall be subject to the terms of the definition of "Interest Period" set
forth in Section 1.1 and shall be in such minimum amounts as provided in, with
respect to Revolving Loans, Section 2.1(b)(ii), (iv) no more than five (5)
Eurodollar Loans shall be outstanding hereunder at any time (it being understood
that, for purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance with
the provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period), (v) subject to
the limitations of Section 3.2(iv) above, any request for extension or
conversion of a Eurodollar Loan which shall fail to specify an Interest Period
shall be deemed to be a request for an Interest Period of one month, and (vi)
Swingline Loans shall at all times bear interest at the Quoted Rate as specified
in Section 2.3(c)(i). Each such extension or conversion shall be effected by the
Borrower by giving a Notice of Extension/Conversion (or telephonic notice
promptly confirmed in writing) to the office of the Agent specified in specified
in Schedule 2.1(a), or at such other office as the Agent may designate in
writing, prior to 11:00 A.M. (New York time) on the Business Day of, in the case
of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the third
Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in subsections (b), (c) and (d) of Section
5.2. In the event the Borrower fails to request extension or conversion of any
Eurodollar Loan in accordance with this Section, or any such conversion or
extension is not permitted or required by this Section, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the
Interest Period applicable thereto. The Agent shall give each Lender notice as
promptly as practicable of any such proposed extension or conversion affecting
any Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to
prepay Loans in whole or in part from time to time; provided, however,
that (i) each partial prepayment of Revolving Loans shall be in a minimum
principal amount of $250,000 and integral multiples of $250,000 in excess
thereof, (ii) each partial prepayment of Swingline Loans shall be in a
minimum principal amount of $100,000 and integral multiples of $100,000 in
excess thereof, (iii) Base Rate Loans may only be prepaid after telephonic
notice (promptly confirmed in writing) to the Agent not later than 11:00
A.M. (New York time)
42
on the Business Day of the applicable prepayment and (iv) Eurodollar Loans
may only be prepaid on three Business Days' prior notice (by telephone
call promptly confirmed in writing) to the Agent. Subject to the foregoing
terms, and so long as no Default or Event of Default shall have occurred
and shall then be continuing, amounts prepaid under this Section 3.3(a)
shall be applied as the Borrower may elect; provided that if the Borrower
shall fail to specify a voluntary prepayment or if a Default or Event of
Default shall have occurred and shall then be continuing, such prepayment
shall be applied first to Revolving Loans and then the Swingline Loans, in
each case first to Base Rate Loans and then to Eurodollar Loans in direct
order of Interest Period maturities. All prepayments under this Section
3.3(a) shall be subject to Section 3.12.
(b) Mandatory Prepayments.
(i) No Excess Above Committed Amounts. If at any time, (A) the
sum of the aggregate principal amount of outstanding Revolving Loans
plus LOC Obligations outstanding plus the aggregate principal amount
of outstanding Swingline Loans shall exceed the Revolving Committed
Amount, (B) the aggregate amount of LOC Obligations outstanding
shall exceed the LOC Committed Amount or (C) the aggregate amount of
Swingline Loans outstanding shall exceed the Swingline Committed
Amount, the Borrower shall immediately make payment on the Loans
(and/or furnish cash collateral in respect of the LOC Obligations
pursuant to arrangements satisfactory to the Issuing Lender), in an
amount sufficient to eliminate such excess.
(ii) Issuances of Equity or Debt. Immediately upon receipt by
a Consolidated Party of proceeds from any Equity Issuance or Debt
Issuance, the Borrower shall prepay the Loans in an aggregate amount
equal to 100% of the Net Cash Proceeds of such Equity Issuance or
Debt Issuance (such prepayment to be applied as set forth in clause
(iv) below).
(iii) Asset Dispositions. Immediately upon receipt by a
Consolidated Party of proceeds from any Asset Disposition, the
Borrower shall forward 100% of the Net Cash Proceeds of such Asset
Disposition to the Collateral Agent as a prepayment of the Loans and
the Senior Notes (such prepayment to be applied as set forth in
clause (iv) below). Notwithstanding the foregoing, the Borrower
shall not be required to forward to the Collateral Agent as a
prepayment of the Loans Net Cash Proceeds of Asset Dispositions
which do not exceed $500,000, in the aggregate, during the term of
this Credit Agreement.
(iv) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to Section 3.3(b)(i) and (ii) shall be
applied as follows: first to Revolving Loans, second to Swingline
Loans and third (after all Revolving Loans and Swingline Loans have
been repaid) to a cash collateral account in respect of LOC
Obligations. All amounts required to be paid pursuant to Section
3.3(b)(iii) shall be applied pro rata to (A) the Senior Notes and
(B) the Loans and LOC Obligations as follows: first to Revolving
Loans, second to Swingline Loans and
43
third (after all Revolving Loans and Swingline Loans have been
repaid) to a cash collateral account in respect of LOC Obligations
(pursuant to arrangements satisfactory to the Issuing Lender);
provided, however, each of the Noteholders shall have a right to
decline to accept a mandatory prepayment pursuant to Section
3.3(b)(iii) in accordance with the terms of the Note Purchase and
Guarantee Agreement, in which case such declined prepayment shall be
allocated and offered pro rata among the Noteholders that accept
such prepayment or, if none of the Noteholders accept such
re-allocated prepayment, then pro rata among the Lenders in
accordance with the foregoing terms of this Section 3.3(b)(iv).
Within the parameters of the applications of prepayments to Loans
set forth above, prepayments shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest
Period maturities. All prepayments of Loans and LOC Obligations
under this Section 3.3(b) shall be subject to Section 3.12.
3.4 Voluntary Reduction of Revolving Committed Amount. The Borrower
may from time to time permanently reduce or terminate the Revolving Committed
Amount in whole or in part (in minimum aggregate amounts of $5,000,000 or in
integral multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount)) upon five
Business Days' prior written or telephonic notice to the Agent; provided,
however, no such termination or reduction shall be made which would cause the
aggregate principal amount of outstanding Revolving Loans plus LOC Obligations
outstanding plus Swingline Loans outstanding to exceed the Revolving Committed
Amount, unless, concurrently with such termination or reduction, the Revolving
Loans are repaid to the extent necessary to eliminate such excess. The Agent
shall promptly notify each affected Lender of receipt by the Agent of any notice
from the Borrower pursuant to this Section 3.4.
3.5 Fees.
(a) Unused Fee. In consideration of the Revolving Commitments of the
Lenders hereunder, the Borrower agrees to pay to the Agent for the account
of each Lender a fee (the "Unused Fee") on the Unused Revolving Committed
Amount computed at a per annum rate for each day during the applicable
Unused Fee Calculation Period (hereinafter defined) at a rate equal to the
Applicable Percentage for Unused Fees in effect from time to time. The
Unused Fee shall commence to accrue on the Closing Date and shall be due
and payable in arrears on the fifteenth (15th) day following the last
Business Day of each March, June, September and December (and any date
that the Revolving Committed Amount is reduced as provided in Section 3.4
and the Maturity Date) for the immediately preceding calendar quarter (or
portion thereof) (each such calendar quarter or portion thereof for which
the Unused Fee is payable hereunder being herein referred to as an "Unused
Fee Calculation Period"), beginning with the first of such dates to occur
after the Closing Date. For purposes of computation of the Unused Fee, the
Swingline Loans shall not be counted toward or considered usage under the
Revolving Loan facility.
44
(b) Letter of Credit Fees and Issuing Lender Fees.
(i) Letter of Credit Fees. In consideration of the issuance of
Letters of Credit hereunder, the Borrower promises to pay to the
Agent for the account of each Lender a fee (the "Letter of Credit
Fee") on such Lender's Revolving Commitment Percentage of the
average daily maximum amount available to be drawn under each such
Letter of Credit computed at a per annum rate for each day from the
date of issuance (or, with respect to the Existing Letters of
Credit, from the Closing Date) to the date of expiration equal to
one and seven-eighths percent (1.875%). The Letter of Credit Fee
will be payable quarterly in arrears on the last Business Day of
each March, June, September and December for the immediately
preceding quarter (or a portion thereof).
(ii) Issuing Lender Fees. In addition to the Letter of Credit
Fee payable pursuant to clause (i) above, the Borrower promises to
pay to the Issuing Lender for its own account, without sharing by
the other Lenders, (A) in consideration of the issuance of any
Letter of Credit hereunder, a fee computed at a per annum rate for
each day from the date of issuance (or, with respect to the Existing
Letters of Credit, from the Closing Date) to the date of expiration
equal to one-eighth of one percent (0.125%) of the face amount of
such Letter of Credit (the "Issuing Lender Fee"), and (B) the
customary charges from time to time of the Issuing Lender with
respect to the issuance, amendment, transfer, administration,
cancellation, extension and conversion of, and drawings under, such
Letters of Credit. The Issuing Lender Fee will be payable quarterly
in arrears on the last Business Day of each March, June, September
and December for the immediately preceding quarter (or a portion
thereof).
(iii) Increased Fees After Event of Default. Upon the
occurrence, and during the continuance, of an Event of Default, (A)
the rate per annum at which the Letter of Credit Fee is computed
shall automatically increase to three and three-quarters percent
(3.75%), and (B) the rate per annum at which the Issuing Lender Fee
is computed shall automatically increase to one-quarter of one
percent (0.25%).
(c) Administrative Fees. The Borrower agrees to pay to the Agent,
for the Agent's own account and Salomon Smith Barney Inc., as applicable,
the fees referred to in the Agent's Fee Letter (collectively, the "Agent's
Fees").
(d) Facility Fees. The Borrower agrees to pay to the Agent, on the
Closing Date, for distribution to each Lender in proportion to that
Lender's Revolving Commitment Percentage, facility fees in the aggregate
amount of $400,000.00.
3.6 Capital Adequacy. If any Lender has determined, after the date
hereof, that the adoption or the becoming effective of, or any change in, or any
change by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof in the interpretation or
administration of, any applicable law, rule or regulation regarding
45
capital adequacy, or compliance by such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital or assets of such Lender or
any corporation controlling such Lender as a consequence of its commitments or
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, effectiveness, change,
request, directive or compliance (taking into consideration the policies of such
Lender or corporation with respect to capital adequacy), then, from time to time
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto.
3.7 Limitation on Eurodollar Loans. If on or prior to the first day
of any Interest Period for any Eurodollar Loan:
(a) the Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans, continue Eurodollar Loans, or to convert Base
Rate Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Eurodollar Loans or convert such Eurodollar Loans into Base Rate
Loans in accordance with the terms of this Credit Agreement.
3.8 Illegality. Notwithstanding any other provision of this Credit
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans hereunder,
then such Lender shall promptly notify the Borrower thereof and such Lender's
obligation to make or continue Eurodollar Loans and to convert Base Rate Loans
into Eurodollar Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Loans (in which case the provisions of
Section 3.10 shall be applicable).
3.9 Requirements of Law.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration thereof
by any Governmental Authority, central bank, or comparable agency charged
with the interpretation or administration thereof, or compliance by any
Lender (or its Applicable Lending Office) with any request or
46
directive (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Loans, its Revolving Notes, or its obligation to make
Eurodollar Loans, or change the basis of taxation of any amounts
payable to such Lender (or its Applicable Lending Office) under this
Credit Agreement or its Revolving Notes in respect of any Eurodollar
Loans (other than taxes imposed on the overall net income of such
Lender by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Eurodollar Reserve Requirement utilized in the determination of the
Adjusted Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its Applicable Lending Office),
including the Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the United States market for certificates of deposit
or the London interbank market any other condition affecting this
Credit Agreement or its Revolving Notes 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 (or its Applicable Lending Office) of making, converting into,
continuing, or maintaining any Eurodollar Loans or to reduce any sum
received or receivable by such Lender (or its Applicable Lending Office)
under this Credit Agreement or its Revolving Notes with respect to any
Eurodollar Loans, then the Borrower shall pay to such Lender on demand
such amount or amounts as will compensate such Lender for such increased
cost or reduction with respect to such Eurodollar Loans. If any Lender
requests compensation by the Borrower under this Section 3.9(a), the
Borrower may, by notice to such Lender (with a copy to the Agent), suspend
the obligation of such Lender to make or continue Eurodollar Loans, or to
convert Base Rate Loans into Eurodollar Loans, until the event or
condition giving rise to such request ceases to be in effect (in which
case the provisions of Section 3.10 shall be applicable); provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Each Lender shall promptly notify the Borrower and the Agent of
any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section
3.9 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section
3.9 shall furnish to the Borrower and the Agent a statement setting forth
the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest
47
error. In determining such amount or amounts, such Lender may use any
reasonable averaging and attribution methods.
3.10 Treatment of Affected Loans. If the obligation of any Lender to
make any Eurodollar Loan or to continue, or to convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 3.8 or 3.9 hereof, such
Lender's Eurodollar Loans shall be automatically converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for such Eurodollar
Loans (or, in the case of a conversion required by Section 3.8 hereof, on such
earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 3.8 or 3.9 hereof that gave rise to such
conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by such
Lender as Eurodollar Loans shall be made or continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.8 or 3.9 hereof that gave rise to the
conversion of such Lender's Eurodollar Loans pursuant to this Section 3.10 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
held pro rata (as to principal amounts, interest rate basis, and Interest
Periods) in accordance with their respective Commitments.
3.11 Taxes.
(a) Any and all payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any other Credit Document shall
be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender (or its Applicable Lending Office) or the Agent (as the case
may be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable under this Credit Agreement or any other Credit
Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
48
this Section 3.11) such Lender or the Agent receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrower shall furnish to the
Agent, at its address referred to in Section 11.1, the original or a
certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under this
Credit Agreement or any other Credit Document or from the execution or
delivery of, or otherwise with respect to, this Credit Agreement or any
other Credit Document (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 3.11) paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery
of this Credit Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes a
Lender in the case of each other Lender, and from time to time thereafter
if requested in writing by the Borrower or the Agent (but only so long as
such Lender remains lawfully able to do so), shall provide the Borrower
and the Agent with (i) Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the
rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Credit Agreement is effectively
connected with the conduct of a trade or business in the United States,
(ii) Internal Revenue Service Form W-8 or W-9, as appropriate, or any
successor form prescribed by the Internal Revenue Service, and (iii) any
other form or certificate required by any taxing authority (including any
certificate required by Sections 871(h) and 881(c) of the Internal Revenue
Code), certifying that such Lender is entitled to an exemption from or a
reduced rate of tax on payments pursuant to this Credit Agreement or any
of the other Credit Documents.
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Agent with the appropriate form pursuant to
Section 3.11(d) (unless such failure is due to a change in treaty, law, or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 3.11(a) or 3.11(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take
49
such steps as such Lender shall reasonably request to assist such Lender
to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section 3.11, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of
such Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes,
the Borrower shall furnish to the Agent the original or a certified copy
of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 3.11 shall survive the repayment of the Loans,
LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.12 Compensation. Upon the request of any Lender, the Borrower
shall pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar Loan for
any reason (including, without limitation, the acceleration of the Loans
pursuant to Section 9.2) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section 5
to be satisfied) to borrow, convert, continue, or prepay a Eurodollar Loan
on the date for such borrowing, conversion, continuation, or prepayment
specified in the relevant notice of borrowing, prepayment, continuation,
or conversion under this Credit Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
covenants of the Borrower set forth in this Section 3.12 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the Credit
Documents and the termination of the Commitments hereunder.
50
3.13 Pro Rata Treatment. Except to the extent otherwise provided
herein:
(a) Loans. Each Loan, each payment or (subject to the terms of
Section 3.3) prepayment of principal of any Loan or reimbursement
obligations arising from drawings under Letters of Credit, each payment of
interest on the Loans or reimbursement obligations arising from drawings
under Letters of Credit, each payment of Unused Fees, each payment of the
Letter of Credit Fee, each reduction of the Revolving Committed Amount and
each conversion or extension of any Loan, shall be allocated pro rata
among the Lenders in accordance with the respective principal amounts of
their outstanding Loans and Participation Interests.
(b) Advances. No Lender shall be responsible for the failure or
delay by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender of
its obligations hereunder. Unless the Agent shall have been notified by
any Lender prior to the date of any requested borrowing that such Lender
does not intend to make available to the Agent its ratable share of such
borrowing to be made on such date, the Agent may assume that such Lender
has made such amount available to the Agent on the date of such borrowing,
and the Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Agent, the Agent shall be entitled to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Agent's demand therefor, the
Agent will promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Agent. The Agent shall
also be entitled to recover from the Lender or the Borrower, as the case
may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Agent to the
Borrower to the date such corresponding amount is recovered by the Agent
at a per annum rate equal to (i) if from the Borrower, the applicable rate
for the applicable borrowing pursuant to the Notice of Borrowing and (ii)
if from a Lender, the Federal Funds Rate.
3.14 Sharing of Payments. The Lenders agree among themselves that,
in the event that any Lender shall obtain payment in respect of any Loan, LOC
Obligations or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in excess
of its pro rata share of such payment as provided for in this Credit Agreement,
such Lender shall promptly purchase from the other Lenders a Participation
Interest in such Loans, LOC Obligations and other obligations in such amounts,
and make such other adjustments from time to time, as shall be equitable to the
end that all Lenders share such payment in accordance with their respective
ratable shares as provided for in this Credit Agreement. The Lenders further
agree among themselves that if payment to a Lender obtained by such Lender
through the exercise of a right of setoff, banker's lien, counterclaim or
51
other event as aforesaid shall be rescinded or must otherwise be restored, each
Lender which shall have shared the benefit of such payment shall, by repurchase
of a Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender or the Agent shall fail to remit to the Agent or any other Lender an
amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon from the date such amount
is due until the date such amount is paid to the Agent or such other Lender at a
rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 3.14 applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders under this Section 3.14 to
share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Etc.
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in Dollars in immediately available
funds, without offset, deduction, counterclaim or withholding of any kind,
at the Agent's office specified in Schedule 2.1(a) not later than 12:00
Noon (New York time) on the date when due. Payments received after such
time shall be deemed to have been received on the next succeeding Business
Day, provided that any such payment received after such time but before
3:00 p.m. (New York time) on such day shall be deemed a payment on such
day for the purpose of Section 9.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. The Agent
may (but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the
Borrower maintained with the Agent (with notice to the Borrower). The
Borrower shall, at the time it makes any payment under this Credit
Agreement, specify to the Agent the Loans, LOC Obligations, Fees, interest
or other amounts payable by the Borrower hereunder to which such payment
is to be applied (and in the event that it fails so to specify, or if such
application would be inconsistent with the terms hereof, the Agent shall
distribute such payment to the Lenders in such manner as the Agent may
determine to be appropriate in respect of obligations owing by the
Borrower hereunder, subject to the terms of Section 3.13(a)). The Agent
will distribute such payments to such Lenders, if any such payment is
received prior to 12:00 Noon (New York time) on a Business Day in like
funds as received prior to the end of such Business Day and otherwise the
Agent will distribute such payment to such Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be due on
a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day (subject to accrual of interest and
Fees for the period of such
52
extension), except that in the case of Eurodollar Loans, if the extension
would cause the payment to be made in the next following calendar month,
then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of
interest and fees shall be made on the basis of actual number of days
elapsed over a year of 360 days, except with respect to computation of
interest on Base Rate Loans which (unless the Base Rate is determined by
reference to the Federal Funds Rate) shall be calculated based on a year
of 365 or 366 days, as appropriate. Interest shall accrue from and include
the date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Agent or any Lender on account of the Credit
Party Obligations or any other amounts outstanding under any of the Credit
Documents or in respect of the Collateral shall be paid over or delivered
as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees)
of the Agent in connection with enforcing the rights of the Lenders
under the Credit Documents, and any protective advances made by the
Agent with respect to the Collateral under or pursuant to the terms
of the Collateral Documents, and to reimburse the Lenders for any
costs and expenses of the Agent for which the Lenders have
indemnified the Agent pursuant to Section 10.5;
SECOND, to payment of any fees owed to the Agent in its capacities
as the Agent or the Collateral Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents or otherwise with respect to the Credit Party
Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest; FIFTH, to the payment of
the outstanding principal amount of the Credit Party Obligations
(including the payment or cash collateralization of the outstanding
LOC Obligations);
SIXTH, to all other Credit Party Obligations and other obligations
which shall have become due and payable under the Credit Documents
or otherwise and not repaid pursuant to clauses "FIRST" through
"FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
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In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (iii) to the extent
that any amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender from time to time for any drawings
under such Letters of Credit and (B) then, following the expiration of all
Letters of Credit, to all other obligations of the types described in clauses
"FIFTH" and "SIXTH" above in the manner provided in this Section 3.15(b).
3.16 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time, including
the amounts of principal and interest payable and paid to such Lender from
time to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to
promptly update its account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section
11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to each
Lender hereunder and (iii) the amount of any sum received by the Agent
hereunder from or for the account of the Borrower and each Lender's share
thereof. The Agent will make reasonable efforts to maintain the accuracy
of the subaccounts referred to in the preceding sentence and to promptly
update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if
consistent with the entries of the Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of any
Lender or the Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay the Loans made by such
Lender in accordance with the terms hereof.
3.17 Reinstatement. The Obligations of the Borrower shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise (including,
without limitation, by reason of the application of Section 5.13 or 5.14 of the
Intercreditor Agreement or any other provision thereof), and the Borrower agrees
that it will
54
indemnify the Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
SECTION 4.
GUARANTY
4.1 The Guaranty. Each of the Guarantors hereby jointly and
severally guarantees to each Lender, each Affiliate of a Lender that enters into
a Hedging Agreement, and the Agent as hereinafter provided the prompt payment of
the Credit Party Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Credit Party Obligations are not paid in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Credit Party Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor hereunder shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code or any comparable provisions of any
applicable state law.
4.2 Obligations Unconditional. The obligations of the Guarantors
under Section 4.1 are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or Hedging Agreements, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Credit Party
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.2 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances.
Each Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor of the Credit Party Obligations for amounts paid under this Section 4
until such time as the Lenders (and any Affiliates of Lenders entering into
Hedging Agreements) have been paid in full, all Commitments under this Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
55
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain irrevocable, absolute and unconditional as described above,
and each Guarantor hereby irrevocably waives all defenses that it may now or
hereafter have arising out of any of the following:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Credit Party Obligations shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements shall
be taken or omitted;
(c) the maturity of any of the Credit Party Obligations shall be
accelerated, or any of the Credit Party Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements shall
be waived or any other guarantee of any of the Credit Party Obligations or
any security therefor shall be released, impaired or exchanged in whole or
in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Agent or any Lender or
Lenders as security for any of the Credit Party Obligations shall fail to
attach or be perfected;
(e) any of the Credit Party Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of any
Person (including, without limitation, any creditor of any Guarantor); or
(f) any other circumstance that may otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower or any
surety or any Guarantor.
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement or any other agreement or instrument referred to in the
Credit Documents or Hedging Agreements, or against any other Person under any
other guarantee of, or security for, any of the Credit Party Obligations.
4.3 Reinstatement. The obligations of the Guarantors under this
Section 4 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Credit Party
Obligations is rescinded or must be otherwise restored by any holder of any of
the Credit Party Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise (including, without limitation, by
reason of the application of Section 5.13 or 5.14 of the Intercreditor Agreement
or any other provision thereof), and each Guarantor agrees that it will
indemnify the Agent and each Lender
56
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
4.4 Certain Additional Waivers. Without limiting the generality of
the provisions of this Section 4, each Guarantor hereby agrees that such
Guarantor shall have no right of recourse to security for the Credit Party
Obligations, except through the exercise of rights of subrogation pursuant to
Section 4.2 and through the exercise of rights of contribution pursuant to
Section 4.6.
4.5 Remedies. The Guarantors agree that, to the fullest extent
permitted by law, as between the Guarantors, on the one hand, and the Agent and
the Lenders, on the other hand, the Credit Party Obligations may be declared to
be forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 4.1 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1.
4.6 Rights of Contribution. The Guarantors hereby agree as among
themselves that, if any Guarantor shall make an Excess Payment (as defined
below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor's Contribution Share (as
defined below) of such Excess Payment. The payment obligations of any Guarantor
under this Section 4.6 shall be subordinate and subject in right of payment to
the prior indefeasible payment in full to the Agent and the Lenders of the
Guaranteed Obligations, and none of the Guarantors shall exercise any right or
remedy under this Section 4.6 against any other Guarantor until indefeasible
payment and satisfaction in full of all of such Guaranteed Obligations. For
purposes of this Section 4.6, (a) "Guaranteed Obligations" shall mean any
obligations arising under the other provisions of this Section 4; (b) "Excess
Payment" shall mean the amount paid by any Guarantor in excess of its Pro Rata
Share of any Guaranteed Obligations; (c) "Pro Rata Share" shall mean, for any
Guarantor in respect of any payment of Guaranteed Obligations, the ratio
(expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Borrower and all of the Guarantors
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Borrower and the Guarantors hereunder) of the Borrower and
all of the Guarantors; provided, however, that, for purposes of calculating the
Pro Rata Shares of the Guarantors in respect of any payment of Guaranteed
57
Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such
payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for purposes of computing such
Guarantor's Pro Rata Share of such payment; and (d) "Contribution Share" shall
mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts and liabilities
of such Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable value
of all assets and other properties of the Borrower and all of the Guarantors
other than the maker of such Excess Payment exceeds the amount of all of the
debts and liabilities (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Borrower and the
Guarantors hereunder) of the Borrower and all of the Guarantors other than the
maker of such Excess Payment; provided, however, that, for purposes of
calculating the Contribution Shares of the Guarantors in respect of any Excess
Payment, any Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on the date of such
Excess Payment and the financial information for such Guarantor as of the date
such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment. This Section 4.6 shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under applicable law against the Borrower in respect of
any payment of Guaranteed Obligations. Notwithstanding the foregoing, all rights
of contribution against any Guarantor shall terminate from and after such time,
if ever, that such Guarantor shall dissolve, liquidate or wind up its affairs in
accordance with Section 8.4.
4.7 Continuing Guarantee. The guarantee in this Section 4 is a
continuing guarantee, and shall apply to all Credit Party Obligations whenever
arising.
SECTION 5.
CONDITIONS
5.1 Closing Conditions. The obligation of the Lenders to enter into
this Credit Agreement and to make the initial Loans or the Issuing Lender to
issue the initial Letter of Credit, whichever shall occur first, shall be
subject to satisfaction of the following conditions precedent:
(a) Executed Credit Documents. Receipt by the Agent of duly executed
original counterparts of: (i) this Credit Agreement; (ii) the Revolving
Notes; (iii) the Swingline Note; (iv) the Collateral Documents and (v) all
other Credit Documents, each in form and substance acceptable to the
Lenders in their sole discretion.
(b) Corporate Documents. Receipt by the Agent of the following:
(i) Charter Documents. Copies of the articles or certificates
of incorporation or other charter documents of each Credit Party
certified to be true
58
and complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its incorporation
and certified by a secretary or assistant secretary of such Credit
Party to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of each Credit Party
certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of
Directors of each Credit Party approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by
a secretary or assistant secretary of such Credit Party to be true
and correct and in force and effect as of the Closing Date.
(iv) Good Standing. Copies of (A) certificates of good
standing, existence or its equivalent with respect to each Credit
Party certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of incorporation and
each other jurisdiction in which the failure to so qualify and be in
good standing could reasonably be expected to have a Material
Adverse Effect and (B) to the extent available, a certificate
indicating payment of all corporate franchise taxes certified as of
a recent date by the appropriate governmental taxing authorities.
(v) Incumbency. A certificate executed by the secretary or
assistant secretary of each Credit Party dated as of the Closing
Date and certifying as to the incumbency and signatures of the
officers of such Credit Party executing the Credit Documents.
(c) Financial Statements. Receipt by the Agent and the Lenders of
(i) the separate audited financial statements of the Borrower and its
Subsidiaries, including balance sheets and income and cash flow statements
for the fiscal years 1998 and 1999, (ii) interim quarterly financial
statements and quarterly working capital detail for the first projected
year and (iii) such other information relating to the Borrower and its
Subsidiaries as the Agent may reasonably require in connection with the
structuring and syndication of credit facilities of the type described
herein.
(d) Opinions of Counsel. The Agent shall have received a legal
opinion in form and substance reasonably satisfactory to the Agent and its
counsel dated as of the Closing Date from counsel to the Credit Parties.
The Agent shall have received a legal opinion in form and substance
reasonably satisfactory to the Agent dated as of the Closing Date from
O'Melveny & Myers LLP, counsel to the Agent.
(e) Personal Property Collateral. The Agent shall have received:
59
(i) searches of UCC filings in the jurisdiction of the chief
executive office of each Credit Party and each jurisdiction where
any Collateral is located or where a filing would need to be made in
order to perfect the Agent's security interest in the Collateral,
copies of the financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Agent's sole
discretion, to perfect the Agent's security interest in the
Collateral;
(iii) searches of ownership of intellectual property in the
appropriate governmental offices and such patent/trademark/copyright
filings as requested by the Agent in order to perfect the Agent's
security interest in the Collateral;
(iv) all instruments and chattel paper in the possession of
any of the Credit Parties, together with allonges or assignments as
may be necessary or appropriate to perfect the Agent's security
interest in the Collateral; and
(v) duly executed consents as are necessary, in the Agent's
sole discretion, to perfect the Lenders' security interest in the
Collateral.
(f) Priority of Liens. The Agent shall have received satisfactory
evidence that (i) the Agent, on behalf of the Lenders, holds a perfected,
first priority Lien on all Collateral and (ii) none of the Collateral is
subject to any other Liens other than Permitted Liens.
(g) Evidence of Insurance. Receipt by the Agent of copies of
insurance policies or certificates of insurance of the Credit Parties
evidencing liability and casualty insurance meeting the requirements set
forth in the Credit Documents, including, but not limited to, naming the
Agent as sole loss payee on behalf of the Lenders.
(h) Material Adverse Effect; Change in Market. No material adverse
change shall have occurred since September 30, 2000 in the business,
condition (financial or otherwise), operations, performance, Properties or
prospects of the Consolidated Parties taken as a whole. There shall not
have occurred any material disruption of, or any material adverse change
in, banking or capital market conditions.
(i) Litigation. There shall not exist any pending or threatened
action, suit, investigation or proceeding in any court or before any
arbitrator or Governmental Authority against a Consolidated Party that
could reasonably be expected to have a Material Adverse Effect.
(j) Officer's Certificates. The Agent shall have received a
certificate or certificates executed by an authorized officer of the
Borrower as of the Closing Date stating that (A) each Credit Party is in
compliance with all existing material financial obligations, (B) all
governmental, shareholder and third party consents and approvals, if
60
any, in each case that are necessary or advisable with respect to the
Credit Documents and the transactions contemplated thereby have been
obtained and are in full force and effect, (C) no action, suit,
investigation or proceeding is pending or threatened in any court or
before any arbitrator or governmental instrumentality that purports to
affect any Consolidated Party or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding could
reasonably be expected to have a Material Adverse Effect, and (D)
immediately after giving effect to this Credit Agreement, the other Credit
Documents and all the transactions contemplated therein to occur on such
date, (1) each of the Credit Parties is Solvent, (2) no Default or Event
of Default exists, (3) all representations and warranties contained herein
and in the other Credit Documents are accurate and complete, and (4) the
Credit Parties are in compliance with each of the financial covenants set
forth in Section 7.11.
(k) Fees and Expenses. Payment by the Credit Parties of all fees and
expenses owed by them to the Lenders and the Agent, including, without
limitation, payment to the Agent of the fees set forth in the Agent's Fee
Letter.
(l) E&Y Report. The Agent shall have received a written report with
respect to the Consolidated Parties prepared by Ernst & Young LLP in form
and substances satisfactory to the Agent in its discretion.
(m) Consents and Approvals. The Borrower shall have obtained all
consents, approvals and authorizations of Governmental Authorities and all
consents of other Persons, in each case that are necessary or advisable in
connection with the transactions contemplated by the Credit Documents and
the continued operation of the business conducted by the Credit Parties in
substantially the same manner as conducted prior to the Closing Date. Each
such consent, approval or authorization shall be in full force and effect.
All applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain,
prevent or otherwise impose adverse conditions on the transactions
contemplated by the Credit Documents or the financing thereof. No action,
request for stay, petition for review or rehearing, reconsideration, or
appeal with respect to any of the foregoing shall be pending, and the time
for any applicable Government Authority to take action to set aside its
consent on its own motion shall have expired.
(n) Refinancing of Loans under Existing Agreement; Fees; Letters of
Credit. On or before the Closing Date, (i) the Borrower shall have paid to
the Agent, for distribution (as appropriate) to the Agent, the Lenders and
the Departing Lenders, all interest and fees accrued under the Existing
Agreement (including, without limitation, any "breakage fees" under
Section 3.12 of the Existing Agreement) on or before the Closing Date and
the fees payable on the Closing Date referred to in Section 3.5 and (iii)
no Letters of Credit (as defined in the Existing Agreement) shall be
outstanding under the Existing Agreement as of the Closing Date other than
the Existing Letters of Credit.
(o) Reallocation Amounts; Departing Lender Consent. The Agent shall
have received (i) from each Purchasing Lender the net amount of its
payment required
61
pursuant to subsection 2.1(a) and (ii) from each Departing Lender with a
copy for each Lender, a copy of its Departing Lender Consent.
(p) Intercreditor Agreement. The Collateral Agent shall have
received counterparts (or other evidence of execution satisfactory to the
Agent) of the Intercreditor Agreement, which shall be in form and
substance satisfactory to the Agent and its counsel and shall have been
duly executed on behalf of each of the Collateral Agent, the Noteholders,
the Lenders and the Agent.
(q) Senior Note Documents. The Agent shall have received executed
copies, certified by a secretary or an assistant secretary of the Borrower
as true and complete, of each of the Senior Note Documents.
(r) Other. Receipt by the Agent and the Lenders of such other
documents, instruments, agreements or information as reasonably requested
by the Agent or any Lender, including, but not limited to, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent liabilities
of the Credit Parties.
5.2 Conditions to all Extensions of Credit. The obligations of each
Lender to make, convert or extend any Loan and of the Issuing Lender to issue or
extend any Letter of Credit (including the initial Loans and the initial Letter
of Credit) are subject to satisfaction of the following conditions in addition
to satisfaction on the Closing Date of the conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) in the case of any
Revolving Loan, an appropriate Notice of Borrowing or Notice of
Extension/Conversion or (ii) in the case of any Letter of Credit, the
Issuing Lender shall have received an appropriate request for issuance in
accordance with the provisions of Section 2.2(b);
(b) The representations and warranties set forth in Section 6 (other
than the representations set forth in Sections 6.2 and 6.8, which shall be
made only on the Closing Date) shall, subject to the limitations set forth
therein, be true and correct in all material respects as of such date
(except for those which expressly relate to an earlier date);
(c) No Default or Event of Default shall exist and be continuing
either prior to or after giving effect thereto; and
(d) Immediately after giving effect to the making of such Loan (and
the application of the proceeds thereof) or to the issuance of such Letter
of Credit, as the case may be, (i) the sum of the aggregate principal
amount of outstanding Revolving Loans plus Swingline Loans outstanding
plus LOC Obligations outstanding shall not exceed the Revolving Committed
Amount, (ii) the LOC Obligations shall not exceed the LOC Committed
Amount, and (iii) the aggregate principal amount of outstanding Swingline
Loans shall not exceed the Swingline Committed Amount.
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The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b), (c), (d) and (e) above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 Financial Condition. The financial statements delivered to the
Lenders pursuant to Section 5.1(c) and Section 7.1(a) and (b), (i) have been
prepared in accordance with GAAP and (ii) present fairly (on the basis disclosed
in the footnotes to such financial statements) the consolidated and
consolidating financial condition, results of operations and cash flows of the
Consolidated Parties as of such date and for such periods. The Borrower does not
(and will not following the funding of the initial Loans) have any Contingent
Obligation, contingent liability or liability for taxes, long-term lease or
unusual forward or long-term commitment that is not reflected in the foregoing
financial statements or the notes thereto and which in any such case is material
in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of any of the Consolidated Parties.
6.2 No Material Change. Since September 30, 2000, (a) there has been
no development or event relating to or affecting the Consolidated Parties (taken
as a whole) which has had or could have a Material Adverse Effect and (b) except
as otherwise permitted under this Credit Agreement, no dividends or other
distributions have been declared, paid or made upon the Capital Stock in a
Consolidated Party nor has any of the Capital Stock in a Consolidated Party been
redeemed, retired, purchased or otherwise acquired for value.
6.3 Organization and Good Standing. Each of the Consolidated Parties
(a) is duly organized, validly existing and is in good standing under the laws
of the jurisdiction of its incorporation or organization, (b) has the corporate
or other necessary power and authority, and the legal right, to own and operate
its Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing could not reasonably be expected to have
a Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations. Each of the
Credit Parties has the corporate or other necessary power and authority, and the
legal right, to make, deliver and perform the Credit Documents to which it is a
party, and in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate or other organizational action
to authorize the borrowings and other extensions of credit on the terms and
conditions of this Credit Agreement and to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is
63
required to be obtained or made by or on behalf of any Credit Party in
connection with the borrowings or other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Credit Party is a party, except for filings to perfect
the Liens created by the Collateral Documents. This Credit Agreement has been,
and each other Credit Document to which any Credit Party is a party will be,
duly executed and delivered on behalf of the Credit Parties. This Credit
Agreement constitutes, and each other Credit Document to which any Credit Party
is a party when executed and delivered will constitute, a legal, valid and
binding obligation of such Credit Party enforceable against such party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
6.5 No Conflicts. Neither the execution and delivery of the Credit
Documents, nor the consummation of the transactions contemplated therein, nor
performance of and compliance with the terms and provisions thereof by such
Credit Party will (a) violate or conflict with any provision of its articles or
certificate of incorporation or bylaws or other organizational or governing
documents of such Person, (b) violate, contravene or materially conflict with
any Requirement of Law or any other law, regulation (including, without
limitation, Regulation U or Regulation X), order, writ, judgment, injunction,
decree or permit applicable to it, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any Material
Agreement to which it is a party or by which it may be bound, or (d) result in
or require the creation of any Lien (other than those contemplated in or created
in connection with the Credit Documents) upon or with respect to its properties.
6.6 Material Agreements; No Default. Set forth on Schedule 6.6 is a
complete and accurate list of all Material Agreements. No Consolidated Party is
in default in any material respect under any Material Agreement. No Default or
Event of Default has occurred or exists except as previously disclosed in
writing to the Lenders.
6.7 Ownership. To the best of each Credit Party's knowledge, each
Consolidated Party is the owner of, and has good and marketable title to, all of
its respective material assets and, to the best of each Credit Party's
knowledge, none of such assets is subject to any Lien other than Permitted
Liens.
6.8 Litigation. There are no actions, suits or legal, equitable,
arbitration or administrative proceedings, pending or, to the knowledge of any
Credit Party, threatened against any Consolidated Party which might have a
Material Adverse Effect.
6.9 Taxes. Each Consolidated Party has filed, or caused to be filed,
all federal tax returns and all state, local and foreign tax returns required to
be filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties), except to the extent the nonpayment of such amounts of
taxes would not have a Material Adverse Effect and (b) all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent, (ii) that are being contested in good
faith and by proper proceedings, and
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against which adequate reserves are being maintained in accordance with GAAP or
(iii) the nonpayment of which would not have a Material Adverse Effect. No
Credit Party is aware as of the Closing Date of any proposed tax assessments
against it or any other Consolidated Party.
6.10 Compliance with Law. Neither the Borrower nor any of the other
Consolidated Parties is in violation of any applicable laws, rules, regulations,
orders and decrees (including, without limitation, Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
6.11 ERISA.
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred,
and, to the best knowledge of the Credit Parties, no event or condition
has occurred or exists as a result of which any ERISA Event could
reasonably be expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in Section 302
of ERISA and Section 412 of the Code, whether or not waived, has occurred
with respect to any Plan; (iii) each Plan has been maintained, operated,
and funded in compliance with its own terms and in material compliance
with the provisions of ERISA, the Code, and any other applicable federal
or state laws; and (iv) no lien in favor of the PBGC or a Plan has arisen
or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under
each Single Employer Plan, as of the last annual valuation date prior to
the date on which this representation is made or deemed made (determined,
in each case, utilizing the reasonable actuarial assumptions used in such
Plan's most recent actuarial valuation report), did not exceed as of such
valuation date the fair market value of the assets of such Plan.
(c) Neither any Consolidated Party nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Credit Parties, could be
reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither any Consolidated
Party nor any ERISA Affiliate would become subject to any withdrawal
liability under ERISA if any Consolidated Party or any ERISA Affiliate
were to withdraw completely from all Multiemployer Plans and Multiple
Employer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. Neither any Consolidated
Party nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of ERISA),
and no Multiemployer Plan is, to the best knowledge of the Credit Parties,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or may subject any
Consolidated Party or any ERISA
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Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which any Consolidated Party or any ERISA Affiliate
has agreed or is required to indemnify any person against any such
liability.
(e) Neither any Consolidated Party nor any ERISA Affiliates has any
material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards
Board Statement 106.
6.12 Subsidiaries. Set forth on Schedule 6.12 is a complete and
accurate list of all Subsidiaries of each Consolidated Party. Information on
Schedule 6.12 includes jurisdiction of incorporation, the number of shares of
each class of Capital Stock outstanding, the number and percentage of
outstanding shares of each class owned (directly or indirectly) by such
Consolidated Party; and the number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar rights
with respect thereto. The outstanding Capital Stock of all such Subsidiaries
which constitute Credit Parties is validly issued, fully paid and non-assessable
and is owned by the Borrower, directly or indirectly, free and clear of all
Liens (other than those arising under or contemplated in connection with the
Credit Documents). Other than as set forth in Schedule 6.12, no Credit Party has
outstanding any securities convertible into or exchangeable for its Capital
Stock nor does any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to its Capital Stock. Schedule 6.12 may be updated
from time to time by the Borrower by giving written notice thereof to the Agent.
6.13 Governmental Regulations, Etc.
(a) No part of the Letters of Credit or proceeds of the Loans will
be used, directly or indirectly, for the purpose of purchasing or carrying
any "margin stock" within the meaning of Regulation G or Regulation U, or
for the purpose of purchasing or carrying or trading in any securities. If
requested by any Lender or the Agent, the Borrower will furnish to the
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form U-1 referred to in Regulation U. No
indebtedness being reduced or retired out of the proceeds of the Loans was
or will be incurred for the purpose of purchasing or carrying any margin
stock within the meaning of Regulation U or any "margin security" within
the meaning of Regulation T. "Margin stock" within the meaning of
Regulation U does not constitute more than 25% of the value of the
consolidated assets of the Consolidated Parties. None of the transactions
contemplated by this Credit Agreement (including, without limitation, the
direct or indirect use of the proceeds of the Loans) will violate or
result in a violation of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or regulations issued
pursuant thereto, or Regulation G, T, U or X.
(b) No Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, no Credit
Party is (i) an "investment company" registered
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or required to be registered under the Investment Company Act of 1940, as
amended, and is not controlled by such a company, or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(c) No director, executive officer or principal shareholder of any
Credit Party is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director", "executive
officer" and "principal shareholder" (when used with reference to any
Lender) have the respective meanings assigned thereto in Regulation O
issued by the Board of Governors of the Federal Reserve System.
(d) Each Consolidated Party has obtained and holds in full force and
effect, all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the ownership of its
respective Property and to the conduct of its respective businesses as
presently conducted.
(e) No Consolidated Party is in violation of any applicable statute,
regulation or ordinance of the United States, or of any state, city, town,
municipality, county or any other jurisdiction, or of any agency thereof
(including without limitation, Environmental Laws), which violation could
reasonably be expected to have a Material Adverse Effect.
(f) To the best of the Credit Parties' knowledge, each Consolidated
Party is current with all material reports and documents, if any, required
to be filed with any state or federal securities commission or similar
agency and is in full compliance in all material respects with all
applicable rules and regulations of such commissions.
6.14 Purpose of Loans and Letters of Credit. The proceeds of the
Loans hereunder shall be used solely by the Borrower for (i) working capital;
(ii) payment of fees and expenses incurred in connection herewith, (iii)
refinancing existing Indebtedness of the Borrower, (iv) capital expenditures and
Permitted Acquisitions and (v) general corporate purposes. The Letters of Credit
shall be used only for general corporate purposes of the Borrower.
6.15 Environmental Matters.
(a) To the best of the Credit Parties' knowledge, each of the
facilities and properties owned or leased by the Consolidated Parties (the
"Locations") and all operations at the Locations are in compliance with
all applicable Environmental Laws, and there is no violation of any
Environmental Law with respect to the Locations or the businesses operated
by the Credit Parties (the "Businesses"), and there are no conditions
relating to the Businesses or Locations that could give rise to liability
under any applicable Environmental Laws.
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(b) To the best of the Credit Parties' knowledge, none of the
Locations contains any Materials of Environmental Concern at, on or under
the Locations in amounts or concentrations that constitute or constituted
a violation of, or could give rise to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Locations or the Businesses, nor does any
Consolidated Party have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) No judicial proceeding or governmental or administrative action
is pending or, to the best knowledge of each Credit Party, threatened,
under any Environmental Law to which any Consolidated Party is named as a
party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Consolidated Parties, the Locations or the Businesses.
(e) There has been no release or, to the best knowledge of each
Credit Party, threat of release of Materials of Environmental Concern at
or from the Locations, or arising from or related to the operations
(including, without limitation, disposal) of any Consolidated Party in
connection with the Locations or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
(f) Compliance with all current requirements of Environmental Laws
would not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect.
6.16 Intellectual Property. Each Consolidated Party owns, or has the
legal right to use, (subject to the common law rights of another user) all
trademarks, tradenames, copyrights, technology, know-how and processes (the
"Intellectual Property") necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not reasonably be expected to have a Material Adverse Effect. Set
forth on Schedule 6.16 is a list of all Intellectual Property owned by each
Credit Party or that any Credit Party has the right to use. Except as provided
on Schedule 6.16, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does any
Consolidated Party know of any such claim, and to the Credit Parties' knowledge
the use of such Intellectual Property by any Consolidated Party does not
infringe on the rights of any Person, except for such claims and infringements
that in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. Schedule 6.16 may be updated from time to time by the Borrower
by giving written notice thereof to the Agent.
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6.17 Solvency. Each Consolidated Party is and, after consummation of
the transactions contemplated by this Credit Agreement, will be Solvent.
6.18 Investments. All Investments of each Consolidated Party are
Permitted Investments.
6.19 Location of Collateral. Set forth on Schedule 6.19(a) is a list
of all locations where any tangible personal property of a Credit Party is
located, including county and state where located. Set forth on Schedule 6.19(b)
is the chief executive office and principal place of business of each Credit
Party. Schedule 6.19(a) and 6.9(b) may be updated from time to time by the
Borrower by giving written notice thereof to the Agent.
6.20 Disclosure. Neither this Credit Agreement nor any financial
statements delivered to the Lenders nor any other document, certificate or
statement furnished to the Lenders by or on behalf of any executive officer of
any Credit Party in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein or herein not
misleading.
6.21 No Burdensome Restrictions. No Consolidated Party is a party to
any agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
6.22 First Priority Lien. The Collateral Agent, on behalf of the
Lenders and the Noteholders, will hold a first priority Lien, subject to no
other Liens other than Permitted Liens, on the Collateral.
SECTION 7.
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
7.1 Information Covenants. The Borrower will furnish, or cause to be
furnished, to the Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
event within 120 days after the close of each fiscal year of the
Consolidated Parties, (i) a consolidated balance sheet and income
statement of the Consolidated Parties, as of the end of such fiscal year,
together with related consolidated statements of operations and retained
earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year and
(ii) an unaudited consolidating balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal year, together
with related consolidating statements of operations and retained
69
earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidating figures for the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and audited by Arthur Andersen or other independent certified
public accountants of recognized national standing reasonably acceptable
to the Agent and whose opinion shall be to the effect that such financial
statements have been prepared in accordance with GAAP (except for changes
with which such accountants concur) and shall not be limited as to the
scope of the audit or qualified in any manner. The Lenders agree that to
the extent any of the information described above for any fiscal year is
contained in the Borrower's annual report on Form 10-K, the Borrower shall
be permitted to satisfy its obligation to deliver such information by the
delivery to the Lenders of the Borrower's annual report on Form 10-K
within the time period specified above.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the close of each of the first three fiscal
quarters of each fiscal year of the Consolidated Parties (i) a
consolidated balance sheet and income statement of the Consolidated
Parties, as of the end of such fiscal quarter, together with related
consolidated statements of operations and retained earnings and of cash
flows for such fiscal quarter in each case setting forth in comparative
form consolidated figures for the corresponding period of the preceding
fiscal year and (ii) a consolidating balance sheet and income statement of
the Borrower and its Subsidiaries, as of the end of such fiscal quarter,
together with related consolidating statements of operations and retained
earnings and of cash flows for such fiscal quarter, in each case setting
forth in comparative form consolidating figures for the corresponding
period of the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and reasonably
acceptable to the Agent, and accompanied by a certificate of the chief
financial officer of the Borrower to the effect that such quarterly
financial statements fairly present in all material respects the financial
condition of the Consolidated Parties or the Borrower and its
Subsidiaries, as applicable, and have been prepared in accordance with
GAAP, subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of the chief financial officer of the Borrower substantially in the form
of Exhibit 7.1(c), (i) demonstrating compliance with the financial
covenants contained in Section 7.11 by calculation thereof as of the end
of each such fiscal period and (ii) stating that no Default or Event of
Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Credit
Parties propose to take with respect thereto.
(d) Reconciliation Statements. If, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in Section 5.1(c), the
consolidated financial statements of the Consolidated Parties delivered
pursuant to Section 7.1(a) or 7.1(b) above will differ in any material
respect from the consolidated financial statements that would have been
delivered pursuant to such Sections had no such change in accounting
principles and
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policies been made, then (a) together with the first delivery of financial
statements pursuant to Section 7.l(a) or 7.1(b) following such change,
consolidated financial statements the Consolidated Parties for (y) the
current fiscal year to the effective date of such change and (z) the two
full fiscal years immediately preceding the fiscal year in which such
change is made, in each case prepared on a pro forma basis as if such
change had been in effect during such periods, and (b) together with each
delivery of financial statements pursuant to Section 7.1(a) or 7.1(b)
following such change, if required pursuant to Section 1.3, a written
statement of the chief accounting officer or chief financial officer of
the Borrower setting forth the differences (including any differences that
would affect any calculations relating to the financial covenants set
forth in Section 7.11) which would have resulted if such financial
statements had been prepared without giving effect to such change.
(e) Budgets. At least 30 days prior to the end of each fiscal year
of the Borrower, beginning with the fiscal year ending December 31, 2000,
an annual budget of the Consolidated Parties containing, among other
things, (i) pro forma financial statements for the next fiscal year and
(ii) all projected monthly capital expenditures of the Consolidated
Parties on a property-by-property basis. Each annual budget shall itemize
capital expenditures for computer hardware separately from other Software
Expenditures. Each annual budget shall be accompanied by a certification
of the duly authorized chief financial officer of the Borrower that such
annual budget is a good faith estimate for the period covered thereby.
(f) Accountant's Certificate. Within the period for delivery of the
annual financial statements provided in Section 7.1(a), a certificate of
the accountants conducting the annual audit stating that they have
reviewed this Credit Agreement and stating further whether, on the basis
of such audit and review, the Credit Parties are in compliance with the
financial covenants contained in Section 7.11and, if any of the Credit
Parties are not in compliance therewith, specifying the nature and extent
of such non-compliance.
(g) Auditor's Reports. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants
to any Credit Party in connection with any annual, interim or special
audit of the books of such Person to the extent permitted by such
independent accountants.
(h) Reports. Promptly upon transmission or receipt thereof, (i)
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as any
Credit Party shall send to its shareholders or to a holder of any
Indebtedness owed by any Credit Party in its capacity as such a holder and
(ii) upon the written request of the Agent, all reports and written
information to and from the United States Environmental Protection Agency,
or any state or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration, or any state
or local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or
safety matters.
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(i) Notices. Upon obtaining knowledge thereof, the Borrower will
give written notice to the Agent immediately of (i) the occurrence of an
event or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Credit Parties
propose to take with respect thereto, and (ii) the occurrence of any of
the following with respect to any Credit Party: (A) the pendency or
commencement of any litigation, arbitral or governmental proceeding
against such Person which if adversely determined is reasonably likely to
have a Material Adverse Effect, (B) the institution of any proceedings
against such Person with respect to, or the receipt of notice by such
Person of potential liability or responsibility for violation, or alleged
violation of any federal, state or local law, rule or regulation,
including but not limited to, Environmental Laws, the violation of which
could reasonably be expected to have a Material Adverse Effect, or (C) any
notice or determination concerning the imposition of any withdrawal
liability by a Multiemployer Plan against such Person or any ERISA
Affiliate, the determination that a Multiemployer Plan is, or is expected
to be, in reorganization within the meaning of Title IV of ERISA or the
termination of any Plan.
(j) ERISA. Upon obtaining knowledge thereof, the Borrower will give
written notice to the Agent promptly (and in any event within five
Business Days) of: (i) any event or condition, including, but not limited
to, any Reportable Event, that constitutes, or might reasonably lead to,
an ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal liability
assessed against the Borrower or any of its ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Credit Party or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms or
as required to meet the minimum funding standard set forth in ERISA and
the Code with respect thereto; or (iv) any change in the funding status of
any Plan that could reasonably be expected to have a Material Adverse
Effect, together with a description of any such event or condition or a
copy of any such notice and a statement by the chief financial officer of
the Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is being
taken or is proposed to be taken by the Credit Parties with respect
thereto. Promptly upon request, the Credit Parties shall furnish the Agent
and the Lenders with such additional information concerning any Plan as
may be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39) of
ERISA).
(k) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or
financial condition of any Credit Party as the Agent or the Required
Lenders may reasonably request.
7.2 Preservation of Existence and Franchises. Except as a result of
or in connection with a dissolution, merger or disposition of a Subsidiary
permitted under Section 8.4,
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each Credit Party will do all things necessary to preserve and keep in full
force and effect its existence, rights, franchises and authority.
7.3 Books and Records. Each Credit Party will keep complete and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.4 Compliance with Law. Each Credit Party will comply with all
laws, rules, regulations and orders, and all applicable restrictions imposed by
all Governmental Authorities, applicable to it and the Locations (including,
without limitation, applicable Environmental Laws and ERISA) if noncompliance
with any such law, rule, regulation, order or restriction could reasonably be
expected to have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness. Each Credit Party will
pay and discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as the same shall become due; provided, however, that no Credit
Party shall be required to pay any such tax, assessment, charge, levy, claim or
Indebtedness which is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and as to which adequate reserves
therefor have been established in accordance with GAAP, so long as (i) in the
case of a charge or claim which has or may become a Lien against any of the
Collateral, such proceedings conclusively operate to stay the sale of any
portion of the Collateral to satisfy such charge or claim, and (ii) failure to
make such payment could not reasonably be expected to have a Material Adverse
Effect.
7.6 Insurance.
(a) Each Credit Party will at all times maintain in full force and
effect insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in such
amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry
practice (or as otherwise required by the Collateral Documents). The
Collateral Agent shall be named as loss payee or mortgagee, as its
interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any of the Collateral, and each
provider of any such insurance shall agree, by endorsement upon the policy
or policies issued by it or by independent instruments furnished to the
Collateral Agent, that it will give the Collateral Agent thirty (30) days'
prior written notice before any such policy or policies shall be altered
or canceled, and that no act or default of any Credit Party or any other
Person shall affect the rights of the Collateral Agent or the Secured
Parties under such policy or policies. The present insurance coverage of
the Credit Parties is outlined as to carrier, policy number, expiration
date, type and amount on Schedule 7.6.
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(b) In case of any material loss, damage to or destruction of the
Collateral of any Credit Party or any part thereof, such Credit Party
shall promptly give written notice thereof to the Collateral Agent
generally describing the nature and extent of such damage or destruction.
In case of any loss, damage to or destruction of the Collateral of any
Credit Party or any part thereof, such Credit Party, whether or not the
insurance proceeds, if any, received on account of such damage or
destruction shall be sufficient for that purpose, at such Credit Party's
cost and expense, will promptly repair or replace the Collateral of such
Credit Party so lost, damaged or destroyed; provided, however, that such
Credit Party need not repair or replace the Collateral of such Credit
Party so lost, damaged or destroyed to the extent the failure to make such
repair or replacement (i) is desirable to the proper conduct of the
business of such Credit Party in the ordinary course and otherwise in the
best interest of such Credit Party; and (ii) would not materially impair
the rights and benefits of the Collateral Agent or the Secured Parties
under the Collateral Documents, any other Credit Document or any Hedging
Agreement. In the event a Credit Party shall receive any proceeds of such
insurance in a net amount in excess of $100,000, such Credit Party will
immediately pay over such proceeds to the Collateral Agent, for a pro rata
payment on the obligations of the Credit Parties under the Secured
Documents; provided, however, that the Collateral Agent agrees to release
such insurance proceeds to such Credit Party for replacement or
restoration of the portion of the Collateral of such Credit Party lost,
damaged or destroyed if, but only if, (A) no Default or Event of Default
shall have occurred and be continuing at the time of release, (B) written
application for such release is received by the Collateral Agent from such
Credit Party within 30 days after receipt of such proceeds and (C) the
Collateral Agent has received evidence reasonably satisfactory to it that
the Collateral lost, damaged or destroyed has been or will be replaced or
restored to its condition immediately prior to the loss, destruction or
other event giving rise to the payment of such insurance proceeds.
7.7 Maintenance of Property. Each Credit Party will maintain and
preserve its properties and equipment material to the conduct of its business in
good repair, working order and condition, normal wear and tear and casualty and
condemnation excepted, and will make, or cause to be made, in such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses.
7.8 Performance of Material Agreements. Each Credit Party will
perform in all material respects all of its obligations under the terms of all
Material Agreements.
7.9 Use of Proceeds. The Borrower will use the proceeds of the Loans
and will use the Letters of Credit solely for the purposes set forth in Section
6.14.
7.10 Audits/Inspections. Upon reasonable notice and during normal
business hours, each Credit Party will, and will cause each of its Subsidiaries
to, permit representatives appointed by the Agent, including, without
limitation, independent accountants, agents, attorneys, and appraisers to visit
and inspect the Locations, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and record any
information such
74
representative obtains and shall permit the Agent or its representatives to
investigate and verify the accuracy of information provided to the Agent and to
discuss all such matters with the officers, employees and representatives of
such Person. The Borrower shall be responsible for the cost of not more than two
audits or inspections with respect to each Credit Party during any single fiscal
year of the Credit Parties, and any audit or inspection costs in excess thereof
shall be borne by the Lenders; provided, however, that after the occurrence and
during the continuance of any Default or Event of Default, the number of such
audits and inspections in any fiscal year for which the cost is the
responsibility of the Borrower shall not be limited in number.
7.11 Financial Covenants.
(a) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as
of the last day of each fiscal quarter of the Consolidated Parties ending
during any of the periods set forth below, shall be greater than or equal
to the correlative ratio indicated:
================================================================
Minimum Fixed
Period Charge Coverage Ratio
----------------------------------------------------------------
Closing Date - 12/31/2001 2.50 to 1.0
----------------------------------------------------------------
01/01/2002 - 12/31/2002 2.75 to 1.0
----------------------------------------------------------------
01/01/2003 and thereafter 3.00 to 1.0
================================================================
(b) Consolidated Leverage Ratio. The Consolidated Leverage Ratio, as
of the last day of each fiscal quarter of the Consolidated Parties shall
be less than or equal to 2.5 to 1.0.
(c) Consolidated Net Worth. At all times the Consolidated Net Worth
of the Consolidated Parties shall be greater than or equal to the sum of
$90,000,000, increased on a cumulative basis as of the end of each fiscal
quarter of the Consolidated Parties, commencing with the fiscal quarter
ending December 31, 2000 by an amount equal to 75% of Consolidated Net
Income (to the extent positive) for the fiscal quarter then ended plus
100% of the Net Cash Proceeds from any Equity Issuance occurring after the
Closing Date.
(d) Consolidated Capital Expenditures. The Borrower shall not permit
Consolidated Capital Expenditures for any fiscal year to exceed the lesser
of (i) 4% of Consolidated Revenues or (ii) $10,000,000. In addition to the
Consolidated Capital Expenditures permitted under the preceding sentence,
so long as no Default or Event of Default has occurred and is continuing
or would be caused thereby, the Consolidated Parties shall also have the
right to make Software Expenditures in an aggregate amount not to exceed
$8,000,000 during the period commencing on June 30, 2000 and ending on
December 31, 2002.
7.12 Additional Credit Parties.
(a) As soon as practicable and in any event within 30 days after any
Person becomes a Material Subsidiary of any Credit Party, the Borrower
shall provide the
75
Collateral Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Person and shall
(i) if such Person is a Domestic Subsidiary of a Credit Party, cause such
Person to execute a Joinder Agreement in substantially the same form as
Exhibit 7.12, (ii) cause 100% (if such Person is a Domestic Subsidiary of
a Credit Party) or 65% (if such Person is a direct Foreign Subsidiary of a
Credit Party) of the Capital Stock of such Person to be delivered to the
Collateral Agent (together with undated stock powers, if applicable,
signed in blank) and pledged to the Collateral Agent pursuant to an
appropriate pledge agreement(s) in substantially the form of the Pledge
Agreement and otherwise in form acceptable to the Collateral Agent, (iii)
if such Person is a Domestic Subsidiary of a Credit Party, cause such
Person to pledge all of its assets to the Collateral Agent pursuant to a
security agreement in substantially the form of the Security Agreement and
otherwise in a form acceptable to the Collateral Agent, (iv) if such
Person has any Subsidiaries (A) deliver all of the Capital Stock of any
such Domestic Subsidiaries and 65% of the Capital Stock of any such
Foreign Subsidiaries (together with undated stock powers signed in blank)
to the Collateral Agent and (B) execute a pledge agreement in
substantially the form of the Pledge Agreement and otherwise in a form
acceptable to the Collateral Agent, (v) if such Person owns or leases any
real property in the United States, execute any and all necessary
mortgages, deeds of trust, deeds to secure debt, leasehold mortgages,
collateral assignments or other appropriate real estate collateral
documentation in a form, content and scope satisfactory to the Collateral
Agent, and (vi) deliver such other documentation as the Collateral Agent
may reasonably request in connection with the foregoing, including,
without limitation, appropriate UCC-1 financing statements, real estate
title insurance policies, environmental reports, landlord's waivers,
certified resolutions and other organizational and authorizing documents
of such Person, favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection
of the Collateral Agent's Liens thereunder), all in form, content and
scope reasonably satisfactory to the Collateral Agent.
(b) With respect to any Material Subsidiary that is not a Major
Subsidiary, the Credit Parties shall have a period of not more than 12
calendar months after the date on which such Person becomes a Material
Subsidiary to comply with (or cause such Subsidiary to comply with) the
provisions of clauses (i), (ii), (iii), (iv), (v) and (vi) of Section
7.12(a) above, notwithstanding the provisions thereof to the contrary.
(c) If at any time the percentage of Consolidated EBITDA for the
preceding four fiscal quarter period attributable to Subsidiaries of the
Borrower that are Credit Parties shall comprise less than 90% of the
Consolidated EBITDA for such period of all Consolidated Parties, then the
Borrower shall, within 30 days thereafter, cause additional Subsidiaries
to become Additional Credit Parties hereunder (by complying with the
provisions of Section 7.12(a) above, mutatis, mutandis, with respect
thereto) such that immediately following the date on which such
Subsidiaries become Additional Credit Parties, the Consolidated EBITDA for
the preceding four fiscal quarter period attributable
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to Subsidiaries that are then Credit Parties shall comprise 90% or more of
the Consolidated EBITDA for such period.
7.13 Environmental Laws. Each Credit Party agrees that it shall at
all times:
(a) Comply in all material respects with all applicable
Environmental Laws and obtain and comply in all material respects with and
maintain any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent
that failure to do so would not reasonably be expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested
in good faith by appropriate proceedings and the failure to do or the
pendency of such proceedings would not reasonably be expected to have a
Material Adverse Effect; and
(c) Defend (subject to the Indemnified Parties' selection of
counsel), indemnify, pay and hold harmless the Agent, the Collateral
Agent, the Documentation Agent, the Syndication Agent, the Arranger and
the Lenders, and the officers, directors, shareholders, employees, agents,
advisors and Affiliates of the Agent, the Collateral Agent, the
Documentation Agent, the Syndication Agent, the Arranger and the Lenders
(each, an "Indemnified Party"), from and against any and all Indemnified
Liabilities (as hereinafter defined); provided that the Credit Parties
shall not have any obligation to any Indemnified Party hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise solely from the gross negligence or willful misconduct
of that Indemnified Party as determined by a final judgment of a court of
competent jurisdiction. To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in this Section 7.13(c) may be
unenforceable in whole or in part because they are violative of any law or
public policy, each Credit Party shall contribute the maximum portion that
it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnified
Parties or any of them. The agreements in this Section 7.13(c) shall
survive repayment of the Loans and all other amounts payable hereunder,
and termination of the Commitments.
7.14 Collateral. If, subsequent to the Closing Date, a Credit Party
shall (a) acquire any material real property or lease any material real property
or (b) acquire any intellectual property, securities instruments, chattel paper
or other personal property required to be delivered to the Collateral Agent as
Collateral hereunder or under any of the Collateral Documents, the Borrower
shall notify the Collateral Agent of same in each case as soon as practicable
after the acquisition thereof or execution of such lease agreement, as
appropriate. Each Credit Party shall take such action as requested by the
Collateral Agent and at the expense of such Credit Party, to ensure that the
Collateral Agent has a first priority perfected Lien in all owned real property
(and in such leased real property as requested by the Collateral Agent, the
77
Required Lenders or the Noteholders holding more than 50% of the outstanding
principal amount of the Senior Notes) and all personal property of the Credit
Parties (whether now owned or hereafter acquired), subject only to Permitted
Liens.
7.15 Interest Rate Hedge. If at any time the Fixed Debt to Total
Debt Ratio shall be less than 67%, the Borrower shall maintain in effect one or
more Interest Rate Agreements with respect to the Loans until such time as the
Fixed Debt to Total Debt Ratio shall be equal to or greater than 67%. Each such
Interest Rate Agreement (a) shall be purchased through Salomon Smith Barney Inc.
and (b) shall be for a term and in form and substance reasonably satisfactory to
the Agent. The Interest Rate Agreements shall effectively limit that component
of the interest costs to the Borrower in respect of a Eurodollar Loan that is
based upon the Interbank Offered Rate with respect to an aggregate notional
principal amount of not less than 90% of the aggregate principal amount of the
Revolving Loans outstanding from time to time (based on the assumption that such
notional principal amount was a Eurodollar Loan with an Interest Period of three
months) to a rate equal to not more than 9% per annum.
SECTION 8.
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
8.1 Indebtedness.
The Credit Parties will not permit any Consolidated Party to
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth in
Schedule 8.1;
(c) purchase money Indebtedness (including Capital Leases) or
Synthetic Leases hereafter incurred by the Borrower or any of its
Subsidiaries to finance the purchase of fixed assets provided that (i) the
total of all such Indebtedness for all such Persons taken together shall
not exceed an aggregate principal amount of $2,500,000 at any one time
outstanding (including any such Indebtedness referred to in subsection (b)
above); (ii) such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed; and (iii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(d) obligations of the Borrower or any of its Subsidiaries in
respect of Hedging Agreements entered into in order to manage existing or
anticipated interest rate or exchange rate risks and not for speculative
purposes;
78
(e) other unsecured Indebtedness of the Borrower and its
Subsidiaries incurred in connection with Permitted Acquisitions in an
amount not to exceed $3,000,000 in the aggregate at any one time;
(f) Indebtedness arising under the Senior Notes and the other Senior
Note Documents, including, without limitation, any guarantee obligations
of the Guarantors under the Senior Note Documents; provided, however, the
aggregate principal amount of the Senior Notes shall not exceed
$50,000,000.
Notwithstanding any provision of this Credit Agreement, the
Intercreditor Agreement (including, without limitation, Section 2.5 thereof) or
any of the other Credit Documents to the contrary, the Borrower shall not be
permitted to secure any Additional Funded Debt by the Collateral and shall not
permit any Additional Creditors (other than Lenders and Noteholders in their
respective capacities as such) to become parties to the Intercreditor Agreement.
8.2 Liens. The Credit Parties will not permit any Consolidated Party
to contract, create, incur, assume or permit to exist any Lien with respect to
any of its Property, whether now owned or after acquired, except for Permitted
Liens.
8.3 Nature of Business. The Credit Parties (taken as a whole) will
not substantively alter the character or conduct of the business conducted by
the Credit Parties (taken as a whole) as of the Closing Date.
8.4 Consolidation, Merger, Dissolution, etc. The Credit Parties will
not permit any Consolidated Party to enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that, notwithstanding the foregoing
provisions of this Section 8.4, (a) the Borrower may merge or consolidate with
any of its Subsidiaries provided that (i) the Borrower shall be the continuing
or surviving corporation and (ii) the Credit Parties shall cause to be executed
and delivered such documents, instruments and certificates as the Agent may
request so as to cause the Credit Parties to be in compliance with the terms
hereof after giving effect to such transaction, (b) any Credit Party other than
the Borrower may merge or consolidate with any other Credit Party other than the
Borrower provided that the Credit Parties shall cause to be executed and
delivered such documents, instruments and certificates as the Agent may request
so as to cause the Credit Parties to be in compliance with the terms hereof
after giving effect to such transaction and (c) any Wholly-Owned Subsidiary of
the Borrower may dissolve, liquidate or wind up its affairs at any time;
provided that the Credit Parties shall have executed and delivered such
documents, instruments and certificates as the Agent may request so as to cause
the Credit Parties to be in compliance with the terms hereof after giving effect
to such dissolution, liquidation or wind-up.
8.5 Investments. The Credit Parties will not permit any Consolidated
Party to make Investments in or to any Person, except for Permitted Investments.
8.6 Restricted Payments. The Credit Parties will not permit any
Consolidated Party to, directly or indirectly, declare, order, make or set apart
any sum for or pay any
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Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person and (b) to make dividends or other
distributions payable to the Borrower (directly or indirectly through
Subsidiaries).
8.7 Prepayments of Indebtedness, etc. The Credit Parties will not
permit any Consolidated Party to (a) after the issuance thereof, amend or modify
(or permit the amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or change any terms in
a manner adverse to the issuer of such Indebtedness, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof or (b) make (or give any notice with
respect thereto) any voluntary or optional payment or prepayment or redemption
or acquisition for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any other
Indebtedness.
8.8 Transactions with Affiliates. The Credit Parties will not permit
any Consolidated Party to enter into or permit to exist any transaction or
series of transactions with any officer, director, shareholder, Subsidiary or
Affiliate other than (a) advances of working capital to any Credit Party other
than the Borrower, (b) transfers of cash and assets to any Credit Party other
than the Borrower, (c) transactions permitted by Section 8.4, Section 8.5, or
Section 8.6, (d) normal compensation and reimbursement of expenses of officers
and directors, and (e) except as otherwise specifically limited in this Credit
Agreement, other transactions which are entered into in the ordinary course of
such Person's business on terms and conditions substantially as favorable to
such Person as would be obtainable by it in a comparable arms-length transaction
with a Person other than an officer, director, shareholder, Subsidiary or
Affiliate.
8.9 Fiscal Year; Organizational Documents. The Credit Parties will
not permit any Consolidated Party to (a) change its fiscal year or (b) amend,
modify or change its articles of incorporation (or corporate charter or other
similar organizational document) or bylaws (or other similar document) if the
effect of any such amendment, modification, or change would have a Material
Adverse Effect.
8.10 Limitation on Restricted Actions. The Credit Parties will not
permit, other than pursuant to the Senior Note Documents, any Consolidated Party
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Person to (a) pay dividends or make any other distributions to any Credit Party
on its Capital Stock or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other obligation owed
to any Credit Party, (c) make loans or advances to any Credit Party, (d) sell,
lease or transfer any of its properties or assets to any Credit Party, (e) grant
a lien on its properties or assets whether now owned or hereafter acquired or
(f) act as a Guarantor and pledge its assets pursuant to the Credit Documents or
any renewals, refinancings, exchanges, refundings or extension thereof, except
(in respect of any of the matters referred to in clauses (a)-(f) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit
80
Documents, or (ii) applicable law. The Credit Parties will not permit the Senior
Note Documents to contain financial covenants that are more restrictive than the
financial covenants set forth in Section 7.11, it being understood and agreed
that, as of the Closing Date, the financial covenants set forth in the Senior
Note Documents are not more restrictive than the financial covenants set forth
in Section 7.11.
8.11 Ownership of Subsidiaries; Limitations on Borrower.
Notwithstanding any other provisions of this Credit Agreement to the contrary,
the Credit Parties will not permit any Consolidated Party to (a) permit any
Person (other than the Borrower or any Wholly-Owned Subsidiary of the Borrower)
to own any Capital Stock of any Subsidiary of the Borrower, (b) permit any
Subsidiary of the Borrower to issue Capital Stock (except to the Borrower or to
a Wholly-Owned Subsidiary of the Borrower), (c) permit, create, incur, assume or
suffer to exist any Lien thereon, in each case except (i) to qualify directors
where required by applicable law or to satisfy other requirements of applicable
law with respect to the ownership of Capital Stock of Foreign Subsidiaries, or
(ii) for Permitted Liens and (d) notwithstanding anything to the contrary
contained in clause (b) above, permit any Subsidiary of the Borrower to issue
any shares of preferred Capital Stock.
8.12 Sale Leasebacks. Except as permitted by Section 8.1(c), the
Credit Parties will not permit any Consolidated Party to, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real, personal or mixed), whether now owned or hereafter
acquired, (a) which such Consolidated Party has sold or transferred or is to
sell or transfer to a Person which is not a Consolidated Party or (b) which such
Consolidated Party intends to use for substantially the same purpose as any
other Property which has been sold or is to be sold or transferred by such
Consolidated Party to another Person which is not a Consolidated Party in
connection with such lease.
8.13 Asset Dispositions. The Credit Parties will not permit any
Consolidated Party to sell, transfer or otherwise dispose of any Property
(including accounts and notes receivable, with or without recourse) other than
(i) the sale of inventory in the ordinary course of business for fair
consideration, (ii) the sale or disposition of machinery and equipment no longer
used or useful in the conduct of such Person's business, (iii) the termination
of management contracts in the ordinary course of business and (iv) other sales
of assets during any fiscal year having an aggregate fair market value of less
than an amount equal to the lesser of (A) 5% of Total Assets of the Consolidated
Parties and (B) for the then most recent fiscal year of the Borrower, 5% of
Consolidated EBITDA of the Consolidated Parties.
SECTION 9.
EVENTS OF DEFAULT
9.1 Events of Default. An Event of Default shall exist upon the
occurrence of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall:
81
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such default shall continue for three (3) or
more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings
under Letters of Credit, or of any Fees or other amounts owing
hereunder, under any of the other Credit Documents or in connection
herewith or therewith; or
(b) Representations. Any representation, warranty or statement made
or deemed to be made by any Credit Party herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required
to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was deemed to have been made;
or
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1(i), 7.11, 8.1, 8.2,
8.3, 8.4, 8.5, 8.6, 8.8, 8.10, 8.11, 8.12 or 8.13;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1(a), (b), (c) or (d)
and such default shall continue unremedied for a period of at least
5 days after the earlier of a responsible officer of a Credit Party
becoming aware of such default or notice thereof by the Agent; or
(iii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b), (c)(i) or (c)(ii) of this Section 9.1)
contained in this Credit Agreement and such default shall continue
unremedied for a period of at least 30 days after the earlier of a
responsible officer of a Credit Party becoming aware of such default
or notice thereof by the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any term, covenant or agreement in
any of the other Credit Documents (subject to applicable grace or cure
periods, if any), or (ii) any Credit Document shall fail to be in full
force and effect or to give the Agent and/or the Lenders the Liens,
rights, powers and privileges purported to be created thereby, or any
Credit Party shall so state in writing; or
(e) Guaranties. Except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under Section
8.4, the guaranty given by any Guarantor hereunder (including any
Additional Credit Party) or any provision thereof shall cease to be in
full force and effect, or any Guarantor (including any Additional
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Credit Party) hereunder or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under such
guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed
or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
to any Credit Party; or
(g) Defaults under Other Agreements.
(i) Any Credit Party shall default in the performance or
observance (beyond the applicable grace period with respect thereto,
if any) of any material obligation or condition of any contract or
lease which has a Material Adverse Effect;
(ii) With respect to any Indebtedness (other than Indebtedness
outstanding under this Credit Agreement) in excess of $5,000,000 in
the aggregate for the Consolidated Parties taken as a whole, (A) any
Consolidated Party shall (1) default in any payment (beyond the
applicable grace period with respect thereto, if any) with respect
to any such Indebtedness, or (2) the occurrence and continuance of a
default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall
occur or condition exist, the effect of which default or other event
or condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to
cause (determined without regard to whether any notice or lapse of
time is required), any such Indebtedness to become due prior to its
stated maturity; or (B) any such Indebtedness shall be declared due
and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof;
or
(iii) Any default under the Senior Note Documents or the
Additional Facility Documents shall occur and the applicable grace
period (if any) with respect to such default shall have expired
without such default being cured by the Credit Parties in a manner
acceptable to the necessary percentage of Noteholders or Additional
Creditors, as applicable, or permanently waived by the necessary
percentage of Noteholders or Additional Creditors, as applicable; or
(h) Judgments. One or more judgments or decrees shall be entered
against one or more of the Consolidated Parties involving a liability of
$1,000,000 or more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier who has acknowledged coverage
and has the ability to perform) and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal
within 30 days from the entry thereof; or
83
(i) ERISA. Any of the following events or conditions, if such event
or condition could have a Material Adverse Effect: (i) any "accumulated
funding deficiency," as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, shall exist with respect
to any Plan, or any lien shall arise on the assets of any Consolidated
Party or any ERISA Affiliate in favor of the PBGC or a Plan; (ii) an ERISA
Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in the termination of
such Plan for purposes of Title IV of ERISA; (iii) an ERISA Event shall
occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Agent, likely to result in (A)
the termination of such Plan for purposes of Title IV of ERISA, or (B) any
Consolidated Party or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the meaning
of Section 4241 of ERISA), or insolvency of (within the meaning of Section
4245 of ERISA) such Plan; or (iv) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject any Consolidated
Party or any ERISA Affiliate to any liability under Sections 406, 409,
502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which any Consolidated Party or
any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability; or
(j) Ownership. There shall occur a Change of Control; or
(k) Material Adverse Effect. Any event or change shall occur that
has caused or evidences, either in any case or in the aggregate, a
Material Adverse Effect.
9.2 Acceleration; Remedies. Upon the occurrence of an Event of
Default, and at any time thereafter unless and until such Event of Default has
been waived by the requisite Lenders (pursuant to the voting requirements of
Section 11.6) or cured to the satisfaction of the requisite Lenders (pursuant to
the voting procedures in Section 11.6), the Agent shall, upon the request and
direction of the Required Lenders, by written notice to the Credit Parties take
any of the following actions:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by the Borrower to the Agent
and/or any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default under Section 9.1(f), it will immediately pay) to the
Agent additional cash, to be held by the Agent, for the benefit of the
Lenders, in a cash collateral account as additional security for the LOC
84
Obligations in respect of subsequent drawings under all then outstanding
Letters of Credit in an amount equal to the maximum aggregate amount which
may be drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents including, without
limitation, all rights and remedies existing under the Collateral
Documents, all rights and remedies against each Credit Party and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur, then the Commitments shall automatically terminate
and all Loans, all reimbursement obligations arising from drawings under Letters
of Credit, all accrued interest in respect thereof, all accrued and unpaid Fees
and other indebtedness or obligations owing to the Agent and/or any of the
Lenders hereunder automatically shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Credit Parties.
SECTION 10.
AGENCY PROVISIONS
10.1 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Credit Agreement and the other Credit Documents with such powers and discretion
as are specifically delegated to the Agent by the terms of this Credit Agreement
and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Agent (which term as used in this sentence
and in Section 10.5 and the first sentence of Section 10.6 hereof shall include
its Affiliates and its own and its Affiliates' officers, directors, employees,
and agents): (a) shall not have any duties or responsibilities except those
expressly set forth in this Credit Agreement and shall not be a trustee or
fiduciary for any Lender; (b) shall not be responsible to the Lenders for any
recital, statement, representation, or warranty (whether written or oral) made
in or in connection with any Credit Document or any certificate or other
document referred to or provided for in, or received by any of them under, any
Credit Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Credit Document, or any other document
referred to or provided for therein or for any failure by any Credit Party or
any other Person to perform any of its obligations thereunder; (c) shall not be
responsible for or have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by any Credit Party or
the satisfaction of any condition or to inspect the Property (including the
books and records) of any Credit Party or any of its Subsidiaries or Affiliates;
(d) shall not be required to initiate or conduct any litigation or collection
proceedings under any Credit Document; and (e) shall not be responsible for any
action taken or omitted to be taken by it under or in connection with any Credit
Document, except for its own gross negligence or willful misconduct. The Agent
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care.
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10.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 11.3(b) hereof. As to any matters not expressly provided for by this
Credit Agreement, the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding on
all of the Lenders; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to any Credit Document or applicable law unless it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking any such action.
10.3 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 10.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the 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 in the best interest of the Lenders.
10.4 Rights as a Lender. With respect to its Commitment and the
Loans made by it, Citibank (and any successor acting as the Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. Citibank (and
any successor acting as the Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Credit Party or any of its
Subsidiaries or Affiliates as if it were not acting as the Agent, and Citibank
(and any successor acting as the Agent) and its Affiliates may accept fees and
other consideration from any Credit Party or any of its Subsidiaries or
Affiliates for services in connection with this Credit Agreement or otherwise
without having to account for the same to the Lenders.
10.5 Indemnification. The Lenders severally agree to indemnify the
Agent (to the extent not reimbursed under Section 11.5 hereof, but without
limiting the obligations of the Borrower under such Section) ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements of any kind and nature
whatsoever that
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may be imposed on, incurred by or asserted against the Agent (including by any
Lender) in any way relating to or arising out of any Credit Document or the
transactions contemplated thereby or any action taken or omitted by the Agent
under any Credit Document; provided that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Person to be indemnified. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs or expenses payable by the Borrower under Section 11.5, to
the extent that the Agent is not promptly reimbursed for such costs and expenses
by the Borrower. The agreements in this Section 10.5 shall survive the repayment
of the Loans, LOC Obligations and other obligations under the Credit Documents
and the termination of the Commitments hereunder.
10.6 Non-Reliance on Agent and Other Lenders. Each Lender agrees
that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Credit Parties and their
Subsidiaries and decision to enter into this Credit Agreement and that it will,
independently and without reliance upon the 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 analysis and decisions in taking or not taking action
under the Credit Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its Subsidiaries or
Affiliates that may come into the possession of the Agent or any of its
Affiliates.
10.7 Successor Agents; Resignation of Existing Agent.
(a) The Agent may resign at any time by giving notice thereof to the
Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent which shall be a
commercial bank organized under the laws of the United States of America
having combined capital and surplus of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor, such
successor shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges, and duties of the retiring Agent,
and the retiring Agent shall be released and discharged from its duties
and obligations hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 10 shall continue in
effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Agent.
(b) The Existing Agent hereby resigns as the Agent under the
Existing Agreement and is hereby released and discharged from its duties
and obligations thereunder. The Lenders hereby appoint the Agent as the
successor Agent under this Credit Agreement.
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SECTION 11.
MISCELLANEOUS
11.1 Notices. Except as otherwise expressly provided herein, all
notices and other communications shall be written and shall have been duly given
and shall be effective (a) when delivered, (b) when transmitted via telecopy (or
other facsimile device) to the number set out below, (c) the Business Day
following the day on which the same has been delivered prepaid to a reputable
national overnight air courier service, or (d) the third Business Day following
the day on which the same is sent by certified or registered mail, postage
prepaid, in each case to the respective parties at the address, in the case of
the Borrower, Guarantors and the Agent, set forth below, and, in the case of the
Lenders, set forth on Schedule 2.1(a), or at such other address as such party
may specify by written notice to the other parties hereto:
if to the Borrower or any Guarantor:
530 Oak Court, Suite 360
Memphis, Tennessee 38117
Attn: J. Mitchell Collins, Chief Financial Officer
Telephone: (901) 762-0600
Telecopy: (901) 762-0678
with a copy to:
Kennedy Covington Lobdell & Hickman, L.L.P.
Bank of America Corporate Center
100 North Tryon Street, Suite 4200
Charlotte, North Carolina 28202-4006
Attn: J. Donnell Lassiter, Esq.
Telephone: (704) 331-7444
Telecopy: (704) 331-7598
if to the Agent:
Citibank, N.A.
390 Greenwich Street
New York, New York 10013
Attn: Larry Farley
Telephone: (212) 723-6614
Telecopy: (212) 723-8547
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with a copy to:
O'Melveny & Myers LLP
153 East 53rd Street
New York, New York 10022-4611
Attn: Malcolm M. Kratzer, Esq.
Telephone: (212) 326-2000
Telecopy: (212) 326-2061
11.2 Right of Set-Off; Adjustments. Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
Affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its Affiliates)
to or for the credit or the account of any Credit Party against any and all of
the obligations of such Person now or hereafter existing under this Credit
Agreement, under the Revolving Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party 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. The rights of each Lender under this Section 11.2 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
11.3 Benefit of Agreement.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that none of the Credit Parties may assign or
transfer any of its interests and obligations without prior written
consent of the Lenders in their sole discretion; provided further that the
rights of each Lender to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth in this
Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Credit Agreement
(including, without limitation, all or a portion of its Loans, its
Revolving Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender (or
an Affiliate of a Lender) or an assignment of all of a Lender's
rights and obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $2,500,000 (or,
if less, the remaining amount of the Commitment being assigned by
such Lender) or an integral multiple of $1,000,000 in excess
thereof;
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(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations
under this Credit Agreement and the Revolving Notes; and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the
form of Exhibit 11.3(b) hereto (an "Assignment and Acceptance"),
together with any Note subject to such assignment and a processing
fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits of a
Lender hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights (except for any indemnification rights
which by the terms hereof expressly survive the repayment of the Loans,
LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder) and be released from its
obligations under this Credit Agreement. Upon the consummation of any
assignment pursuant to this Section 11.3(b), the assignor, the Agent and
the Borrower shall make appropriate arrangements so that, if required, new
or amended and restated Revolving Notes are issued to the assignor and the
assignee. If the assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the Borrower and
the Agent certification as to exemption from deduction or withholding of
Taxes in accordance with Section 3.11.
(c) The Agent shall maintain at its address referred to in Section
11.1 a copy of each Assignment and Acceptance delivered to and accepted by
it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to,
each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit
11.3(b) hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons in
all or a portion of its rights, obligations or rights and obligations
under this Credit Agreement (including all or a portion of its Commitment
and its Loans); provided, however, that (i) such Lender's obligations
under this Credit Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participant shall be entitled to the
benefit of the yield protection
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provisions contained in Sections 3.6 through 3.12, inclusive, and the
right of set-off contained in Section 11.2, and (iv) the Borrower shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Credit Agreement, and such
Lender shall retain the sole right to enforce the obligations of the
Borrower relating to its Loans and its Revolving Notes and to approve any
amendment, modification, or waiver of any provision of this Credit
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such
Loans or Revolving Notes, extending any scheduled principal payment date
or date fixed for the payment of interest on such Loans or Revolving
Notes, or extending its Commitment).
(f) Notwithstanding any other provision set forth in this Credit
Agreement, any Lender may at any time assign and pledge all or any portion
of its Loans and its Revolving Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Borrower
or any of its Subsidiaries in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.15
hereof.
11.4 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Agent or any Lender in exercising any right, power or privilege hereunder
or under any other Credit Document and no course of dealing between the Agent or
any Lender and any of the Credit Parties shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Agent or any Lender would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle the Borrower or any other Credit Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agent or the Lenders to any other or further action in any circumstances
without notice or demand.
11.5 Expenses; Indemnification.
(a) The Borrower agrees to pay on demand (regardless of whether the
transactions contemplated hereby or by the other Credit Documents shall be
actually consummated or the Credit Documents executed) all costs and
expenses of the Agent, the Collateral Agent and the Arranger in connection
with the syndication, preparation, negotiation, execution, delivery and
administration of this Credit Agreement, the other Credit Documents, and
the other documents to be delivered hereunder and any consents,
amendments, waivers or other modifications hereto or thereto and any other
documents or matters requested by the Borrower or any other Credit Party,
including, without limitation, the reasonable fees and expenses of counsel
for the Agent and the Collateral
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Agent with respect thereto and with respect to advising the Agent and the
Collateral Agent as to their rights and responsibilities under the Credit
Documents and any reasonable audit fees. The Borrower further agrees to
pay on demand all costs and expenses of the Agent, the Collateral Agent
and the Lenders, if any (including, without limitation, reasonable
attorneys' fees and expenses, the expenses of internal counsel and
reasonable audit fees), in connection with the enforcement (whether
through negotiations, legal proceedings, or otherwise) of the Credit
Documents and the other documents to be delivered hereunder. All amounts
payable pursuant to this Section 11.5(a) shall be paid upon presentation
of a statement of account.
(b) The Borrower agrees to indemnify and hold harmless the
Indemnified Parties from and against any and all claims, damages, losses
(other than losses created by a Lender's internal interest rate management
policies and practices), liabilities, costs, and expenses (including,
without limitation, reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the Credit
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such
claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 11.5 applies, such
indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees not to assert any
claim against the Agent, the Collateral Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, shareholders,
employees, attorneys, agents, and advisers, on any theory of liability,
for special, indirect, consequential, or punitive damages arising out of
or otherwise relating to the Credit Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Loans.
(c) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 11.5 shall survive the repayment of the Loans,
LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
11.6 Amendments, Waivers and Consents. Neither this Credit Agreement
nor any other Credit Document nor any of the terms hereof or thereof may be
amended, changed, waived, discharged or terminated unless such amendment,
change, waiver, discharge or termination is in writing entered into by, or
approved in writing by, the Required Lenders and the Borrower, provided,
however, that:
(a) without the unanimous consent of the Lenders, neither this
Credit Agreement nor any other Credit Document may be amended to:
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(i) extend the final maturity of any Loan or the time of
payment of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit;
(ii) reduce the rate or extend the time of payment of interest
thereon or Fees hereunder;
(iii) reduce or waive the principal amount of any Loan or of
any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit;
(iv) except in accordance with the provisions of Section
2.1(a)(iii), increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of
any Default or Event of Default or mandatory reduction in the
Commitments shall not constitute a change in the terms of any
Commitment of any Lender);
(v) release all or any material portion of the Collateral;
(vi) except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under
Section 8.4, release the Borrower or any of the other Credit Parties
from its or their obligations under the Credit Documents;
(vii) amend, modify or waive any provision of this Section
11.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14,
9.1(a), the last paragraph of 9.2, 11.2, 11.3, 11.5 or 11.9;
(viii) reduce any percentage specified in, or otherwise
modify, the definitions of Required Lenders or Supermajority
Lenders; or
(ix) consent to the assignment or transfer by the Borrower or
any of the other Credit Parties of any of its or their rights and
obligations under (or in respect of) the Credit Documents except as
permitted thereby;
(b) without the consent of the Agent, no provision of Section 10 may
be amended or modified;
(c) without the consent of the Issuing Lender, no provision of
Section 2.2 may be amended or modified;
(d) without the consent of the Swingline Lender, no provision of
Section 2.3 may be amended or modified;
(e) without the consent of the Required Lenders, no mandatory
prepayment may be waived, provided that the unanimous consent of the
Lenders shall be required to waive any mandatory prepayment required by
Section 3.3(b)(i); and
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(f) without the consent of the Supermajority Lenders, no provision
of Section 7.11 may be amended, modified or waived.
Notwithstanding any provision of the Intercreditor Agreement to the contrary, if
the vote of the Secured Parties shall be solicited with respect to any proposed
amendment, modification, termination or waiver of, or consent, instruction,
approval or authorization required under, any provision of the Intercreditor
Agreement, the Security Agreement, the Pledge Agreement or any other Collateral
Document, such matter shall in all cases first be submitted to the vote of the
Lenders hereunder pursuant to the foregoing provisions of this Section 11.6. If
the Required Lenders (or such higher percentage of the Lenders as may be
specifically required to consent to the matter at issue under the foregoing
provisions of this Section 11.6) shall fail to consent to or approve such
matter, then each Lender shall be prohibited from consenting to or approving
such matter as a Secured Party under the Intercreditor Agreement, Security
Agreement, Pledge Agreement or other Collateral Document, as the case may be.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, but subject to the provisions of
Section 6 of the Intercreditor Agreement, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
11.7 Counterparts. This Credit Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Credit Agreement to produce or
account for more than one such counterpart for each of the parties hereto.
Delivery by facsimile by any of the parties hereto of an executed counterpart of
this Credit Agreement shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed
counterpart hereof will be delivered.
11.8 Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Credit Agreement.
11.9 Survival. All indemnities set forth herein, including, without
limitation, in Section 2.2(i), 3.11, 3.12, 4.3, 7.13(c), 10.5 or 11.5(b) shall
survive the execution and delivery of this Credit Agreement, the making of the
Loans, the issuance of the Letters of Credit, the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder, and all representations and warranties made by the
Credit Parties herein shall survive delivery of the Revolving Notes and the
making of the Loans hereunder.
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11.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW. Any legal action
or proceeding with respect to this Agreement or any other Credit Document
may be brought in any state or federal court of competent jurisdiction in
the State, County and City of New York, and, by execution and delivery of
this Credit Agreement, each of the Credit Parties hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. In the
event that a judicial proceeding is brought against any Credit Party in
the State of New York, each Credit Party irrevocably designates and
appoints CT Corporation System, 111 Eighth Avenue, New York, New York
10011, and such other Persons as may hereafter be selected by such Credit
Party irrevocably agreeing in writing to so serve, as its agent to receive
on its behalf service of all process in any such proceedings in any such
court, such service being hereby acknowledged by each Credit Party to be
effective and binding service in every respect. A copy of any such process
so served shall be sent by internationally recognized overnight mail or
courier service to the Borrower at its address provided in Section 11.1;
provided that, unless otherwise provided by applicable law, any failure to
mail such copy shall not affect the validity of service of such process.
If any agent appointed by the Borrower refuses to accept service, service
of process sufficient for personal jurisdiction in any action against the
Borrower or any other Credit Party in the State of New York may be made by
any manner permitted by applicable law. Nothing herein shall affect the
right of the Agent or any Lender to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed
against any Credit Party in any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in connection
with this Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS,
THE BORROWER AND THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
11.11 Severability. If any provision of any of the Credit Documents
is determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the
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remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety. This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or
after the Closing Date when it shall have been executed by the Borrower,
the Guarantors and the Agent, and the Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement shall be
binding upon and inure to the benefit of the Borrower, the Guarantors, the
Agent and each Lender and their respective successors and permitted
assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the
other Credit Documents shall remain outstanding, no Letters of Credit
shall be outstanding, all of the Credit Party Obligations have been
irrevocably satisfied in full and all of the Commitments hereunder shall
have expired or been terminated.
11.14 Conflict. To the extent that there is a conflict or
inconsistency between any provision hereof, on the one hand, and any provision
of any other Credit Document, on the other hand, this Credit Agreement shall
control.
11.15 Confidentiality. The Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Credit Agreement that is marked
confidential; provided that nothing herein shall prevent any Lending Party from
disclosing or transferring such information (a) to any other Lending Party or
any affiliate of any Lending Party, or any officer, director, employee, agent,
or advisor of any Lending Party or affiliate of any Lending Party (including,
without limitation, to the offices of any such affiliate or Person located
outside of the United States), (b) to any other Person if reasonably incidental
to the administration of the credit facility provided herein, (c) as required by
any law, rule or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of disclosure by any Lending Party
prohibited by this Credit Agreement, (g) in connection with any litigation to
which such Lending Party or any of its affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, and (i) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed participant or assignee.
96
[Signature Pages to Follow]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered as of the
date first above written.
BORROWER: RESORTQUEST INTERNATIONAL, INC.
a Delaware corporation
By:_______________________________________
Name:
Title:
GUARANTORS: FIRST RESORT SOFTWARE, INC.,
a Colorado corporation
ADVANTAGE VACATION HOMES BY
STYLES, INC., a Delaware corporation
STYLES ESTATES, LTD., INC., a Delaware
corporation
B&B ON THE BEACH, INC., a North Carolina
corporation
BRINDLEY & BRINDLEY REALTY &
DEVELOPMENT, INC., a North Carolina
corporation
BLUEBILL PROPERTIES, INC., a Delaware
corporation
BLUEBILL VACATION PROPERTIES, INC.,
a Delaware corporation
COATES, REID & WALDRON, INC., a Delaware
corporation
CRW PROPERTY MANAGEMENT, INC.,
a Delaware corporation
COASTAL RESORTS REALTY, L.L.C.,
a Delaware limited liability company
COASTAL RESORTS MANAGEMENT, INC.,
a Delaware corporation
[Continued on Next Page]
S-1
COLLECTION OF FINE PROPERTIES, INC.,
a Colorado corporation
TEN MILE HOLDINGS, LTD., a Colorado
corporation
HOTEL CORPORATION OF THE PACIFIC,
INC., a Hawaii corporation
HOUSTON AND O'LEARY COMPANY,
a Colorado corporation
MAUI CONDOMINIUM & HOME REALTY,
INC., a Hawaii corporation
THE MAURY PEOPLE, INC., a Massachusetts
corporation
HOWEY ACQUISITION, INC., a Florida
corporation
PRISCILLA MURPHY REALTY, INC., a Florida
corporation
REALTY CONSULTANTS, INC., a Florida
corporation
RESORT PROPERTY MANAGEMENT, INC.,
a Utah corporation
SHORELINE RENTALS, INC., a Delaware
corporation
TELLURIDE RESORT ACCOMMODATIONS,
INC., a Colorado corporation
TRUPP-HODNETT ENTERPRISES, INC.,
a Georgia corporation
THE MANAGEMENT COMPANY, INC., a
Georgia corporation
WORTHY OWNER RENTAL GROUP, INC., a
South Carolina corporation
[Continued on Next Page]
S-2
ABBOTT & ANDREWS REALTY, INC., a
Florida corporation
ABBOTT REALTY SERVICES, INC., a Florida
corporation
ABBOTT RESORTS, INC., a Florida corporation
PLANTATION RESORT MANAGEMENT,
INC., a Delaware corporation
THE TOPS'L GROUP, INC., a Florida
corporation
(The following signature is on behalf of
each of the foregoing Guarantors)
By:________________________________________
Name:
Title:
[Signatures Continued on Next Page]
S-3
LENDERS: CITIBANK, N.A.,
as Agent
By:_____________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Documentation Agent, Existing Agent, a
Lender and an Issuing Lender
By:_____________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as Syndication Agent and a Lender
By:_____________________________________
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as a Lender and an Issuing Lender
By:_____________________________________
Name:
Title:
UNION PLANTERS BANK,
as a Lender
By:_____________________________________
Name:
Title:
S-4
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of JANUARY 22, 2001
among
RESORTQUEST INTERNATIONAL, INC.
as Borrower,
THE GUARANTORS LISTED HEREIN,
as Guarantors,
THE LENDERS LISTED HEREIN,
as Lenders,
CITIBANK. N.A.,
as Agent,
BANK OF AMERICA, N.A.,
as Documentation Agent,
CREDIT LYONNAIS NEW YORK BRANCH,
as Syndication Agent,
and
SALOMON SMITH BARNEY INC.,
as Arranger
DEFINITIONS
1.1 Definitions......................................................1
1.2 Computation of Time Periods.....................................29
1.3 Accounting Terms................................................29
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.................................................30
2.2 Letter of Credit Subfacility....................................34
2.3 Swingline Loans.................................................39
2.4 Termination of Commitments......................................41
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate....................................................41
3.2 Extension and Conversion........................................42
3.3 Prepayments.....................................................42
3.4 Voluntary Reduction of Revolving Committed Amount...............44
3.5 Fees............................................................44
3.6 Capital Adequacy................................................45
3.7 Limitation on Eurodollar Loans..................................46
3.8 Illegality......................................................46
3.9 Requirements of Law.............................................46
3.10 Treatment of Affected Loans.....................................48
3.11 Taxes...........................................................48
3.12 Compensation....................................................50
3.13 Pro Rata Treatment..............................................51
3.14 Sharing of Payments.............................................51
3.15 Payments, Computations, Etc.....................................52
3.16 Evidence of Debt................................................54
3.17 Reinstatement...................................................54
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SECTION 4
GUARANTY
4.1 The Guaranty....................................................55
4.2 Obligations Unconditional.......................................55
4.3 Reinstatement...................................................56
4.4 Certain Additional Waivers......................................57
4.5 Remedies........................................................57
4.6 Rights of Contribution..........................................57
4.7 Continuing Guarantee............................................58
SECTION 5
CONDITIONS
5.1 Closing Conditions..............................................58
5.2 Conditions to all Extensions of Credit..........................62
SECTION 6
REPRESENTATIONS AND WARRANTIES
6.1 Financial Condition.............................................63
6.2 No Material Change..............................................63
6.3 Organization and Good Standing..................................63
6.4 Power; Authorization; Enforceable Obligations...................63
6.5 No Conflicts....................................................64
6.6 Material Agreements; No Default.................................64
6.7 Ownership.......................................................64
6.8 Litigation......................................................64
6.9 Taxes...........................................................64
6.10 Compliance with Law.............................................65
6.11 ERISA...........................................................65
6.12 Subsidiaries....................................................66
6.13 Governmental Regulations, Etc...................................66
6.14 Purpose of Loans and Letters of Credit..........................67
6.15 Environmental Matters...........................................67
6.16 Intellectual Property...........................................68
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6.17 Solvency........................................................69
6.18 Investments.....................................................69
6.19 Location of Collateral..........................................69
6.20 Disclosure......................................................69
6.21 No Burdensome Restrictions......................................69
6.22 First Priority Lien.............................................69
SECTION 7
AFFIRMATIVE COVENANTS
7.1 Information Covenants...........................................69
7.2 Preservation of Existence and Franchises........................72
7.3 Books and Records...............................................73
7.4 Compliance with Law.............................................73
7.5 Payment of Taxes and Other Indebtedness.........................73
7.6 Insurance.......................................................73
7.7 Maintenance of Property.........................................74
7.8 Performance of Material Agreements..............................74
7.9 Use of Proceeds.................................................74
7.10 Audits/Inspections..............................................74
7.11 Financial Covenants.............................................75
7.12 Additional Credit Parties.......................................75
7.13 Environmental Laws..............................................77
7.14 Collateral......................................................77
7.15 Interest Rate Hedge.............................................78
SECTION 8
NEGATIVE COVENANTS
8.1 Indebtedness....................................................78
8.2 Liens...........................................................79
8.3 Nature of Business..............................................79
8.4 Consolidation, Merger, Dissolution, etc.........................79
8.5 Investments.....................................................79
8.6 Restricted Payments.............................................79
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8.7 Prepayments of Indebtedness, etc................................80
8.8 Transactions with Affiliates....................................80
8.9 Fiscal Year; Organizational Documents...........................80
8.10 Limitation on Restricted Actions................................80
8.11 Ownership of Subsidiaries; Limitations on Borrower..............81
8.12 Sale Leasebacks.................................................81
8.13 Asset Dispositions..............................................81
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default...............................................81
9.2 Acceleration; Remedies..........................................84
SECTION 10
AGENCY PROVISIONS
10.1 Appointment, Powers and Immunities..............................85
10.2 Reliance by Agent...............................................86
10.3 Defaults........................................................86
10.4 Rights as a Lender..............................................86
10.5 Indemnification.................................................86
10.6 Non-Reliance on Agent and Other Lenders.........................87
10.7 Successor Agents; Resignation of Existing Agent.................87
SECTION 11
MISCELLANEOUS
11.1 Notices.........................................................88
11.2 Right of Set-Off; Adjustments...................................89
11.4 No Waiver; Remedies Cumulative..................................91
11.5 Expenses; Indemnification.......................................91
11.6 Amendments, Waivers and Consents................................92
11.7 Counterparts....................................................94
11.8 Headings........................................................94
11.9 Survival........................................................94
11.10 Governing Law; Submission to Jurisdiction; Venue................95
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11.11 Severability....................................................95
11.12 Entirety........................................................96
11.13 Binding Effect; Termination.....................................96
11.14 Conflict........................................................96
11.15 Confidentiality.................................................96
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