================================================================================
AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
Dated as of June 4, 1996
By And Among
ROTECH MEDICAL CORPORATION
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Agent,
NATIONSBANK OF FLORIDA, N.A.,
NBD BANK,
PNC BANK, KENTUCKY, INC.,
BARNETT BANK OF CENTRAL FLORIDA, N.A.
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
================================================================================
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I DEFINITIONS; CONSTRUCTION.................. 2
-------------------------
Section 1.1 Definitions............................ 2
-----------
Section 1.2 Accounting Terms and Determination..... 15
----------------------------------
Section 1.3 Other Definitional Provisions.......... 15
-----------------------------
Section 1.4 Exhibits and Schedules................. 15
----------------------
ARTICLE II REVOLVING LOANS............................ 15
---------------
Section 2.1 Commitment; Use of Proceeds............ 15
---------------------------
Section 2.2 Notes; Repayment of Principal.......... 16
-----------------------------
Section 2.3 Voluntary Reduction of Revolving Loan
---------------------------------------
Commitments............................ 16
-----------
Section 2.4 Extension of Commitment................ 17
-----------------------
ARTICLE III LINE OF CREDIT LOANS....................... 17
--------------------
Section 3.1 Line of Credit Loan Commitment; Use of
---------------------------------------
Proceeds............................... 17
--------
Section 3.2 Notes; Repayment of Principal.......... 18
-----------------------------
Section 3.3 Voluntary Reduction of Line of Credit
---------------------------------------
Loan Commitment........................ 18
---------------
Section 3.4 Mandatory LIBOR Advance................ 18
-----------------------
ARTICLE IV GENERAL LOAN TERMS......................... 19
------------------
Section 4.1 Funding Notices........................ 19
---------------
Section 4.2 Disbursement of Funds.................. 20
---------------------
Section 4.3 Interest............................... 21
--------
Section 4.4 Interest Periods....................... 22
----------------
Section 4.5 Fees................................... 23
----
Section 4.6 Voluntary Prepayments of Borrowings.... 23
-----------------------------------
Section 4.7 Payments, etc.......................... 24
-------------
Section 4.8 Interest Rate Not Ascertainable, etc... 26
------------------------------------
Section 4.9 Illegality............................. 26
----------
Section 4.10 Increased Costs........................ 27
---------------
Section 4.11 Lending Offices........................ 28
---------------
Section 4.12 Funding Losses......................... 29
--------------
Section 4.13 Assumptions Concerning Funding of LIBOR
---------------------------------------
Advances............................... 29
--------
Section 4.14 Apportionment of Payments.............. 30
-------------------------
Section 4.15 Sharing of Payments, Etc............... 30
------------------------
Section 4.16 Capital Adequacy....................... 30
----------------
Section 4.17 Benefits to Guarantors................. 31
----------------------
Section 4.18 Return of Payments..................... 31
------------------
i
ARTICLE V CONDITIONS TO BORROWINGS................... 31
------------------------
Section 5.1 Conditions Precedent to Initial Loans.. 31
--------------------------------------
Section 5.2 Conditions to All Loans................ 34
-----------------------
ARTICLE VI REPRESENTATIONS AND WARRANTIES............. 35
------------------------------
Section 6.1 Organization and Qualification......... 35
------------------------------
Section 6.2 Corporate Authority.................... 35
-------------------
Section 6.3 Financial Statements................... 35
--------------------
Section 6.4 Tax Returns............................ 36
-----------
Section 6.5 Actions Pending........................ 36
---------------
Section 6.6 Representations; No Defaults........... 36
----------------------------
Section 6.7 Title to Properties; Capitalized
--------------------------------
Leases.................................. 36
------
Section 6.8 Enforceability of Agreement............ 37
---------------------------
Section 6.9 Consent................................ 37
-------
Section 6.10 Use of Proceeds; Federal Reserve
--------------------------------
Regulations............................ 37
-----------
Section 6.11 ERISA.................................. 38
-----
Section 6.12 Subsidiaries........................... 38
------------
Section 6.13 Outstanding Debt....................... 39
----------------
Section 6.14 Conflicting Agreements................. 39
----------------------
Section 6.15 Environmental Matters.................. 39
---------------------
Section 6.16 Possession of Franchises,
------------------------
Licenses, Etc.......................... 40
-------------
Section 6.17 Patents, Trademarks, Etc............... 40
------------------------
Section 6.18 Governmental Consent................... 41
--------------------
Section 6.19 Disclosure............................. 41
----------
Section 6.20 Insurance Coverage..................... 42
------------------
Section 6.21 Labor Matters.......................... 42
-------------
Section 6.22 Intercompany Loans; Dividends.......... 42
-----------------------------
Section 6.23 Securities Acts........................ 42
---------------
Section 6.24 Investment Company Act;
----------------------
Holding Company........................ 42
---------------
Section 6.25 Regulation G, Etc...................... 42
-----------------
Section 6.26 Changes in Financial Condition;
------------------------------
Adverse Developments................... 43
--------------------
ARTICLE VII AFFIRMATIVE COVENANTS...................... 43
---------------------
Section 7.1 Corporate Existence, Etc............... 43
------------------------
Section 7.2 Compliance with Laws, Etc.............. 43
-------------------------
Section 7.3 Payment of Taxes and Claims, Etc....... 43
--------------------------------
Section 7.4 Keeping of Books....................... 44
----------------
Section 7.5 Visitation, Inspection, Etc............ 44
---------------------------
Section 7.6 Insurance; Maintenance of Properties... 44
------------------------------------
Section 7.7 Reporting Covenants.................... 45
-------------------
Section 7.8 Financial Covenants.................... 49
-------------------
Section 7.9 Notices Under Certain Other
---------------------------
Indebtedness........................... 50
------------
Section 7.10 Additional Guarantors.................. 50
---------------------
Section 7.11 Fiscal Year............................ 51
-----------
Section 7.12 Ownership of Guarantors................ 51
-----------------------
Section 7.13 Subordination of Intercompany Loans.... 51
-----------------------------------
ii
ARTICLE VIII NEGATIVE COVENANTS......................... 51
------------------
Section 8.1 Indebtedness........................... 51
------------
Section 8.2 Liens.................................. 52
-----
Section 8.3 Mergers, Acquisitions, Sales, Etc...... 53
---------------------------------
Section 8.4 Investments, Loans, Etc................ 53
-----------------------
Section 8.5 Sale and Leaseback Transactions........ 55
-------------------------------
Section 8.6 Transactions with Affiliates........... 55
----------------------------
Section 8.7 Optional Prepayments................... 55
--------------------
Section 8.8 Changes in Business.................... 55
-------------------
Section 8.9 ERISA.................................. 55
-----
Section 8.10 Additional Negative Pledges............ 56
---------------------------
Section 8.11 Limitation on Payment Restrictions
----------------------------------
Affecting Consolidated Companies....... 56
--------------------------------
Section 8.12 Actions Under Certain Documents........ 56
-------------------------------
Section 8.13 Dividends.............................. 56
---------
Section 8.14 Use of Proceeds........................ 57
---------------
Section 8.15 Changes in Control or Ownership........ 57
-------------------------------
ARTICLE IX EVENTS OF DEFAULT.......................... 57
-----------------
Section 9.1 Payments............................... 57
--------
Section 9.2 Covenants Without Notice............... 57
------------------------
Section 9.3 Other Covenants........................ 57
---------------
Section 9.4 Representations........................ 57
---------------
Section 9.5 Non-Payments of Other Indebtedness..... 57
----------------------------------
Section 9.6 Defaults Under Other Agreements........ 58
-------------------------------
Section 9.7 Bankruptcy............................. 58
----------
Section 9.8 ERISA.................................. 58
-----
Section 9.9 Money Judgment......................... 59
--------------
Section 9.10 Ownership of Credit Parties............ 59
---------------------------
Section 9.11 Change in Control of Borrower.......... 59
-----------------------------
Section 9.12 Default Under Other Credit Documents... 59
------------------------------------
Section 9.13 Attachments............................ 60
-----------
ARTICLE X THE AGENT.................................. 60
---------
Section 10.1 Appointment of Agent................... 60
--------------------
Section 10.2 Nature of Duties of Agent.............. 61
-------------------------
Section 10.3 Lack of Reliance on the Agent.......... 61
-----------------------------
Section 10.4 Certain Rights of the Agent............ 62
---------------------------
Section 10.5 Reliance by Agent...................... 62
-----------------
Section 10.6 Indemnification of Agent............... 62
------------------------
Section 10.7 The Agent in its Individual Capacity... 62
------------------------------------
Section 10.8 Holders of Notes....................... 63
----------------
Section 10.9 Successor Agent........................ 63
---------------
ARTICLE XI MISCELLANEOUS.............................. 64
-------------
Section 11.1 Notices................................ 64
-------
Section 11.2 Amendments, Etc........................ 64
---------------
Section 11.3 No Waiver; Remedies Cumulative......... 65
------------------------------
iii
Section 11.4 Payment of Expenses, Etc............... 65
------------------------
Section 11.5 Right of Setoff........................ 67
---------------
Section 11.6 Benefit of Agreement................... 67
--------------------
Section 11.7 Governing Law; Submission to
----------------------------
Jurisdiction........................... 70
------------
Section 11.8 Independent Nature of Lenders' Rights.. 70
-------------------------------------
Section 11.9 Counterparts........................... 71
------------
Section 11.10 Effectiveness; Survival................ 71
-----------------------
Section 11.11 Severability........................... 71
------------
Section 11.12 Independence of Covenants.............. 71
-------------------------
Section 11.13 Change in Accounting Principles, Fiscal
---------------------------------------
Year or Tax Laws....................... 71
----------------
Section 11.14 Headings Descriptive;
---------------------
Entire Agreement....................... 72
----------------
Section 11.15 Time is of the Essence................. 72
----------------------
Section 11.16 Usury.................................. 72
-----
Section 11.17 Construction........................... 72
------------
iv
SCHEDULES
---------
Schedule 6.1 Organization and Ownership of Subsidiaries
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Certain Pending and Threatened Litigation
Schedule 6.7 Capitalized Lease Obligations
Schedule 6.11 Employee Benefit Matters
Schedule 6.13 Outstanding Debt, Defaults
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.15(d) Equal Employment and Employee Safety
Schedule 6.17 Patent, Trademark, License, and Other
Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 8.1(b) Existing Indebtedness
Schedule 8.2 Existing Liens
EXHIBITS
--------
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Subsidiary Guaranty Agreement
Exhibit C Form of Contribution Agreement
Exhibit D Form of Line of Credit Note
Exhibit E Form of Revolving Credit Note
Exhibit F Form of Request for Extension of Termination Date
Exhibit G Form of Closing Certificate
Exhibit H Form of Opinion of Borrower's Counsel
Exhibit I Form of Joinder to this Agreement
Exhibit J Form of Supplement to Subsidiary Guaranty Agreement
Exhibit K Form of Negative Pledge
Exhibit L Form of Supplement to Contribution Agreement
v
AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
---------------------------------------------
THIS AMENDED AND RESTATED REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT,
dated as of June 4, 1996 (the "Agreement") by and among ROTECH MEDICAL
CORPORATION ("Borrower"), a Florida corporation, SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, ("SunTrust") a national banking association, NATIONSBANK
OF FLORIDA, N.A., NBD BANK, PNC BANK, KENTUCKY, INC., BARNETT BANK OF CENTRAL
FLORIDA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH (collectively, the "Lenders" and,
individually, a "Lender"), and SunTrust as Agent for the Lenders.
W I T N E S S E T H:
-------------------
THAT the Borrower, the Guarantors, the Lenders signatories thereto and the
Agent previously entered into that certain Revolving Credit and Line of Credit
Agreement dated as of December 29, 1995 (the "Original Credit Agreement"); and
THAT, the Borrower has requested that the total Revolving Loan Commitment
be increased by $50,000,000.00 to $200,000,000.00 (which requires the addition
of other Lenders and the increase by certain of the original Lenders of the
amounts of their original Revolving Loan Commitments) and that certain of the
financial covenants and other terms and covenants of the Original Credit
Agreement be revised; and
THAT certain additional Lenders have agreed to extend Revolving Loans to
the Borrower and certain of the original Lenders have agreed to increase the
amounts of their original Revolving Loan Commitments; and
THAT, the Lenders and the Agent have agreed to amend and restate the
Original Credit Agreement to provide for the foregoing subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants made
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby amend and restate the Original Credit Agreement in its
entirety and agree that the Original Credit Agreement shall be and hereby is
superseded in its entirety by this Agreement and further covenant and agree as
follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
SECTION 1.1 DEFINITIONS. As used in this Agreement, and in any
-----------
instrument, certificate, document or report delivered pursuant thereto, the
following terms shall have the following meanings (to be equally applicable to
both the singular and plural forms of the term defined):
"ADVANCE" shall mean any principal amount advanced and remaining
-------
outstanding at any time under the Revolving Loans or the Line of Credit Loans,
which Advance shall be made or outstanding as a Base Rate Advance, LIBOR Advance
or BA Rate Advance in the case of Revolving Loans.
"AFFILIATE" of any Person means any other Person directly or
---------
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGENT" shall mean SunTrust Bank, Central Florida, National
-----
Association, as agent for the Lenders hereunder and under the other Credit
Documents, and each successor Agent.
"AGREEMENT" shall mean this Amended and Restated Revolving Credit and
---------
Line of Credit Agreement, either as originally executed or as it may be from
time to time supplemented, amended, restated, renewed or extended and in effect.
"ASSET VALUE" shall mean, with respect to any property or asset of any
-----------
Consolidated Company as of any particular date, an amount equal to the greater
of (i) the then book value of such property or asset as established in
accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
-------------------------
entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of Exhibit A.
---------
"BA RATE" shall mean, for any Interest Period, the Bankers Acceptance
-------
Rate as published from time to time in the Wall Street Journal, or such
-------------------
substitute publication as may be designated by the Agent from time to time, on
the day that is the first day of the related Interest Period.
2
"BA RATE ADVANCES" shall mean an Advance made or outstanding as a
----------------
Revolving Loan and bearing interest based on the BA Rate.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as amended
---------------
and in effect from time to time (11 U.S.C. (S)5101 et seq.).
------
"BASE RATE" shall mean (with any change in the Base Rate to be
---------
effective as of the date of change of either of the following rates):
with respect to the Revolving Loans the higher of (a) the rate which
SunTrust Banks of Florida, Inc., ("SunTrust Banks") announces from
time to time as its prime lending rate, as in effect from time to time
(the "Prime Rate") or (b) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (0.50%) per annum. The
----
Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate charged borrowing customers of any subsidiary bank
of SunTrust Banks; any subsidiary of SunTrust Banks, including the
Agent, may make commercial loans or other loans at rates of interest
at, above or below the Prime Rate.
"BASE RATE ADVANCE" shall mean an Advance made or outstanding as a
-----------------
Revolving Loan and bearing interest based on the Base Rate.
"BORROWING" shall mean the incurrence by Borrower under any Facility
---------
of Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"BUSINESS DAY" shall mean any day other than Saturday, Sunday and a
------------
day on which commercial banks are required to be closed for business in Orlando,
Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease obligations which
-----------------------------
have been or are required to be, in accordance with generally accepted
accounting principles, capitalized on the books of the lessee.
"CERCLA" has the meaning set forth in Section 6.15 of this Agreement.
------
"CLOSING DATE" shall mean the date on or before December 31, 1995, on
------------
which the initial Loans are made and the conditions set forth in Section 5.1 are
satisfied or waived in accordance with Section 11.2.
3
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time.
"COMMITMENT" shall mean, for any Lender at any time, its Revolving
----------
Loan Commitment and, in addition, for SunTrust, it shall also mean its Line of
Credit Loan Commitment, as the case may be.
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower and all of
----------------------
its Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any fiscal period of the Borrower,
-----------------
an amount equal to the sum of its Consolidated Net Income (Loss), plus, (i)
----
Consolidated Interest Expense and (ii) Consolidated Income Tax Expense.
"CONSOLIDATED EBITDA" shall mean, for any fiscal period of the
-------------------
Borrower, an amount equal to the sum of its Consolidated EBIT, plus (i)
depreciation and (ii) amortization, for such period.
"CONSOLIDATED EBITR" shall mean, for any fiscal period of the
------------------
Borrower, an amount equal to the sum of its Consolidated EBIT plus Consolidated
Rental Expense.
"CONSOLIDATED FUNDED DEBT" shall mean the sum of Consolidated Senior
------------------------
Funded Debt and Subordinated Debt.
"CONSOLIDATED IR" shall mean, for any fiscal period of the Borrower,
----------------
an amount equal to the sum of its Consolidated Interest Expense plus
----
Consolidated Rental Expense.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any fiscal period of
-----------------------------
Borrower, total interest expense (including without limitation, interest expense
attributable to capitalized leases) of Borrower and its Subsidiaries on a
consolidated basis.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any fiscal period of
-------------------------------
the Borrower, the aggregate of (i) all taxes based upon or measured by the
income of the Borrower and its Subsidiaries on a consolidated basis and (ii)
franchise taxes payable by the Borrower and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal period of
------------------------------
Borrower, the Consolidated Net Income (or loss) of Borrower and its Subsidiaries
for such period (taken as a single accounting period); provided that there shall
-------- ----
be excluded therefrom (i) any items of gain or loss resulting from the sale of
assets other than in the ordinary course of business; and (ii) the income (or
loss) of any party accrued prior to the date such party becomes a Subsidiary of
Borrower or is merged into or consolidated with Borrower or any of its
Subsidiaries, or such party's assets are acquired by the Borrower or any of its
Subsidiaries.
4
"CONSOLIDATED NET WORTH" shall mean, for any period of determination,
----------------------
the net worth of the Borrower and its Subsidiaries on a consolidated basis,
determined in accordance with GAAP.
"CONSOLIDATED RENTAL EXPENSE" shall mean for any fiscal period of
---------------------------
Borrower, total rental expense and operating lease expense of Borrower and its
Subsidiaries on a consolidated basis.
"CONSOLIDATED SENIOR FUNDED DEBT" shall mean, without duplication, all
-------------------------------
Senior Funded Debt of the Borrower and its Subsidiaries on a consolidated basis.
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
----------------------
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"CREDIT DOCUMENTS" shall mean, collectively, the Agreement, as amended
----------------
from time to time, the Notes, the Guaranty Agreements, all other Guaranty
Documents, and the Negative Pledges, together with all other documents,
agreements, certificates, schedules, notes, statements and opinions, however
described, referenced herein or delivered pursuant hereto or in connection with
or arising out of the Loans or the transactions contemplated by this Agreement.
"CREDIT PARTIES" shall mean, collectively, each of Borrower, the
--------------
Guarantors, and every other Person who from time to time executes a Credit
Document with respect to all or any portion of the Obligations.
"DEFAULT" shall mean any condition or event which, with notice or
-------
lapse of time or both, would constitute an Event of Default.
"DEFAULT RATE" shall mean the higher of (i) Base Rate plus two percent
------------
(2%), or (ii) the interest rate otherwise applicable to said amount outstanding
plus two percent (2%), but in no event shall such interest rate exceed the
highest lawful rate.
"DOLLAR" and the sign "$" shall mean lawful money of the United States
-------
of America.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank organized under
-----------------
the laws of the United States, or any state thereof, having total assets in
excess of $1,000,000,000 or any commercial finance or asset based lending
Affiliate of any such commercial bank and (ii) any Lender or any Affiliate of
any Lender.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and foreign
------------------
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, and having the force
5
of laws, now or hereafter in effect (including, without limitation, those with
respect to asbestos or asbestos containing material or exposure to asbestos or
asbestos containing material), relating to pollution or protection of the
environment and relating to public health and safety, including, without
limitation, those imposing liability or standards of conduct concerning (i)
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous materials, substances
or wastes, including without limitation, any Hazardous Substance, petroleum
including crude oil or any fraction thereof, any petroleum product or other
waste, chemicals or substances regulated by any Environmental Law into the
environment (including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of any Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks and
related piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (i) the Clean
Air Act (42 U.S.C. (S)7401 et seq.), (ii) the Clean Water Act (33 U.S.C. (S)1251
------
et sec.), (iii) the Resource Conservation and Recovery Act (42 U.S.C. (S)6901 et
- -------- --
seq.), (iv) the Toxic Substances Control Act (15 U.S.C. (S)2601 et seq.) and (v)
- --- ------
the Comprehensive Environmental Response Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act (42 U.S.C. (S)9601
et seq.).
- ------
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each trade
---------------
or business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"EVENT OF DEFAULT" shall have the meaning set forth in Article IX.
----------------
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean with respect to any Person (other than
-----------------
a Guarantor), the President, Vice Presidents, Chief Financial Officer,
Treasurer, Secretary and any Person holding comparable offices or duties, and
with respect to a Guarantor, the President, Chief Financial Officer or Treasurer
and any Person holding comparable offices or duties.
6
"EXTENSION OF CREDIT" shall mean the making of a Loan or the
-------------------
conversion of a Loan of one Type into a Loan of another Type.
"FACILITY" or "FACILITIES" shall mean the Revolving Loan Commitments
-------- ----------
and Loans or the Line of Credit Commitment and Loans as the context may
indicate.
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Atlanta, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"FEE LETTER" shall mean that certain engagement letter, dated April
----------
28, 1996, entered into by and among the Agent, the Borrower and SunTrust Capital
Markets, Inc.
"FINAL MATURITY DATE" shall mean the date on which all commitments
-------------------
have been terminated and all amounts outstanding under this Agreement have been
declared or have automatically become due and payable pursuant to the provisions
of Article IX.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary not organized under the
------------------
laws of any of the fifty (50) states of the United States of America or the
District of Columbia, or that is operating entirely outside of the United
States.
"GAAP" shall mean generally accepted accounting principles set forth
----
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any obligation
-----------------------
of such Person guaranteeing any indebtedness, lease, dividend, or other
obligation ("primary obligation") of any other Person (the "primary obligor") in
any manner including, without limitation, any obligation or arrangement of such
Person (a) to purchase or repurchase any such primary obligation, (b) to advance
or supply funds (i) for the purchase or payment of any such primary obligation
or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet condition
of the primary obligor, (c) to purchase property, securities or services
primarily for the
7
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (d) to
indemnify the owner of such primary obligation against loss in respect thereof.
"GUARANTORS" shall mean each and all of the Borrower's Subsidiaries.
----------
"GUARANTY AGREEMENTS" shall mean, collectively, the Subsidiary
-------------------
Guaranty Agreement executed by each of the Guarantors in existence at the time
of the Original Credit Agreement in favor of the Lenders and the Agent, in the
form of Exhibit B attached hereto as the same may be amended, restated or
---------
supplemented from time to time, and the Contribution Agreement executed by each
of the Guarantors in existence at the time of the Original Credit Agreement, in
the form of Exhibit C, as the same may be amended, restated or supplemented from
---------
time to time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
------------------
Agreements, and each other guaranty agreement, mortgage, deed of trust, security
agreement, pledge agreement, or other security or collateral document
guaranteeing or securing the Obligations, as the same may be amended, restated,
or supplemented from time to time, and the Contribution Agreements executed by
each of the Guarantors, as the same may be amended, restated or supplemented
from time to time.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that term in
--------------------
CERCLA.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
------------
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranteed Indebtedness of such Person
(including contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; and (v) obligations or other liabilities
under currency contracts, interest rate hedging contracts, or similar agreements
or combinations thereof.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans more
------------------
particularly described on Schedule 6.22 and (ii) those loans or other extensions
-------------
of credit made by any Consolidated Company to another Consolidated Company
satisfying the terms and conditions set forth in Section 8.1 or as may otherwise
be approved in writing by the Agent and the Required Lenders.
8
"INTEREST PERIOD" shall mean (i) 1, 2, 3 or 6 months as selected by
---------------
the Borrower with respect to LIBOR Advances; (ii) thirty (30) days with respect
to Base Rate Advances; (iii) 30, 60 or 90 days as selected by the Borrower, with
respect to BA Rate Advances; and (iv) such periods as may be mutually agreed
upon from time to time between the Borrower and SunTrust with respect to the
Line of Credit Loans; provided, that (a) the first day of an Interest Period
must be a Business Day, (b) any Interest Period that would otherwise end on a
day that is not a Business Day for LIBOR Loans shall be extended to the next
succeeding Business Day for LIBOR Loans, unless such Business Day falls in the
next calendar month, in which case the Interest Period shall end on the next
preceding Business Day for LIBOR Loans, and (c) Borrower may not elect an
Interest Period which would extend beyond the Termination Date.
"INVESTMENT" shall mean, when used with respect to any Person, any
----------
direct or indirect advance, loan or other extension of credit (other than the
creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" or "LENDERS" shall mean SunTrust, the other banks and lending
------ -------
institutions listed on the signature pages hereof, and each assignee thereof, if
any, pursuant to Section 11.6.
"LENDING OFFICE" shall mean for each Lender the office such Lender may
--------------
designate in writing from time to time to Borrower and the Agent with respect to
each Type of Loan.
"LIBOR" shall mean, for any Interest Period, the offered rates for
-----
deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., London time, on the
day that is two London banking days prior to the first day of the Interest
Period. If at least two such rates appear on the Reuters Screen LIBOR Page, the
rate for that Interest Period will be the arithmetic mean of such rates,
rounded, if necessary, to the next higher 1/16 of 1.0%; and in either case as
such rates may be adjusted for any applicable reserve requirements. If the
foregoing rate is unavailable from the Reuters Screen for any reason, then such
rate shall be determined by the Agent from Telerate or, if such rate is also
unavailable on such service, then on any other interest rate reporting service
of recognized standing designated in writing by the Agent to Borrower and the
Lenders; in any such case rounded, if necessary, to the next higher 1/16 of
1.0%, if the rate is not such a multiple.
9
"LIBOR ADVANCE" shall mean an Advance made or outstanding as a
-------------
Revolving Loan and bearing interest based on LIBOR.
"LIBOR LOAN" shall mean any Loan hereunder which bears interest at a
----------
rate based on LIBOR.
"LIEN" shall mean any mortgage, pledge, security interest,
----
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue bonds
or pollution control revenue bonds, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
"LINE OF CREDIT COMMITMENT" shall mean at any time for SunTrust, Five
-------------------------
Million Dollars ($5,000,000.00), as the same may be increased or decreased from
time to time as a result of any reduction thereof pursuant to Section 4.6, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2.
"LINE OF CREDIT LOANS" shall mean the line of credit loans made to
--------------------
Borrower by SunTrust pursuant to Section 3.1.
"LINE OF CREDIT NOTE" shall mean the promissory note issued by
-------------------
Borrower to SunTrust in the form of Exhibit D, either as originally executed or
---------
as the same may from time to time be supplemented, modified, amended, renewed,
extended or replaced.
"LOANS" shall mean, collectively, the Revolving Loans and the Line of
-----
Credit Loans.
"MATERIAL SUBSIDIARY" shall mean (i) each Credit Party other than
-------------------
Borrower and (ii) each other Subsidiary of Borrower, now existing or hereafter
established or acquired, that at any time prior to the Final Maturity Date, has
or acquires total assets in excess of $5,000,000.00 or that accounted for or
produced more than 5% of the Consolidated EBITR of Borrower on a consolidated
basis during any of the most recently completed fiscal years of the Borrower.
"MATERIALLY ADVERSE EFFECT" shall mean a material adverse effect upon,
-------------------------
or a material adverse change in, any of the (i) business, results of operations,
properties, or financial condition of the Consolidated Companies taken as a
whole, (ii) legality, validity, binding effect or enforceability of any Credit
Document, or (iii) ability of the Credit Parties to perform their obligations
under the Credit Documents.
10
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
-------
successors and assigns.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
------------------
4001(a)(3) of ERISA.
"NEGATIVE PLEDGES" shall mean the Agreements Not to Sell or Encumber
----------------
Assets executed by the Borrower and each Subsidiary in favor of the Agent and
the Lenders.
"NOTE" OR "NOTES" shall mean, individually, or collectively , as the
---- -----
context may require, any of the Revolving Credit Notes or the Line of Credit
Note, either as originally executed or as the same may be from time to time
supplemented, modified, amended, renewed, extended or replaced.
"NOTICE OF BORROWING" shall have the meaning provided in Section 4.1.
-------------------
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning provided in
---------------------------------
Section 4.1.
"OBLIGATIONS" shall mean all amounts owing to the Agent or any Lender
-----------
pursuant to the terms of this Agreement or any other Credit Document, including
without limitation, all Loans (including all principal and interest payments due
thereunder), fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Credit Parties, direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions, modifications or
refinancings thereof.
"ORIGINAL CREDIT AGREEMENT" shall mean the Revolving Credit and Line
-------------------------
of Credit Agreement dated as of December 29, 1995 by and among the Borrower, the
Agent and the Lenders signatory thereto and joined in by the Guarantors in
existence on the date thereof.
"PAYMENT OFFICE" shall mean the office of the Agent located at 200 S.
--------------
Orange Avenue, Orlando, Florida; or such other location as may be designated by
the Agent from time to time in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
----
successor thereto.
"PERSON" shall mean and shall include an individual, a partnership, a
------
joint venture, a corporation, a limited liability company, a trust, an
unincorporated association, a government or any department or agency thereof and
any other entity whatsoever.
"PLAN" shall mean any employee benefit plan, program, arrangement,
----
practice or contract, maintained by or on behalf of
11
the Borrower or an ERISA Affiliate, which provides benefits or compensation to
or on behalf of employees or former employees, whether formal or informal,
whether or not written, including but not limited to the following types of
plans:
(i) Executive Arrangements - any bonus, incentive compensation, stock
----------------------
option, deferred compensation, commission, severance, "golden parachute",
"rabbi trust", or other executive compensation plan, program, contract,
arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as defined in Section
-----------
3(3) of ERISA), including, but not limited to, any defined benefit pension
plan, profit sharing plan, money purchase pension plan, savings or thrift
plan, stock bonus plan, employee stock ownership plan, Multiemployer Plan,
or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits;
(iii) Other Employee Fringe Benefits - any stock purchase, vacation,
------------------------------
scholarship, day care, prepaid legal services, severance pay or other
fringe benefit plan, program, arrangement, contract or practice.
"PRO RATA SHARE" shall mean, with respect to the Commitment of each
--------------
Lender, each Loan to be made by and each payment (including, without limitation,
any payment of principal, interest or fees) to be made to each Lender, the
percentage designated as such Lender's Pro Rata Share of such Commitment, such
Loans or such payments, as applicable, set forth under the name of such Lender
on the respective signature page for such Lender, in each case as such Pro Rata
Share may change from time to time as a result of assignments or amendments made
pursuant to this Agreement.
"REGULATION D" shall mean Regulation D of the Board of Governors of
------------
the Federal Reserve System, as the same may be in effect from time to time.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding at least
----------------
sixty percent (60%) of the then aggregate amount of the Revolving Loan
Commitments, and the Line of Credit Commitments.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
------------------
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 property or to
which such Person or any of its property is subject.
12
"REUTERS SCREEN" shall mean, when used in connection with any
--------------
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"REVOLVING CREDIT NOTES" shall mean, collectively, the promissory
----------------------
notes evidencing the Revolving Loans in substantially the form attached hereto
as Exhibit E, either as originally executed or as the same may from time to time
---------
be supplemented, modified, amended, renewed, extended or replaced.
"REVOLVING LOANS" shall mean, collectively, the revolving credit loans
---------------
made to Borrower by the Lenders pursuant to Section 2.1.
"REVOLVING LOAN COMMITMENT" shall mean, at any time for any Lender,
-------------------------
the amount of such commitment set forth opposite such Lender's name on the
signature pages hereof, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.3, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2, which amount shall include such Lender's Revolving Loans.
"REVOLVING PERIOD" shall mean the period during the term of the
----------------
Revolving Credit Loan, commencing on the date hereof and ending on the
occurrence of (i) an Event of Default (unless waived or cured) or (ii) the
Termination Date, whichever first occurs.
"S & P" shall mean the Standard & Poor's Corporation and its
-----
successors and assigns.
"SENIOR FUNDED DEBT" shall mean, without duplication, all
------------------
Indebtedness, purchase money mortgages, capitalized leases, conditional sales
contracts and similar title retention debt instruments, including any current
maturities of such indebtedness, plus the present value of future operating
lease payments calculated using standard S&P methodology, plus the redemption
amount with respect to any stock of the Borrower or any Subsidiaries required to
be redeemed within the next twelve (12) months. Senior Funded Debt shall also
include any Senior Funded Debt which has been guaranteed by the Borrower or any
Subsidiary or which is supported by a letter of credit issued for the account of
the Borrower or any Subsidiary. Senior Funded Debt shall not include
Subordinated Debt.
"SUBORDINATED DEBT" shall mean Indebtedness of Borrower and its
-----------------
Subsidiaries subordinated to all obligations of Borrower and its Subsidiaries or
any other Credit Party arising under this Agreement, the Notes, and the Guaranty
Agreements on terms and conditions satisfactory in all respects to the Agent and
the Required Lenders, including without limitation, with respect to
13
interest rates, payment terms, maturities, amortization schedules, covenants,
defaults, remedies, and subordination provisions, as evidenced by the written
approval of the Agent and Required Lenders.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation
----------
or other entity (including, without limitation, partnerships, joint ventures,
and associations) regardless of its jurisdiction of organization or formation,
at least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries.
"SYNDICATE REVOLVING LOAN" shall mean, collectively, the Revolving
------------------------
Loans made to Borrower hereunder.
"TAXES" shall mean any present or future taxes, levies, imposts,
-----
duties, fees, assessments, deductions, withholdings or other charges of whatever
nature, including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"TELERATE" shall mean, when used in connection with any designated
--------
page and "LIBOR," the display page so designated on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying rates comparable to "LIBOR").
"TERMINATION DATE" shall mean June 3, 1997 or such later date as may
----------------
be approved pursuant to Section 2.4.
"TOTAL CAPITALIZATION" shall mean the sum of Funded Debt and
--------------------
Consolidated Net Worth.
"TOTAL COMMITMENT" shall mean the sum of the Lenders' Commitments as
----------------
such Total Commitment may be reduced by voluntary reduction, prepayment or
nonrenewal of a Lender's Commitment as provided herein.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base Rate
----
Advances, LIBOR Advances or BA Rate Advances.
"WHOLLY OWNED SUBSIDIARY" shall mean any Subsidiary, all the stock or
-----------------------
ownership interest of every class of which, except directors' qualifying shares,
shall, at the time as of which any determination is being made, be owned by
Borrower either directly or indirectly.
14
SECTION 1.2 ACCOUNTING TERMS AND DETERMINATION. Unless otherwise defined
----------------------------------
or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with GAAP.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
-----------------------------
(a) Except as otherwise specified herein, references herein to any
agreement or contract defined or referred to herein shall be deemed a
reference to any such agreement or contract (and in the case of any
instrument, any other instrument issued in substitution therefor) as
the terms thereof may have been or may be amended, supplemented,
waived or otherwise modified from time to time.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Article, Section, Schedule, Exhibit and like references are to this
Agreement unless otherwise specified.
(c) The singular pronoun, when used in this Agreement, shall include the
plural and neuter shall include the masculine and the feminine.
(d) All terms defined in this Agreement shall have the defined meanings
when used in any Note or, except as otherwise expressly stated herein,
any certificate, opinion, or other document delivered pursuant hereto.
SECTION 1.4 EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
----------------------
hereto are by reference made a part hereof.
ARTICLE II
REVOLVING LOANS
---------------
SECTION 2.1 COMMITMENT; USE OF PROCEEDS.
---------------------------
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees from time to time on and after the Closing
Date, but during the Revolving Period, to make the Revolving Loans as
provided in this Section 2.1. Borrower shall be entitled to repay and
reborrow Revolving Loans in accordance with the provisions hereof.
(b) The sum of the aggregate unpaid principal amount of any Lender's
Revolving Loans outstanding shall not exceed at any time such Lender's
Revolving Loan Commitment.
15
(c) The sum of the aggregate unpaid principal amount of all Revolving
Loans shall not exceed at any time the total Revolving Loan Commitment for
all Lenders.
(d) Each Revolving Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Syndicate Revolving Loans (as Base Rate Advances, LIBOR
Advances or BA Rate Advances). The aggregate principal amount of each
Borrowing of Syndicate Revolving Loans comprised of Base Rate Advances,
LIBOR Advances and/or BA Rate Advances shall be not less than $5,000,000 or
a greater integral multiple of $1,000,000. At no time shall the number of
Borrowings of Syndicate Revolving Loans comprised of LIBOR Advances
outstanding under this Article II exceed six (6); provided that, for the
purpose of determining the minimum amount for Borrowings resulting from
conversions or continuations, all Borrowings of Base Rate Advances under
this Facility shall be considered as one Borrowing. The parties hereto
agree that (i) the aggregate principal balance of the Revolving Loans of
the Lenders as a group shall not exceed the sum of the Revolving Loan
Commitments for each Lender and (ii) no Lender shall be obligated to make
Syndicate Revolving Loans in excess of the Revolving Loan Commitment of
such Lender.
(e) The proceeds of Revolving Loans shall be used for working capital
and for other general corporate purposes, including acquisitions and
capital expenditures of the Consolidated Companies.
SECTION 2.2 NOTES; REPAYMENT OF PRINCIPAL.
-----------------------------
(a) Borrower's obligations to pay the principal of, and interest on,
the Syndicate Revolving Loans to each Lender shall be evidenced by the
records of the Agent and such Lender and by the Revolving Credit Note
payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving Loans shall
be due and payable in full on the Termination Date.
SECTION 2.3 VOLUNTARY REDUCTION OF REVOLVING LOAN COMMITMENTS. Upon at
-------------------------------------------------
least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Agent, Borrower shall have the right, without premium or
penalty, to terminate the Revolving Loan Commitments, in part or in whole,
provided that (i) any such termination shall apply to proportionately and
permanently reduce the Revolving Loan Commitments of each of the Lenders, (ii)
any partial termination pursuant to this Section 2.3 shall be in an amount of at
least
16
$5,000,000 and integral multiples of $1,000,000, and (iii) no such reduction
shall be permitted if prohibited or without payment of all costs required to be
paid hereunder with respect to a prepayment. If the aggregate outstanding
amount of the Revolving Loans exceeds the amount of the Revolving Loan
Commitments as so reduced, Borrower shall immediately repay the Revolving Loans
for the ratable account of the Lenders by an amount equal to such excess,
together with all accrued but unpaid interest on such excess amount and any
amounts due under Section 4.12 hereof.
SECTION 2.4 EXTENSION OF COMMITMENT. During the last thirty (30)
-----------------------
calendar days prior to June 3, 1997, and thereafter, during the last thirty (30)
calendar days prior to the end of each subsequent 90-day period, the Borrower
may deliver to the Agent the Borrower's written request for a ninety (90) day
extension of the then applicable Termination Date substantially in the form of
Exhibit F, hereto. The Agent, upon the consent of all the Lenders, shall use
- ---------
its best efforts to respond in writing to the Borrower's request (whether
affirmatively by countersigning and returning such request to the Borrower, or
negatively by advising the Borrower that such extension will not be granted)
within thirty (30) days after the Agent's receipt of such request; provided,
--------
however, the Agent shall have no obligation to grant such extension and may
- -------
decline to do so in its sole discretion, and further provided, that the failure
----------------
of the Agent to respond to the Borrower's request shall be deemed to be a
negative reply to the request for an extension.
ARTICLE III
LINE OF CREDIT LOANS
--------------------
SECTION 3.1 LINE OF CREDIT LOAN COMMITMENT; USE OF
--------------------------------------
PROCEEDS.
- --------
(a) Subject to and upon the terms and conditions herein set forth,
SunTrust agrees to make to Borrower from time to time on and after the
Closing Date, but during the Line of Credit period, Line of Credit Loans in
an aggregate amount outstanding at any time not to exceed SunTrust's Line
of Credit Loan Commitment. Borrower shall be entitled to repay and
reborrow Line of Credit Loans in accordance with the provisions hereof.
17
(b) Each Borrowing in respect of the Line of Credit Loan shall be in
such amount as may be mutually agreed upon from time to time by and between
the Borrower and SunTrust as to each such Line of Credit Loan and shall
bear interest at such rate or rates as may be mutually agreed upon by and
between the Borrower and SunTrust from time to time for each Line of Credit
Loan.
(c) The proceeds of Line of Credit Loans shall be used (i) to fund
daily swings in the cash position of the Borrower, and (ii) for other
general corporate purposes.
SECTION 3.2 NOTES; REPAYMENT OF PRINCIPAL.
-----------------------------
(a) Borrower's obligations to pay the principal of, and interest on,
the Line of Credit Loans to SunTrust shall be evidenced by the records of
the Agent and SunTrust and by the Line of Credit Note payable to SunTrust
(or the assignee of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Line of Credit Loans
shall be due and payable in full on the Termination Date.
SECTION 3.3 VOLUNTARY REDUCTION OF LINE OF CREDIT LOAN COMMITMENT. Upon
-----------------------------------------------------
at least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Agent, Borrower shall have the right, without premium or
penalty, to terminate the Line of Credit Commitment, in part or in whole,
provided that (i) any such termination shall apply to permanently reduce the
Line of Credit Commitment, (ii) any partial termination pursuant to this Section
3.3 shall be in an amount of at least $1,000,000 and integral multiples of
$100,000, and (iii) no such reduction shall be permitted if prohibited or
without payment of all costs required to be paid hereunder with respect to a
prepayment. If the aggregate outstanding amount of the Line of Credit Loans
exceeds the amount of the Line of Credit Commitment as so reduced, Borrower
shall immediately repay the Line of Credit Loans by an amount equal to such
excess, together with all accrued but unpaid interest on such excess amount.
SECTION 3.4 MANDATORY LIBOR ADVANCE. At any time or times that the Line
-----------------------
of Credit Loan is fully funded and so long as there is sufficient availability
under the Revolving Loan Commitments, the outstanding principal balance of the
Line of Credit Loan shall automatically be paid in full by means of a one (1)
month LIBOR Advance.
18
ARTICLE IV
GENERAL LOAN TERMS
------------------
SECTION 4.1 FUNDING NOTICES.
---------------
(a) Whenever Borrower desires to make a Borrowing with respect to the
Syndicate Revolving Loan Commitments or the Line of Credit Commitment
(other than one resulting from a mandatory LIBOR Advance pursuant to
Section 3.4 or a conversion or continuation pursuant to Section 4.1(b)), it
shall give the Agent prior written notice (or telephonic notice promptly
confirmed in writing) of such Borrowing (a "Notice of Borrowing"), such
Notice of Borrowing to be given prior to 11:00 A.M. (local time for the
Agent) at its Payment Office (i) one Business Day prior to the requested
date of such Borrowing in the case of Revolving Loans comprised of Base
Rate Advances or BA Rate Advances, (ii) three Business Days prior to the
requested date of such Borrowing in the case of LIBOR Advances, and (iii)
the same Business Day of the requested date of such Borrowing in the case
of Line of Credit Loans. Notices received after 11:00 A.M. shall be deemed
received on the next Business Day. Each Notice of Borrowing shall be
irrevocable and shall specify whether such Borrowing will be a Revolving
Loan or Line of Credit Loan, the aggregate principal amount of the
Borrowing, the date of Borrowing (which shall be a Business Day), if the
Borrowing is a Revolving Loan, whether the Borrowing is to consist of Base
Rate Advances, LIBOR Advances or BA Rate Advances and (in the case of LIBOR
Advances or BA Rate Advances) the Interest Period to be applicable thereto.
(b) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing under the Syndicate Revolving Loans, which Borrowing
consists of Base Rate Advances, LIBOR Advances or BA Rate Advances, into
one or more Borrowings consisting of Advances of another Type, or to
continue outstanding a Borrowing consisting of LIBOR Advances or BA Rate
Advances for a new Interest Period, it shall give the Agent at least three
Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be converted into or
continued as LIBOR Advances or BA Rate Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 11:00 A.M. (local time
for the Agent) on the date specified at the Payment Office of the Agent.
Each such Notice of Conversion/Continuation shall be irrevocable and shall
specify the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the
Advances are being converted into or continued as LIBOR Advances or BA Rate
Advances and (in the case of LIBOR Advances or BA Rate Advances) the
Interest Period applicable thereto. If, upon the expiration of any
19
Interest Period in respect of any Borrowing, Borrower shall have failed to
deliver the Notice of Conversion/Continuation, Borrower shall be deemed to
have elected to convert or continue such Borrowing to a Borrowing
consisting of Base Rate Advances. So long as any Default or Event of
Default shall have occurred and be continuing, no Borrowing may be
converted into or continued (upon expiration of the current Interest
Period) as LIBOR Advances or BA Rate Advances. No conversion or
continuation of any Borrowing of LIBOR Advances or BA Rate Advances shall
be permitted except on the last day of the Interest Period in respect
thereof.
(c) Without in any way limiting Borrower's obligation to confirm in
writing any telephonic notice, the Agent and the Lenders may act without
liability upon the basis of telephonic notice reasonably believed by the
Agent or the Lender in good faith to be from Borrower prior to receipt of
written confirmation.
(d) The Agent shall promptly give each Lender notice by telephone
(confirmed in writing) or by telex, telecopy or facsimile transmission of
the matters covered by the notices given to the Agent pursuant to this
Section 4.1 with respect to the Revolving Credit Commitments.
SECTION 4.2 DISBURSEMENT OF FUNDS.
---------------------
(a) No later than 12:00 noon (local time for the Agent) on the date of
each Borrowing pursuant to the Revolving Loan Commitments or the Line of
Credit Commitment (other than one resulting from a conversion or
continuation pursuant to Section 4.1), each Lender will make available its
Pro Rata Share of the amount of such Borrowing in immediately available
funds at the Payment Office of the Agent. The Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Agent in a timely manner by crediting such amounts to
Borrower's demand deposit account maintained with the Agent or at
Borrower's option, to effect a wire transfer of such amounts to Borrower's
account specified by the Borrower, by the close of business on such
Business Day. In the event that the Lenders do not make such amounts
available to the Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the
manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business
Day).
(b) Unless the Agent shall have been notified by any Lender prior to
the date of a Borrowing that such Lender does not intend to make available
to the Agent such Lender's portion of the Borrowing to be made on such
date, the Agent may assume that such Lender has made such amount available
to the Agent on such date and the Agent may make available to Borrower
20
a corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Lender on the date of such
Borrowing, the Agent shall be entitled to recover such corresponding amount
on demand from such Lender together with interest at the Federal Funds
Rate. If such Lender does not pay such corresponding amount forthwith upon
the Agent's demand therefor, the Agent shall promptly notify Borrower, and
Borrower shall immediately pay such corresponding amount to the Agent
together with interest at the rate specified for the Borrowing. Nothing in
this subsection shall be deemed to relieve any Lender from its obligation
to fund its Commitments hereunder or to prejudice any rights which Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Borrowings under the Syndicate Revolving Loan shall be loaned
by the Lenders on the basis of their Pro Rata Share of the Revolving Loan
Commitments. No Lender shall be responsible for any default by any other
Lender in its obligations hereunder, and each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to fund its Commitments hereunder.
SECTION 4.3 INTEREST.
--------
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Revolving Loans and Line of Credit Loans from the respective
dates such principal amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at rates per annum (on the
basis of a 360 day year) equal to the applicable rates indicated below:
(i) For Revolving Loan Base Rate Advances--The Base Rate in
effect from time to time;
(ii) For Revolving Loan LIBOR Advances--The applicable LIBOR
plus seventy basis points (.70%);
(iii) For Revolving Loan BA Rate Advances--The applicable BA Rate
plus seventy-five basis points (.75%); and
(iv) For Line of Credit Loans--The rate or rates which shall be
mutually agreed upon from time to time by the Borrower and SunTrust
for each such Line of Credit Loan.
(b) Overdue principal (whether by non-payment at scheduled due date,
acceleration, notice of prepayment or otherwise) and, to the extent not
21
prohibited by applicable law, overdue interest, in respect of the Revolving
Loans and Line of Credit Loans and all other overdue amounts owing
hereunder, shall bear interest from each date that such amounts are overdue
at the Default Rate.
(c) Interest on each Loan shall accrue from and including the date of
such Loan to but excluding the date of any repayment thereof; provided
--------
that, if a Loan is repaid on the same day made, one day's interest shall be
paid on such Loan. Interest on all outstanding Advances of every type and
all outstanding Line of Credit Loans shall be payable monthly in arrears on
the first calendar day of each month. At the Agent's discretion, interest
on all outstanding LIBOR Advances, BA Rate Advances and Line of Credit
Loans shall also be payable on the last day of each Interest Period
applicable thereto. Interest on all Loans shall be payable on any
conversion of any Advances comprising such Loans into Advances of another
Type, prepayment (on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and, after maturity, on
demand.
SECTION 4.4 INTEREST PERIODS. In connection with the making or
----------------
continuation of, or conversion into, each Syndicate Revolving Loan comprised of
LIBOR Advances or BA Rate Advances, Borrower shall select an interest period
(each an "Interest Period") to be applicable to such LIBOR Advances or BA Rate
Advances, which Interest Period shall be (i) either a 1, 2, 3 or 6 month period
as to LIBOR Advances or (ii) either a 30, 60 or 90 day period as to BA Rate
Advances; provided that:
-------- ----
(a) The initial Interest Period for any Borrowing of LIBOR Advances or
BA Rate Advances shall commence on the date of such Borrowing (including
the date of any conversion from a Borrowing consisting of Advances of
another Type) and each Interest Period occurring thereafter in respect of
such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(b) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period in respect of
LIBOR Advances or BA Rate Advances would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(c) Any Interest Period in respect of LIBOR Advances or BA Rate
Advances which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period
shall, subject to part (iv) below, expire on the last Business Day of such
calendar month;
22
(d) No Interest Period shall extend beyond any date upon which any
principal payment is due with respect to the Revolving Loans.
SECTION 4.5 FEES.
----
(a) Borrower shall pay to SunTrust Capital Markets, Inc. on the
Closing Date, the structuring and syndication fee as required by the Fee
Letter.
(b) Borrower shall pay to the Agent, for the account of and
distribution to each Lender, a commitment fee for the period commencing on
the Closing Date to and including the Termination Date, computed at a rate
equal to five-hundredths of one percent (.05%) per annum on the average
daily unused portions of the Revolving Loan Commitment, and the Line of
Credit Commitment of each Lender, such fee being payable quarterly in
arrears on the last calendar day of each fiscal quarter of Borrower and on
the Termination Date.
(c) Annual Administrative Fee. Borrower shall pay to the Agent an
-------------------------
annual administrative fee, in advance, as set forth in the Fee Letter.
SECTION 4.6 VOLUNTARY PREPAYMENTS OF BORROWINGS.
-----------------------------------
(a) Borrower may, at its option, prepay Borrowings consisting of Base
Rate Advances at any time in whole, or from time to time in part, in
amounts aggregating $5,000,000 or any greater integral multiple of
$1,000,000, by paying the principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of prepayment. Those
Borrowings consisting of LIBOR Advances or BA Rate Advances may be prepaid,
at Borrower's option, in whole, or from time to time in part, in the
respective minimum amounts set forth in this Section 4.6(a) by paying the
principal amount to be prepaid, together with interest accrued and unpaid
thereon to the date of prepayment, and all compensation payments pursuant
to Section 4.12 if such prepayment is made on a date other than the last
day of an Interest Period applicable thereto. Each such optional
prepayment shall be applied in accordance with Section 4.6(c) below.
(b) Borrower shall give written notice (or telephonic notice confirmed
in writing) to the Agent of any intended prepayment of the Revolving Loans
or Line of Credit Loans (i) not less than one Business Day prior to any
prepayment of Base Rate Advances, and (ii) not less than three Business
Days prior to any prepayment of LIBOR Advances or BA Rate Advances. Such
notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment pursuant to the first sentence of this paragraph (b), the Agent
23
shall promptly notify each Lender of the contents of such notice and of
such Lender's share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to Section
4.6(b) may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid, provided that (i) if any prepayment of
LIBOR Advances or BA Rate Advances made pursuant to a single Borrowing of
the Revolving Loans shall reduce the outstanding Advances made pursuant to
such Borrowing to an amount less than $1,000,000, such Borrowing shall
immediately be converted into Base Rate Advances; and (ii) each prepayment
made pursuant to a single Borrowing shall be applied pro rata among the
Loans comprising such Borrowing. All voluntary prepayments shall be
applied to the payment of any unpaid interest before application to
principal.
SECTION 4.7 PAYMENTS, ETC.
-------------
(a) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents shall be made without
defense, set-off or counterclaim to the Agent, not later than 12:00 noon
(local time for the Agent) on the date when due and shall be made in
Dollars in immediately available funds at the respective Payment Office.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of
principal, interest, fees or other amounts payable hereunder or thereunder
(but excluding any Taxes imposed on the overall net income of the Lenders
pursuant to the laws of the jurisdiction in which the principal executive
office or appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the Notes and
other Credit Documents, after withholding or deduction for or on account of
any such Taxes (including additional sums payable under this Section 4.7),
will not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority
in accordance with applicable law. Borrower will furnish to the Agent and
each Lender, within 30 days after the date the payment of any Taxes is due
pursuant to applicable law, certified copies of tax receipts evidencing
such payment by Borrower. Borrower will indemnify and hold harmless the
Agent and each Lender and reimburse the Agent and each Lender upon written
request for the amount of any Taxes so levied or imposed and paid by the
24
Agent or Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes were correctly or illegally asserted. A certificate as to the amount
of such payment by such Lender or the Agent, absent manifest error, shall
be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Agent, prior to the time it becomes a Lender hereunder, two copies of
either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 or any successor forms thereto (wherein such Lender
claims entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by Borrower hereunder) and to
provide to Borrower and the Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of
any previously delivered form; provided, however, that no Lender shall be
-------- -------
required to furnish a form under this paragraph (ii) if it is not entitled
to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from
or a reduced rate of withholding under applicable law, promptly upon
written request of Borrower, shall so inform Borrower in writing.
(c) Whenever any payment to be made hereunder or under any Note 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 and, with
respect to payments of principal, interest thereon shall be payable at the
applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed). Interest on Base Rate Advances shall be calculated based on the
Base Rate from and including the date of such Loan to but excluding the
date of the repayment or conversion thereof. Interest on LIBOR Advances or
BA Rate Advances shall be calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof.
Each determination by the Agent of an interest rate or fee hereunder shall
be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
25
(e) Payment by Borrower to the Agent in accordance with the terms of
this Agreement shall, as to Borrower, constitute payment to the Lenders
under this Agreement.
SECTION 4.8 INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that the
------------------------------------
Agent shall have determined (which determination shall be made in good faith
and, absent manifest error, shall be final, conclusive and binding upon all
parties) that on any date for determining LIBOR or the BA Rate for any Interest
Period, by reason of any changes arising after the date of this Agreement,
adequate and fair means do not exist for ascertaining LIBOR or the BA Rate then,
and in any such event, the Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the Lenders of such determination and a
summary of the basis for such determination. Until the Agent notifies Borrower
that the circumstances giving rise to the suspension described herein no longer
exist, the obligations of the Lenders to make or permit portions of the
Revolving Loans to remain outstanding past the last day of the then current
Interest Periods as LIBOR Advances or BA Rate Advances shall be suspended, and
such affected Advances shall bear the same interest as Base Rate Advances.
SECTION 4.9 ILLEGALITY.
----------
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall
be final, conclusive and binding upon all parties) at any time that the
making or continuance of any LIBOR Advance has become unlawful or
impractical by compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Lender shall give prompt
notice (by telephone confirmed in writing) to Borrower and to the Agent of
such determination and a summary of the basis for such determination (which
notice the Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make LIBOR Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of LIBOR
Advances as a Base Rate Advance, which Base Rate Advance shall, for all
other purposes, be considered part of such Borrowing, and (ii) if the
affected LIBOR Advance or Advances are then outstanding, Borrower shall
immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one Business Day's written notice to the
Agent and the affected Lender, convert each such Advance into an Advance or
Advances of a different Type with an Interest Period ending on the date on
which the Interest Period applicable to the affected LIBOR Advances
26
expires, provided that if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant to this
Section 4.9(b).
SECTION 4.10 INCREASED COSTS.
---------------
(a) If, by reason of (i) after the date hereof, the introduction of or
any change (including, without limitation, any change by way of imposition
or increase of reserve requirements) in or in the interpretation of any law
or regulation, or (ii) the compliance with any guideline or request from
any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(1) any Lender (or its applicable Lending Office) shall be
subject to any tax, duty or other charge with respect to its LIBOR
Advances or its obligation to make LIBOR Advances, or the basis of
taxation of payments to any Lender of the principal of or interest on
its LIBOR Advances or its obligation to make LIBOR Advances shall have
changed (except for changes in the tax on the overall net income of
such Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive office or
applicable Lending Office is located); or
(2) any reserve (including, without limitation, any imposed by
the Board of Governors of the Federal Reserve System), special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender's applicable Lending
Office shall be imposed or deemed applicable or any other condition
affecting its LIBOR Advances or its obligation to make LIBOR Advances
shall be imposed on any Lender or its applicable Lending Office or the
London interbank market or the United States secondary certificate of
deposit market;
and as a result thereof there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining LIBOR
Advances, or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office, then Borrower
shall from time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 4.7(b)), upon written notice from and
demand by such Lender on Borrower (with a copy of such notice and demand to
the Agent), pay to the Agent for the account of
27
such Lender within five Business Days after the date of such notice and
demand, additional amounts sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased cost,
submitted to Borrower and the Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall, except
for manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time, because of
the circumstances described in clauses (i) or (ii) in paragraph 4.10(a)
above or any other circumstances beyond such Lender's control arising after
the date of this Agreement affecting such Lender or the London interbank
market or such Lender's position in such market, LIBOR as determined by the
Agent will not adequately and fairly reflect the cost to such Lender of
funding its LIBOR Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed
in writing) to Borrower and to the other Lenders of such advice;
(ii) Borrower's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding past the
last day of the then current Interest Periods as LIBOR Advances shall
be immediately suspended; and
(iii) such Lender shall make a Loan as part of the requested
Borrowing of LIBOR Advances as a Base Rate Advance, which such Base
Rate Advance shall, for all other purposes, be considered part of such
Borrowing.
SECTION 4.11 LENDING OFFICES.
---------------
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
LIBOR Advances affected by the matters or circumstances described in
Sections 4.7(b), 4.8, 4.9 or 4.10 to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 4.11 shall affect or postpone any
of
28
the obligations of Borrower or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the
closing of its lending offices in the United States such that any
withholdings or deductions and additional payments with respect to Taxes
may be required to be made by Borrower thereafter pursuant to Section
4.7(b), such Lender shall use reasonable efforts to furnish Borrower notice
thereof as soon as practicable thereafter; provided, however, that no delay
or failure to furnish such notice shall in any event release or discharge
Borrower from its obligations to such Lender pursuant to Section 4.7(b) or
otherwise result in any liability of such Lender.
SECTION 4.12 FUNDING LOSSES. Borrower shall compensate each Lender, upon
--------------
its written request to Borrower (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its LIBOR Advances and BA Rate Advances,
in either case to the extent not recovered by such Lender in connection with the
reemployment of such funds and including loss of anticipated profits), which the
Lender may sustain: (i) if for any reason (other than a default by such Lender)
a borrowing of, or conversion to or continuation of, LIBOR Advances or BA Rate
Advances to Borrower does not occur on the date specified therefor in a Notice
of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn),
(ii) if any repayment (including mandatory prepayments and any conversions
pursuant to Section 4.9(b)) of any LIBOR Advances or BA Rate Advances to
Borrower occurs on a date which is not the last day of an Interest Period
applicable thereto, or (iii) if, for any reason, Borrower defaults in its
obligation to repay its LIBOR Advances or BA Rate Advances when required by the
terms of this Agreement.
SECTION 4.13 ASSUMPTIONS CONCERNING FUNDING OF LIBOR ADVANCES.
------------------------------------------------
Calculation of all amounts payable to a Lender under this Article shall be
made as though that Lender had actually funded its relevant LIBOR Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Advances in an amount equal to the amount of the
LIBOR Advances and having a maturity comparable to the relevant Interest Period
and through the transfer of such LIBOR Advances from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided however, that each Lender may fund each of its LIBOR Advances in any
- ----------------
manner it sees fit and
29
the foregoing assumption shall be used only for calculation of amounts payable
under this Article IV.
SECTION 4.14 APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
-------------------------
payments in respect of Loans and payments in respect of facility fees and
commitment fees shall be apportioned among all outstanding Commitments and Loans
to which such payments relate, proportionately to the Lenders' respective pro
rata portions of such Commitments and outstanding Loans. The Agent shall
promptly distribute to each Lender at its payment office set forth beside its
name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Agent.
SECTION 4.15 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
------------------------
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its pro rata portion of
payments or reductions on account of such obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders and
Agent of such receipt, and (ii) purchase from the other Lenders such
participations in the affected obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender obligated to
return such funds is required to pay interest on such funds. Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 4.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of Borrower in
the amount of such participation.
SECTION 4.16 CAPITAL ADEQUACY. Without limiting any other provision of
----------------
this Agreement, in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's
30
capital as a consequence of its obligations hereunder to a level below that
which such Lender could have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then within ten (10) Business Days
after written notice and demand by such Lender (with copies thereof to the
Agent), Borrower shall from time to time pay to such Lender additional amounts
sufficient to compensate such Lender for such reduction (but, in the case of
outstanding Base Rate Advances, without duplication of any amounts already
recovered by such Lender by reason of an adjustment in the applicable Base
Rate). Each certificate as to the amount payable under this Section 4.16 (which
certificate shall set forth the basis for requesting such amounts in reasonable
detail), submitted to Borrower by any Lender in good faith, shall, absent
manifest error, be final, conclusive and binding for all purposes.
SECTION 4.17 BENEFITS TO GUARANTORS. In consideration for the execution
----------------------
and delivery by the Guarantors of their Guaranty Agreements, Borrower agrees to
make the benefit of extensions of credit hereunder available to the Guarantors.
SECTION 4.18 RETURN OF PAYMENTS. If the Agent shall be required by any
------------------
court, trustee or debtor-in-possession or other person to return any amount
previously received by it in respect of the obligations under this Agreement,
upon receipt of notice from it, each Lender shall immediately pay over to it,
such Lender's Pro Rata Share of the amount to be returned.
ARTICLE V
CONDITIONS TO BORROWINGS
------------------------
The obligations of each Lender to make Advances to Borrower hereunder is
subject to the satisfaction of the following conditions:
SECTION 5.1 CONDITIONS PRECEDENT TO INITIAL LOANS. At the time of the
-------------------------------------
making of the initial Loans hereunder on the Closing Date, all obligations of
Borrower hereunder incurred prior to the initial Loans (including, without
limitation, Borrower's obligations to reimburse the reasonable fees and expenses
of counsel to the Agent and any fees and expenses payable to the Agent and the
Lenders as previously agreed with Borrower), shall have been paid in full, and,
except as provided in Section 5.1(f), the Agent shall have received the
following, in form and substance reasonably satisfactory in all respects to the
Agent:
(a) the duly executed counterparts of this Agreement;
31
(b) the duly completed Revolving Notes evidencing the Revolving Loan
Commitments and the duly executed Line of Credit Note evidencing the Line
of Credit Commitment;
(c) the Guaranty Agreements;
(d) certificate of Borrower in substantially the form of Exhibit G
---------
attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties, attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing as applicable
the execution, delivery and performance of the Credit Documents;
(f) certificates of the Secretary or an Assistant Secretary of each of
the Credit Parties certifying (i) the name, title and true signature of
each officer of such entities executing the Credit Documents, and (ii) the
articles of incorporation and the bylaws or comparable governing documents
of such entities;
(g) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of
Law or by any material Contractual Obligation of the Credit Parties, in
connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
executed and delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired;
(h) certified copies of indentures, credit agreements, leases, capital
leases, instruments, and other documents evidencing or securing
Indebtedness of any Consolidated Company described on Schedule 8.1(b), in
---------------
any single case in an amount not less than $1,000,000;
(i) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations
arising from matters relating to employees of the Consolidated Companies,
including employee relations, collective bargaining agreements, Plans, and
other compensation and employee benefit plans;
(j) certificates, reports, environmental audits and investigations,
and other information as the Agent may reasonably request from any
Consolidated Company in order to satisfy the Lenders as to the absence of
any material liabilities or obligations under Environmental Laws which
could reasonably be expected to have a Materially Adverse Effect;
32
(k) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations
arising from litigation (including without limitation, products liability,
patent infringement and malpractice claims) pending or threatened against
the Consolidated Companies;
(l) a summary, set forth in format and detail reasonably acceptable to
the Agent, of the types and amounts of insurance (property and liability)
maintained by the Consolidated Companies;
(m) the favorable opinion of Winderweedle, Haines, Ward & Woodman,
P.A., counsel to the Credit Parties, substantially in the form of Exhibit H
---------
addressed to the Agent and each of the Lenders; and
(n) financial statements of Borrower and its Subsidiaries, on a
consolidated basis, for the most recently completed fiscal year.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Agent, as of the time the initial
Loans are made hereunder:
(o) payment in full and termination of all outstanding senior
indebtedness of the Borrower and its Material Subsidiaries and the release
of any liens securing the same; provided, however, the following
indebtedness may remain outstanding: (i) all Capitalized Lease Obligations
described on Schedule 6.7; and (ii) installment notes described on Schedule
------------ --------
8.1(b);
---
(p) the Loans to be made on the Closing Date and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve the
Agent or any Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority;
(q) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of
the Credit Documents shall be reasonably satisfactory in form and substance
to the Required Lenders; and
(r) the status of all pending and threatened litigation (including
products liability, malpractice and patent claims) described on Schedule
--------
6.5, including a description of any damages sought and the claims
---
constituting the basis therefor, shall have been reported in writing to the
Agent, the Agent shall have reported such matters to the Lenders, and the
Lenders shall be satisfied with such status.
33
SECTION 5.2 CONDITIONS TO ALL LOANS. At the time of the making of all
-----------------------
Loans (before as well as after giving effect to such Loans and to the proposed
use of the proceeds thereof), the following conditions shall have been satisfied
or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the
date of such Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 6.3, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect.
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or
more Credit Party's ownership or operation of any portion of its business
or assets, or to compel one or more Credit Party to dispose of or hold
separate all or any portion of its businesses or assets, where such portion
or portions of such business(es) or assets, as the case may be, constitute
a material portion of the total businesses or assets of the Consolidated
Companies;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agent or any Lender in
a violation of, any law, rule, injunction, or regulation, or determination
of any court of law or other governmental authority applicable to Borrower;
and
(f) the Agent shall have received such other documents, including, but
not limited to a properly completed Notice of Borrowing, or legal opinions
as the Agent or any Lender may reasonably request, all in form and
substance reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by Borrower of the proceeds
thereof shall constitute a representation and warranty by Borrower, as of the
date of the Loans comprising such Borrowing, that the applicable conditions
specified in Sections 5.1 and 5.2 have been satisfied.
34
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents, warrants and covenants to Lenders that:
SECTION 6.1 ORGANIZATION AND QUALIFICATION. Borrower is a corporation
------------------------------
duly organized and existing in good standing under the laws of the State of
Florida. Each Subsidiary of Borrower is a corporation duly organized and
existing under the laws of the jurisdiction of its incorporation. Borrower and
each of its Subsidiaries are duly qualified to do business as a foreign
corporation and are in good standing in each jurisdiction in which the character
of their properties or the nature of their business makes such qualification
necessary, except for such jurisdictions in which a failure to qualify to do
business would not have a Materially Adverse Effect. Borrower and each of its
Material Subsidiaries have the corporate power to own their respective
properties and to carry on their respective businesses as now being conducted.
The jurisdiction of incorporation or organization, and the ownership of all
issued and outstanding capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 6.1. Schedule 6.1 also designates
------------ ------------
all Subsidiaries of the Borrower as of the Closing Date and specifies whether
each is a Material Subsidiary.
SECTION 6.2 CORPORATE AUTHORITY. The execution and delivery by
-------------------
Borrower and the Guarantors of and the performance by Borrower and Guarantors of
their obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the Guarantors are a party or by which Borrower or the Guarantors or
any of their properties is bound, or (ii) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
SECTION 6.3 FINANCIAL STATEMENTS. Borrower has furnished Lenders
--------------------
with the following financial statements, identified by the Chief Financial
Officer of Borrower: audited consolidated balance sheet of the Borrower and its
Subsidiaries as at July 31, 1995, and audited consolidated statement of income
and consolidated statement of stockholders' equity of Borrower and its
Subsidiaries for the fiscal year ended on such date certified by Deloitte &
Touche, LLP, Certified Public Accountants. Such financial statements (including
any related schedules and notes) are true and correct in all material respects,
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the period or periods in question and show, in
the case
35
of audited statements, all liabilities, direct or contingent, of Borrower and
its Subsidiaries, required to be shown in accordance with generally accepted
accounting principles consistently applied throughout the period or periods in
question and fairly present the consolidated financial position and the
consolidated results of operations of Borrower and its Subsidiaries for the
periods indicated therein. There has been no material adverse change in the
business, condition or operations, financial or otherwise, of Borrower and its
Subsidiaries since July 31, 1995.
SECTION 6.4 TAX RETURNS. Except as set forth on Schedule 6.4, each
----------- ------------
of Borrower and its Material Subsidiaries has filed all federal, state and other
tax returns and reports which, to the best knowledge of the Executive Officers
of Borrower and its Subsidiaries, are required to be filed, and each has paid
all taxes as shown on said returns and all other taxes, assessments, fees and
other governmental charges upon Borrower or any of its Material Subsidiaries or
upon any of the properties, assets, incomes or franchises of Borrower or any of
its Material Subsidiaries, to the extent that such taxes, assessments, fees and
other governmental charges have become due or except such as are being contested
in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP. The Borrower and its Material Subsidiaries
have and will establish all necessary reserves and make all payments required of
them to be set aside or made in regard to all F.I.C.A., withholding, sales or
excise and all other similar federal, state and local taxes.
SECTION 6.5 ACTIONS PENDING. Except as disclosed on Schedule 6.5
--------------- ------------
hereto, there is no action, suit, investigation or proceeding pending or, to the
knowledge of Borrower, threatened against or affecting Borrower or any of its
Material Subsidiaries or any of their properties or rights, by or before any
court, arbitrator or administrative or governmental body, which might result in
any Materially Adverse Effect.
SECTION 6.6 REPRESENTATIONS; NO DEFAULTS. At the time of each
----------------------------
Extension of Credit there shall exist no Default or Event of Default, and each
Extension of Credit shall be deemed a renewal by Borrower of the representations
and warranties contained in this Agreement and an affirmative statement by
Borrower that such representations and warranties are true and correct in all
material respects on and as of such time with the same effect as though such
representations and warranties had been made on and as of such time.
SECTION 6.7 TITLE TO PROPERTIES; CAPITALIZED LEASES. Each of
---------------------------------------
Borrower and its Material Subsidiaries has (i) good and marketable fee simple
title to its respective real properties (other than real properties which it
leases from others), including such real properties reflected in the
consolidated balance sheet of Borrower and its Subsidiaries described in Section
6.3 above (other than real properties disposed of in the ordinary course of
36
business), subject to no Lien of any kind except Liens permitted by Section 8.2
and (ii) good title to all of its other respective properties and assets (other
than properties and assets which it leases from others), including the other
properties and assets reflected in the consolidated balance sheet of Borrower
and its Subsidiaries described in Section 6.3 above (other than properties and
assets disposed of in the ordinary course of business), subject to no Lien of
any kind except Liens permitted by Section 8.2. Each of Borrower and its
Material Subsidiaries enjoys peaceful and undisturbed possession under all
leases necessary in any material respect for the operation of its respective
properties and assets, none of which contains any unusual or burdensome
provisions which might materially affect or impair the operation of such
properties and assets, and all such leases are valid and subsisting and in full
force and effect. There are no Capitalized Lease Obligations except as
disclosed on Schedule 6.7 hereto.
------------
SECTION 6.8 ENFORCEABILITY OF AGREEMENT. This Agreement is the
---------------------------
legal, valid and binding agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Notes, and all other Credit Documents, when
executed and delivered, will be similarly legal, valid, binding and enforceable,
except as the enforceability of the Notes and other Credit Documents may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditor's rights and remedies in general and by general principles of
equity, whether considered in a proceeding at law or in equity.
SECTION 6.9 CONSENT. No consent, permission, authorization, order or
-------
license of or filing with any governmental authority or Person which has not
been obtained or made is necessary in connection with the execution, delivery,
performance or enforcement of the Credit Documents by the Credit Parties, or in
order to constitute the indebtedness to be incurred hereunder and under the
Notes and the other Credit Documents as "Senior Debt" or any similar term
defined within each of the Subordinated Notes.
SECTION 6.10 USE OF PROCEEDS; FEDERAL RESERVE REGULATIONS. The
--------------------------------------------
proceeds of the Notes will be used solely for the purposes specified in Section
2.1(e) and 3.1(c) and none of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin security" or
"margin stock" or for the purpose of reducing or retiring any indebtedness that
originally was incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the regulations of the Board of Governors
of the Federal Reserve System.
37
SECTION 6.11 ERISA.
-----
(a) Identification of Certain Plans. Schedule 6.11 hereto sets forth
------------------------------- -------------
all Plans of Borrower and its Subsidiaries;
(b) Compliance. Each Plan is being maintained, by its terms and in
----------
operation, in accordance with all applicable laws, except such
noncompliance (when taken as a whole) that will not have a materially
adverse effect on the Borrower and its Subsidiaries taken as a whole, or
upon their financial condition, assets, business, operations, liabilities
or prospects;
(c) Liabilities. Neither the Borrower nor any Subsidiary is currently
-----------
or will become subject to any liability (including withdrawal liability),
tax or penalty whatsoever to any person whomsoever with respect to any Plan
including, but not limited to, any tax, penalty or liability arising under
Title I or Title IV or ERISA or Chapter 43 of the Code, except such
liabilities (when taken as a whole) as will not have a materially adverse
effect on the Borrower and its Subsidiaries taken as a whole, or upon their
financial condition, assets, business, operations, liabilities or
prospects; and
(d) Funding. The Borrower and each ERISA Affiliate has made full and
-------
timely payment of all amounts (i) required to be contributed under the
terms of each Plan and applicable law and (ii) required to be paid as
expenses of each Plan, except where such non-payment would not have a
Material Adverse Effect. No Plan has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) except as
disclosed on Schedule 6.11. No Plan is subject to a waiver or extension of
-------------
the minimum funding requirements under ERISA or the Code, and no request
for such waiver or extension is pending.
SECTION 6.12 SUBSIDIARIES. As of the Closing Date, the only Subsidiaries
------------
of the Borrower are those listed on Schedule 6.1. All the outstanding shares of
------------
stock of each Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such Schedule
--------
6.1, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any
- ---
Lien or claim.
Each Subsidiary (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of its incorporation with the power
and authority (corporate and other) to carry on its business as it is now
conducted and (ii) is qualified to transact business as a foreign corporation
and is in good standing in each jurisdiction in which such qualification is
required under applicable law, except for such jurisdictions in which a failure
to qualify to do business would not have a Materially Adverse Effect.
38
SECTION 6.13 OUTSTANDING DEBT. Except as set forth on Schedule 6.13 as of
---------------- -------------
the date of closing and after giving effect to the transactions contemplated by
this Agreement, neither Borrower nor any of its Subsidiaries has outstanding any
Debt except as permitted by Section 8.1 and there exists no default, and, after
giving effect to the transactions contemplated in this Agreement, there will
exist no default under the provisions of any instrument evidencing such Debt or
of any agreement relating thereto except as noted on Schedule 6.13.
-------------
SECTION 6.14 CONFLICTING AGREEMENTS. Neither Borrower nor any of its
----------------------
Subsidiaries is a party to any contract or agreement or subject to any charter,
bylaw or other corporate restriction which materially and adversely affects its
business, property or assets, or financial condition. Assuming the consummation
of the transactions contemplated by this Agreement, neither the execution or
delivery of this Agreement or the Credit Documents, nor fulfillment of or
compliance with the terms and provisions hereof and thereof, will conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien upon any of the properties or assets of Borrower or any of its Subsidiaries
pursuant to, the charter or By-Laws of Borrower or any of its Subsidiaries, any
award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which Borrower or any of its Subsidiaries is subject, and neither
Borrower nor any of its Subsidiaries is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of Borrower or any of its
Subsidiaries, any agreement relating thereto or any other contract or agreement
(including its charter) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the type to be evidenced by the Notes
or contains dividend or redemption limitations on Common Stock of Borrower,
except for this Agreement, Borrower's Certificate of Incorporation and those
matters listed on Schedule 6.14 attached hereto.
-------------
SECTION 6.15 ENVIRONMENTAL MATTERS.
---------------------
(a) Except as set forth on Schedule 61.5(a), each of the Borrower and
----------------
its Subsidiaries has complied in all material respects (except for
instances of noncompliance that have been resolved prior to the Closing
Date) with all applicable Environmental Laws, including without limitation,
compliance with permits, licenses, standards, schedules and timetables
issued pursuant to Environmental Laws, and is not in violation of, and does
not presently have outstanding any liability under, has not been notified
that it is or may be liable under and does not have knowledge of any
liability or potential liability under any applicable Environmental Law,
including without limitation, the Resource Conservation and Recovery Act of
1976, as amended ("RCRA"), the Comprehensive Environmental
39
Response, Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"), the
Federal Water Pollution Control Act, as amended ("FWPCA"), the Federal
Clean Air Act, as amended ("FCAA"), and the Toxic Substance Control Act
("TSCA"), which violation, liability or potential liability could
reasonably be expected to have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), neither the Borrower
----------------
nor any of its Subsidiaries has received a written request for information
under CERCLA or any analogous state law, or written notice that any such
entity has been identified as a potential responsible party under CERCLA,
or any analogous state law, nor has any such entity received any written
notification that any Hazardous Substance that it or any of its respective
predecessors in interest has generated, stored, treated, handled,
transported, or disposed of, has been released or is threatened to be
released at any site at which any Person intends to conduct or is
conducting a remedial investigation or other action pursuant to any
applicable Environmental Law, or any other Environmental Laws.
(c) Except as set forth on Schedule 6.15(c), each of the Borrower and
----------------
its Subsidiaries has obtained all permits, licenses or other authorizations
which are material for the conduct of their respective operations under all
applicable Environmental Laws and with respect to which each such
authorization is in full force and effect.
(d) Except as set forth in Schedule 6.15(d), each of Borrower and its
----------------
Subsidiaries complies in all material respects with all laws and
regulations relating to equal employment opportunity and employee safety in
all jurisdictions in which it is presently doing business.
SECTION 6.16 POSSESSION OF FRANCHISES, LICENSES, ETC. Each of Borrower
---------------------------------------
and its Material Subsidiaries possesses all franchises, certificates, licenses,
permits and other authorizations from governmental political subdivisions or
regulatory authorities, free from burdensome restrictions, that are necessary in
any material respect for the ownership, maintenance and operation of its
properties and assets, and neither Borrower nor any of its Subsidiaries is in
violation of any thereof in any material respect.
SECTION 6.17 PATENTS, TRADEMARKS, ETC. Except as set forth on Schedule
------------------------ --------
6.17, each of Borrower and its Material Subsidiaries owns or has the right to
- ----
use all patents, trademarks, service marks, trade names, copyrights, licenses,
franchises and other rights, which are necessary for the operation of its
business as presently conducted or proposed to be conducted without any known
conflict with the rights of others, and, in each case, subject to no mortgage,
pledge, lien, lease, encumbrance, charge, security
40
interest, title retention agreement or option. Each such asset or agreement is
in full force and effect, and the holder thereof has fulfilled and performed all
of its obligations with respect thereto. No event has occurred or exists which
permits, or after notice or lapse of time or both would permit, revocation or
termination, or which materially, adversely affects or in the future may (to the
knowledge of any Executive Officer) materially adversely affect, the rights of
such holder thereof with respect thereto. No other license or franchise is
known by any Executive Officer to be necessary to the operations of the business
of the Borrower and its Material Subsidiaries as now conducted or proposed to be
conducted. To the knowledge of any Executive Officer (i) no product, process,
method, substance, part, piece of equipment or other material presently
contemplated to be sold by or employed by Borrower or any of its Material
Subsidiaries in connection with its business may infringe any patent, trademark,
service mark, trade name, copyright, license or other right owned by any other
Person, (ii) there are no pending or threatened claim or litigation against or
affecting Borrower or any of its Subsidiaries contesting its right to sell or
use any such product, process, method, substance, part, piece of equipment or
other material or (iii) there is no, or there is no pending or proposed, patent,
invention, device, application or principle or any statute, law, rule,
regulation, standard or code which would prevent, inhibit or render obsolete the
production or sale of any products of, or substantially reduce the projected
revenues of, or otherwise materially adversely affect the Borrower or any of its
Material Subsidiaries.
SECTION 6.18 GOVERNMENTAL CONSENT. Neither the nature of Borrower or any
--------------------
of its Subsidiaries nor any of their respective businesses or properties, nor
any relationship between Borrower and any other Person, nor any circumstance in
connection with the execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby is such as to require on
behalf of Borrower or any of its Material Subsidiaries any consent, approval or
other action by or any notice to or filing with any court or administrative or
governmental body in connection with the execution and delivery of this
Agreement and the Credit Documents.
SECTION 6.19 DISCLOSURE. Neither this Agreement nor the Credit Documents
----------
nor any other document, certificate or written statement furnished to Lenders by
or on behalf of Borrower in connection herewith contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no fact
peculiar to Borrower which materially adversely affects or in the future may (so
far as Borrower can now foresee) materially adversely affect the business,
property or assets, financial condition of Borrower which has not been set forth
in this Agreement or in the Credit Documents, certificates and written
statements furnished to Lenders by or on behalf of Borrower prior to the date
hereof in connection with the transactions contemplated hereby.
41
SECTION 6.20 INSURANCE COVERAGE. Each property of Borrower or any of its
------------------
Subsidiaries is insured within terms acceptable to Lenders for the benefit of
Borrower or a Subsidiary of Borrower in amounts deemed adequate by Borrower's
management and no less than those amounts customary in the industry in which
Borrower and its Subsidiaries operate against risks usually insured against by
Persons operating businesses similar to those of Borrower or its Subsidiaries in
the localities where such properties are located.
SECTION 6.21 LABOR MATTERS. Except as set forth on Schedule 6.21, the
------------- -------------
Borrower and the Borrower's Subsidiaries have experienced no strikes, labor
disputes, slow downs or work stoppages due to labor disagreements which have
had, or would reasonably be expected to have, a Materially Adverse Effect, and,
to the best knowledge of Borrower's Executive Officers, there are no such
strikes, disputes, slow downs or work stoppages threatened against any Borrower
or any of Borrower's Subsidiaries. The hours worked and payment made to
employees of the Borrower and Borrower's Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All payments due from the Borrower and
Borrower's Subsidiaries, or for which any claim may be made against the
Consolidated Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on the
books of the Borrower and Borrower's Subsidiaries where the failure to pay or
accrue such liabilities would reasonably be expected to have a Materially
Adverse Effect.
SECTION 6.22 INTERCOMPANY LOANS; DIVIDENDS. There are no Intercompany
-----------------------------
Loans as of the Closing Date except those set forth on Schedule 6.22. There are
-------------
no restrictions on the power of any Consolidated Company to repay any
Intercompany Loan or, except as provided in Section 8.13, to pay dividends on
capital stock.
SECTION 6.23 SECURITIES ACTS. Neither Borrower nor any of its
---------------
Subsidiaries nor any agent acting on their behalf has, directly or indirectly,
taken or will take any action which would subject the issuance of the Notes to
the provisions of Section 5 of the Securities Act of 1933, as amended, or to the
provisions of any securities or Blue Sky Law of any applicable jurisdiction.
SECTION 6.24 INVESTMENT COMPANY ACT; HOLDING COMPANY. Neither Borrower
---------------------------------------
nor any of its Subsidiaries is an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940 or is a "holding company," or a subsidiary or affiliate of a "holding
company," or a "public utility," within the meaning of the Public Utility
Holding Company Act of 1935, as amended or a "public utility" within the meaning
of the Federal Power Act, as amended.
SECTION 6.25 REGULATION G, ETC. Neither Borrower nor any of its
------------------
Subsidiaries nor any agent acting on their behalf has taken or will take any
action which might cause this Agreement or the Notes
42
to violate Regulation G, T, or X or any other regulation of the Board of
Governors of the Federal Reserve System or to violate the Securities Exchange
Act of 1934, and each case in effect now or as the same may hereafter be in
effect.
SECTION 6.26 CHANGES IN FINANCIAL CONDITION; ADVERSE DEVELOPMENTS. From
----------------------------------------------------
the date of the annual statements described in Section 6.3 hereinabove, to the
date of this Agreement, there has been, and to the date of each Advance there
will be, no change in the properties, assets, liabilities, financial condition,
business operations, affairs or properties of the Borrower and its Subsidiaries
on an consolidated basis from that set forth or reflected in the year-end
financial statement described in Section 6.3, other than changes in the ordinary
course of business, including acquisitions, none of which either in any case or
in the aggregate will have a Materially Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any indebtedness remains outstanding under the Notes
that it will:
SECTION 7.1 CORPORATE EXISTENCE, ETC. Preserve and maintain, and cause
-------------------------
each of its Subsidiaries to preserve and maintain, its corporate existence, its
material rights, franchises, and licenses, and its material patents and
copyrights (for the scheduled duration thereof), trademarks, trade names, and
service marks, necessary or desirable in the normal conduct of its business, and
its qualification to do business as a foreign corporation in all jurisdictions
where it conducts business or other activities making such qualification
necessary, where the failure to do so would reasonably be expected to have a
Materially Adverse Effect.
SECTION 7.2 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
-------------------------
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 7.7(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of $100,000 in the aggregate) and Contractual Obligations applicable
to or binding on any of them.
SECTION 7.3 PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of
--------------------------------
its Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
43
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto.
SECTION 7.4 KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries
----------------
to keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
SECTION 7.5 VISITATION, INSPECTION, ETC. Permit, and cause each of its
----------------------------
Subsidiaries to permit, any representative of the Agent or any Lender to visit
and inspect any of its property, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs, finances and
accounts with its officers, all at such reasonable times and as often as the
Agent or such Lender may reasonably request after reasonable prior notice to
Borrower; provided, however, that at any time following the occurrence and
during the continuance of a Default or an Event of Default, no prior notice to
Borrower shall be required and further, provided, that in the event any
documents and records are subject to any contractual confidentiality
requirements with any Person, the right to make copies or extracts therefrom
shall be subject to the prior written consent of the Borrower, which consent
will not be unreasonably withheld.
SECTION 7.6 INSURANCE; MAINTENANCE OF PROPERTIES.
------------------------------------
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by reputable companies in the same
or similar businesses, such insurance to be of such types and in such
amounts, including such self-insurance and deductible provisions, as is
customary for such companies under similar circumstances; provided,
however, that in any event Borrower shall use its best efforts to maintain,
or cause to be maintained, insurance in amounts and with coverages not
materially less favorable to any Consolidated Company as in effect on the
date of this Agreement, except where the costs of maintaining such
insurance would, in the judgment of both Borrower and the Agent, be
excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent
Borrower from
44
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Borrower, desirable in the conduct of
its business or the business of any Consolidated Company.
SECTION 7.7 REPORTING COVENANTS. Furnish to each Lender:
-------------------
(a) Annual Financial Statements. As soon as available and in any
---------------------------
event within 90 days after the end of each fiscal year of Borrower, audited
financial statements, consisting of balance sheets of the Consolidated
Companies as at the end of such year, presented on a consolidated basis,
and the related statements of income, shareholders' equity, and cash flows
of the Consolidated Companies for such fiscal year, presented on a
consolidated basis, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and
accompanied by a report thereon of Deloitte & Touche, LLP, or other
independent public accountants of comparable recognized national standing,
which such report shall be unqualified as to going concern and scope of
audit and shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such fiscal year
on a consolidated basis, and the results of operations and statements of
cash flows of the Consolidated Companies for such fiscal year in accordance
with GAAP and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
GAAP;
(b) Quarterly Financial Statements. As soon as available and in any
------------------------------
event within 45 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a consolidated basis
and the related statements of income, shareholders' equity, and cash flows
of the Consolidated Companies for such fiscal quarter and for the portion
of Borrower's fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and certified by
the Chief Financial Officer or other authorized financial officer of
Borrower acceptable to the Agent and the Required Lenders that such
financial statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal
quarter on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
quarter and such portion of Borrower's fiscal year, in accordance with GAAP
consistently applied (subject to normal year end audit adjustments and the
absence of certain footnotes);
45
(c) No Default/Compliance Certificate. Together with the financial
---------------------------------
statements required pursuant to subsections (a) and (b) above, a
certificate of the Treasurer, Chief Financial Officer or other authorized
financial officer of Borrower acceptable to the Agent and the Required
Lenders (i) to the effect that, based upon a review of the activities of
the Consolidated Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such fiscal
year or such fiscal quarter with the covenants contained in Section 7.8 and
Sections 8.1 through 8.4;
(d) Notice of Default. Promptly after any Executive Officer of
-----------------
Borrower has notice or knowledge of the occurrence of an Event of Default
or a Default, a certificate of the chief financial officer or principal
accounting officer of Borrower specifying the nature thereof and the
proposed response thereto;
(e) Litigation. Promptly after (i) the occurrence thereof, notice of
----------
the institution of or any adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property
thereof which might have a Materially Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration, together with any information and
documentation relating thereto, as may be requested; notwithstanding
anything to the contrary contained in this subsection, the Borrower shall
promptly advise the Lenders, in writing, of the threatened or actual filing
of any malpractice litigation against Borrower or any of its Subsidiaries
whether or not such litigation is expected to have a Materially Adverse
Effect;
(f) Environmental Notices. Promptly after receipt thereof, notice of
---------------------
any actual or alleged violation, or notice of any action, claim or request
for information, either judicial or administrative, from any governmental
authority relating to any actual or alleged claim, notice of potential
responsibility under or violation of any Environmental Law, or any actual
or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated
Company which violation, action, claim, request, spill, leak, disposal, or
release could result in penalties, fines, claims or other liabilities to
any Consolidated Company in amounts in excess
46
of $100,000 individually or when aggregated with other then pending such
matters;
(g) ERISA.
-----
(i) Promptly after the occurrence thereof with respect to any
Plan of any Consolidated Company or any ERISA Affiliate thereof, or
any trust established thereunder, notice of (1) a "reportable event"
described in Section 4043 of ERISA and the regulations issued from
time to time thereunder (other than a "reportable event" not subject
to the provisions for 30 day notice to the PBGC under such
regulations), or (2) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or 419 of
the Tax Code, where any such taxes, penalties or liabilities exceed or
could exceed $250,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC, or
to a Plan participant, beneficiary or alternative payee, any notice
required under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or
4041(c)(1)(A) of ERISA or under Section 401(a)(29) or 412 of the Tax
Code with respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental authority to terminate a
Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon the filing
thereof with the Internal Revenue Service ("IRS") or the Department of
Labor ("DOL"), a copy of IRS Form 5500 or annual report for each Plan
of any Consolidated Company or ERISA Affiliate thereof which is
subject to Title IV of ERISA;
47
(v) Upon the request of the Agent, (A) true and complete copies
of any and all documents, government reports and IRS determination or
opinion letters or rulings for any Plan of any Consolidated Company
from the IRS, PBGC or DOL, (B) any reports filed with the IRS, PBGC or
DOL with respect to a Plan of the Consolidated Companies or any ERISA
Affiliate thereof, or (C) a current statement of withdrawal liability
for each Multiemployer Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Company becoming aware
-----
thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 8.2;
(i) Public Filings, Etc. Promptly upon the filing thereof or
--------------------
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Borrower to its public security holders, of all
regular and periodic reports and all registration statements and
prospectuses, if any, filed by any of them with any securities exchange,
and of all press releases and other statements made available generally to
the public containing material developments in the business or financial
condition of Borrower and the other Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt thereof, copies of
--------------------
all financial statements of, and all reports submitted by, independent
public accountants to Borrower in connection with each annual, interim, or
special audit of Borrower's consolidated financial statements;
(k) Trademarks; Labor Disputes, Etc. Promptly upon the existence or
-------------------------------
occurrence thereof, notice of the existence or occurrence of (i) failure of
any Consolidated Company to hold in full force and effect those material
trademarks, service marks, patents, trade names, copyrights, licenses,
franchises and similar rights necessary in the normal conduct of its
business, and (ii) any strike, labor dispute, slow down or work stoppage as
described in Section 6.21;
(l) New Subsidiaries. Within 30 days after the formation or
----------------
acquisition of any Subsidiary, or any other event resulting in the creation
of a new Subsidiary, notice of the formation or acquisition of such
Subsidiary or such occurrence, including a description of the assets of
such entity, the activities in which it will be engaged, and such
48
other information as the Agent may request, together with the other
documents required by Section 7.10;
(m) Intercompany Asset Transfers. Promptly upon the occurrence
----------------------------
thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a
Guarantor (in any transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of business,
where the Asset Value of such assets is less than $1,000,000;
(n) Capitalized Lease Obligations. Promptly upon the occurrence
-----------------------------
thereof, notice and a complete description of any Capitalized Lease
Obligations entered into by any Consolidated Company.
(o) Other Information. With reasonable promptness, such other
-----------------
information about the Consolidated Companies as the Agent or any Lender may
reasonably request from time to time.
SECTION 7.8 FINANCIAL COVENANTS.
-------------------
(a) Consolidated EBITR to Consolidated IR. Maintain as at the last
-------------------------------------
day of each fiscal quarter, a ratio of Consolidated EBITR to Consolidated
IR of at least 2.0:1.0, computed on a rolling four-quarter basis, based on
information contained in the Borrower's current financial statement and its
financial statements for the preceding three quarters.
(b) Consolidated Funded Debt to Total Capitalization Ratio. Maintain
------------------------------------------------------
at all times, a maximum ratio of Consolidated Funded Debt to Total
Capitalization, of less than 0.55:1.0.
(c) Consolidated Funded Debt to Consolidated EBITDA Ratio. Maintain
-----------------------------------------------------
as at the last day of each fiscal quarter, a maximum ratio of Consolidated
Funded Debt to Consolidated EBITDA of less than 4.0:1.0. For purposes of
calculating Borrower's compliance with this ratio, Consolidated EBITDA
shall be computed on a rolling two quarter basis, based on information
contained in the Borrower's current financial statements and its financial
statements for the preceding fiscal quarter and shall be annualized by
multiplying by two (2) the result of such calculation.
(d) Consolidated Net Worth. Maintain at all times, Consolidated Net
----------------------
Worth of at least $150,000,000.00 plus (i) fifty percent (50%) of
Consolidated Net Income earned after December 31, 1995, and (ii) one
hundred percent (100%) of the net proceeds of any equity offering after the
date hereof.
(e) Consolidated Senior Funded Debt to Consolidated EBITDA. Maintain
------------------------------------------------------
as at the last day of each fiscal quarter,
49
a ratio of Consolidated Senior Funded Debt to Consolidated EBITDA of less
than 3.0:1.0. For purposes of calculating Borrower's compliance with this
ratio, Consolidated EBITDA shall be computed on a rolling two quarter
basis, based on information contained in the Borrower's current financial
statements and its financial statements for the preceding quarter and shall
be annualized by multiplying by two (2) the result of such calculation.
SECTION 7.9 NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. Immediately upon
----------------------------------------
its receipt thereof, Borrower shall furnish the Agent a copy of any notice
received by it or any other Consolidated Company from the holder(s) of
Indebtedness referred to in Section 8.1 (or from any trustee, agent, attorney,
or other party acting on behalf of such holder(s)) in an amount which, in the
aggregate, exceeds $250,000, where such notice states or claims (i) the
existence or occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness, or
(ii) the existence or occurrence of any event or condition which requires or
permits holder(s) of any Indebtedness to exercise rights under any Change in
Control Provision. Borrower agrees to take such actions as may be necessary to
require the holder(s) of any Indebtedness (or any trustee or agent acting on
their behalf) incurred pursuant to documents executed or amended and restated
after the Closing Date, to furnish copies of all such notices directly to the
Agent simultaneously with the furnishing thereof to Borrower, and that such
requirement may not be altered or rescinded without the prior written consent of
the Agent.
SECTION 7.10 ADDITIONAL GUARANTORS. Within thirty (30) days after, and
---------------------
on at least a quarterly basis, the Borrower shall give the Agent and the Lenders
prompt written notification of (i) the formation or acquisition (provided that
nothing in this Section shall be deemed to authorize or prohibit the acquisition
of any entity) of any Subsidiary not listed on Schedule 6.1, (ii) the transfer
------------
of assets to any Consolidated Company if notice thereof is required to be given
pursuant to Section 7.7(m) and as a result thereof the recipient of such assets
becomes a Subsidiary, and (iii) the occurrence of any other event creating a new
Subsidiary. Within thirty (30) days of the acquisition or formation of any new
Subsidiary, Borrower shall deliver to the Agent copies of the Articles of
Incorporation and bylaws of each such Subsidiary and shall cause such Subsidiary
to execute and deliver (i) a joinder to this Agreement in the form of Exhibit I
---------
attached hereto; (ii) a Supplement to Subsidiary Guaranty Agreement in the form
of Exhibit J attached hereto; (iii) a Negative Pledge in the form of Exhibit K
--------- ---------
attached hereto; and (iv) a Supplement to Contribution Agreement in the form of
Exhibit L attached hereto, all in the prescribed form or such other form and
- ---------
substance as may be satisfactory to the Agent and the Required Lenders. As used
in this Section, Subsidiary shall not include a Foreign Subsidiary.
50
SECTION 7.11 FISCAL YEAR. Borrower shall not change its fiscal year now
-----------
employed for accounting and reporting purposes without the prior written consent
of the Agent and the Required Lenders, which consent shall not be unreasonably
withheld.
SECTION 7.12 OWNERSHIP OF GUARANTORS. Borrower shall maintain at least
-----------------------
its percentage of ownership existing as of the date hereof of all Guarantors,
and shall not decrease its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at the time such
Person becomes a Guarantor.
SECTION 7.13 SUBORDINATION OF INTERCOMPANY LOANS. All loans or fees owed
-----------------------------------
to any Guarantor or any other Consolidated Company, or any Affiliate of any
thereof, shall, at all times, be subordinate to the Loans and the Borrower shall
cause its Subsidiaries and/or Affiliates from time to time to execute and
deliver to the Agent and the Required Lenders subordination agreements in form
and content satisfactory to the Agent and the Required Lenders.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid, Borrower will not and will not permit any Subsidiary to:
SECTION 8.1 INDEBTEDNESS. Create, incur, assume or suffer to exist any
------------
Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof or pursuant to lines
of credit in effect on the date hereof and described on Schedule 8.1(b);
---------------
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 8.2(b) provided such purchase money Indebtedness does
not exceed $1,000,000;
(d) unsecured current liabilities (other than liabilities for borrowed
money or liabilities evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of business and either (i) not
more than 30 days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed liability
maintained in conformity with GAAP;
(e) the Intercompany Loans described on Schedule 6.22 and any other
-------------
loans between Consolidated Companies as may be
51
approved by the Agent and the Required Lenders, which approval shall not be
unreasonably withheld;
(f) Subordinated Debt in form and substance acceptable to the Agent
and the Required Lenders, and evidenced by their written consent thereto,
which consent shall not be unreasonably withheld;
(g) Capitalized Lease Obligations not to exceed $1,000,000 in the
aggregate;
(h) Indebtedness arising under interest rate contracts;
(i) advances to officers and employees in the ordinary course of
business not to exceed $1,000,000 in the aggregate; and
(j) endorsements of instruments for deposit or collection in the
ordinary course of business.
SECTION 8.2 LIENS. Create, incur, assume or suffer to exist any Lien on
-----
any of its property now owned or hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the date hereof disclosed on Schedule 8.2;
------------
(b) any Lien on any property securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the acquisition cost of
such property and any refinancing thereof, provided that such Lien does not
extend to any other property, and provided further that the aggregate
principal amount of Indebtedness secured by all such Liens at any time does
not exceed $1,000,000;
(c) Liens for taxes not yet due, and Liens for taxes or Liens imposed
by ERISA which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained;
(d) Statutory Liens of landlords, existing contractual Liens of
landlords, future contractual Liens of landlords not to exceed five percent
(5%) of the number of leases in existence from time to time and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens imposed by
law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary course of business
in connection with workers, compensation, unemployment insurance and other
types of social security, or
52
to secure the performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and return-
of-money bonds and other similar obligations (exclusive of obligations for
the payment of borrowed money);
(f) Liens resulting from zoning, easements, and restrictions on the
use of such real estate, or rights reserved or vested in governmental
authority, which do not materially impair the use of such real estate; and
(f) Liens arising under ERISA.
SECTION 8.3 MERGERS, ACQUISITIONS, SALES, ETC. Merge or consolidate
---------------------------------
with any other Person, other than Borrower or another Subsidiary, or sell,
lease, or otherwise dispose of its accounts, property or other assets (including
capital stock of Subsidiaries), or, except for the purchase of capital stock as
an investment in a Subsidiary as permitted by subsection (a) in Section 8.4,
below, purchase, lease or otherwise acquire all or any substantial portion of
the property or assets (including capital stock) of any Person; provided,
however, that the foregoing restrictions on asset sales shall not be applicable
to (i) sales of equipment or other personal property being replaced by other
equipment or other personal property purchased as a capital expenditure item
having comparable values, (ii) sale, lease or transfer of assets of the Borrower
or any Subsidiary to the Borrower or to any other Subsidiary, (iii) sales of
inventory in the ordinary course of business, and (iv) other asset sales
(including the stock of Subsidiaries) where, on the date of execution of a
binding obligation to make such asset sale (provided that if the asset sale is
not consummated within six (6) months of such execution, then on the date of
consummation of such asset sale rather than on the date of execution of such
binding obligation), the Asset Value of asset sales occurring after the Closing
Date, taking into account the Asset Value of the proposed asset sale, would not
exceed ten percent (10%) of Borrower's assets, since the Closing Date; and,
provided further, that the foregoing restrictions on mergers shall not apply to
mergers involving Borrower and another entity, provided Borrower is the
surviving entity, and mergers between a Subsidiary of Borrower and Borrower or
between Subsidiaries of Borrower provided that, in either case, upon
consummation of such mergers, Borrower is in compliance with Section 8.3 hereof;
provided, however, that no transaction pursuant to clauses (i), (ii), (iv) or
the second proviso above shall be permitted if any Default or Event of Default
otherwise exists at the time of such transaction or would otherwise exist as a
result of such transaction.
SECTION 8.4 INVESTMENTS, LOANS, ETC. Make or permit to remain
------------------------
outstanding any loan or advance to, or guarantee, endorse, or otherwise be or
become contingently liable, directly or indirectly in connection with
obligations, stock or dividends of
53
any other Person, or hold any Investments in any Person, or otherwise acquire or
hold any Subsidiaries, other than:
(a) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 7.10 after the Closing Date,
all of which Subsidiaries shall be (i) other home healthcare companies
having core business comparable to that of the Borrower and which companies
and the terms of acquisition shall be acceptable to the Agent and the
Required Lenders, or (ii) primary care physician practices; provided,
however, nothing in this Section 8.4 shall be deemed to authorize or
prohibit an investment pursuant to this subsection (a) in any entity that
is not a Subsidiary and a Guarantor prior to such investment and provided,
further, however, that at the time of the request by the Borrower for a
Borrowing in the amount of $5,000,000 or more for the purpose of an
acquisition, the Borrower shall deliver to the Agent a pro-forma financial
statement on a consolidated basis satisfactory to the Agent and the
Required Lenders in form and content, which shall show the Borrower in
compliance, as at the effective date of such acquisition, with all
financial covenants and ratios contained in this Agreement;
(b) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each
case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(c) commercial paper, bankers acceptances or corporate obligations
maturing within one year from the date of creation thereof having a rating
at the time as of which any determination is made of P-1 (or higher)
according to Moody's or as A-1 (or higher) according to Standard & Poor's
corporation or the equivalent thereof if by another nationally recognized
credit rating agency;
(d) time deposits maturing within one year from the date of creation
thereof, including certificates of deposit issued by any Lender and any
office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and has
total assets aggregating at least $500,000,000, including without
limitation, any such deposits in Eurodollars issued by a foreign branch of
any such bank or trust company;
(e) Investments made by Plans; and
(f) Intercompany Loans as permitted by Section 8.1(f).
54
SECTION 8.5 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer any
-------------------------------
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 8.6 TRANSACTIONS WITH AFFILIATES.
----------------------------
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in
the ordinary course of business, with any Affiliate of any Consolidated
Company (but excluding any Affiliate which is also a Consolidated Company),
other than on terms and conditions substantially as favorable to such
Consolidated Company as would be obtained by such Consolidated Company at
the time in a comparable arm's length transaction with a Person other than
an Affiliate.
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any other assets
(excluding conveyances or transfers in the ordinary course of business) if
at the time of such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
SECTION 8.7 OPTIONAL PREPAYMENTS. Directly or indirectly, prepay,
--------------------
purchase, redeem, retire, defease or otherwise acquire, or make any optional
payment on account of any principal of, interest on, or premium payable in
connection with the optional prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Notes, (ii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities permitted pursuant
to Section 8.1, and (iii) trade payables incurred in the ordinary course of
business.
SECTION 8.8 CHANGES IN BUSINESS. Enter into any business which is
-------------------
substantially different from that presently conducted by the Consolidated
Companies taken as a whole.
SECTION 8.9 ERISA. Take or fail to take any action with respect to any
-----
Plan of any Consolidated Company or, with respect to its ERISA Affiliates, any
Plans which are subject to Title IV of ERISA or to continuation health care
requirements for group health plans under the Tax Code, including without
limitation (i) establishing any such Plan, (ii) amending any such Plan (except
where required to comply with applicable law), (iii) terminating or
55
withdrawing from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, without first
obtaining the written approval of the Agent and the Required Lenders, where such
actions or failures could result in a Material Adverse Effect.
SECTION 8.10 ADDITIONAL NEGATIVE PLEDGES. Create or otherwise cause or
---------------------------
suffer to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) the terms of any agreement,
instrument or other document pursuant to which any Indebtedness permitted by
Section 8.2(b) is incurred by any Consolidated Company, so long as such
prohibition or restriction applies only to the property or asset being financed
by such Indebtedness, and (ii) any requirement of applicable law or any
regulatory authority having jurisdiction over any of the Consolidated Companies.
SECTION 8.11 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
---------------------------------------------------------
COMPANIES. Create or otherwise cause or suffer to exist or become effective, any
- ---------
consensual encumbrance or restriction on the ability of any Consolidated Company
to (i) pay dividends or make any other distributions on such Consolidated
Company's stock, or (ii) pay any indebtedness owed to Borrower or any other
Consolidated Company, or (iii) transfer any of its property or assets to
Borrower or any other Consolidated Company, except any consensual encumbrance or
restriction existing under the Credit Documents.
SECTION 8.12 ACTIONS UNDER CERTAIN DOCUMENTS. Without the prior written
-------------------------------
consent of the Agent (which consent shall not be unreasonably withheld), modify,
amend, cancel or rescind the Intercompany Loans or any agreements or documents
evidencing or governing Subordinated Debt or the senior Indebtedness permitted
pursuant to Section 8.1 hereof (except that a loan between Consolidated
Companies as permitted by Section 8.1 may be modified or amended so long as it
otherwise satisfies the requirements of Section 8.1).
SECTION 8.13 DIVIDENDS. Borrower shall not declare or pay any dividend
---------
on its capital stock, or make any payment to purchase; redeem, retire or acquire
any of its capital stock or any option, warrant, or other right to acquire such
capital stock, other than:
(i) dividends payable solely in shares of capital stock; and
(ii) each dividend declared and paid, and all other such payments
made in any fiscal year, in an aggregate amount at any time not to
exceed 10% of Consolidated Net Income for said fiscal year;
56
provided, further, however, no such dividend or other payment may be declared
--------------------------
or paid pursuant to clause (ii) above unless no Default or Event of Default
exists at the time of such declaration or payment, or would exist as a result of
such declaration or payment.
SECTION 8.14 USE OF PROCEEDS. Use of the proceeds of the Loans for any
---------------
purpose except those set forth herein.
SECTION 8.15 CHANGES IN CONTROL OR OWNERSHIP. Without the prior written
-------------------------------
consent of the Agent, in its sole and absolute discretion, permit a change in
the ownership or control of the Borrower.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1 PAYMENTS. Borrower shall fail to make promptly when due
--------
(including, without limitation, by mandatory prepayment) any principal payment
with respect to the Loans, or any payment of interest, fee or other amount
payable hereunder;
SECTION 9.2 COVENANTS WITHOUT NOTICE. Borrower shall fail to observe or
------------------------
perform any covenant or agreement contained in Sections 7.7(h), 7.8, 7.11, 8.1
through 8.15;
SECTION 9.3 OTHER COVENANTS. Borrower shall fail to observe or perform
---------------
any covenant or agreement contained in this Agreement, other than those referred
to in Sections 9.1 and 9.2, and, if capable of being remedied, such failure
shall remain unremedied for 30 days after the earlier of (i) Borrower's
obtaining knowledge thereof, or (ii) written notice thereof shall have been
given to Borrower by Agent or any Lender;
SECTION 9.4 REPRESENTATIONS. Any representation or warranty made or
---------------
deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
SECTION 9.5 NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
----------------------------------
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations);
57
SECTION 9.6 DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated Company
-------------------------------
shall fail to observe or perform within any applicable grace period any
covenants or agreements (other than those referenced in Section 9.5) contained
in any agreements or instruments relating to any of its Indebtedness or any
other event shall occur if the effect of such failure or other event is to
accelerate, or to permit the holder of such Indebtedness or any other Person to
accelerate, the maturity of such Indebtedness; or any such Indebtedness shall be
required to be prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity;
SECTION 9.7 BANKRUPTCY. Borrower or any other Consolidated Company
----------
shall commence a voluntary case concerning itself under the Bankruptcy Code or
an involuntary case for bankruptcy is commenced against any Consolidated Company
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or any substantial
part of the property of any Consolidated Company; or any Consolidated Company
commences proceedings of its own bankruptcy or to be granted a suspension of
payments or any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction, whether now or hereafter in effect, relating to
any Consolidated Company or there is commenced against any Consolidated Company
any such proceeding which remains undismissed for a Period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed for
a period of 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 9.8 ERISA. A Plan of a Consolidated Company or a Plan subject
-----
to Title IV of ERISA of any of its ERISA Affiliates:
(a) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan, Section 412 of
the Tax Code or Section 302 of ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such Plan under applicable
law, the
58
terms of such Plan or Section 412 of the Tax Code or Section 303 of ERISA;
or
(b) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
(c) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code
or Section 306 or 307 of ERISA; or
(d) results in a liability to a Consolidated Company under applicable
law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect;
SECTION 9.9 MONEY JUDGMENT. A judgment, tax lien or order for the
--------------
payment of money shall be rendered against Borrower or any other Consolidated
Company and such judgment or order shall continue unsatisfied (in the case of a
money judgment) and in effect for a period of 30 days during which execution
shall not be effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
SECTION 9.10 OWNERSHIP OF CREDIT PARTIES. If Borrower shall at any time
---------------------------
fail to own and control the required percentage of the voting stock of any
Guarantor, either directly or indirectly through a wholly-owned Subsidiary of
Borrower;
SECTION 9.11 CHANGE IN CONTROL OF BORROWER.
-----------------------------
(a) Any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than forty percent (40%) of the shares
of the outstanding common stock of Borrower entitled to vote for members of
Borrower's board of directors; or
(b) any event or condition shall occur or exist which, pursuant to the
terms of any change in control provision, requires or permits the holder(s)
of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated in
any respect;
SECTION 9.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist or
------------------------------------
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases
59
to be in full force and effect or the validity or enforceability thereof is
disaffirmed by or on behalf of Borrower or any other Credit Party, or any Credit
Party seeks to cancel or terminate any Credit Documents or to limit its
liability thereunder, or at any time it is or becomes unlawful for Borrower or
any other Credit Party to perform or comply with its obligations under any
Credit Document, or the obligations of Borrower or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on Borrower
or any such Credit Party;
SECTION 9.13 ATTACHMENTS. An attachment or similar action shall be made
-----------
on or taken against any of the assets of any Consolidated Company and is not
removed, suspended or enjoined within 30 days of the same being made or any
suspension or injunction being lifted; then, and in any such event, and at any
time thereafter if any Event of Default shall then be continuing, the Agent may,
and upon the written or telex request of the Required Lenders, shall, by written
notice to Borrower, take any or all of the following actions, without prejudice
to the rights of the Agent, any Lender or the holder of any Note to enforce its
claims against Borrower or any other Credit Party: (i) declare all Commitments
terminated, whereupon the pro rata Commitments of each Lender shall terminate
immediately and any commitment fee shall forthwith become due and payable
without any other notice of any kind; and (ii) declare the principal of and any
accrued interest on the Loans, and all other obligations owing hereunder, to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Borrower; provided, that, if an Event of Default specified in Section 9.7 shall
occur, the result which would occur upon the giving of written notice by the
Agent to any Credit Party, as specified in clauses (i) and (ii) above, shall
occur automatically without the giving of any such notice.
ARTICLE X
THE AGENT
---------
SECTION 10.1 APPOINTMENT OF AGENT. Each Lender hereby designates
--------------------
SunTrust Bank, Central Florida, National Association as Agent ("Agent") to
administer all matters concerning the Loans and to act as herein specified.
Each Lender hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably to authorize, the Agent to take
such actions on its behalf under the provisions of this Agreement, the other
Credit Documents, and all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Agent may perform any of its duties hereunder by or through their
agents or employees. The provisions of this Section 10.1 are
60
solely for the benefit of the Agent, and Borrower and the other Consolidated
Companies shall not have any rights as third party beneficiaries of any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Agent shall act solely as agent of the Lenders and does not assume and shall
not be deemed to have assumed any obligations towards or relationship of agency
or trust with or for the Borrower and the other Consolidated Companies.
SECTION 10.2 NATURE OF DUTIES OF AGENT. The Agent shall have no duties
-------------------------
or responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. Neither the Agent nor any of its respective officers,
directors, employees or agents shall be liable for any action taken or omitted
by it as such hereunder or in connection herewith, unless caused by its gross
negligence or willful misconduct. The duties of the Agent shall be ministerial
and administrative in nature; the Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender; and nothing in this
Agreement, express or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations, in respect of this Agreement or the other
Credit Documents except as expressly set forth herein.
SECTION 10.3 LACK OF RELIANCE ON THE AGENT.
-----------------------------
(a) Independently and without reliance upon the Agent, each Lender, to
the extent it deems appropriate, has made and shall continue to make (i)
its own independent investigation of the financial condition and affairs of
the Credit Parties in connection with the taking or not taking of any
action in connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly provided
in this Agreement, the Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times
thereafter.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectability, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements, or any other documents contemplated hereby or thereby,
or the financial condition of the Credit Parties, or be required to make
any inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement, the Notes, the Guaranty
Agreements, or the other documents contemplated hereby or thereby, or the
financial condition of the Credit Parties, or the existence or possible
existence of any Default
61
or Event of Default; provided, however, to the extent that the Agent has
been advised that a Lender has not received any information formally
delivered to the Agent pursuant to Section 7.7, the Agent shall deliver or
cause to be delivered such information to such Lender.
SECTION 10.4 CERTAIN RIGHTS OF THE AGENT. If the Agent shall request
---------------------------
instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Agent
shall be entitled to refrain from such act or taking such act, unless and until
the Agent shall have received instructions from the Required Lenders; and the
Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
SECTION 10.5 RELIANCE BY AGENT. The Agent shall be entitled to rely, and
-----------------
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cable gram,
radiogram, order or other documentary, teletransmission or telephone message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person. The Agent may consult with legal counsel (including
counsel for any Credit Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 10.6 INDEMNIFICATION OF AGENT. To the extent the Agent is not
------------------------
reimbursed and indemnified by the Credit Parties, each Lender will reimburse and
indemnify the Agent, ratably according to the respective amounts of the Loans
outstanding under all Facilities (or if no amounts are outstanding, ratably in
accordance with the Total Commitments), in either case, for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct.
SECTION 10.7 THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
------------------------------------
obligation to lend under this Agreement, the Loans made by it and the Notes
issued to it, the Agent shall have the same rights and powers hereunder as any
other Lender or holder of
62
a Note and may exercise the same as though it were not performing the duties
specified herein; and the terms "Lenders", "Required Lenders", "holders of
Notes", or any similar terms shall, unless the context clearly otherwise
indicates, include the Agent in its individual capacity. The Agent may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust, financial advisory or other business with the Consolidated Companies or
any affiliate of the Consolidated Companies as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Consolidated Companies for services in connection with this Agreement and
otherwise without having to account for the same to the Lenders.
SECTION 10.8 HOLDERS OF NOTES. The Agent may deem and treat the payee of
----------------
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the
Agent. Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
SECTION 10.9 SUCCESSOR AGENT.
---------------
(a) The Agent may resign at any time by giving written notice thereof
to the Lenders and Borrower and may be removed at any time with or without
cause by the Required Lenders; provided, however, the Agent may not resign
or be removed until a successor Agent has been appointed and shall have
accepted such appointment. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent subject
to Borrower's prior written approval, which approval will not be
unreasonably withheld. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent subject to
Borrower's prior written approval, which approval will not be unreasonably
withheld, which successor Agent shall be a bank which maintains an office
in the United States, or a commercial bank organized under the laws of the
United States of America or any State thereof, or any Affiliate of such
bank, having a combined capital and surplus of at least $100,000,000. If
at any time SunTrust Bank, Central Florida, National Association is removed
as a Lender, SunTrust Bank, Central Florida, National Association, shall
simultaneously resign as Agent.
(b) Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights,
63
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this
Agreement.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1 NOTICES. All notices, requests and other communications to
-------
any party hereunder shall be in writing (including bank wire, telex, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Agent and Borrower. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (iii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and the appropriate
confirmation is received, or (iv) if given by any other means (including,
without limitation, by air courier), when delivered or received at the address
specified in this Section; Provided that notices to the Agent shall not be
effective until received.
SECTION 11.2 AMENDMENTS, ETC. No amendment or waiver of any provision of
---------------
this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i)
waive any of the conditions specified in Section 5.1 or Section 5.2, (ii)
increase the Commitments or other contractual obligations to Borrower under this
Agreement, (iii) reduce the principal of, or interest on, the Notes or any fees
hereunder, (iv) postpone any date fixed for the payment in respect of principal
of, or interest on, the Notes or any fees hereunder, (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number or identity of Lenders which shall be required for the Lenders or any
of them to take any action hereunder, (vi) release any Guarantor from its
obligations under any Guaranty Agreements, (vii) modify the definition of
"Required Lenders," or (viii) modify this
64
Section 11.2. Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of the
Agent under this Agreement or under any other Credit Document.
SECTION 11.3 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
------------------------------
part of the Agent, any Lender or any holder of a Note in exercising any right or
remedy hereunder or under any other Credit Document, and no course of dealing
between any Credit Party and the Agent, any Lender or the holder of any Note
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right or remedy
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Agent, any
Lender or the holder of any Note would otherwise have. No notice to or demand
on any Credit Party not required hereunder or under any other Credit Document in
any case shall entitle any 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, the Lenders or the holder of any Note to any other or further action in
any circumstances without notice or demand.
SECTION 11.4 PAYMENT OF EXPENSES, ETC. Borrower shall:
-------------------------
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Agent in the administration (both before and after the execution hereof and
including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agent and the Lenders with
respect thereto) of, and in connection with the preparation, execution and
delivery of, preservation of rights under, enforcement of, and, after a
Default or Event of Default, refinancing, renegotiation or restructuring
of, this Agreement and the other Credit Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Agent), and in the
case of enforcement of this Agreement or any Credit Document after an Event
of Default, all such reasonable, out-of-pocket costs and expenses
(including, without limitation, the reasonable fees actually incurred and
disbursements of counsel, including without limitation in-house attorneys'
fees), for any of the Lenders;
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.7(b), pay and hold each of the Lenders harmless
from and against any and all present and future stamp, documentary, and
other similar Taxes with respect to this Agreement, the Notes and any other
Credit
65
Documents, any collateral described therein, or any payments due
thereunder, and save each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay
such Taxes; and
(c) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement, the Notes, or the
other Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct;
(d) without limiting the indemnities set forth in subsection (c)
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before, during or after
any Credit Party's ownership, operation, possession or control of its
business, property or facilities or before, on or after the date hereof,
and including also any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the holders of any such
claim), lawsuits, liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without limitation
damages for contamination or destruction of natural resources), penalties
and fines of any kind or nature whatsoever (including without limitation in
all cases the reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred, suffered or
sustained by that Indemnitee based upon, arising under or relating to
Environmental Laws based on, arising out of or relating to in whole or in
part, the existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any related documents
(but excluding those incurred, suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the Lenders with respect to
any Subsidiary of Borrower (or the assets thereof) owned or controlled by
the
66
Lenders); provided, however, Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or wilful misconduct.
If and to the extent that the obligations of Borrower under this Section 11.4
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 11.5 RIGHT OF SETOFF. In addition to and not in limitation
---------------
of all rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's obligations hereunder
and under the other Credit Documents, all deposits of any Credit Party (general
or special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Lender or other
holder to any Credit Party, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify Borrower of any offset
hereunder.
SECTION 11.6 BENEFIT OF AGREEMENT.
--------------------
(a) This 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 Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of all the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of any of
its Commitments and the Loans at the time owing to it and the Notes held by
it) to any Eligible Assignee; provided, however, that (i) the Agent and
Borrower must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld or delayed) unless such
assignment is to an Affiliate of the assigning Lender, (ii) the amount of
the Commitments, in the case of the Revolving Loan Commitments and the Line
of Credit Commitments, or Loans, in the case of assignment of Loans, of the
assigning Lender subject to each assignment (determined as of the date the
assignment and acceptance with respect to such assignment is delivered to
the Agent) shall not be less than $5,000,000 (iii) the parties to each
such assignment shall
67
execute and deliver to the Agent an Assignment and Acceptance, together
with a Note or Notes subject to such assignment and a processing and
recordation fee of $3500. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Agent in connection with such assignment. From and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof,
the assignee thereunder shall be a party hereto and to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement. Notwithstanding the
foregoing, the assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of Commitments or
Loans, as the case may be, of $10,000,000; provided, however, no such
minimum amount shall be required with respect to any such assignment made
at any time there exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the Assignment and
Acceptance, Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for the surrendered Note or Notes, a new Note or Notes
to the order of such assignee in a principal amount equal to the applicable
Commitments or Loans assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments or amount of its retained Loans.
Such new Note or Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note or Notes, shall be
dated the date of the surrendered Note or Notes which they replace, and
shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower and the Agent,
sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments in the Loans owing to it and the Notes held
by it), provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article IV of this Agreement, and (iv)
Borrower and the Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the obligations of Borrower
relating to the Loans and to approve any amendment, modification or waiver
of any provisions of this Agreement. Any Lender selling a participation
hereunder shall provide
68
prompt written notice to Borrower and Agent of the name of such
participant.
(e) Any Lender or participant may, in connection with the assignment
or participation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrower or the other Consolidated
Companies furnished to such Lender by or on behalf of Borrower or any other
Consolidated Company. With respect to any disclosure of confidential, non-
public, proprietary information, such proposed assignee or participant
shall agree to use the information only for the purpose of making any
necessary credit judgments with respect to this credit facility and not to
use the information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed
participant or assignee shall agree in writing, a copy of which shall be
furnished to Borrower, not to disclose any of such information except (i)
to directors, employees, auditors or counsel to whom it is necessary to
show such information, each of whom shall be informed of the confidential
nature of the information, (ii) in any statement or testimony pursuant to a
subpoena or order by any court, governmental body or other agency asserting
jurisdiction over such entity, or as otherwise required by law (provided
prior notice is given to Borrower and the Agent unless otherwise prohibited
by the subpoena, order or law), and (iii) upon the request or demand of any
regulatory agency or authority with proper jurisdiction. The proposed
participant or assignee shall further agree to return all documents or
other written material and copies thereof received from any Lender, the
Agent or Borrower relating to such confidential information unless
otherwise properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Notes issued to it to a Federal Reserve Bank;
provided that no such assignment shall release the Lender from any of its
obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.7(b) have been levied or
imposed so as to require withholdings or deductions by Borrower and payment
by Borrower of additional amounts to any Lender as a result thereof, (ii)
any Lender shall make demand for payment of any material additional amounts
as compensation for increased costs pursuant to Section 4.10 or for its
reduced rate of return pursuant to Section 4.16, or (iii) any Lender shall
decline to consent to a modification or waiver of the terms of this
Agreement or the other Credit Documents requested by Borrower, then and in
such event, upon request from Borrower delivered to such Lender and the
Agent, such Lender shall assign, in accordance with the provisions of
Section 11.6(c), all of its rights and
69
obligations under this Agreement and the other Credit Documents to another
Lender or an Eligible Assignee selected by Borrower, in consideration for
the payment by such assignee to the Lender of the principal of, and
interest on, the outstanding Loans accrued to the date of such assignment,
and the assumption of such Lender's Total Commitment hereunder, together
with any and all other amounts owing to such Lender under any provisions of
this Agreement or the other Credit Documents accrued to the date of such
assignment.
SECTION 11.7 GOVERNING LAW; SUBMISSION TO JURISDICTION.
-----------------------------------------
(A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF FLORIDA.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT OF
ORANGE COUNTY, FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF
THE UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING UNDER OR
IN CONNECTION WITH THIS AGREEMENT, OR ANY OTHER CREDIT DOCUMENT OR ANY
DOCUMENT RELATED THERETO.
(C) BORROWER AND GUARANTORS FURTHER IRREVOCABLY CONSENT TO THE SERVICE
OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO BORROWER AND/OR EACH SUCH GUARANTOR AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE
BORROWER AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION EITHER OF THEM MAY HAVE TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
--------------------
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS AGREEMENT, ANY OTHER
CREDIT DOCUMENT OR ANY DOCUMENT RELATED THERETO.
(D) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER,
ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION.
SECTION 11.8 INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts payable
-------------------------------------
at any time hereunder to each Lender shall be a
70
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights pursuant to this Agreement and its Notes, and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
SECTION 11.9 COUNTERPARTS. This Agreement may be executed in any number
------------
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 11.10 EFFECTIVENESS; SURVIVAL.
-----------------------
(a) This Agreement shall not become effective until the date (the
"Effective Date") on which all of the parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and the
signature of the Borrower shall not be effective until after execution
hereof by all the Lenders and acceptance of delivery of this Agreement by
the Agent (or an agent of the Agent) pursuant to Section 5.1.
(b) The obligations of Borrower under Sections 4.7(b), 4.8, 4.10,
4.12, 4.16, and 11.4 hereof shall survive for one hundred twenty (120) days
after the payment in full of the Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement, the other Credit
Documents, and such other agreements and documents, the making of the Loans
hereunder, and the execution and delivery of the Notes.
SECTION 11.11 SEVERABILITY. In case any provision in or obligation under
------------
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 11.12 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be
-------------------------
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitation of, another covenant, shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 11.13 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX LAWS.
--------------------------------------------------------
If (i) any preparation of the financial statements referred to in Section 7.7
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required
71
by the Financial Accounting Standards Board or the American Institute of
Certified Public Accounts (or successors thereto or agencies with similar
functions) (other than changes mandated by FASB 106) result in a material change
in the method of calculation of financial covenants, standards or terms found in
this Agreement, (ii) there is any change in Borrower's fiscal quarter or fiscal
year as provided herein, or (iii) there is a material change in federal tax laws
which materially affects any of the Consolidated Companies' ability to comply
with the financial covenants, standards or terms found in this Agreement,
Borrower and the Required Lenders agree to enter into negotiations in order to
amend such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating any of the Consolidated Companies,
financial condition shall be the same after such changes as if such changes had
not been made. Unless and until such provisions have been so amended, the
provisions of this Agreement shall govern.
SECTION 11.14 HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of the
--------------------------------------
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement. This Agreement, the other Credit Documents, and
the agreements and documents required to be delivered pursuant to the terms of
this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
SECTION 11.15 TIME IS OF THE ESSENCE. Time is of the essence in
----------------------
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.16 USURY. It is the intent of the parties hereto not to
-----
violate any federal or state law, rule or regulation pertaining either to usury
or to the contracting for or charging or collecting of interest, and Borrower
and Lenders agree that, should any provision of this Agreement or of the Notes,
or any act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or charged or collected
over the maximum lawful rate of interest shall be applied to the outstanding
principal indebtedness due to Lenders by Borrower under this Agreement.
SECTION 11.17 CONSTRUCTION. Should any provision of this Agreement
------------
require judicial interpretation, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be more strictly construed against the
party who itself or through its agents prepared the same, it being agreed that
Borrower, Agent, Lenders and their respective agents have participated in the
preparation hereof.
72
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Orlando, Florida, by their duly authorized
officers as of the day and year first above written.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
73
[SIGNATURE PAGE TO
AMENDED AND RESTATED REVOLVING CREDIT
AND LINE OF CREDIT AGREEMENT
BETWEEN SUNTRUST, AS AGENT
AND ROTECH MEDICAL CORPORATION]
BORROWER:
Signed, sealed and delivered ROTECH MEDICAL CORPORATION
in the presence of:
_______________________________ By:_____________________________
Name: Stephen P. Griggs,
President
_______________________________ (CORPORATE SEAL)
Name:
4506 L.B. McLeod Road
Orlando, Florida 32811
-------------------------------
Address
74